hot pod

How a Podcast Paused a Murder Trial

Photo: The Australian.

News, broadly…

➽ In a somewhat surprising development, Spotify started releasing The Michelle Obama Podcast on other platforms last week. It has tracked as high as the top spot on the Apple Podcast charts. At the moment, it’s unclear whether this windowed release approach will be applied to future seasons, should the show be renewed.

➽ Meanwhile, Joe Rogan said on an episode of his show last week that Spotify has not said anything to him about the recent reports of tension between the company and its employees over his content. Those comments were written up by Heavy.

➽ PRX’s chief content officer John Barth is retiring at the end of the year, Current reports. When asked if the timing had anything to do with PRX’s recent tumult over a former employee’s allegation of systemic racism at the organization, a spokesperson denied the characterization. “[John] felt the time was right,” the spokesperson said. “He will focus on a smooth transition of projects and relationships to best support staff.” The Current report also notes that Kerry Donahue, PRX’s director of training, is no longer with the organization as well.

➽ Emanuele Berry is This American Life’s new executive editor. A former editor and producer at Gimlet Media, Berry joined TAL last year.

➽ Add Megyn Kelly to the list of folks making “pariah podcasts,” a term Bryan Curtis so succinctly coined in 2017. Kelly launched her own “self-funded” podcast last week, characterizing it as an escape from “corporate overlords.” Sure, sure.

➽ Team Coco has signed a multi-project podcast deal with Audible, now that Audible is commissioning “podcasts” (again). Here’s the Hollywood Reporter on that.

➽ Following the revelation that its central subject probably wasn’t actually a former ISIS member, the plot around Caliphate thickens, with the New York Times announcing that it will review the reporting in the Peabody Award-winning podcast series.

➽ Shout-out to the shows that cranked out emergency pods last week. Some may disrespect the emergency episode drop, but not I. This news cycle, it breaks us all.

How a Podcast Held Up a Murder Trial

By Caroline Crampton

The Teacher’s Pet, a wildly popular true crime podcast published by The Australian newspaper in 2018, has made legal history in Australia after being cited by a judge as part of the reason that a murder trial cannot take place this year. The sixteen episode series was hosted by investigative journalist Hedley Thomas and re-examined what was then a cold case: the unsolved disappearance of Lynette Dawson in 1982. Since the podcast’s release, Lynette’s husband Chris Dawson has been charged with her murder and pleaded not guilty in April 2019.

At the end of September, it was revealed that his defence team had attempted to secure a permanent stay in the trial, citing — among other factors — the podcast and the resulting “media storm.” Dawson’s lawyers argued that the defendant would face “considerable forensic disadvantages in advancing his defence,” with the podcast having been downloaded 28 million times before it was made “temporarily unavailable” for Australian listeners in April 2019. It was taken down then by The Australian after a request from the Office of the New South Wales Director of Public Prosecutions, which the newspaper said in a statement it was happy to comply with in the interest of Dawson receiving a fair trial.

Justice Elizabeth Fullerton, the judge assessing the possibility of the trial moving forward, has now decided to grant a temporary rather than a permanent stay. Functionally, this means that proceedings cannot start until June 2021. She cited the “unrestrained and clamorous” public debate about the case as the reason and explained that the delay was to allow “commentary” to abate before the trial began. Here’s a section of her summary that stood out to me:

Her Honour was left in no doubt that the adverse publicity in this case or, more accurately, the unrestrained and uncensored public commentary about Lynette Dawson’s suspected murder, is the most egregious example of media interference with a criminal trial process which this court has had to consider in deciding whether to take the extraordinary step of permanently staying a criminal prosecution.

This is the first time that a podcast has been involved in a legal argument in this way, Justice Fullerton confirmed, going on to warn that the popularity of true crime podcasting brought with it new responsibilities for journalists and publishers. While acknowledging the invaluable work reporters do in exposing fraud and corruption, she concluded: “The risk that an overzealous investigative journalist poses to a fair trial of a person who might ultimately be charged with an historic murder (or another historic criminal offence or offences) is self-evident.”

I’m not going to relitigate the whole “is it possible to make an ethical true crime podcast?” question here, since the topic has been visited a bunch in recent years, but this situation caught my attention because it ties together several key points about how podcasts, and especially true crime podcasts, function in 2020.

