Hamilton Nolan's "Press subpoenas are a wake-up call for PR," (PRWeek, May 11) addresses certain First Amendment issues of speaking to the media and raises the challenges of protecting sources.
The practical answer for anyone conducting media relations who is concerned about a subpoena is to know when and how to go off the record strategically and to understand a 1991 US Supreme Court ruling, Cohen v. Cowles Media Co., publisher of the Minnesota newspapers the St. Paul Pioneer Press and the Star Tribune. I include this information in Courting the Media: Public Relations for the Accused and Accusers, a book I just completed to be published by Praeger Publishers this year.
The Cohen case is taught in journalism classes today. It provides a road map for establishing a confidential exchange of information with a reporter.
Indiana University professor Jon Dilts, a lawyer and former journalist, calls the Cohen decision "the only real leverage that someone has who wants to be a confidential source."
PR pro Dan Cohen, working on a political campaign, released information about a candidate's arrest record to reporters who agreed the information was provided off the record. The editors at the newspapers decided to reveal Cohen's identity because they questioned his motives. After he was revealed as the source in a published story, Cohen was fired. He sued the papers' parent company and, on appeal, won compensatory and punitive damages.
The court ruled that Cohen had an unwritten contract with the papers and his verbal contract with the reporters was violated. After several reversals and appeals, the US Supreme Court upheld the $200,000 in compensatory damages.
The way to go off the record is to establish a clear understanding, a verbal contract that the media will not reveal the source. This is not done by saying, "This is off the record," and launching into the details. First, establish that such an understanding exists. "What I am going to tell you is off the record. Do you agree?" Then wait for the answer. To be really cautious, after a reporter agrees, confirm it. "So what I will tell you will be kept in confidence. Do you promise?"
Ask the reporter how far he or she will go to protect you as a source. If you are dealing with a particularly sensitive matter, ask to hear assurance from the reporter's editor.
There is an exception. In our post-9/11 world, if a PR pro reveals the identity of undercover operatives, thus endangering their lives, the Cohen decision is not applicable.
But how many PR pros are in the business of outing undercover agents? For the 99.9% of us who conduct media relations for clients, understanding Cohen and using the proper off-the-record process make subpoenas highly unlikely.