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   
Comprehensive Working Papers including email exchanges among all parties.


Monday, February 1, 2016

Virus Identified at N.Y. Times

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.