Firstly, there’s the way that podcasting’s norms and conventions transmit beyond national and legal boundaries. Listeners all over the world can hear shows made in America — including via translated versions — where strong legal protections for free speech extend to crime reporters and podcasters alike. Non-American audiences accustomed to the wide ranging detail and opinions expressed in productions from Wondery, Parcast, or Exactly Right, say, are likely to find their homegrown equivalents somewhat less “exciting” by comparison if its creators have to reckon with more stringent contempt of court and sub judice laws. This becomes especially relevant when a podcast is trying to cover an ongoing case, or one where there are evolving legal proceedings. (For those interested in more detail on this specific issue, I found this journal article from 2008 about international differences in how the media can report crimes useful.)

Secondly, there is the general prestige that a high profile and critically acclaimed podcast can bring to a publisher nowadays. Within the true crime context, that reputational boost often comes as a result of a show that prompts law enforcement to reopen a dormant case. The most prominent example of this, of course, is the second season of In The Dark, which was instrumental in getting the case of Curtis Flowers reviewed by the US Supreme Court and ultimately helped secure his release from state custody. But ever since the first series of Serial led to new hearings for Adnan Syed (who remains in prison after the Supreme Court declined to hear his appeal), it’s become something of a badge of honour — a hallmark of good investigative journalism, if you will — if a true crime podcast is able to trigger actual legal proceedings.

In order to understand this better within the context of the Chris Dawson case, I reached out to Alan Sunderland, an Australian journalist and the director of the Organization of News Ombudsmen and Standards Editors. Over email, he gave me some context for the situation around The Teacher’s Pet. “The simple answer from an Australian perspective is that podcasts are no different to any other form of publication, in that they carry exactly the same legal risks about things like defamation, contempt of court and sub judice rules,” he said.

However, Sunderland continued, the difficulty for The Australian lies partly in the fact that when this podcast was released in 2018, the Lynette Dawson case was cold, so there were no ongoing proceedings to factor into the production. “I imagine the main legal considerations would have been defamation,” he said. “The main ethical considerations would have been accuracy (including a fair and reasonable representation of any court proceedings or investigations in the past) and providing a fair opportunity to respond in relation to any accusations made in the course of the podcast.” But as soon as Chris Dawson was charged, everything changed from a legal perspective.

This brings me onto the third theme to consider in relation to this case: the impossibility of controlling the open podcast ecosystem. Mostly, we think of that as a good thing, but it’s important to recognize that it does come with some legal baggage. “If a newspaper, for example, has a story on its website that might cause contempt of court then they can simply take it offline temporarily,” said Sunderland. “But a podcast on many official and unofficial external platforms can be difficult to remove completely.” Even though The Australian took the podcast off its website, stopped promoting it and did its best to remove it from podcatchers for Australian listeners, the newspaper can’t be sure that nobody will hear it or refer to it again until the trial is over. As the New York Times is now finding with Caliphate, amending a popular podcast after its initial big bump of downloads isn’t easy, nor do those subsequent changes necessarily reach the same listeners as before.

In November 2018, host Hedley Thomas and producer Slade Gibson won the Gold Walkey, Australia’s highest journalism award, for The Teacher’s Pet podcast. When I spoke to Kellie Riordan, who until recently was the leader of ABC’s Audio Studios, about the show, she pointed to the award as an indication that the Australian media establishment saw nothing problematic about the podcast or its investigative techniques — quite the reverse. However, she did point out how rare the show’s situation now is: “The postponement of proceedings due to media coverage is pretty unusual – it rarely happens, so it’s significant.” Riordan also highlighted this legal analysis from 2018 to me, which examines the fair trial-free speech tensions under the Australian system (and others) and actually predicts the approach that Dawson’s defence has now used to postpone his trial.

Can true crime podcasting ever truly thrive in jurisdictions with strict contempt of court and sub judice rules? Writing from the UK, I suspect that in Australia, Britain, and elsewhere, at least some publishers who fear the risks will increasingly favour shows where there is very little chance that legal proceedings could intervene. That approach does likely forfeit the boost of publicity that new developments in a case can bring, but it does provide some measure of protection from the revenue losses of having to remove the podcast from circulation indefinitely.

Getting Caught in a Shit Storm

As many things tend to do these days, it started with a tweet.

The tweet was promoting an episode of “The 5th,” a special miniseries from Switched On Pop, the podcast about pop music by songwriter Charlie Harding and musicologist Nate Sloan that’s currently distributed by the Vox Media Podcast Network. The special came out of a collaboration with the New York Philharmonic and was partly adapted from a lecture that Sloan gives in his university courses, meant to explain the legacy and substance of Beethoven’s Fifth Symphony. (You know the one.)

