Balkinization  

Tuesday, October 10, 2006

Fiasco at the New York Times

Sandy Levinson

During a speech delivered after receiving the Radcliffe Medal for 2006, in June of this year, Linda Greenhouse delivered a moving speech , titled "Bridge Over Troubled Waters," that was built around the fact that she had found herself uncharacteristically weeping at a reunion concern of Simon and Garfunkel. Why?

"It was a puzzling and disconcerting experience, and I worked hard in the ensuing days to figure it out. Finally, it came to me. Thinking back to my college days in those troubled and tumultuous late 1960’s, there were many things that divided my generation. For the men in particular, of course, it was what stance to take toward the draft—acquiescence, artful avoidance, or active resistance. For many of us, it was over how actively we should commit ourselves to the great causes of civil rights and the antiwar movement. (The women’s movement was barely on the horizon at that point.) I remember that in the spring of 1968, the editors of the Harvard Crimson almost came to blows over whether the paper should support Eugene McCarthy or Robert Kennedy for the Democratic presidential nomination.

Yet despite all these controversies, we were absolutely united in one conviction: the belief that in future decades, if the world lasted that long, when our turn came to run the country, we wouldn’t make the same mistakes. Our generation would do a better job. I cried that night in the Simon and Garfunkel concert out of the realization that my faith had been misplaced. We were not doing a better job. We had not learned from the old mistakes. Our generation had not proved to be the solution. We were the problem.

And of course my little crying jag occurred before we knew the worst of it, before it was clear the extent to which our government had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantanamo Bay, Abu Ghraib, Haditha, and other places around the world. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism. To say that these last years have been dispiriting is an understatement. I hope that today’s undergraduates are taking the same vow that we did then, and I hope for all our sakes that they get closer to fulfilling it than we did."

The speech addressed as well the many ways that things are indeed better since the 1960s, including the new opportunities available to women. Linda (who is a friend of mine) spoke of arguing with her mother that things are not so bad as she (her mother) thinks they are:

"I suppose that if I had to boil down my side of the argument with my mother to one thought, it would be that in my lifetime, I have seen. . . fences . . . lowered, with a corresponding increase in the opportunities to make and maintain connections across barriers that not so long ago were nearly impermeable. As I look toward the next chapter in my life, I feel a growing sense of obligation to reach across the absurd literal fence that some of our policy makers want to build on the Mexican border and to do what I can to help those whose only offense is to want to improve their lives."

The speech formed the basis of last Sunday's "public editor" column in the Times, headlined "Hazarding Personal Opinions in PUblic Can Be Hazardous for Journalists," taking Linda to task for these comments. He wrote as follows:

"The Times’s ethical guideline states that news staffers appearing on radio or television “should avoid expressing views that go beyond what they would be allowed to say in the paper.” It is obvious, I think, that the guideline also applies to other venues. And Bill Keller, the executive editor, made clear in an e-mail message to me that the standard applies to all Times journalists “when they speak in public.”

"It seems clear to me that Ms. Greenhouse stepped across that line during her speech. Times news articles are not supposed to contain opinion. A news article containing the phrase “the hijacking of public policy by religious fundamentalism” would get into the paper only as a direct quote from a source. The same would go for any news article reference to “the ridiculous actual barrier” on the Mexican border."

He noted that "Ms. Greenhouse told me she considers her remarks at Harvard to be “statements of fact” — not opinion — that would be allowed to appear in a Times news article."
************************************

There are many things that could be said. One is that this controversy links with other recent postings about how we should be speaking these days with regard to describing what is happening in our country. My own view is that the Greenhouse comments easily fall within "statements of fact." But even if there's a modicum of opinion in the word "absurd,"--though even there I think it meets the "fact" criterion if by "absurd" one simply means a policy that cannot possibly succeed in its professed objectives and, therefore, must be understood in other terms, such as, say, "relentless pandering to an increasing xenophobia that has also become part of contemporary American life"-- it strikes me as ridiculous that the Times--or at least the public editor--would believe that she has crossed some line that made her deserving of the rebuke in the column.

