A newspaper’s case for breaking the law
The children and their father wanted their names used in the story; the law said no. Was there an ethical justification for using their names?
By Sheldon MacNeil
Sheldon MacNeil is managing editor of The Whig-Standard, Kingston, Ontario.
Author bio information is from the time of article submission and may not be current.
Source: FineLine: The Newsletter On Journalism Ethics, vol. 2, no. 6 (September 1990), p. 5.
This case was produced for FineLine, a publication of Billy Goat Strut Publishing, 600 East Main Street, Louisville, Kentucky 40202. Reprinted with the permission of Billy Goat Strut Publishing. This case may be reproduced for classroom and research purposes. Publication of this case in electronic or printed form requires written permission from the publisher and Indiana University. An exception is granted for use in readers designed for specific academic courses.
Julia Sarwer, 13, and her brother, Jeff, 11, are well-known across North America as wunderkinds of the chess world. They’ve been written about in newspapers and in Time, Rolling Stone, Sports Illustrated and Vanity Fair; they’ve also appeared as chess commentators on New York City’s PBS station.
Jeff and Julia are unusual for other reasons: They do not attend school; they have no permanent address; they despise their natural mother and idolize their father, Mike, a 39-year-old Canadian who lives a gypsy’s life.
Mike Sarwer doesn’t believe in work; he doesn’t believe in formal education; he doesn’t believe in the system. He lives here and there: Ottawa, Toronto, New York City and, most recently, in Kingston, Ontario.
Virtually all of the publicity about the Sarwer kids is about their chess prowess: Jeff, called the next Bobby Fischer, is the 1986 world champion in the under-10 class; Julia is the ’86 female champ in her age group.
But an article in the November 1989 issue of Vanity Fair by John Colapinto said bluntly that Mike Sarwer is an egomaniacal tyrant who abuses his kids physically and psychologically. The story was noticed by the Kingston Children’s Aid Society (CAS), which seized Jeff and Julia and asked a family court judge to make them wards of the court for a six-month assessment period.
Family court hearings in Ontario are subject to the provisions of the Child and Family Services Act. That law gives a family court judge discretion in deciding whether to open the hearing to the media. It also imposes an absolute ban on reporting the identities of the participants. The noble purpose of the gag is to protect the children of abuse from the glare and the stigma of publicity.
We were unaware that the hearing had opened and adjourned. A few days after the hearing, Mike Sarwer called Neil Reynolds, our editor at The Whig-Standard, and complained that the CAS had broken up his family because of the Vanity Fair article, which he said was based on the spiteful testimony of his estranged common-law wife. He claimed that a CAS worker had it in for him.
He asked Reynolds if we were interested in interviewing him and his children. We were; the children would be interviewed that day.
Reynolds and I discussed the legal and ethical implications. The law was clear-cut. We could identify the family, but not refer to the hearing; we could refer to the hearing, but not identify the family.
Ethically, we worried that interviewing and naming the minors might itself be an abuse of them. Another consideration: If they had been brainwashed into slavish devotion of their father, as the Vanity Fair article suggested, they could hardly be credible witnesses to their situation.
We decided to do the interview and continue the ethical discussion later. I went to the interview with reporter Sue Yanagisawa. Jeff and Julia, now in the temporary custody of their paternal grandmother, were articulate and media-wise. We took them through the contents of the Vanity Fair article.
Lies, they said. Distortions. They were victims, they said, not of their father but of the CAS. Mike Sarwer, they said, was the best father in the world.
After the interview, I told Reynolds that I felt that no harm would come to the children if they were identified. They wanted a public hearing for their side of the story. We were satisfied that the children neither needed nor wanted anonymity. They had become, for better or worse, public figures.
We sought an ethical justification for using their names. We found it in the argument that the children and father had a fundamental right to freedom of speech and that our newspaper had a right to be the medium of that speech. We were satisfied that the blanket ban of the Ontario law, in not allowing judicial discretion in the use of names, contravened the freedom-of-speech principles of the federal Charter of Rights and Freedoms.
We ran a next-day story with names and photographs. Two follows were published before the court hearing resumed.
At that time, lawyers for us, The Ottawa Citizen, Canadian Broadcasting Corporation, the children, the father, and the grandparents asked that the media be admitted and that the family be identified in coverage. Counsel for the CAS and the children’s mother opposed the motions.
The judge decided that he would let the media stay but reminded us that he had no authority to lift the legislated ban. We agreed to respect the ban in order to be at the hearing. It was a case of some coverage or no coverage.
Subsequent stories contained no names or other identifiers. We joined with the CBC and The Citizen in a constitutional challenge of the ban. Another case is pending in a lower court: Whig-Standard Editor Reynolds and Publisher Michael Davies are charged with violating the Ontario law. We have no regrets about using names in our first stories.
Jeff and Julia were placed in temporary CAS custody when their grandmother, who lives in Michigan, could not continue to stay in Kingston. They soon escaped from their CAS guardians, went into hiding and never returned. The exasperated judge ended the hearing.
At last word, father, son and daughter were living like gypsies somewhere in the southeastern United States.