The Wall Street Journal reports:
Justice Anthony Kennedy got into a messy situation this month after a widely circulated report that his office made a school newspaper get permission before running an article about the justice.It turns out the incident at New York’s Dalton School wasn’t the only such case....
In an interview with The Wall Street Journal this week, Justice Kennedy said he generally bars outside news media from covering his classroom lectures, but permits student journalists to file reports. He said he has never sought to review any report before publication, and attributed the requests to a new secretary who misunderstood his policy.
A New York Times article about the Dalton case sparked a host of critical editorials and blog posts accusing Justice Kennedy, who generally has voted against curbs on free speech, of hypocrisy....
Mr. Regis[, news director at the student radio station WRGW, involved in an earlier incident,] said he found the request ironic, because Justice Kennedy had written a 1991 Supreme Court opinion rejecting a libel claim against the New Yorker based partly on the magazine’s failure to publish verbatim quotations.
“Writers and reporters by necessity alter what people say, at the very least to eliminate grammatical and syntactical infelicities,” Justice Kennedy wrote in Masson v. New Yorker Magazine. He wrote that practical necessities such as the need “to make intelligible a speaker’s perhaps rambling comments” make it “misleading to suggest that a quotation will be reconstructed with complete accuracy.”
I don’t see why this should be messy (except if “messy” simply means “drawing some criticism, whether or not justified”), or why Justice Kennedy’s view should be seen as hypocritical, ironic, or inconsistent. Justice Kennedy has generally voted against government curbs on free speech; but it seems to me that a speaker acting as a private individual — which Justices do when they give speeches, as opposed to rendering opinions — is entitled to condition his speaking on checking the quotations to make sure they are accurate. Misquotations by reporters are commonplace, and it seems quite reasonable for a speaker to try to prevent such misquotations.
Now I have heard it said that many news organizations have policies, based on what they see as “journalistic ethics,” against agreeing to such requests. But I don’t see why Justice Kennedy should feel some obligation to further such policies.
I should note that I have the same policy for interviews I do with a particular university student newspaper that calls me on occasion. I’ve had so many bad experiences with their quotes from me being rendered in an incoherent or out-of-context way that I say that I’ll be happy to talk to them, but only if they clear with me before publication all quotes and paraphrases of me. At times they’ve said that this is against their policy, and in those cases I’ve declined to talk to them. Obviously my bargaining position is weaker with other newspapers, and I’m often more interested in talking to those other newspapers, so I can’t impose such a rule across the board (especially since there is often deadline pressure that makes such checking very difficult). But I would if I could, and I don’t see what would be “messy” about it. Am I missing some important ethical constraint here that is properly seen as binding on speakers or interviewees?
Laura(southernxyl) says:
If I were a journalist, especially a student journalist, and an article was going out with my name on it that purported to quote an expert and paraphrase and explain what he said, I believe I’d ask him to review it first for accuracy. This is a far cry from, as Anna requested on “V” the other night, “don’t ask any questions that would put us in a bad light”.
Also, I am definitely adding “infelicities” to my active vocabulary.
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November 19, 2009, 10:53 amtarheel says:
To the degree it really is about “checking the accuracy of quotes,” that is one thing. To the degree it is about approving the content of an article, it is quite another. My sense from what I have read about this story is that it was presented to the paper as the latter, not the former.
In my former (short) life as a journalist, I would happily send a source the actual text of any quotes if requested. I would not send the entire article, except to provide notice of what was going to be published. If a source would not agree to those rules, I generally found a host of other willing sources who would.
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November 19, 2009, 11:07 amMalvolio says:
That’s a bit disingenuous. He may have been technically acting as a private citizen, but he would less likely to even get those teaching and speaking gigs at all, let alone have reporters willing to strike sweetheart deals with him, if he were, say, Anthony Kennedy, retired partner Covington & Burling, instead of Anthony Kennedy, man who could make abortion illegal. He derives his living and his authority entirely from his Constitutional role and even if he, again technically, isn’t restrained by the Constitution, I think it would be seemly if he acted as if he were (as indeed, he claims to be doing).
Having a practical, sensible reason makes the situation worse.
If he were to say, “I won’t let them cover me if they are going to make me look bad, because I’m vain and autocratic,” we could say, “Well, he’s technically acting as a private citizen; good thing public officials cannot act that way ex officio.”