My tagline "Fiasco at the New York Times" is intended to have a double meaning. I think the column, and the failure of Bill Keller to tell the public editor that he's way out of line in his views--is a fiasco. But I also mean to allude to the book "Fiasco," written by one of the star reporters at the Washington Post. And one might also think of Bob Woodward's "State of Denial." I'm curious if the public editor would view the titles of both of these important books as violating the Times's guidelines because surely the White House is unhappy with the use of "fiasco" to describe its Iraq policy and its implementation and "State of Denial" to capture the disconnect with reality endemic in the Bush White House. Is it really the case that anyone not officially labeled a "columnist" must be completely neutered and left unable to offer, in a public speech, such obvious "statements of fact" as that "our government had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantanamo Bay, Abu Ghraib, Haditha, and other places around the world." Will the Times next start demanding that its reporters cease opining that a Holocaust occurred in Europe during the 1940s because, after all, there are those who deny it? (I presume this last sentence is hyperbolic, of course.)

Linda Greenhouse is not only a personal friend, but also, and far more importantly, a national treasure in her capacity as the Times Supreme Court reporter. I know of literally no one who is more knowledgeable about the contemporary Court, its personalities, and the complexities of the issues that come before it. She reads all of the briefs and does a remarkable job of educating not only the public, but many, many law professors about the often arcane matters that come before the Court. I know that her articles are literally the first things I turn to (besides Marty Lederman's analyses) when cases come down. Within the areas that I profess to know something about, I have never found her less than reliable. If anything, I have occasionally thought she erred on the side of caution in her portrayal of an opinion, since I tend sometimes to get hot under the color. I don't think, for example, that she would feel comfortable describing Clarence Thomas as having written a "Schmittian opinion" in Hamdi, though I believe that is a simple statement of fact. (I wish I felt light-hearted about this to add a :) at this point, but I see nothing amusing in Thomas's embrace of presidential authoritarianism (another statement of fact).)

I have no doubt that the Times feels itself under relentless attack from what is in fact a vast right-wing conspiracy that is intent on enforcing its own version of political correctness, which, of course, includes a duty always to speak courteously of everyone in power and refrain from any suggestions that they are traducing a variety of traditional American values. And I admire the Times for much of its recent reportage on Iraq and what Jack and I have taken to calling the National Surveillance State. But it is an awful testament to the fear and trembling that must be running through the Times that its editors seem unwilling to speak up and defend the propriety of the June speech. If they are willing in effect to accept the humiliation of one of their Pulitzer-prize winning stars, one can only wonder about the "chilling effect" on more junior reporters when asked to offer their candid opinions about what they see around them.


Comments:

Well I couldn’t care less whether reporters utter opinions beyond their reporting. Why should I care?

As I see it, that's just the NYTimes laboring under antiquated (and heterosexist) ideals about the character of one who is objective.

One needn’t always be objective in her life to be objective in her professional analysis.

Carry on Linda.
 

I would not defend Greenhouse on the grounds that she expressed facts, because there is nothing wrong with her expressing opinions on her own time. The Times' policy that reporters not express opinions when they speak in public insults our intelligence. Does the Times think that we believe that its reporters have no opinions -- that they have formed no opinions about the subjects that they have become expert on by covering in their work? If they have opinions, then why shouldn't they express them? Does the Times think that we, its readers, believe that a reporter with an opinion is incapable or unwilling to be objective in reporting facts? Or that, if a reporter has expressed an opinion, then we, its readers, will not be capable of distinguishing when she is reporting facts and when she is expressing opinion? The policy does not make sense. At most, the Times could require that its reporters make a disclaimer that they are not speaking for the Times when they express opinions, but even that would insult our intelligence, as it goes without saying that that is the case.
 

I don't know Linda Greenhouse. I do know her work. She is quite simply the best kind of journalist. She covers a difficult beat and she covers it effectively, no brilliantly. There are few journalists at the Times operating at her level.

