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?