But Eugene’s argument would apply distressingly well to a public official, say a FBI director, who refused to grant interviews in his office without a review condition, claiming that the need to insure accuracy outweighs the prior restraint concerns. Certainly, if Kennedy himself were to make that argument, we would surely see it thrown back at him in the next prior-restraint case to come before the Court.
Indeed, is it impossible that some future litigant might really say in oral arguments, “Well, Justice Kennedy, when you yourself were accused of imposing prior restraint, the well-regarded Constitutional scholar Eugene Volokh wrote in his blog, ‘Misquotations by reporters are commonplace, and it seems quite reasonable...’”?
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November 19, 2009, 11:33 amThales says:
I am not a journalist, but as I interpret such controversies the journalistic “ethical” or other professional sensitivity is one of objectivity, and is twofold:
1) Does giving the interviewee the final say over the authoritative quotation or condensation of his remarks traipse into allowing the interviewee to edit out things he did on a fair listen say, but later wishes he hadn’t, hence impugning the goal of accuracy?
2) When it comes to government officials, even if speaking in a private capacity, does agreeing to such conditions amount to a form of pre-clearance of the official version of events, a sort of collusion or close intimacy between state and press that is best avoided (vide Judith Miller) in the interests of a kind of professional, detached reporting?
I understand EV’s and others’ concerns about being misquoted or screwed over by sloppy journalists, of course. I’d think this would be one good reason to allow mutual consent to an audio or video recording of interviews, even if it will only be used to establish the record for print media.
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November 19, 2009, 1:15 pmNicole C says:
When does checking the accuracy of the quotes turn into “Oh, that doesn’t sound so good; maybe I should improve that quote/paraphrase so that I sound smarter or less controversial or more eloquent”? The Wall Street Journal article reveals that Justice Kennedy–or someone in the Court’s public information office–asked the student reporter, Mr. Regis, to change “it’s” to “it is” in his piece about the speech. Did whoever requested the change really remember that Justice Kennedy said “it is” and not “it’s”? Or did the two-word phrase just “sound better” than the contraction?
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November 19, 2009, 2:15 pmPaul Horwitz says:
I posted on this a while back at Prawfs. My short take is that Kennedy is free to impose conditions and journalists are free to refuse them, and so on until they reach an agreement. But I would add two things. 1) That rule applies very well to interviews and less well to public remarks, where the fact of the matter is that some statement was made publicly, regardless of whether the speaker now wishes to walk back the statement. In a sense, from the Dalton journalist’s perspective if from no one else’s, Kennedy’s appearance might be seen as both, inasmuch as Kennedy’s agreement to attend and speak at the school was conditioned on the administration’s ability to impose rules on its students, including its student journalists. 2) Although you are free to conduct interviews or decline to conduct them on any terms you wish, I agree with a couple of commenters above, based on my own journalism experience, that I would have been inclined to agree to check quotes with a source for purposes of accuracy, but not to vet the whole story with the source. One could view an interview with a source and subsequent callbacks as part of an iterated process, and I would understand a journalist accepting the statement of a source that “I said X, but really meant to say X’,” but I would also sympathize if the journalist was of the view that the source should only be entitled to confirm the accuracy of his quoted statement, and perhaps expand on it, rather than exercise a general “privilege” to rewrite a quote that he actually gave because he now thinks better of it, or to attempt to dictate the overall content of the story.
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November 19, 2009, 2:18 pmJohn R. Mayne says:
As a former reporter and (later) person misquoted ina national paper, I think I understand at least some of the issues here.
Thales’ analysis strikes me as sound. It seems to me that one good way to avoid that on complicated issues, or any issue involving numbers — where journalists often go wrong — is to ask to review quotes without having veto power.
In some situations, that won’t be good enough from one side or the other; some news purveyors are sufficiently unreliable that it won’t be satisfactory, and some purveyors won’t want to have their sources pre-screen things due to time or perception-of-bias considerations.
But it seems like one way to diminish the ethical concerns that come with the request.
–JRM
“... for four percent raises each year for four years, for a total of about a 17 percent raise over the course of the contract.” — Approximately what I once wrote for the newspaper.
“... for a total of a 16 percent raise,” — What appeared in the paper.
“Four times four is sixteen.” — Editor
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November 19, 2009, 2:21 pmGainesvilleGuest says:
You’re not missing anything. It’s just an example of people speaking without stopping to think if what they are saying makes any sense.
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November 19, 2009, 3:53 pmHouston Lawyer says:
Better just not to speak to reporters at all. Bill Buckley had a very long and detailed agreement before he sat down to talk with Playboy.
