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The Complicated Ethics Of ‘Serial,’ The Most Popular Podcast Of All Time

Hae Min Lee was murdered in 1999. She was a senior in high school. She was strangled. Her ex-boyfriend, Adnan Syed, was convicted of the crime and sentenced to life in prison. End of story. Except that it isn’t: in 2013, a friend of Syed’s contacted reporter Sarah Koenig, imploring her to reinvestigate the crime. (Syed, as well as his friends and family, have always maintained his innocence.) Koenig, along with her colleagues at This American Life, turned her findings into a podcast that quickly became a cultural phenomenon: Serial. Serial, now the most popular podcast ever, airs the evidence in real time — though Koenig has been researching the story for months, she isn’t done reporting; she introduces new material as she finds it — in weekly installments.

Koenig is a journalist, but the way she guides listeners through the story isn’t strictly journalistic. By employing a multitude of tactics typically utilized in fiction — cliffhangers, hunches, personal asides — Koenig’s narration lands somewhere between straight reporting and something more personal. The story is just as much the story of Koenig’s reporting as it is the story of Hae’s murder. Serial‘s unconventional structure and tone land it in a kind of ethical grey area. Is there something a little off about Serial?

I consulted with three media ethics experts. Jane Kirtley, Silha Professor of Media Ethics and Law at the University of Minnesota’s School of Journalism and Mass Communication, Donna Leff, a journalism professor at Northwestern’s Medill School of Journalism, and Edward Wasserman, Dean of the UC Berkeley Graduate School of Journalism.

I also contacted Serial to get their take, but a producer said they were too busy working on the next episode to weigh in.

The Serialization Problem, Part One: The Potential For Accidental Defamation

Wasserman couldn’t think of another case like Serial — reporters releasing the information they uncover as it’s being uncovered, without knowing how the story is going to end — outside of the realm of breaking news stories. “It’s kind of without precedent,” he said. “Let’s think through this. What would be the downside of that? The downside is [if] there are speculations that are being raised that are defamatory, and turn out to be false. That’s a concern. You don’t want to be giving voice to things because they’re plausible, or they’re possible, if they turn out to be false. As a reporter, you’re certainly going to have these kinds of speculations. That’s what’s going to drive your reporting: developing those hypotheses and testing them. But when you’re raising doubts about people’s truths and integrity that may turn out to be baseless, and it’s playing out publicly, that’s a concern.”

Even if Koenig couches her suspicions in disclaimer-speak — “I have a hunch that” or “what if?” or “My gut is telling me…” — Wasserman said, the “genuine concern” remains. “It’s not a complete defense to say, ‘I’m just raising these as hypotheticals; I’m not saying it’s true.’ Because raising a hypothetical that [someone] is a lying sack of shit, and making it public, it’s leaving a question out there that may turn out to be groundless. That is a valid concern.”

Is there any solution to that problem besides changing the nature in which the series is produced? In other words, is the only way to prevent this to produce the entire series in advance before airing a single episode? “This may be the old school me speaking, but I would be more comfortable with that,” Wasserman said, allowing that such a fundamental shift would mean “you lose a certain amount of dramatic edge.”

“But I would not like to think that we’re raising questions about people’s honesty, and we’re raising questions about whether this person was an accomplice and a murderer, without having come to some conclusions in our own mind whether they’re valid concerns to raise. If I were Ira, I would be much more comfortable letting this thing run its course, then going back and looking at earlier episodes in light of what we now know. My concern would not be that speculations are inappropriate to share; if your show was just your conclusion, you would’t have a show. This is a totally riveting experience. But I do think there are dangers of collateral harm being done to people en route to that conclusion.”

“Gratuitous defamation is something that should be avoided,” he said. “And it’s unavoidable when the reporter is thinking out loud en route to that conclusion.”

Serial allows listeners a tremendous amount of insight into the investigative process: how complicated it can be, how unruly, how involved, how tedious. For an audience used to digesting crime stories in hour-long Law and Order segments, seeing the “work in progress” is “probably interesting and intriguing to the public,” said Kirtley. “The problem with that, and the reason news organizations don’t do it, is that you’ll find inconsistencies. You’ll find people lied to you; you’ll find you overlooked a piece of information, and you may have to reassess or revamp your story. I’m not saying it’s unethical per se, just that there are these potential pitfalls.”