“Our goal was to help people understand this essential classical piece, which can be challenging to approach, and find fun ways to explore its message of transcendence from darkness as well explore its legacy and how this work resonates two centuries later,” they told me over email. In other words, The 5th was largely meant to be a celebratory piece, albeit one that sought to recognize its historical nuances.

The episode promoted in that tweet, “Movement III, Putting the Classism in Classical,” was the third installment in the four-part series. It was mostly dedicated to discussing how a rising industrial merchant class used Beethoven’s Fifth Symphony as a key piece in shifting the norms of what we now call classical music from something structurally accessible — Harding and Sloan described how, prior to the symphony’s debut in the early 1800s, a night in the music halls usually involved yells, cheers, and expressions of audience enthusiasm, not unlike a rock show — towards something more rigid, mannered, and exclusionary, reflecting the politics of an elite class. It’s complicated stuff within a complicated history, and the episode’s discussion offers a window into a reckoning with race that’s currently happening within the classical music and music theory worlds. (See here, here, and here). Unfortunately, though, you can’t really do that kind of work in public these days without exposing yourself to the possibility of being flattened down, taken out of context, and ground up as fuel for the compulsive phantasmagoria of the online “culture wars.” Which is exactly what happened.

(Quick obligatory disclaimer: I’m a contributor to New York Magazine and Vulture, which also syndicates Hot Pod. New York Magazine is owned by Vox Media. I am, however, an independent self-employed writer, proudly so.)

For about a week following the tweet’s publication on September 15, the Switched On Pop crew found themselves sucked into a bizarre game of shit-kicking Telephone. The whole thing started, unsurprisingly, with the conservative commentator Ben Shapiro — a voice historically eager to antagonize anything related to — who quote-tweeted the promo with the message: “Let me put this as delicately as humanly possible: go f*** yourselves.”

That alt-signal boost instigated a massive chain of tweets from a mixture of garden variety Twitter egg trolls and a cluster of high-reach right-wing agitators, including Senator Tom Cotton, Dinesh D’Souza, and Ian Miles Cheong. And that, in turn, was followed by blog posts from several conservative and right-leaning media sites — The Federalist, American Thinker, Quillette, and the NY Post, among others — decrying the episode as an attempt by “the woke” to “cancel” Beethoven. The entire left-right dynamic got even more flattened in a smattering of headlines published later on: by September 21, you could find a blog post from Classic FM, a London classical music station, with the title: “Beethoven ‘cancelled’? Why people are debating whether the Fifth Symphony is elitist.”

It’s a lot, and I just want to say write off the bat that this is yet another pretty clear example of online pots-and-pans-banging by bad faith actors. Harding and Sloan observed that their situation would’ve slotted neatly into Andrew Marantz’ 2019 book “Antisocial: Online Extremists, Techno-Utopians and the Hijacking of the American Conversation,” which in part sketches out the schematics of how dedicated online political agitators systematically render just about anything into ammunition that can be fed into a simulacra of outrage that can in turn potentially shape what people think about when they think about a certain topic, issue, or conversation. It’s all very Borg-like.

But anyway, it probably behooves me in this column to go through the motions and procedurally point out how there’s evidence that this whole shitstorm was kicked up without any of the agitators actually tuning into what Harding, Sloan, and the New York Philharmonic had to say about Beethoven, Symphony No. 5, and classical music. Harding and Sloan pointed to the New York Post’s opinion article on the matter as a good example, which characterized the episode as extending the idea that Beethoven’s music itself is the “soundtrack” for “white privilege” and oppression. “They make very liberal use of air quotes,” they said. “We never used those words or implied them.” Also noteworthy are the repeated instances in which the uproarious blog posts seem to perceive Harding and Sloan as having written their so-called anti-Beethoven argument, suggesting that the furthest any of these critics ever went with the material was reading the marketing copy on the episode page.

And then there are the downloads. As it turns out, this brouhaha didn’t actually result in any particular listening bump for the episode being performatively persecuted. According to download charts shared with me by Harding and Sloan, that third episode ended up tracking listeners along the exact same pattern as the first two episodes. In other words, and to underline the point: despite the noise, nobody actually sat down and genuinely considered what the episode was trying to say.

Which, you know, is not surprising. None of this should be, not now. We should be well beyond the point of being surprised that there are bad faith actors mucking about in our systems of social media, political discourse, and media in general. This deal with Switched On Pop probably isn’t the first case of such things happening within podcasting too, but it’s the obviously transparent one.

