Does No Mean No?   

A former journalist says she doesn’t want to be interviewed, but then talks freely. Should the interviewer have used her remarks?

One of a reporter's basic tasks is to keep a source talking, to get past the initial refusals and hesitations and score an interview.

But what if the source is a former journalist who believes her conversation with a columnist is just a friendly talk between colleagues, not an on-the-record interview?

T.T. Nhu, a one-time San Jose Mercury News columnist who went on to work as a press secretary for Oakland Mayor Jerry Brown, says she was reluctant to return calls from Scott Herhold, a Mercury News columnist, but she did so out of politeness. (The pair had never met at the newspaper.) Herhold wanted to talk about Nhu's decision to move back to her native Vietnam, a choice partially driven by her disappointment over the November presidential election results. Nhu told him she didn't want to be interviewed.

Then she proceeded to talk. In a highly quotable way. "I didn't say the magic words 'off the record,' because I'd already said 'no' to him," Nhu says. "Because he's a colleague in the newspaper business, I spoke to him frankly like I'm speaking to you. I didn't know he was writing it down."

Herhold did take down what Nhu had to say, not hiding the fact that he was typing, but, he says, "I wasn't advertising it either." Herhold devoted his November 28 column to Nhu and her decision to leave the country. The piece was important, Herhold says, because "it said something about the way people felt after the election of George W. Bush. I was trying to be sympathetic to her. I'm not quite sure why she's reacted this vehemently." He acknowledged Nhu's reluctance to talk in the first line: "T.T. Nhu really didn't want to talk to me."

Herhold then quoted Nhu as saying, "My animosity to America has been growing. America is such an incredible bully. It's doing the same things in Iraq that it did in Vietnam. America always comes down on the wrong side of things."

"It's bullying coupled with the vast ignorance of its people, who are anesthetized by television," he further quoted Nhu. "It's all about Halliburton, it's all about oil, it's all about Israel... People miss the subtleties, the nuances. All they can see is freedom on the march."

Nhu, who learned she had been the focus of the column when she saw a copy of the newspaper in an airport trash bin, was outraged. She fired off a letter to the editors, calling herself the "unwilling subject" of the column, pointing out two factual errors and saying that "it would be appropriate for the paper to publish this letter, without comment in a prominent place noting that the paper accepts the corrections and that it and Herhold regret his errors and his inappropriate use of information received that he knew that it was intended to be off the record."

The Mercury News did publish a correction for the two factual errors. But not the letter.

Herhold says he did nothing wrong. (Nhu admits that he quoted her accurately.) Although Nhu initially said she did not want to talk, "I stayed on the line and asked questions," Herhold says. "I did not say this was off the record or anything of the sort."

"One of the things you have to understand when interviewing is, 'What is the sophistication of the person on the other end of the line?'" he says. "A lot of the time, you give them a break because they're not sophisticated [about journalism]. I think T.T. Nhu is plenty sophisticated."

Herhold disagrees with Nhu's argument that she was a private citizen making a private decision to move out of the country. Her positions as a columnist and a press officer make her "of some high profile," he says. And, he says, Nhu signed off the conversation by saying something he thought implied it was OK to write about her: "The sense of it was, 'Take that for what you will.' To me, that was a clear understanding that she knew what I was doing."

(Herhold's editor, Rebecca Salner, left AJR a message saying she believed an interview with Herhold was sufficient for this story.)

Mercury News general assignment reporter Dan Reed, a friend of Nhu's, says he initially encouraged her to talk to Herhold, but she insisted her decision to move was private--not something she wanted to discuss publicly. That's why Reed was surprised to see the column. And when he heard Nhu's version of events, he was also upset.

"It struck me that if it were on the record, he would have been able to more freely fact-check things. The fact that mistakes were made suggests to me, again suggests, that perhaps he was not being forthcoming about the fact that he was going to write this," Reed says. "If he was not being sneaky, he would have interviewed her directly. I don't think he did that."

Edward Wasserman, who teaches journalism ethics at Washington and Lee University, says Nhu's story provided "a way of making a point the columnist wanted to make so it was a very attractive column to write." But the somewhat incendiary tone of Nhu's words would have concerned him if he were editing the piece. "I think I would be somewhat concerned that this person has kind of unburdened herself as if to a colleague. I would be a little bit concerned that she was certainly being imprudent."

At the same time, he says, "I'm sympathetic. He didn't have a clear embargo. He didn't have a clear no-go... She didn't use the magic code words"--off the record-- "so the questions then become, 'Was there any ambiguity in his mind?' and 'Where is it that you can, in the course of an interview, confirm this is on the up and up? You can ask for a spelling, you can verify details, the kind of thing that makes it clear to the person you're talking to that you're trying to get the facts right. It seems to me the most he can be reproached for is choosing to benefit from the ambiguity."

Paul McMasters, First Amendment ombudsman for the Freedom Forum's First Amendment Center, agrees it's the journalist's responsibility to ensure that interview subjects know whatever they say could end up in print.

"The public should assume a journalist is never off-duty. The journalist should always make clear that they're taking notes and are prepared to write a story or a column based on the conversation going on at that moment," McMasters says. "That's why there should be a sign in the newsroom that everyone sees once or twice a day, 'Make sure both sides are playing by the same rules during an interview.'"

Speaking generally, McMasters says every journalist has been "in that complicated terrain where one side thinks one thing and the other side thinks another. Most journalists go by the creed 'When in doubt, leave it out.'.. On the other hand, I think every journalist has been in a situation where a source knew fully well what he or she was saying, regretted it and tried to shift the blame to the journalist."

Nhu, who has now moved to Vietnam, maintains she was "ambushed." She considered legal action against the newspaper but decided not to pursue it since she was leaving the country. What she really wants, she says, is an apology, in print.

"I want the paper to acknowledge the fact that when someone says 'no,'" she says, "they should respect that decision."