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Tuesday, May 25, 2010

More on Kagan and News Photos

I was away from the Internet this weekend, largely because I couldn't watch Lost until last night and wanted to avoid spoilers, so let me finally get around to disagreeing with Dan's post about Elena Kagan and the selection of news photos.  Dan argues that photos of her, especially in the Times, seem designed to present her in a bad light, and urges photo editors at the major papers to "exercise more taste when selecting photos of people who have served or are serving their nation with commitment and honor."

Dan and I may agree on some things, and we may agree on some larger cultural matters.  I assume we both don't care how Kagan looks, whether she crosses her legs or not, and so on.  We may be especially alarmed at what these kinds of views and commentary suggest about the disjunction between how we treat men and women in public office.  In truth, standards of attractiveness are regularly applied to both men and women in public life, but it seems clear to me that those standards are applied more harshly to women than men.  And we may both agree on the self-evident conclusion that photo editors should not deliberately edit or select photos in order to make someone look bad or to tell a phony story, whoever that person may be.

Beyond that, however, I disagree with Dan on a number of levels.  

Although photo editors, like all journalists, are human, I think he attributes too much deliberate distortion to them.  Photographers and photo editors, like print or other journalists, ideally try to tell the truth, or at least a truth, about their subjects.  I won't rehash the debate over whether objectivity is possible in journalism.  (In short: it's not, but that doesn't make it a worthless goal to shoot for.)  But one can try to be fair in one's depictions, whether in print or photographs.  That is the only goal worth shooting for (pardon the pun).  I've never met Kagan and don't know what she looks like in person; nor do I care.  But it is always possible that Kagan is not especially photogenic, depending on what one thinks being photogenic consists of.  Whether she is or not should be irrelevant to her fitness for the office, or of anyone's fitness for office, man or woman.  But that doesn't mean news editors should deliberately select her best photographs either; indeed, in some ways to do so would be to concede the social prejudice about attractiveness, which can be especially unfair to women, instead of treating it as irrelevant.  To paraphrase Chief Justice Roberts, whether I agree with him in other contexts or not, to get beyond attractiveness we must stop thinking about attractiveness.  The only thing a photo editor should be concerned with is whether a photo accurately tells a story -- even a mundane one, like "nominee meets with senators" -- not whether it presents its subjects in the best possible light.

I especially disagree with Dan's view that we should select photos to present in a good light those who "are serving their nation with commitment and honor."  It did John Ashcroft little good, given his views, to photograph him against a gigantic bare-breasted Lady of Justice.  But that photographic depiction, although easily prone to distortion and even unfairness, still told a story and accurately depicted events.  A prima facie presumption against using such photographs for fear that they would make him look ridiculous would be as wrong as a prima facie rule against allowing public officials to hang themselves with their own ill-chosen words.  We should resist the urge to be overly influenced by either ill-chosen words or choreographed photographs -- Obama standing in front of an array of photographs does not make him either a true patriot or a messianic and arrogant figure, and one or many gaffes or spoonerism don't make a public official an idiot.  But neither should we deliberately encourage photographs to make our public figures seem more heroic or noble.  Noble is as noble does, not as it looks.  We already have quite enough reproduction of hierarchy and elite status without encouraging photo editors to actively join in the process.    

Posted by Paul Horwitz on May 25, 2010 at 12:21 PM in Paul Horwitz | Permalink


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"Second, the only reason this issue comes up is that women are still expected to wear skirts(!) in the most formal settings. I can only imagine the criticism if Kagan had decided to wear pants."

Lyrissa - completely agree. As soon as we lose the outdated, ridiculous belief that pant suits aren't really "formal attire" for women, things will improve. To her credit, SG Kagan has chosen to wear pants when arguing in front of SCOTUS, thus doing her part to chip away at that taboo.

Posted by: anon | May 27, 2010 3:50:40 PM

I'm not attributing malice to anyone because I cannot prove anyone's state of mind based on the photos that have been disseminated. Though I included some rank speculation as to its intent, my post was more focused on: what were they thinking?
In light of those photos, I'm just asking that more discretion (or taste or classiness or menschlichkeit) be exercised when there's not an otherwise important news angle to using a photo where someone's squinting in the sun or got her eyes closed. I'm not saying one must search for the most flattering images either nor, just to be clear, do I deny that a standard of decency should be extended to all human subjects (subject to the "newsworthy" proviso)--I didn't mean to suggest it should be limited only to those in public service. I confess I'm surprised that denouncing tastelessness would trigger apologia for photo editors, but then, perhaps my post proves the emerging aphorism that law professors are experts in the art of disagreement :-)

Posted by: Dan Markel | May 26, 2010 1:56:17 PM

I don't even think it is open to question whether there is an appearance-related double standard for women. I have more issues, though, with Givhan's criticism. First, even as etiquette advice, it is dubious. My mother always taught me that "ladies" WEREN'T supposed to cross their legs, only their ankles. I always thought the theory was that otherwise you'd expose too much leg at the place where the top leg crossed. Second, the only reason this issue comes up is that women are still expected to wear skirts(!) in the most formal settings. I can only imagine the criticism if Kagan had decided to wear pants.

Posted by: Lyrissa | May 25, 2010 4:25:35 PM

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