February 3, 2016 (
Condensed version of this essay)
It's not Zika or Ebola; not the cyber analogy that infects systems on
our own laptops up to those of the federal government; it's one that
subtly comes to control those individuals who during their tenure
define key institutions, in this case the flagship news and opinion
leader of the most powerful country of the western world.
This
is partly a personal story about a long term relationship that began
close to six decades ago We connected every day, spending hours
together, even though the object of my attention didn't even know that I
existed, For those first decades, it was a one sided affair; they
wrote, I read. Then a few decades ago I submitted my first letter to the
editor, and never would have noticed it if someone hadn't
mentioned seeing it weeks after it appeared. Many more were to follow,
so in the era before the paper was on line, I felt like I was more than a
passive consumer, but a contributor, one who was watching the store,
correcting errors or putting an exclamation point on what had been
printed.
Newspapers had a special meaning to me, from my visits as kid to the Library
of
Congress only a trolley ride away in the 1950s, where before there were
microfilm copies, The Times, the Washington Post and a few other major
newspapers would replace the regular newsprint rolls at the end of the
run to print a hundred or so copies on rag bond paper for research
libraries. I held those newspapers in my hands, now historic artifacts, like they
had
just arrived fresh on my doorstep, complete with breaking news that were to become the stuff of history while sharing space with the ads and comic strips.
Given the topics that the N.Y.
Times covers -- wars, revolutions, famine, disease, crimes against
humans and crimes against humanity; their articles all fall short of perfection in
squeezing complex events, sometimes breaking through the fog of war or
disaster, into a few dozen column inches of words on paper or screen- to
be published on tight unrelenting deadline.
The
story described here, that has grabbed me, consumed me over the last five weeks is
nothing like those. It is a three sentence paragraph that paraphrases a
legal decision that had been published months previously, that was
blatantly,
beyond reasonable doubt, not only wrong, but in the
refusal
to acknowledge this, became a secular sin, a lie --not only by
individuals,
but the institution of The New York Times. Only after my initial contact with the Public Editor did I
learn that the writer of this article was Adam Liptak. By any measure
of his
expertise in law and journalism along with the esteem of his peers, my
accusation should be dismissed out of hand, that is by any
measure save
the facts. On several occasions I requested that he respond personally,
outside of the public eye, but after his initial explanation, he did not do so. Ignoring this issue is not an
option for me, since I feel an obligation to not only those who read
newspapers for current news, but those for whom it is a resource for understanding our past -- and those who will someday look to these pages to get a sense of the public's mood during that landmark election
of 2016.
It turns out that I was the
only person to object to this story, which makes it personal.
Because of this I have to go into my own background and motivation,
as this explains why those myriad "normal" readers, did not either
recognize the distortion or take action if they did. I've
documented all of the emails that transpired between myself and N.Y. Times
officials and Professors Liptak and Volokh, at
this link
for those who want to take the diversion - now or later. Along with
giving the texture of this story, it should satisfy the reader that the
descriptive paragraph is as I claim - false, beyond a
reasonable doubt.
The link is made up of three strands of evidence. First, is the article in the Washington
Post, by the legal scholar, Eugene Volokh, (at above link) confirming my analysis of
gross error of reporting. Second, is a short
four element survey
I wrote and distributed
to a handful of people confirming the impression that the paragraph
purportedly describing the decision was, in fact, attributed to the
Judge who
wrote it. (this survey may be taken by any reader) And finally, was a
meeting of a dozen people in a philosophy Meetup group who responded to
my narration of reading the Times article with the laughter of shared relief of tension.
I see this as displacement of any impulse to act on the emerging realization of a disturbing
situation punctuating by their comments of its absurdity. That response of the people in this discussion group, I
contend, reflects the hundred of thousands of readers who may have chuckled at the
stupid arrogance of that pompous southern judge. (these last seven words, if used to summarize the essay your are reading, shows what out of context quotes can do)
This ironic dismissal was my own first response when I read the Times paragraph over a second cup
of coffee in front of my laptop, and even shook my head, as I told my
wife how absurd the
Judge's words were. But for my own reasons that I will get into, after
reading the entire article I
didn't let it go, as I had developed a habit of responding to stories
from authoritative sources that didn't quite ring true. Among my
friends many are conservative, some moderate but others right wing
zealots, who when they get a viral email that seems to disclose a
new cause for calumny against President Obama or Hillary Clinton, will
just pass it on to all their contacts. Others are more selective, only
sending me the ones that seem plausible.