The Serialization Problem, Part Two: The Reverb Risk

Nearly half an hour into our conversation, Wasserman, who didn’t know Koenig and her team are still actively investigating Hae’s murder until he got my email, was “still scratching my head about this fact that they’re not done. The other element of that that bothers me, the people who she’s talking to are hearing this. So you have this problem of reverb: the problem of the reporting she’s doing now interacting with the reporting she’s going to do tomorrow. It’s bound to influence the kind of accounts they’re getting from people going forward.” That’s already proven to be true; in today’s episode, Koenig speaks with someone who reached out to NPR after listening to earlier episodes of Serial, because she wanted to share her own memories of a phone booth (or lack thereof) at the Best Buy that features prominently in the state’s timeline of Hae’s murder.

Koenig, said Wasserman, has “aired her doubts, so the people shes going back to going forward know what those doubts are. That’s a serious problem of having your footprints and fingerprints all over this story in a very postmodern way: the telling of the story influencing the story as its unfolding… The nature of what she has access to is being decisively shaped by her earlier knowledge and her hunches and what it means.”

The people Koenig is still interviewing, or has yet to interview, are “for sure” going to be influenced by what they’ve heard, said Wasserman. “It’s going to [lead them to think], ‘maybe he’s right, maybe it wasn’t that way, maybe it’s this way.'” This renders the already-unreliable nature of memory even less trustworthy than before. “Why do you separate witnesses for a trial? You don’t let them in the courtroom so they can hear what other people are saying for a reason… Here, they’re hearing what other people are saying and what the reporter thinks about what they’re saying. That’s a cognitive mess. And I think that’s, to some degree, an even more serious reporting problem than the earlier one I was raising, the problem of fairness and defamation. Think of the number of times she’s speculating about whether somebody just lied to her. That’s not very nice, particularly if you’re telling the truth!”

The Serialization Problem, Part Three: Cliffhangers, Withholding Facts For Drama, And Other Questionable Storytelling Techniques

Serial is a real murder case that plays out like a television crime drama. “I’ve been thinking hard about whether or not that was actually unethical,” said Leff. “And I don’t think it is. I think it’s storytelling, and they can tell the story however they choose to tell it.” As long as all the facts are, well, factual, there’s nothing inherently unethical about employing the tools of fiction to make the narrative more compelling. “I’m a big advocate of storytelling. I think storytelling is wonderful and essential and it’s what makes people want to hear and listen, and I think that’s what’s given this so much traction. And storytelling is a device as old as journalism– as old as people.”

“I think that all journalists have the obligation, first and foremost, to tell the truth. I don’t think there is much else,” said Leff. “The rest is art. And the art of how you do a radio program, whether you want to tease the listener, those are questions of taste and art and narrative arc, but I don’t think they’re about ethics.”

There is, as Kirtley puts it, that Nixonian question of “what did Koenig know and when did she know it?” “This is that whole discussion of whether she’s got more information that she’s not telling us; that this is not really ‘as it develops,’ but rather, it’s being crafted into a compelling narrative. It’s really hard to say.”

To borrow a Koenig technique, let’s just say she does have suspicions that she isn’t sharing. Assume, for a moment, she has determined who the killer is, and the killer isn’t Adnan; the killer is someone out there, walking around freely, going to PTA meetings and shopping at Ikea, a murderer mingling with the masses. Is there a world in which it’s kosher for Koenig to withhold that intel until the season finale?

“From a purely journalistic perspective, I don’t think that that would be acceptable: to have verified knowledge, that you’re satisfied these facts are true -– I’m not talking about speculation or you subsequently find it’s wrong –- that, as of today, you’re convinced fact X is the case, and you withhold that from your listeners or readers for the purpose of making your story more compelling, that is an ethical problem,” said Kirtley. “It’s great for storytelling! It’s great if you’re Charles Dickens. It’s fine if you’re a dramatist or a fiction writer and you want to do that. But from a journalistic standpoint, I’m bothered by it, because it seems to me that it’s really unfair to the listener. It’s bait and switch, in some sense, to say, ‘stay on the edge of your seat because there’s something coming that I’m not going to tell you right now.’ I understand it from a dramatic, narrative perspective; I just don’t think it’s good journalistic practice.”

That said, “obviously anyone who works on a long term story knows there are times when you think you’ve got all your ducks in a row, and something comes in and changes all of that. And there’s nothing wrong with that.”

But that problem — the “surprise! Here’s a new duck for that row of yours” conundrum — isn’t inherent to all investigative reporting, just to reporting that’s being produced in the manner that Serial is. “If you’d been working on an investigative package like this for eight months, and you reached your conclusion, you wouldn’t keep the punchline secret at the beginning,” said Kirtley. “I don’t think there’s any problem with continuing your investigation, but I don’t like the idea of keeping core information away from the listener.”

