an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
There's plenty of unfair criticism about blogs out there, but this is one area where the critics are absolutely right. Because of the nature of the medium and the pace of the blogosphere's news cycle, too many bloggers prioritize speed over quality, and they get burned on stories like this one as a result. In this case outlets like Huffington Post, Talking Points Memo, New York Magazine's Daily Intel blog and Political Wire, among others, all accepted the newspaper account uncritically and posted it.
Everyone gets a story wrong sometimes, there's no avoiding that. But in this instance, the bloggers who picked up the article could and should have avoided the situation. Scalia was never directly quoted saying something like, "I think Brown v. Board of Education was wrongly decided. The article, or at least this part of it, relied on paraphrasing. On a big story like this one, the lack of a direct quote demands, even more than usual, some stringent fact-checking. Before posting, it's just good practice to look for a primary source -- video, audio or a transcript from the event -- not to mention to check against Scalia's previous statements and even call the court for comment. It may mean you have to wait a few minutes, even a few hours, before posting what others already have, but it's better to be right than to be fast.
But what happened in this case is that a mainstream media organization and a professional reporter with many years of experience bungled a story badly. Blogs, relying on the fact that this was supposed to have been a fact-checked story by a reputable mainstream news organization, linked to it and commented on it.
Alex is completely correct that there's a responsibility to fact-check a story when something appears a little odd. (This story seemed strange to me when I first read it, so I thought it might be a misquote, and said so in my original post.) But in this case the original duty was that of the mainstream media organization that published the piece in the first place. And what is perhaps equally important, this professional organization, as far as I know, still has not apologized to Justice Scalia or done anything more than eliminate the incorrect passage, adding only an opaque reference to "an incorrect reference to Brown v. Board of Education" that gives no sense of the magnitude of the error or the damage to Justice Scalia's reputation.
It's all very well and good to criticize the blogosphere for sloppy reporting, but in this case, the fault lies elsewhere. Mainstream media often berate blogs for lax standards, but if they wish to do so they had better make sure they have adhered to professional standards. I mean, if the New York Times is going to report false and misleading claims about weapons of mass destruction (just to take a hypothetical example that would never happen in real life), whose fault is it, the Times or the blogosphere that it repeats the stories?