As usual, Sandy hits the nail on the head. The Public Editor column is a corner of the Sunday Times that always draws my attention. Sometimes I am amused, sometimes educated, sometimes disappointed. But this Sunday I was shocked: for what underlies Calame's column is an inability to discern between fact and opinion. The standard that Calame takes is extremely dangerous, namely whether the words expressed offend those in power. And this standard is already evident in the Times reporting, and is increasingly leading this publication on a path to mediocrity. Here is my letter to Calame from Sunday, not so artfully expressed as Sandy's column.

* * * * *

Dear Mr Calame:

I have spent the better part of the last week in Toledo, OH on business. There I started every morning devouring the Times, and then looking at the Toledo Blade. I would not dispense with the Times for anything, but I have to admit I was damned impressed with the Blade. And what impressed me most was their political coverage, which was engagingly written. Most of the time it did not operate at the level of depth of the Times, but it was in many respects better written and far more provocative. When I read your piece this morning, it immediately occurred to me why. Indeed, you put your finger on just what's wrong with the Times. And it's your attitude that is the problem.

You astonishingly write "The government, Ms. Greenhouse said on the NPR audio version of her speech, 'had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantánamo Bay, Abu Ghraib, Haditha, other places around the world, the U.S. Congress, whatever. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.'" You castigate this as opinion. But, excuse me for being blunt, you don't demonstrate opinion in doing this. You demonstrate ignorance. Your ignorance.

The suggestion that the US attempted to create law-free zones is not remotely controversial among people who have studied this phenomenon. Indeed, it was the Bush Administration's declared objective - as demonstrated in a series of subsequently leaked DOJ and DOD memoranda - to do exactly that. Similarly, it is objective fact that the Administration has strongly attacked reproductive freedom - indeed, it makes no secret of this as a declared objective.

The Calame view is apparently that even in private remarks, reporters must refrain from completely factual assessments which would be unpleasant to those walking the corridors of power. This is the attitude which has brought the Times down several pegs and is making it a far lesser paper than it was a generation ago.

You should be an advocate of the interests of the public in good journalism. You seem to view yourself as a censor. That is a serious failing.
 

Professor Levinson:

Ms. Greenhouse's expressions of opinion in her remarks at Harvard drew a scolding from her editor because because the NYT is becoming increasingly sensitive to having its reporters being routinely caught by the blogosphere inserting their leftist opinions in as "facts" in their reporting.

Ms. Greenhouse is actually quoted in the scolding column as stating that these opinions were actually "facts" which she implied she would put in her own reporting.

In response, the NYT editor disingenuously claimed that opinions like "'the hijacking of public policy by religious fundamentalism' would get into the paper only as a direct quote from a source." In reality, reporters often slip their opinions into their content by writing something like: "Critics have charged that public policy has been hijacked by religious fundamentalism." The critics are in reality the reporters of that particular media outlet expressing their own opinion.

With respect, a professor of law should know the difference between fact and opinion. We trial attorneys have to deal with this distinction every day with witness testimony.

Ms. Greenwood's remarks at Harvard can either be viewed as hyperbolic opinion or as demonstrably false allegations of fact. As her editor did, I will be charitable and label them as emotional hyperbole.

These remarks are most certainly not akin to your exemplar of a statement of fact: "Will the Times next start demanding that its reporters cease opining that a Holocaust occurred in Europe during the 1940s because, after all, there are those who deny it?"

The crack about the government "creating law-free zones at Guantanamo Bay, Abu Ghraib, Haditha, and other places around the world" is demonstrably untrue as a statement of facts. There have always been laws concerning the enemy at Gitmo and around the world, just not the laws Ms. Greenwood would prefer. Moreover, the references to Abu Ghraib and Haditha disprove her claim of law free zones because the soldiers involved have and are being subject to the law.

The further barb alleging "hijacking of public policy by religious fundamentalism" cannot in any way be construed a statement of fact. Rather, Ms. Greenwood offers her secular viewpoint that there is too much religion in government, an opinion which I doubt is shared by a religious conservative who would probably call the government "Godless."

Of course, Ms. Greenwood has a right to her opinions as do other reporters whose books "Fiasco" and "State of Denial" are filed with opinion. What appears to upset you is that the editors of the NYT publicly scolded your friend for expressing her opinions.

