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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Anonymity Explained?
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Tuesday, June 17, 2008
Anonymity Explained?
Ian Ayres
The New York Times has been admirably shining the light on its own use of anonymous sources. The public editor public editor, Clark Hoyt, reported in his column Sunday about the results of a “study” (coding information from just 12 issues!) about the use of anonymous sources in The Times. And Jill Abramson, the managing editor, has been answering readers questions.
Comments:
"An employer should be able to punish employees for disclosing [gossip about writers being angry at a TV star]."
Er, why?
Er, why?
Because employees shouldn't be able to harm one's business by revealing what goes on there in private, assuming that what's going on is legal?
Also, while Abramson gives lip service to the fact that a lot of the stuff that anonymous sources are relied on for is unimportant, that really is the whole ballgame.
The media is playing a bait-and-switch, relying on cases like Watergate where you really couldn't report an important story without unnamed sources, to justify the use of unnamed sources for unimportant snark, gossip, touches of authenticity, etc., in stories of no importance. There's no great reason why anonymity should be granted except in cases where real, important news is being reported.
A bit of devil's advocacy here. Abramson does indirectly address employer interest when she avers, "It is crucial to understand how the terrain for reporting has changed. Within government at all levels and in the business world there has been a culture of far greater secrecy." If business has become more adept at manipulating the press, then perhaps it's fair for the press to push back. What's unwholesome for the goose, etc. (Yes, she does miss the point in Scalpone's query.)
A standard of "importance" vis-à-vis a television series is surely exceedingly low, and anger among the ranks meets it, I imagine. But what information in this context has been misappropriated? The anonymous sources "were not authorized to speak on behalf of the series" (my emphasis). Were they even doing so? Or were they not speaking each on his or her own behalf?
Spoken like somebody who doesn't have a regular job. Employers have been unilaterally tightening the terms of employment with regard to discussion of facts and opinions arising from facts discovered in the course of one's employment. At this point, the typical employment policy is that only people particularly authorized to speak on a subject may do so, even when an employee knows that the authorized spokesman is lying. For this reason, employees seeking to correct the record must request anonymity.
In the government employment context, not only is the government asserting (with the support of the Supreme Court) the prerogatives of a private employer, but the Bush Administration has created a new category of non-public information -- information which according to its definition is disclosable under the Freedom of Information Act, but about which government employees and contractors are not permitted to talk. In the past, the practice was that any publicly disclosable government documents could be discussed any place, any time. This is another area where requests for anonymity are necessary. The Bush Administration limitation on speech by government employee applies even to those who testify before Congress. Civil servants testifying before Congress are instructed by White House congressional liason staff about how they are to present the subject matter of their testimony and what areas they cannot speak of unless directly asked. So it has become necessary to leak anonymously to Congressional staff what questions they have to ask to get the information to which they are entitled. In order not to have to pay overtime, companies have to claim a wide range of professionals as confidential employees, persons who supposedly have discretion about what they do with information acquired on the job. But then the companies turn around and expect these same professionals to parrot the company line regardless of its truth or morality. Maybe if they paid us as much as a banker, we could be accused of having sold our souls. But we have only sold our labor and our talent.
I don't want a responsible press. I won't an irresponsible press [mostly] within the bounds of law. I don't want my lawyer to be objective and neutral, I want him biased within the bounds of sanity and common sense.
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If the entertainment press were as "serious and responsible" as the political press, nobody would read it. And if the political press were as "un-serious and irresponsible" as the entertainment press we wouldn't be in Iraq. The professionalization of the press has done more harm than good. In the UK journalists still call themselves hacks. Journalism is an unwholesome business. Reporters knock on widows doors and take photos of children whose parents have just been shot, How the fuck is that wholesome? You miss the point of journalism and law in a democracy Mr Ayres. Vulgarity is necessary. That's not "the new way to be smart" it's the old way.
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