Blogger Michael Triplett was driving home while listening to an NPR story about gay marriage when he heard something that gave him pause.
Reporter Karen Grigsby Bates was describing U.S. District Court Judge Vaughn Walker's decision to overturn California's Proposition 8, which banned same-sex marriage. [His decision is now on appeal.]
At the end of an interview with All Things Considered (ATC) host Melissa Block, Grigsby Bates added:
Walker "is a really interesting guy, Melissa," she told Block. "He was appointed by the first President Bush – George H.W. Bush. He is generally considered to be very thoughtful, very thorough. And he's gay. He's gay and out."
Paul Chinn/San Francisco Chronicle/AP
Judge Vaughn Walker in his chambers at the Phillip Burton Federal Building in San Francisco, Calif., 2009
Judge Vaughn Walker in his chambers at the Phillip Burton Federal Building in San Francisco, Calif., 2009 Paul Chinn/San Francisco Chronicle/AP
That was news to Triplett, who is gay. He's also a lawyer who writes about gay issues and serves on the board of the National Lesbian and Gay Journalists Association.
"I really don't think it's ever been verified as a fact that Judge Walker is gay," said Triplett, who later wrote that the judge's sexuality, whatever it is, should not be a public issue. "He's never spoken on the record about it. The way Karen said it was clearly that she viewed it as not a big deal."
Saying matter-of-factly that Walker is gay, without his confirmation, violates NPR's policy against publishing or airing rumors, allegations or reports about private lives of anyone unless there is a compelling news reason to do so.
Deciding when there is a compelling news reason to mention someone's sexual orientation is a tough ethical decision.
But, in a case such as this, the first obligation is to verify that the person is gay and that can only come from Walker or close personal friends or family who are quoted by name. As far as I could determine, Walker has never openly said he is gay.
That Walker is gay seems to be an accepted fact among some news media. In February, a column in the San Francisco Chronicle said that Walker's sexual orientation was an "open legal secret."
The column did not quote anyone on the record who knew for a fact that Walker is gay. When I asked about sources, NPR cited the Chronicle column, a dozen or so Internet links to show it was widely discussed in California and gay press – and that Walker isn't denying it.
Almost all links NPR provided referred back to the Chronicle story. A New York Times profile of Walker said "published reports have stated that the judge is himself gay." For evidence, the Times cited the Chronicle. If nothing else, this demonstrates how one report, once posted on the Internet, can become an accepted "fact" that is then picked up endlessly.
"Both the SF Chronicle and The LA Times, as well as other national publications, have done stories in recent months about him, characterizing him as openly gay," said NPR west coast editor Philip Bruce, in an e-mail. "So have lots of smaller Bay Area papers. On the afternoon of the ruling, CNN's Gloria Borger was among many who described the judge as gay.
"For months," he added, "the blogosphere—-including many gay and lesbian publications—-have been filled with speculation that the right would attack the Judge because of his sexual orientation."
ATC host Melissa Block said she first heard about Walker being gay from Grigsby Bates. On a follow-up story after the decision, Block wrestled with the question of whether Walker is out and, if so, what does that mean?
"I had seen a reference in the Washington Post that morning (Aug. 5) that said he had neither confirmed nor denied public reports," Block told me, "so given what we had reported the night before, I had been struggling to figure out a few things beforehand."
NPR's library provided her with links to two Los Angeles Times stories that flatly stated Walker was gay; neither story provided sources. Block also interviewed David Levine for the Aug. 5 show. He's a law professor at the Hastings College of Law, who supports same-sex marriage and provides legal analysis on Prop 8. He cites the Chronicle.
BLOCK: And [Walker] is, according to numerous published reports, himself gay.
Prof. LEVINE: Yes. Certainly, that's common knowledge in San Francisco. It was in the San Francisco Chronicle. And when that came out in the newspaper, all the lawyers in the case, you know, I think it's fair to quote "Seinfeld" and just say, they all thought, not that there's anything wrong with that. The defenders of Proposition 8 certainly could have raised that to the court as a basis for disqualifying Judge Walker, and they just let the issue of his sexuality slide. I mean, everybody has a sexuality. You have one. I have one. And you have to be able to decide cases.
Block said Levine's comments in a pre-interview helped her feel comfortable mentioning Walker's sexual orientation on air. She felt since supporters of a ban on gay marriage brought up whether Walker should have recused himself, that that elevated the discussion beyond speculation to the case itself.
"It had been widely reported in the California press," she explained via email. "Those people following the story closely – including the parties involved – would most likely have known it. It seemed to me an omission to NOT bring it up, that that would give the impression of us withholding information for no good reason."
But let's say he is openly gay, so what? Is Walker's sexual orientation relevant to the story about Proposition 8?
No, in my view it clearly is not.
The real issue is the law: Is the voter-approved ban on gay marriages constitutional, and how well-reasoned is the judge's 136-page decision overturning that ban? His sexual orientation has nothing to do with these legal questions. [Read decision]
It only becomes relevant if there is a conflict of interest, and then the news media is obligated to report it.
"If the judge had actively participated in the Prop 8 debate in some fashion – fundraising for advocates or opponents – that would be significant," said Bob Steele, an ethicist with the Poynter Institute. "Such activism would likely disqualify him from this case no matter what his sexual orientation."
If the judge confirmed he is gay that might be an interesting factoid. But since we expect judges to be impartial – even though all judges have some conflict – then it's wrong to assume Walker or any judge can't be objective on a topic that may have something to do with his personal life.
The "buzz" about Walker's sexuality did become relevant after Prop 8 supporters lost and then said they didn't get a fair shot because the judge is "openly gay."
Even so, Walker's sexual orientation is a side issue. At the most, a new organization could mention briefly that it is being reported without confirmation and move on.
In May 2009, NPR was criticized for not reporting charges in the movie review of Outrage that certain closeted gay politicians vote and campaign against gay interests and are protected by the mainstream media. Then, NPR said it would not use the names because the politicians are entitled to privacy about their sex lives unless it's relevant to the news.
If NPR wouldn't publish the name of a particular politician mentioned in the movie review of Outrage because he has not acknowledged he is gay, why is it OK to mention Walker's sexual orientation? Similarly, why did NPR apologize for saying an actress is gay because she has not confirmed it?
In another story, when someone is openly gay and it is relevant to the story, NPR did not mention that fact.
This happened with Mary Kay Henry, who in May was elected president of the 2.2-million-member Service Employees International Union. Henry was the first woman elected to that post and has been out and fighting for gay rights throughout much of her life.
She is also a founding member of SEIU's gay and lesbian Lavender Caucus. NPR did a May 12 mini-profile of her but didn't include that fact. Correspondent Don Gonyea said he didn't because the story was about challenges facing Henry and not a full-fledged profile of her. But it did have biographical material and, I think, mentioning she's a lesbian would have added another dimension to the story.
Talking about someone's sexual orientation can be uncomfortable, raises difficult ethical questions – and, as NPR's policy says, should be done only when there is a compelling news reason.
But since NPR does not seem to be following its own policy consistently, the company should clarify it and make sure all staffers understand the rules on how to report on issues of people's private lives, including their sexual orientations.