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Wednesday, January 28, 2009

Media ethics and law-prof blogs

I am quoted today in an op-ed in the Daily Tar Heel. (H/T: My former colleague Joel Goldstein). The op-ed discusses the motion filed by former Durham District Attorney Mike Nifong, the main culprit in the Duke lacrosse mess, seeking to dismiss the § 1983 actions against him on absolute prosecutorial immunity grounds (and without seeing the motion, I have argued previously that he has a pretty strong argument). The op-ed, clearly not coming close to understanding what prosecutorial immunity is all about, argues that Nifong should not have immunity because by "withholding DNA evidence, Nifong clearly deprived the defendants of their right to due process." Um, yeah, but the point of immunity is that does not matter, because other policy concerns trump. AndI did not read the piece as arguing that prosecutors should not have immunity (an arguable point), only that Nifong should not.

Anyway, I am identified as a Saint Louis University law professor and described as saying that Nifong only has immunity for those things he did as an advocate for the state. One problem--I never spoke with anyone at the Daily Tar Heel at any point. (Actually, I suppose a second problem is that I no longer teach at SLU, so there is a pretty glaring factual error there that would get them nailed in a newswriting course). The "comment" attributed to me was something I wrote in one of several posts, here and at Sports Law Blog, analyzing the players' lawsuits against Nifong, Duke, and others.

So, my question--Did the authors of the piece act appropriately (as a matter of journalistic practice) in attributing a comment to me without identifying it as something I wrote on a blog and attributing the blog? Is it OK for reporters to make it sound instead as if we had had a conversation? I am not suggesting that journalists should not read blogs as part of their reporting or that they should not report what they see written here. Indeed, one purpose of blogging is to be part of the broader public conversation beyond the academy, so having newspapers report on what we write here goes a long way to making us part of that conversation. My question is strictly how journalists should describe the source of a comment when they get it not from an interview, but from something the source has written.

Posted by Howard Wasserman on January 28, 2009 at 12:13 PM in Blogging, Current Affairs, First Amendment, Howard Wasserman, Sports | Permalink

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Posted by: MarkJones | Jun 25, 2009 5:57:40 AM

Just a couple of points:

As for the rule against "reporting" before writing editorials, I have been interviewed by the editorial board of the local newspaper and a writer for the NY Times (for one of those "Notebook" thingies on the editorial page). In neither case was I quoted (that I remember), but there was definitely a fact-gathering process.

I agree that it does not take much ink to say, "Prof X said on Y." I read articles all the time that make a point that Dr. Y spoke by phone from his office. Seems to me that a few extra words ("Mr. Z wrote on his blog on January 2") can put things into context, especially if there has been some delay since Mr. Z wrote.

Posted by: Edward Still | Jan 31, 2009 7:07:34 PM

Oh, yes. What confused me about your concern was you use of "quoted" in the first line of the post. You weren't "quoted" as the newspaper would understand it; they'd definitely need to call you for that.

I still don't think that level of citation--"on Prawfsblawg" or "in his book Nifong Must Go!"--is customary or strictly necessary in board editorials. What does specifying that the comment was made on Prawfsblawg add? It clarifies that you didn't talk directly to anyone at the newspaper--but that's inherent in the editorial. It lets readers follow up (and possibly learn what prosecutorial immunity really is). It might do something to the level of authority the reader will grant this Professor Wasserman, but it's hard to guess what.

The editorial board should really think about why they mentioned you at all. "Some experts believe . . ." might have been more appropriate. The problem stemmed from the perceived need to refer to an authority. Furthermore, they should actually have reported this one--called you and learned what "prosecutorial immunity" is--in advance of writing the editorial. (I have not looked at many recent issues and can't rule out that they did run a news story.) Hint to college paper editors: if you are dying to weigh in on an issue, calm down and put a reporter on it before using the editorial space.

I imagine whoever on the DTH ed board put you in the piece is going to read this and will think about these issues.


Posted by: Bama 1L | Jan 29, 2009 12:16:12 PM

I never suggested they had to call me to verify it. But generally when you refer to something that has been published, you do note that the comment was in a published piece and you do identify the published source. I imagine this is what we would expect them to do if my comments had appeared in a law review article or in an op-ed. So why not with a blog post?

Posted by: Howard Wasserman | Jan 29, 2009 11:23:40 AM

I just don't see the problem.

The Daily Tar Heel piece isn't a reported story or even a signed opinion piece; it's the board editorial. It would not occur to the editorial board that anyone would imagine they had contacted Professor Wasserman. There is often an internal rule against doing any reporting for an editorial--that was the case at my student paper, anyway.

The editors treated Professor Wasserman's blog post as they would a published work. If you are referring to something that has been published, you generally don't need to call the author and verify it.

Posted by: Bama 1L | Jan 29, 2009 10:37:10 AM

As a journalist I can say that the first thing the writer should have done was try to contact you directly. If you could not be reached they should have said, "Last December, Professor Wasserman said xyz discussing the issue on his blog xyz.com..."

That would have made it clear that whatever comments you made were outside the context of their story. You are right, any journalism teacher would nail them for this sloppy work.

Posted by: Ashley | Jan 29, 2009 2:52:27 AM

The obvious and simple answer to your question would be that a journalist should cite their sources appropriately.
True, I am not a journalist, nor am I trained in the ways of the force, and I may be wrong but it doesn't seem particularly difficult
to write "Professor Wasserman wrote in [enter name of blog]..." instead of "Professor Wasserman said..."

It appears that truth and journalism do not go hand in hand nowadays. Journalism and convenience seem to get a long much better.

Posted by: Anon | Jan 28, 2009 12:57:35 PM

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