Harding and Sloan are still working their feelings over what happened to them. “Our immediate reaction was laughter, which quickly turned to a deep melancholy, as we saw our work so deeply distorted for the purpose of perpetuating a politics of fear and hatred,” they said. “It was distressing to see our painstakingly produced project so simplistically and disengously reduced into a far-right punching bag example of so-called ‘cancel culture.’”

For what it’s worth, they told me that the episode did generate a positive response from people who actually listened to the thing. The New York Times gave the episode a nice blurb, and Harding maintained that the show received the most positive messages from that episode than anything else they’ve done. “The overwhelming response that we received from listeners was that they loved this approach to classical music and overwhelmingly enjoyed the series,” he said. It was just a weird and horrible thing that happened to them, and they’re grateful to everyone involved in the project — from Vox to the New York Philharmonic, among others — for their unwavering support.

This story also made me think of one other thing. Back in early 2014, Stan Alcorn, then a producer at WNYC and now a reporter/producer at Reveal, wrote an essay for titled “Why Audio Never Goes Viral.” (The piece is gone from the site now, but you can still find it on the Wayback Machine.) Much of the essay is fairly outdated at this point, but Alcorn was trying to get at something that many audio people were thinking seriously about at the time: the fact that audio and podcasts don’t travel very well over social media, or over the internet more broadly. Alcorn’s essay came out well before I started this newsletter, but I distinctly remember that it kicked off a sustained round of conversation about podcasting’s general resistance towards internet virality. There were almost-pained complaints about how that lack of digital velocity held back the medium, how it prevented the whole pie from growing, so on and so forth.

We know a lot more about what the internet and social media does to us now than back in 2014, and with the benefit of hindsight, we can perhaps recognize those gripes as being insufficiently nuanced. Maybe you want that resistance, that lack of instant portability. “The beauty of podcasting is that it allows for nuance and extemporaneous discourse where it’s expected that to try on ideas and show how our thinking evolves,” said Harding and Sloan.

They added: “Social media can so easily distort what’s beautiful about podcasting.”

In tomorrow’s Servant of Pod I talk with Roman Mars, who celebrated ten years of 99% Invisible last month and is currently celebrating the publication of The 99% Invisible City, the book that he wrote with Kurt Kohlstedt, which goes on sale today.

We hit on a bunch of things: starting the show in the dark ages, Podcasting These Days, the stuff that’s been happening over at PRX, the grind of making something for ten whole years, his favorite Dischord bands (stick past the credits), and of course, his new book.

Also, the “Roman Mars” persona, of which I’ve long harbored strong belief is a persona that papers over significant spiciness from the actual Roman Mars. Have you seen some of the guy’s tweets? Shit.

You can find Servant of Pod on Apple Podcasts, Spotify, or the great assortment of third-party podcast apps that are hooked up to the open publishing ecosystem. Desktop listening is also recommended. Share, leave a review, so on.

The Problem of the Inconsequential Quest

By Caroline Crampton

Nobody likes to feel like they’re missing out and I’m no exception. In one very podcast specific way, though, I’ve been sitting with this feeling since early March, when Reply All released their now-famous episode “The Case of the Missing Hit.” It was quickly acclaimed by outlets like the Guardian and Rolling Stone as maybe “the best podcast episode ever.” [Nick’s note: I called it “instantly legendary.”]

In the first couple of weeks of lockdowns in the US and the UK, reporters were (virtually) queuing up to interview the hosts about how it was made, a level of mainstream media attention that a single podcast episode rarely receives. Since I also write a daily podcast recommendation newsletter that invites readers to submit their favourite episodes, I still get semi-regular emails from strangers about how great this piece of audio is.

I have now listened to this episode seven times — not because I can’t get enough of this quirky investigation into one song from 1999 that a filmmaker from California could only partially remember, but because I just can’t understand why everyone loves it so much and the critic in me really wants to know what it is I’m missing. I can recognise the craft that has gone into making it, but I can’t feel whatever it is that seemed to make so many others want to evangelise so hard for this one podcast episode. I think I’ve listened to almost every episode of Reply All and I really like some of what the podcast has put out over the years. But “The Case of the Missing Hit” wouldn’t be in my personal top five of the show’s episodes. It probably wouldn’t even be in the top thirty.

