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Monday, November 28, 2005

Justice Scalia's Off the Record Remarks

Perhaps you've heard about the controversy surrounding Justice Scalia's supposedly "off the record" remarks to the press at a Time Warner event.  Details here.  Lloyd Grove, gossip columnist for the Daily News, wrote up the event as a hypothetical occurrence, framing his quotes as things that the Justice "might have" said had the event not been off the record.  The NYT then wrote up the ensuing aftermath to Grove's article, including Time Warner's anger at Grove.  (My favorite quote from the NYT article: "A Time Warner executive, who did not want to be identified because he did not want to appear to be speaking for the justice, said that Mr. Scalia had no complaints about the coverage.")

A few questions.  First, should the justice have expected his remarks to remain off the record, given that they were made to the press?  Second, what is the purpose of such an event if it is "off the record"?

Finally, as a related manner, are bloggers now expected to declare themselves as "press" at proceedings involving public figures?  If there is no "off the record" proviso, can bloggers quote at will, or is there an obligation to seek permission before quoting?

UPDATE:  Jack Shafer discusses the controversy here.  If the meeting was really supposed to be off the record, he asks, "what is the point of holding the session in the first place?"

Posted by Matt Bodie on November 28, 2005 at 10:56 PM in Constitutional thoughts | Permalink

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Comments

"If the meeting was really supposed to be off the record, he asks, "what is the point of holding the session in the first place?""

This happens all the time in journalism. Its how the access game is played.

Posted by: gr | Nov 30, 2005 9:39:05 AM

Revealing that just shows you're a no class bum.

Oops - "You" did not mean you, Dave. "You" was directed more generally to the class of people who reveal things shared to them off the record.

Posted by: Mike | Nov 29, 2005 1:10:31 PM

If the courts don't recognize bloggers as journalists (http://www.eff.org/Censorship/Apple_v_Does/) then why should bloggers recognize the convention of "off the record" remarks?

It's strictly a question of class. When someone says something to you "off the record," they're revealing confidences. They're taking you in. They're telling you something they might not have otherwise. Revealing that just shows you're a no class bum. So blab away. But when every looks in the other direction when you walk into a room, don't wonder what went wrong.

Posted by: Mike | Nov 29, 2005 1:08:22 PM

I was under the impression (rightly or wrongly) that something was on the record unless it was specifically requested to be "off the record" or unless a journalist prefaced to their source that the conversation was "off the record".

Again, if bloggers aren't recognized as journalists, then I'm just an individual writing about my experiences. If there's no condition of confidentiality explicitly imposed (via an oral agreement not to disclose the events or a formal non-disclosure agreement) then I consider it fair game. Maybe I won't be invited the next time a SCOTUS Justice speaks at my school, eh?

Posted by: Dave! | Nov 29, 2005 12:45:42 PM

Going "off-the-record" isn't something the source can declare unilaterally. It's an agreement between the reporter and the source; in this case, they thought they could impose an off-the-record condition (probably because this worked), but they forgot to forcibly remove the journalists' notebooks.

To answer your question about bloggers, I presume the "off-the-record" condition applies to ANYONE who attends an event, press, bloggers, or layperson. Lloyd Grove apparently decided it didn't apply to him because it wasn't a stated condition of the invitation, and not a bargained-for exchange.

Posted by: Ryan Walters | Nov 29, 2005 11:46:57 AM

But what if it's not off the record -- instead, nothing is said about the policy? Obviously, most bloggers and journalists will abide by an "off the record" request for the reasons you mention. But what if it's just an informal meeting or a law school forum with no formal policy? Should a law prof or law student blogger seek permission before blogging about the event?

Posted by: Matt Bodie | Nov 29, 2005 11:45:41 AM

Scalia likes his remarks off the record so that he only has to write one speech a year and can give it over and over. If you look at Scalia-speech-blogging for 2004-05, you'll see a lot of the same things being repeated. I'll leave to others the analogy to Napster-style IP issues.

Lots of useful stuff gets said at off-the-record meetings that can lead to on-the-record stories. If the off-the-record stricture isn't observed, the only thing accomplished is that less information gets conveyed. Bloggers who ignore these social conventions do so at their own peril--not in terms of legal consequences, but in terms of being ostracized or trusted and taken seriously. Different bloggers certainly have different incentives in that regard.

Posted by: Ted | Nov 29, 2005 10:24:03 AM

If the courts don't recognize bloggers as journalists (http://www.eff.org/Censorship/Apple_v_Does/) then why should bloggers recognize the convention of "off the record" remarks?

Posted by: Dave! | Nov 29, 2005 9:50:22 AM

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