JUNE 29, 2010.Partisanship and the Press
The "Journolist" scandal and the case against shield laws..ArticleComments (29)more in Opinion ».
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By JAMES TARANTO
David Weigel, a former Washington Post reporter, is sorry--so sorry he apologized twice. Last Thursday Weigel issued his first apology on the Post's website:
I'm a member of an off-the-record list-serv called "Journolist," founded by my colleague Ezra Klein. Last Monday, I was deluged with angry e-mail after posting a story about Rep. Bob Etheridge (D-N.C.) that was linked by the Drudge Report with a headline intimating that I defended his roughing-up of a young man with a camera; after this, the Washington Examiner posted a gossip item about my dancing at a friend's wedding. Unwisely, I lashed out to Journolist, which I've come to view as a place to talk bluntly to friends.
Below the fold are quotes from me e-mailing the list that day--quotes that I'm told a gossip Web site will post today. I apologize for much of what I wrote, and apologize to readers.
Most of the quotes were silly insults--e.g., "This would be a vastly better world to live in if Matt Drudge decided to handle his emotional problems more responsibly, and set himself on fire." The apology left us scratching our head; possibly excepting a reference to "Paultard Tea Party people," we didn't see anything worth troubling oneself to get offended over.
It turned out, however, that Weigel's apology was incomplete. On Friday The Daily Caller published excerpts from Weigel's Journolist messages on other days, and some of them were considerably worse than the quotes he had revealed himself. He used a Watergate-era obscenity to describe opponents of ObamaCare, referred to Sarah Palin's "death panel lie," and made baseless accusations of racism.
Weigel's beat at the Post was the conservative movement. Yet here he was on an ideologically exclusive list--conservatives need not apply--insulting and denouncing the subjects of his coverage to a supposedly off-the-record audience of some 400. The Post had initially stood by him, but the Caller's revelations made it impossible to take him seriously as a fair-minded chronicler of the right. He resigned on Friday, and his second apology appeared yesterday on BigGovernment.com.
We wish Weigel well, and far be it from us to criticize another journalist for expressing opinions. He obviously was ill suited for his old job as a straight news reporter, but we're sure he'll land on his feet in a position that allows him to be polemical.
One quote from the Caller piece, however, went too far even for an opinion journalist:
After Scott Brown won the Massachusetts Senate seat, threatening to kill the health care legislation by his presence, Weigel stressed how important it was for reporters to highlight what a terrible candidate his opponent Martha Coakley had been.
"I think pointing out Coakley's awfulness is vital, because it's 1) true and 2) unreasonable panic about it is doing more damage to the Democrats," Weigel wrote.
Remember, Weigel's supposedly off-the-record audience consisted of hundreds of journalists, both left-wing and purportedly objective. What it appears he was doing was not merely expressing an opinion but engaging in partisan politics--i.e., advising other journalists on how they should tailor their coverage so as to avoid "doing more damage to the Democrats."
We surmise that this was not an isolated occurrence--that a lot of the discussion on Journolist consisted of this sort of blatantly partisan strategizing. We're certainly open to being proved wrong, if Journolist founder Ezra Klein--who still is at the Post--or any other member of the now-defunct list would like to supply us with a copy of its archives. We're willing to promise our source anonymity and even buy a round of drinks, though we're afraid we are not in a position to match Andrew Breitbart's offer of $100,000.
The Weigel kerfuffle has prompted a bit of confusion about journalistic ethics. Jeffrey Goldberg of The Atlantic wrote last week: "I've been leaked postings from JournoList before--wonderfully charming things written about me, as you might have guessed--and I haven't had the opportunity to use them, but would be happy to if the need arose." This prompted a John Cole to denounce Goldberg (publicly, on his blog) for his willingness to use his "perch at the Atlantic to publish someone's private emails to viciously destroy their character and career."
But of course all Goldberg is threatening to do is commit journalism. The Journolist member or members who forwarded the emails in question to Goldberg might have violated a confidentiality agreement, but Goldberg was not a party to that agreement. Neither were the guys at the Daily Caller. In fact, Ezra Klein revealed last week on the Post's website that he had blackballed the Caller's editor, Tucker Carlson, on ideological grounds.
If a group of professionals in any other industry were conspiring to serve the interests of a political party in the way that Weigel's Coakley post suggests the Journolisters were, no journalist would deny that the public had a right to know. Why should that be any less true in this case--especially since in this case, such partisan activity would be a violation of professional ethics?
Along with Breitbart, blogress Ann Althouse--who says Klein defamed her last year on Twitter--would like to see the Journolist archives:
If I were to bring a defamation suit based on Ezra Klein's lie "Ann Althouse sure has a lot of anti-semitic commenters," I would seek access to the Journolist archive, and I believe I would get it. There is no privilege that would shield this information from discovery. Lawyers, argue with me if you think I'm wrong.
Seems to us it would depend on the venue. Most states have some sort of shield law protecting reporters from having to disclose confidential sources, but the specifics vary from state to state. In federal court, however, there is no such privilege.
There have been efforts in Congress of late to change that by enacting a federal shield law, but the Journolist scandal is another reason to think this is a bad idea. If journalists frequently act as partisan activists, as seems to have been the case among some Journolisters, what conceivable public interest could there be in extending them special legal privileges?
They should, of course, have all the legal protections of the First Amendment, which among other things mean that Althouse almost certainly would not win her defamation suit against Klein. His offending tweet, it seems to us, is a constitutionally protected opinion rather than a false statement of fact.
A corollary: In January the U.S. Supreme Court held, in Citizens United v. FEC, that corporations have a First Amendment right to speak about politics. Managers at many corporations, such as the New York Times Co., were outraged by this, and used the corporate resources to express their views in the form of editorials. The irony escaped these corporate managers because the law the court struck down had included an exception allowing "media corporations" to speak.
If journalists are acting like partisan activists, that is all the more reason why it is vital to protect the First Amendment interests of partisan activists who do not claim to be journalists.
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