As I’ve tried to analyse this preference further, I’ve come to realise that this issue of mine is much bigger than with this one single podcast episode. This Reply All jaunt is just the latest and now the highest profile example of a technique and approach that has been present in podcasting for years now. I call this format “The Inconsequential Quest.” I’m sure readers will be very familiar with the form: a host chooses something that is of seemingly little importance and investigates it with a thoroughness and journalistic rigour that seems completely out of proportion to the original question. The resulting episode or series documents this journey in detail and ultimately reveals a conclusion that surprises and delights listeners.

“The Case of the Missing Hit” fits this rubric precisely. Other examples of inconsequential quests include Dead Eyes, in which the actor Connor Ratliff tries to find out why Tom Hanks had fired him from a small role in the 2001 HBO mini-series Band Of Brothers, and Missing Richard Simmons, in which Dan Taberski tried to work out why the fitness guru had retreated from public life. And, of course, there’s Starlee Kine’s six episode run of Mystery Show, which is perhaps the purest example of this form.

Also worth mentioning in this bracket is Whatever Happened to Pizza at McDonald’s?, an inconsequential quest, for sure, but one that is much more alive to the absurdity of what is being undertaken than most, and some episodes of Heavyweight, a show that investigates moments of emotional pivot and consequence. The award-winning 2016 episode “Gregor” is a classic of this subgenre. Gregor is a guy who once lent an acquaintance — the musician Moby — a box of CDs, samples from which then became the basis of some hit songs. Twenty years later, Gregor would like his CDs back so that he can get some closure on the whole thing, and host Jonathan Goldstein helps him achieve this.

Mystery Show came out in 2015 and had a big influence on the post-Serial podcasting landscape, especially when you consider that it only had a six episode run. I took part in an in conversation event in London with Kine three years later and I’ve never experienced the kind of fan fervour that there was in that audience before or since. Inevitably, when something in pop culture is visibly and perhaps surprisingly successful, others line up to plough the same furrow. Inconsequential quests are no longer rare or serendipitous; in some ways, they are a tried and tested route to a podcasting hit. There’s also something uniquely perfect about podcasting as a vehicle for the quests, not least because it used to be the case that listening to podcasts at all was a quirky, fringe activity, which in turn heightened the thrill when the host actually found the answer to the question.

With a very few exceptions — mostly the “Belt Buckle” episode of Mystery Show — I’ve come to realise that I have a fundamental problem with this subgenre that goes far beyond one Reply All episode. It’s this: who gets to go on an inconsequential quest? Podcasting is already a far from level playing field, and even within that this prestigious little niche of it is closed off to almost everybody. It frustrates me that so many of these shows come from the perspective of well-off white American men, but I understand why that is.

The resources required to make a really high quality show of this kind make independent production very difficult. You might have to work for six months on an idea only to find that there isn’t really a satisfying answer, so it’s risky. Most networks or funders are unlikely to take a financial risk on a quest creator unless they have a demonstrable track record, are a celebrity, or are celebrity adjacent in some way. Then unless you can afford to do almost all of the work beforehand — typically unpaid, or expending crucial resources — the pitch for an inconsequential quest series is always going to be “I don’t know the answer yet but just trust me!” And we all know where companies are more likely to bestow that trust: executives tend to be disproportionately white, straight and male, and that’s the kind of talent that too often gets to take risks with big budgets.

Celebrity access, by the way, has proved to be somewhat important to the inconsequential quest genre. I think part of why people responded to “The Case of the Missing Hit” like they did was the sheer audacity of PJ Vogt calling up the former Barenaked Ladies frontman Steven Page and just… asking him if he knew what the mystery song was. See also: Moby’s involvement in the Gregor episode, and Starlee Kine getting Jake Gyllenhaal to confirm his real height. The contrast between all that mundane legwork and the glamour of a real famous person is exciting in a semi-salacious way.

When I listen to “The Case of the Missing Hit”, then, or many of the other examples I’ve cited here, I’m constantly reminded of who isn’t getting to make this stuff. Who doesn’t have the chance to throw time and money at a weird little problem and see what sticks. Which is arguably a reaction that could apply to pretty much any audio genre, but because these quests are personal and idiosyncratic and usually rely heavily on the creator’s existing personal relationships, I think I notice it more readily.

For me, the best inconsequential quests turn out not to be inconsequential at all. What starts out as an attempt to give a belt buckle back or find some lost CDs turns out to be a process that can teach us something about our flaws, our blind spots and our inner assumptions. But to find those stories, you have to spend a long time looking. And not everybody has that luxury.

How a Podcast Paused a Murder Trial