However, the media is a business and business has been going from bad to worse for media peddling leftist opinions like Ms. Greenhouse's as reporting. News consumers with a more conservative viewpoint than Ms. Greenhouse are now going to media like Fox News, where they can get their opinions masquerading as news with a more Red State slant.

Publishers sweating plunging income and stock values at the NYT put pressure to increase circulation on editors like Mr. Calame, who in turn write columns slapping the wrist of Ms. Greenhouse in a vain attempt to convince readers that the NYT is "fair and balanced." Unfortunately for the NYT, that ship has long ago sailed.
 

Horton, quoting Calame, quoting Greenhouse: ...[the administration] turned its energy and attention away from upholding the rule of law and toward creating law-free zones...

Bart: Moreover, the references to Abu Ghraib and Haditha disprove her claim of law free zones because the soldiers involved have and are being subject to the law.

The greatest danger, Bart, in arguing for a living is in losing track of the difference between persuasive argumentation and *sound* argumentation. You seem skilled in the former. Ms. Greehouse does not contend that law free zones have been created, only that this administration has turned it's energy and attention to such. Your retort does prove that they have to some extent failed (so far) but in no way addresses whether or not they tried. You may try to contend that even the secret torture camps of the CIA to which people were disappeared weren't "law free zones" in that the CIA is established by law, but I suspect you know how unconvincing such a technically sound, but emotionally unpersuasive, argument would be and thus you would refrain from making it.

We don't have the luxury of conversing with Ms. Greenhouse, but perhaps you would care to address factual claims made in Scott's letter to the Times?

Lastly, and I wouldn't say this publicly if I knew your personal email address, I need to say, "For shame!" You wrote, "With respect, a professor of law should know the difference between fact and opinion. We trial attorneys have to deal with this distinction every day with witness testimony." Tossing in the word "respect" doesn't make such comments respectful, and there is nothing respectful in denigrating the man on such grounds, especially when it seems unlikely that you could prevail even on your own terms (which is to say, once *you* have been called to testify before the Senate Judiciary Committee then you might fare better with self-aggrandizing phrases like "we trial lawyers." What gall.)
 

Media institutions like the New York Times still believe that the public relies on their authority, and that their authority is jeopardized when the journalistic objectivity of their reporters is called into question. I don’t think journalistic objectivity in this sense is defensible in a rigorous way. Hasn’t it always been a pseudo-objectivity based on an attempted ideological balancing of disparate conclusions? A reporter does not actually draw an ideologically balanced set of conclusions when working on a story. Nor does an editor. The result of pseudo-objectivity is this kind of stultifying nonsense from the Times, which just sends more readers to the blogosphere. Linda Greenhouse deserves better.
 

Calame's ombudsperson article had repercussions in websites of well known academics. I see it as NYT's polite obiesance to the conservatives who read it for content. Greenhouse is her own person, and eloquently so. It is refreshing, and, perhaps, quaint, that the NYT is of such magnitude that it deems its own work ethic sufficiently rigorous as to require sponsoring an employee with the title ombudsperson. Calame was interesting in writing about the Judy Miller fiasco as well; so his writing slices both ways. His style is calm, collected, equinanimous. The song which stirred Greenhouse's well of lability always sounded fairly generic itself, to me. Around the time the lyricists penned those words those two gents were in difficult times and later to commence performing as individuals in their own right instead of their prior collaborative relation as songwriters. Perhaps it is my more flamboyant flare in music, that I found their folkish sound too sterile; certainly, they are good people; their lyrics bespeak forthrightness and earnestness. It is a boon to us all, however, that the epoch of which Ms. Greenhouse writes was one in which many strong women found their voices; often those women were the real leaders and touchstones in a conflicted era.
It is quaint now that NYT thinks of itself as a quasi governmental institution like a nonprofit whose employees are not allowed to make partisan political statements. Perhaps it is a measure of the importance of NYT in the world of news reporting that it needs to preserve its integrity by recognizing its ideals need to be as extraordinary as its reporting.

If Ms. Greenhouse is chastized, I hope it is transitory. This term in the Supreme Court she will have ample time to exercise her insights in writing. I doubt she will find the parent NYT asking her to align her public speech with Hitchinson v Proxmire; there.
 