I had an
agreement with one man who sent these emails whom I had
played tennis with for years, so our friendship transcended our
political differences. I would analyze some of these messages,
separate truth from fiction, and then he would send my analysis back to
his channel of conservative friends. I found my researching these fake
emails valuable on many levels. One described a woman who was a child
during the 1938 Anschluss who has been giving her speech on how Hitler's
changes imposed on Austria were like Obama's now. Kitty Werthmann's
story is heartfelt, but distorted as I wrote in this
article
that after five years still gets a few hits every week. This, and the
correction of an earlier Times article, gave me the feeling
that investigation of distorted media articles could be worthwhile, advancing the ethic
of honesty, and that accuracy was a satisfying tool to combat biased
reporting that has a way of devolving into something much worse.
Reading that N.Y. Times description of the
appeals court decision on my laptop had the distinct tone of one of these right wing
viral emails, so I was energized to find the truth. That it turned out
that the source wasn't the infamous "vast right wing conspiracy" but if anything its opposite, did
take me aback, but not enough to end my digging.
While
this attempt to correct a N.Y. Times article has turned confrontational,
a previous one was more productive, and what I had reason to expect from this effort. It was this article of September
28, 2011,
Man is Held in a Plan to Bomb Washington,, that you will note contains a correction at the end. This began (as shown in this
exchange of emails)
by my contacting the Public Editor who had the position at the time,
and then connecting with the reporter, Abby Goodnough. After her
contacting the Justice Department about their press release, and her further evaluation of the
article, she finally agreed that both of the errors that I pointed out
should be corrected. Her editors chose not clarify what she
acknowledged was ambiguity of description of the plane, whether it was
to be a hobbyist model or one of the full sized planes that had been
converted to drones many decades before.
Unlike the
current article, even though the decision of correction of the article
did not go my way on one important issue, I had no sense of bad
faith, as it was a reasonable disagreement over priorities. It is a
judgement call by the top editors whether an error, of which there are
many, are worthy of an appended correction -- something I accepted with
the satisfaction that I
had made the final N.Y. Times article a bit more accurate. The
response of the Times to the current article has been strikingly
different, as the error then was based on an ambiguity of a picture that
the reporter didn't even know about - and once pointed out by me agreed
that a correction was appropriate. This time the writer did not rely
on any external intermediary reports, nor was it a breaking story
with time pressure. Liptak had available for months the official document
from the
appeals court that included the Judge's decision, something he
was trained to analyze and paraphrase. Not only this, but he taught
these skills of not only legal analysis but conveying the information to
the public, at Columbia University schools of law and of journalism.
At
this point, I'm going to introduce my "imaginary friend," since I'm
venturing into
territory that could be uncomfortable to the readers and ultimately
myself. The New York Times is reflexively hated by those on the right,
so to do what I'm doing, describing a single incident that I claim
reflects a major pathology perpetrated by this newspaper may provoke a
pre-emptory rejection of my argument, with extreme prejudice against
me, the writer.
O.K. Buddy, you tell them:
"If a person is offered a fact which goes against his or her beliefs, they will
scrutinize it closely, and unless the evidence is overwhelming, will
refuse to believe it. If, on the other hand, they are offered something
which affords a reason for acting in accordance to their beliefs, it will be accepted even on the slightest evidence."
My
friend's name is Bertrand Russell, and he talks to me through the
medium of his collection of his epigrams. Now I'll take a step back, and put Russell's observation and the
findings of modern "confirmation bias" theory in another, more generous way. "....that those
who dismiss evidence not supportive of their beliefs, instincts or
ideology, are not being irrational at all. Rather they see such deeply held beliefs
as transcending any possible details that would challenge them."
