Thursday, February 4, 2016

The virus of toxic partisanship

February 4, 2016

Yesterday, Chief Justice John Roberts discussed how partisanship is eroding the public's faith in the Court reflecting principles that transcend political ideology.  If this is a type of pandemic on our democracy, its valuable to find an example, especially when it's from a news organization respected for its legitimacy and dedication to truth.  

It's rare to find in situ a virtual laboratory controlled example of the endemic disease described by Justice Roberts that is isolated from contamination, as clear and clean as a three line paragraph that purports to be a summary of a 33 page written appeals court decision.  One came to my attention, and this essay is to tell the story as concisely as possible.  I wrote a longer version that gets into why I happened to be the only one of the hundreds of thousands of readers to explore this, which was enjoyable to write, and for someone with the time, hopefully to read.  This is the condensed version where the reader has to supply their own evaluation -whether it be outrage at the betrayal of trust by this news institution, or a sense of weariness of seeing another example of the defects of human institutions. 

I'll start with the email that I sent on the day of publication:

To the Public Editor of the Times:

The article contains this paragraph:

A divided 16-member panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, rejected Mr. Bell's First Amendment challenge. Judge Rhesa Hawkins Barksdale, writing for the majority, said the song was “incredibly profane and vulgar” and contained “numerous spelling and grammatical errors.”  “If there is to be education,” Judge Barksdale wrote, “such conduct cannot be permitted.”

The wording and context of the above paragraph strongly implies that both of the two elements of the lyrics, including "numerous spelling and grammatical errors" were aspects that were considered in deeming that the posting was not protected speech. I was surprised and shocked that spelling and grammatical errors could ever have limited first amendment protections.

On pp 3 of the PDF transcript the context was clear. Justice Barksdale's statement was appropriate, as the exact transcription of the rap lyrics was needed to evaluate aspects that could impact the case.  The quoted reference to spelling and grammatical errors was in lieu of  multiple uses of "sic" deemed legitimate -- as described in this explanation from the Columbia School of Journalism.

The New York Times appears to have trivialized and distorted the process of the jurists arriving at their decision.  If that is the case, the reporter who was tasked with reading the entire decision appears to have done this intentionally if not being grossly incompetent.

Please get back to me on this, as I presume others have contacted you on this issue.

Given the topics that the N.Y. Times covers -- wars, revolutions, famine, disease ; their articles all fall short of perfection in squeezing complex events, sometimes breaking through the fog of war or disaster, into the allotted space on deadline.

The story described here, 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 what I can only describe as a secular sin, a lie --not only by the writer, but the editors comprising 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 Professor Adam Liptak;  by any measure of his expertise in law and journalism, along with the esteem of his peers, deserving the assumption of his having written a legitimate summary of the decision.   He wrote to me defending, not so much the accuracy of this paraphrase, but that it captured its tone.  He could have done both, but he sacrificed even a simulacrum of accuracy for conveying a tone that was invidious to the judge, that is not evident from a fair reading of the decision.

Knowing my claim had to surmount Professor Liptak's prestige, I went to considerable efforts to validate it.  A stroke of luck was my connection with a person with equal legal accomplishments and prestige of the the writer, Professor Eugene Volokh, who when he read my email to the Times Public Editor, shot back his agreement, and that he planed to write about this in his column in The Washington Post.  In it, he surgically dissected Liptak's summary:

I think some readers could perceive “such conduct” that “cannot be permitted” as referring to the song’s being “incredibly profane and vulgar,” and to its containing “numerous spelling and grammatical errors.” But the majority (Judge Barksdale) was arguing that what cannot be permitted is “threatening, harassing, and intimidating a teacher,” not off-campus profanity and vulgarity as such. (“At the very least, this incredibly profane and vulgar rap recording had at least four instances of threatening, harassing, and intimidating language against the two coaches: ….”)
And the reference to spelling and grammatical errors in Bell’s version of the song was even less connected to any explanation of why Bell’s conduct “cannot be permitted”:
My own research, surveys and focus groups  that recreated the perception of a naive reader of the Time's article,(details in my long version) showed that Volokh had been too generous in his evaluation of the degree of distortion in Mr. Liptak's summary of the decision. The misconception by the readers were not something that "could," happen, which means only possibly, but "would happen," meaning universally misleading.

This has consequences, which I explored in my long version of this report, made more severe by the century and half reputation for integrity of the N.Y. Times.  Let's call this an abstract, with my invitation to those interested to go to the long version for a more detailed personal backstory and an exploration how this "infection" of a great newspaper can be staunched.

Al Rodbell
Encinitas CA   
Working Paper including email exchanges among all parties.


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