Bench Memos

Re: NYT’s Dismal Editorial Standards and Bruce Fein’s Falsehoods

A follow-up to my post:

The Wall Street Journal’s James Taranto nicely describes the tag-team mugging of Justice Scalia that the New York Times and Bruce Fein commit:

The Times’s description of [Scalia’s speech at the House Tea Party Caucus] event is artfully constructed to be literally truthful while conveying a false and damaging impression. Facts are omitted that demonstrate beyond any doubt the propriety of Scalia’s conduct.…

Last week we characterized this passage as follows: “Here the Times deceives its readers in an effort to defame Justice Scalia.” We chose these words with precision: The Times did not lie outright; rather, its deception consists in the omission of some pertinent facts and the misleading presentation of others. And the Times did not defame Justice Scalia, which would require it to make false statements of fact about him; it merely participated in an effort to do so.

Fein’s letter illustrates how this effort works. His account of the Scalia meeting is consistent with the Times’s. But Fein fills in the blanks and resolves the ambiguities in the Times’s account in ways that are contrary to fact but consistent with the Times’s implicit message that Scalia behaved wrongfully. Our surmise is that the Times’s editors expected ideologically sympathetic readers to do just that, and influential ones to propagate a false account that would damage Scalia’s reputation–but for which the Times would bear no responsibility because, after all, what it wrote was accurate.

Just one problem: Fein’s letter was published by the New York Times. And not in some unmoderated online comments forum, but in the heavily edited letters section of the newspaper. That is to say, the Times’s editors made the decision to publish a false accusation against Justice Scalia.


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