O.K.
for better or for worse, the rejection of counter ideological arguments that Bertrand Russell expresses in a few words, and
social scientist now confirm in myriad books and Ph.D
dissertations is not about to be negated by anything I can write. It's a real, all but universal powerful force of human affairs. Yet, I
persist, as this particular bit of subtle propaganda was so crude as to
only be sustained by the brute force of the power of a revered
institution, The New York Times. As distasteful as I find it, I have no
choice but to focus on the individual who wrote the paragraph, who subsequently denied
it was in error, and then was supported in this denial by the Times Public
Editor and the Editor in charge of correcting errors. This was nothing
like Judy Miller's buying into the national mania over Iraq's
non-existing WMD or the sad story of cub reporter
Jason Blair who succumbed to the career destroying realization that creating fiction was easier than investigating and reporting facts.
Another side issue of this saga is how the eminent legal scholar Eugene Volokh who
validated my observation responded to what I am calling a lie by the
author. It's all in part one of
this article posted in the Washington Post. He professionally dissected the central defect of Liptak's article, and then described the consequences as "......but I think that part of the column may be misleading to some readers." After taking personal umbrage at his characterization as a minor defect, I went to the effort, as described in the link to my working papers, of doing objective testing of whether he was correct that it was "some" readers, or as I claim, " virtually all readers." Volokh's phraseology implies that the "some who may be mislead" are less than assiduous in their reading and are at least partially responsible if they infer the wrong message. If this were true, then the keepers of the institution of the Times were justified in dismissing my objections. To do this I had to create a sample that captures that universe of those who saw the Time's summary f the decision for the first time, and then objectively ascertain their perception. This, and other modalities of this research are clearly defined, and subject to the peer review of those who are reading this article.
To explore
this conceptually I have to shift gears away from the institution of the New York
Times, to something less concrete, something that is the stuff of
anecdotes but little serious analysis. Both
Liptak and
Volokh
are brilliant legal scholars (links to Wikipedia) with Liptak having a
somewhat liberal orientation and Volokh more conservative. This must be
clarified, since the work of neither of these men are defined by any partisan
labels that subordinate their intellectual efforts to partisan
identity. Yet, both men, no matter their intellect, are responsive to
the ubiquitous need for affiliation, a force applying to street gangs as well as what this event may show, a group of legal scholars of the highest
intellectual level. Volokh told me that he would not divulge the
nature of his conversation with Liptak, which is understandable from
this affiliation model of human behavior. I
attribute this as similar to the practice of "professional courtesy"
which dictates that physicians are reluctant to publicly express criticism for the negligence of their fellow professionals -- that is
unless they are paid expert witnesses, which can create another type of
excess.
At this point a
personal confession must be shared here, that for a brief
moment I felt like a member of this exclusive club, with Eugene Volokh and I
being colleagues in this joint venture to explore and disclose the
defects in the article by Liptak. This is heady stuff, an ego boost
that I parlayed into connecting with the world renowned Noam Chomsky for
validation of my condemnation of Liptak's distortion. After first begging off due to other time demands, he did write a
single line of support, but he could not take the time to study the
difference between Liptak's summary in the N.Y.
Times and what the judge had actually written. He condemned the judge's decision (which he never read), which
was tantamount to condemning the words of the distorted paragraph. Among Chomsky's encyclopedic research is a book
written in 1988, "
Manufacturing Consent"
that takes a global view of respected newspapers as conduits of power
structures of society - which may provide a theoretical structure for
the dynamics of this entire event including Liptaks distortion. It also provides some structure for explaining Volokh's choice, while providing accurate reporting, avoided the conclusion of his colleague's personal responsibility that follows from his analysis.
If
only
Liptak would acknowledge his distortion of his summary of the appeals
court decision I could move on, but his not doing so personalizes the issue, perhaps too much so. It is appropriate to use the word "sin" to
describe the actions of Liptak, as well as for the institution that supported him,
not in the theological sense, but as an action that affects a social
order that had traditionally been under the aegis of a supernatural being.
What Liptak did was not a crime or a tort, but neither was it an error, so I'm stuck with
"sin." His distortion was not only the sin of commission, using
words written by
the judge in a technical context as if they were the reason for denying first
amendment protection, but of omission, as he ignored the actual reasons, which were that
the rap words were threatening.