Hutchinson v Proxmire 443 U.S. 111; sorry for typo.
J
 

I am reminded of Justice Holmes' statement that the policeman has every right to talk politics; but he doesn't have a right to be a policeman.

The ethical rule at the New York Times against its reporters becoming commentators is entirely proper (and if anything, should be more rigorously enforced). The Times gets enough crap about being biased without having its reporter on one of the most important national beats go out and rail against the Bush Administration. And I say that completely agreeing with Greenhouse on the substance of her speech.

If Linda Greenhouse doesn't feel she can abide by the rules, she should leave the NY Times and become a full-time pundit or commentator. There are plenty of other people who can cover the Supreme Court (e.g., Dahlia Lithwick)-- her job is not a hard job (indeed, it is one of the easiest of national beats), she is not entitled to it, she is lucky to have it, and she completely deserved the Public Editor's public reprimand.
 

Re Dilan's comment. Justice Holmes' statement was rejected by the Court decades ago; see Perry v. Sindermann, 408 U.S. 593 (1972). Of course, the NY Times is not subject to the First Amendment anyway (not that I think that you were implying that it is). On the issue at hand, the only argument you offer for your defense of the Times seems to be that, if it allows reporters to express their opinions, then the newspaper will appear biased. But it will appear biased, on that basis, only to those who do not think; those who do think will realize that reporters are bound to have opinions, whether they express them or not, and that the newspaper's bias or lack of bias is unrelated to whether its reporters express their opinions. Therefore, as I said in the second posted comment above, for the Times not to allow its reporters to express their opinions insults its readers' intelligence by assuming that we will think that their not expressing their opinions is related to the question of whether the paper is biased.
 

...a vast right-wing conspiracy that is intent on enforcing its own version of political correctness, which, of course, includes a duty always to speak courteously of everyone in power...

The VRWC will only insist on courtesy to those in power so long as those in power remain Republican.
 

"Does the Times think that we believe that its reporters have no opinions -- that they have formed no opinions about the subjects that they have become expert on by covering in their work?"

I don't know about the Times, but the Post does. From a Guardian interview with Len Downie:

"I don't care what their positions are editorially. I will not take positions on issues, and I have not voted since I became managing editor in 1984, because I don't want to take a position on local candidates or political issues. If you come to work here [the newsroom], you agree to restrictions on your political rights. The only political act you can exercise in is voting."

Is Downie really totally opinion-free? I ask his view of a recent Post editorial supporting a Tony Blair statement, from the White House, on Iraq. "I didn't read it. I have no view." Later I mention The West Wing, the political television series then nearing its denouement, and inquire whether Downie watched it. "Sure. It's a good show." And was the fictional, liberal Jed Bartlet a good President? "I don't have an opinion on that," he smiles."


In my opinion, this is nothing short of insanity. The idea that a journalist must remove him or herself from politics for fear of perception of bias is absurd, dangerous and goes against every principle of press freedom, let alone journalistic principles of truth, justice and accountability.
 

With regard to the Downie interview, I wonder more than ever what he thinks of the titles of "Fiasco" and "State of Denial."
 

Prof. Levinson:

Don't worry about Mr. DePalma. His ideas of "fact" are, for example, to claim that the dicta in a case is a "holding" (as he did on Greenwald's Glenn Greenwald's Unclaimed Territory blog), and to cite Free Republic as a reliable news source.

A more immediate example: Says Mr. "Bart" DePalma:

In reality, reporters often slip their opinions into their content by writing something like: "Critics have charged that public policy has been hijacked by religious fundamentalism." The critics are in reality the reporters of that particular media outlet expressing their own opinion.

To Mr. DePalma, sans any documentation for his own claim, "that's a 'fact', ma'am...."

Mr. DePalma, undaunted by the real world, continues:

The crack about the government "creating law-free zones at Guantanamo Bay, Abu Ghraib, Haditha, and other places around the world" is demonstrably untrue as a statement of facts.