The ‘Seriously though, what is Jay’s last name?’ Problem

Kirtley “noticed right away” that Koenig not only never mentioned Jay’s last name but that she has yet to acknowledge or explain this omission. Kirtley is a former director of the Reporters Committee for Freedom of the Press; before that, she was an attorney. “As a lawyer vetting a story like this, I would be very anxious about the uneven use of full identifiers.” For one thing, “I’m losing track of who all these Patricks are.” And, more to the point, “She’s been selective in who she fully identifies and who she uses just a first name or, for all I know, it’s an alias, and it’s always problematic to have sources or subjects who are not fully identified. It has the potential to undermine credibility. It has the potential to be misleading. From a purely journalistic perspective, it’s something one would try to avoid: you try to fully identify all of your sources and news subjects.”

“In a couple of instances, she’s been making what I would characterize at least potentially libelous allegations about people,” said Kirtley. “The idea that, ‘If I don’t give the whole name, there’s not anybody that can sue me,’ that’s not entirely true… The fact that you don’t fully identify somebody doesn’t mean they’re not fully identifiable.”

The ‘Hae Is A Real Person With A Family’ Problem

On Tuesday, a man claiming to be Hae’s brother posted a message on Reddit about the production of and reaction to Serial. In it, he requested that no one ask him any questions because “TO ME ITS [sic] REAL LIFE. To you listeners, its another murder mystery, crime drama, another episode of CSI… You don’t know what we went through. Especially to those who are demanding our family response and having a meetup… you guys are disgusting. SHame on you. I pray that you don’t have to go through what we went through and have your story blasted to 5mil listeners.”

What does that mean, for This American Life and for the millions of people tuning in every week? Are listeners and producers alike, to paraphrase from Reddit, complicit in a shameful act?

“If you’re the victim’s family, you hate that they’re doing this,” said Leff. “But that doesn’t make it unethical. Unfortunately, when you become a crime victim, you become a public figure in a way that you don’t want to be and that you never would have intended.” Unfortunate? Yes. Unethical? Not so much.

That Serial is produced for maximum entertainment value — employing a catchy theme song, ending every episode with a teaser to next week’s installment — might read as insensitive, and Hae’s brother, said Leff, is perfectly within his rights to think so. “Nobody [in his position] wants this story told like this,” Leff said.

“The issue that Hae’s brother raises is almost endemic to journalism,” said Wasserman. “We tell ourselves we’re in the business of telling stories, but that means converting people’s experiences and realities into narratives. And we’re doing it because there’s certain elements of those experiences we find will be interesting to other people. There is a kind of objectification of other people unavoidable in that.” A reporter’s only obligation, he said, “is to treat people with dignity and respect, to not take liberties, to not pillage their personal lives for no reason, to not take cheap shots, to give them their fair due. That may sound like a hopelessly traditional approach. But the reporter, in this instance, has done that.”

“Hae doesn’t have privacy interests anymore,” said Kirtley. “There’s no libel of the dead in the United States.”

The First Person Problem

Though Serial is ostensibly a story about Hae and Adnan, our main character is really Koenig: it’s her voice we always hear, her thoughts to which we are always privy. We never know anything before she knows it; she shares her suspicions, her nerves, her anxieties, her fears. She even tosses out little asides about things which are completely unrelated to her reporting. One of the most classic rules of journalism — the reporter is not the story; the story is the story — seems to be impossible for Serial to follow.

That isn’t really a red flag for Wasserman. “I think that that particular principle is one that skillful journalists have compromised for decades now, ever since the New Journalism, when the ban on first person was relaxed. I think putting yourself in a forthright way in the narrative is something [that] can work. There’s always a fear that she’s going to be worrying about how she looks and how she sounds, and she may be customizing her comments just in terms of burnishing her own on-air persona… So the danger of this is that this becomes a vehicle for her. But I haven’t seen that.”

“I’m not going to say that you can’t do solid journalism in the first person, because I think that you can,” said Kirtley. But “it’s harder for editors to do their due diligence” when they’re fact-checking that kind of piece. “You are putting an awful lot of trust, I would suggest, in this journalist… If you’re listening to a regular NPR news story, you’re expecting that somebody has asked the questions of the reporter: ‘How do you know this? How’d you determine this? What steps did you take to verify this?’ It isn’t clear to me that that kind of thing always happens when you’re dealing with a first person narrative.”

Of course, it’s hard to know exactly what to make of Serial — ethically or otherwise — until we know how the series ends. Koenig says she expects it to last about a dozen episodes. The next one, Episode 10, is scheduled to be released on December 4.

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