For kids who like to create rap music, for school administrators who have to strike the balance between what is too disruptive to the educational setting and fostering freedom of expression, Liptak does palpable harm. He distorted the reasoning of the decision that is now governing federal law for the states within the appeals court region and, to a degree, persuasive, if not controlling, to the entire U.S. legal system. These distorted words from the N.Y. Times, could find themselves in the Wikipedia article on this issue, a benchmark of fairness, with no evidence that they are patently false.
Liptak's
sin only gets worse as I delve into it. He must know that no matter
how crude his misrepresentation of the appeals judge's decision, the
Judge is limited in defending himself based on
judicial ethics that dictate, as was told to me by the courts media officer, that, "the
decision speaks for itself." What I find more disturbing, is that he
accurately gauged the passivity of the readership of the Times, except
he was off by .001% which, frighteningly, is only me. This sin is made
exponentially worse by that which protects him, his prestige and
occupation,
which happens to be based on his teaching, the transferring of his own values to students at
professional schools of Columbia University (where I happened to have
done graduate work in social psychology) Do any of the students have
the stuff to rise up and address the issue
that I am here? Let's hear what my companion Bertie Russell has
to
say about this:
Passive acceptance of the teacher's
wisdom is easy to most students. It involves no effort of independent
thought, and seems rational
because the teacher knows more than his pupils; it is moreover the way
to win the favor of the teacher unless the student is very exceptional..
Yet the habit of passive acceptance is a disastrous one in later life.
It causes man to seek and to accept a leader, and to accept as a leader
whoever is established in that position.
Liptak has
probably internalized this adage, and knows that a challenge from a
student is not a real possibility, that those in Journalism or Law
school want
nothing more than the Professor's approval, and will show contempt,
maybe even swarming anger, at anyone who tries to cause him distress for
anything he says.
Now
in Professor Liptak's defense, it may be that his distortion, his sin
is for good cause, one that may help expand the
free speech rights of African Americans who use the rap music idiom to
convey strong feelings of legitimate rage. This may be argued is a
justification for falsely depicting the words of a Judge, one who may
actually be motivated by racial bigotry -- perhaps something Liptak
knows, but can't share. In his email to me he stated, "The quotation you
discuss captures the judges dismissive tone, which is which I tried to
convey. The opinion is, I think you will agree, shot through with that
tone." Neither myself, nor Professor Volokh, nor another independent
retired
International Lawyer who studied this for me saw any such dismissive
tone in the judges
carefully argued 33 page decision. If anything, It was Liptaks own pre-existing
evaluation of Judge Barksdale, that the Times readers were deceived into
thinking were the words of his official court decision.
What Liptak is ignoring, and denies as
this is being written, is that whatever gain he imagines his
misreporting will achieve for his vision of racial comity, will exact a
cost that is greater. My use of the word, "sin" is
not off the mark, as that word means taking an action where the harm is
to God, to an idealized being that imposes certain constraints on even trivial actions that will harm his world that he has given us. So, lying, even among we
who are secular, is still a "sin" a dereliction far beyond its immediate
harm, but to the principle of trust. How much greater when the lie is
from something that is sanctified, whether the Catholic Church lying
about their sins against children, or the cathedral that is the
institution of the New York Times, whose only authority comes from its
dedication to the conveyance of truth to he greatest degree that is humanly
possible to its readers.
Adam Liptak is among the
highest strata of intellectuals and practitioners within this secular cathedral that
is a keeper of this flame. He does not get to choose what causes
transcend this ethic of integrity, especially since he has other sources
for conveying his values. But, while the churches of Christ, along with
the rigidity of their rules, provide for redemption through confession,
so too should our secular world. And so I conclude with a personal plea:
Adam, with the name
of that first sinner, I beseech that you confess your own!. Tell the world, your students
and your colleagues what you did, and show that you understand why it
was wrong. Then, not only can you be forgiven, but your temptation and
submission will provide an object lesson of how no amount of erudition
and prestige can insulate from temptation. Perhaps if you tell your story, why you
know your lie was deeply wrong, this will deter others with such power
from taking that step you did. While the infinite challenges of our
world remain, we will still retain confidence that "truth" as an ethic
and a process need not be a myth reserved for suckers, a fairy tale that the shrewd and powerful use on them
at will.
Or it could be that those millions who don't
think like I do are right and what I call a sin isn't worth
thinking about; and so everyone can just go about their business.
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