Mr. DePalma of course ignores the fact that the U.S. Supreme Court has weighed in on these issues and decided (that is, "held", not put into dicta) that the U.S. gummint policies in Guantanamo are indeed contrary to law". And if Mr. DePalma wants to claim that the alleged events in Haditha and the documented events in Abu Ghraib are not beyond the law, he's in a very tiny minority (one would hope).

Mr. DePalma puts forth Fox News as a more exemplary voice of "truth" that Greenhouse's publication:

News consumers with a more conservative viewpoint than Ms. Greenhouse are now going to media like Fox News, where they can get...

... a display of Mark Foley (R-FL) shown three times on the caption below as "Mark Foley (D-FL)".

So, put in perspective, Mr. DePalma's faux outrage that a court reporter would dare to utter something that he disagrees with is of little concern; he wouldn't know a fact if it bit him in the arse.

Cheers,
 

Henry:

You are reading too much into my citation of Holmes-- I am simply saying that just because Ms. Greenhouse has opinions doesn't mean that she can express them publicly if she wants to remain a reporter for the NY Times.

I do think that the NY Times-- and most American newspapers-- want to maintain an appearance of fairness, and that one appropriate way to do that is to prohibit their reporters from this sort of expression. It is true that nobody has any illusions that reporters have opinions; still, the more open your reporters are about publicly EXPRESSING those opinions, the more likely they are to be accused of bias.

Further, that wasn't my only point. My other point is that Ms. Greenhouse has a ridiculously easy job by newspaper standards-- she doesn't have to do ANY shoe-leather reporting, but rather just read briefs and decisions, talk to lawyers, and attend oral arguments. Many people, including Dahlia Lithwick, David Savage, Marcia Coyle, Jan Crawford Greenburg, and Stuart Taylor have done the job no worse, and perhaps better, than she does it. She is paid quite well for her position, and it has given her a modicum of fame. In addition to those mentioned above, there are surely many other people who could do the job just as well, but who didn't go to Harvard and didn't have the connections that she did and never got the chance to work for the NY Times. She is one very lucky woman.

The NY Times has made a relatively minor request in return for all that the paper has granted her, that she not go out and create the public impression that she is a vocal opponent (or supporter) of Bush policies. If she is unable to live within that modest restriction, she can certainly choose not to, by resigning her position and allowing the NY Times to hire another competent Supreme Court reporter who can do so, as there are plenty available.
 

Dilan: You write "the more open your reporters are about publicly EXPRESSING those opinions, the more likely they are to be accused of bias." Yes, but, as I said, to base that accusation on the fact that reporters express opinions would make no sense, and the NY Times might have the courage to explain that to its accusers rather than to pander to their stupidity. One expects politicians to pander to stupidity; I'd like to see better from the NY Times. I do not question, however, that the Times has a right to tell Greenhouse, with respect to their indefensible policy, to take it or leave it.
 

Henry:

Your viewpoint would describe much of the country as "stupid". You see, many people assume that news reporting is "liberal" or "conservative" based on a paper's EDITORIAL page. Thus, the Wall Street Journal is assumed to be conservative, because they run conservative editorials, and the New York Times is assumed to be liberal, because they run liberal editorials. Of course, neither one of those things is actually true.

Similarly, YOU may realize that when a New York Times reporter speaks about politics, that isn't going to affect the person's competence as a reporter, but MOST people DON'T realize that. And the New York Times is a national general circulation newspaper that needs to attract the widest audience and feels that it can be harmed by a perception that it has a liberal bias.

I understand, in the end, Linda Greenhouse is going to be Linda Greenhouse, whether she publicly criticizes the Bush Administration or not. But from the paper's perspective, they want to do what they can to contain the meme that is out there that says they are a left-wing rag. So they have this policy, which is one thing, though not the only thing, that they do to counter the meme.

I don't think this is dumb at all. In Britain, they have ideological papers. Here, we generally don't, though we are trending in that direction. And a newspaper that aspires to be nonideological can lose a good part of its audience if it is scene as biased.

The funny thing about all this is that Linda Greenhouse has been working at the paper for decades and knows this chapter and verse. Byron Calame's column wasn't telling her anything she didn't already know.
 

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