I laugh at the idea of “journalistic ethics”.
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November 19, 2009, 4:08 pmtarheel says:
Indeed. The Dalton newspaper is a noted liberal rag. Its expose last year on why the lunch ladies refuse to wear hairnets was pure agenda-driven drivel from the left wing MSM.
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November 19, 2009, 6:05 pmKirk Parker says:
Really? So why haven’t we heard about this?
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November 19, 2009, 6:13 pmPsychDoc says:
Actually you were right and your editor (and ultimately the newspaper) was wrong. Assuming the 4 percent raises were cumulative rather than all based on the original base salary, the ultimate raise over the course of the contract is closer to 17 percent.
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November 19, 2009, 6:28 pmCrunchy Frog says:
Who would report on them?
Your editor never heard of compund interest?
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November 19, 2009, 6:31 pmNobody Really says:
I guess you don’t listen very carefully. Just one random sample, from the (former) Newspaper of Record:
http://article.nationalreview.com/print/?q=NWRiZTdhYTA4MmFkYWJkYjliZDA5OWFiMTU0YmU5YTg=
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November 19, 2009, 7:24 pmBarbara Skolaut says:
I don’t trust anything I read in the newspapers (or what I see of interviews on TV, for that matter — I always wonder what they edited out in order to push their agenda).
I was interviewed for a puff piece about my volunteer work a number of years ago. The author sent me a copy of the piece that was to run and asked me if she’d gotten everything right. (No, I didn’t ask for it — I was more
stupidtrusting back in those days.)I sent it back immediately, in plenty of time to make corrections, thanking her and politely correcting a factual error. They printed the piece as it was originally (and incorrectly) written.
I’ve never trusted newspapers since. Never will.
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November 19, 2009, 7:35 pmmariner says:
I guess I’m the odd man out here (not for the first time).
It appears to me this is messy because Kennedy authored an opinion which had the effect of denying that interviewees had the right to insist on being quoted accurately. The same Kennedy then insisted on editing a newspaper story so that he could be quoted accurately.
Of course that’s his side of the story — we don’t know whether he was merely correcting an inaccurate quote, “eliminat[ing] grammatical and syntactical infelicities”, or changing an accurate quote into something he liked more.
“Sauce for the goose ...”, methinks.
I am not in any danger of being quoted by newspapers, but if I were I would have my own voice recorder running at all times during interviews, and I’d attempt an agreement like Professor Volokh’s.
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November 19, 2009, 7:49 pmLaura(southernxyl) says:
This is why, were I to write such an article, I would ask the subject to review it — to make sure I hadn’t misunderstood and therefore misreported something.
Why am I not surprised.
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November 19, 2009, 9:05 pmGuy says:
I guess it could be characterized as “ironic”, but it isn’t really hypocritical unless he tries to sue someone for libel after they misquote him.
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November 20, 2009, 12:09 amLymis says:
I agree with those who say there is a distinction between an interview scheduled specifically for the publication and remarks given in public.
We don’t question that a model or celebrity has the right to put conditions on the use and publication of studio photos of them, and the appropriate of signing releases in some cases, but that snapshots of them in public don’t have the same protection.
Why would words that someone is specifically contracting with you to record (as opposed to those that happen in public) be any different?
As people have said, the journalist has the right to refuse the conditions, too.
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November 20, 2009, 8:55 amFriday Round-up | SCOTUSblog says:
[...] to pre-approve any quotes from the justice’s October speech at George Washington University. At The Volokh Conspiracy, Eugene Volokh discusses Jess Bravin’s interview with the justice and argues that the allegations [...]
Shalom Beck says:
The rule you are looking for: If you are a conservative public figure, it is your ethical responsibility to do everything within your power to help a journalist make you look like an idiot.
That must be why so few imitate Donald Rumsfeld by publishing the full text of every public statement or interview on their website.
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November 21, 2009, 5:10 pmandrew graham says:
Not really. To generalize a bit, journalists hate it when sources want to see what they’ve written. Of course, these are the same journalists who are in the position to editorialize incidents as “messy,” or the like, in print. It’s not an important ethical constraint; more like an observable coincidence.
Related: Good journalists recognize their ethical duty to treat sources as human beings deserving of respect. So long as the request to check quotes is made reasonably and doesn’t bump up against a deadline, more journalists should do it as a matter of courtesy.
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November 24, 2009, 1:39 pm