I Sent a first draft of the email below on the day of print. After no response, did more research and sent this revised email on 12/24
Public Editor, N.Y. Times
The article contains this paragraph:
A divided 16-member panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, rejected Mr. Bell’s First Amendment challenge. Judge Rhesa Hawkins Barksdale, writing for the majority, said the song was “incredibly profane and vulgar” and contained “numerous spelling and grammatical errors.” “If there is to be education,” Judge Barksdale wrote, “such conduct cannot be permitted.”
The wording and context of the above paragraph strongly implies that both of the two elements of the lyrics, including "numerous spelling and grammatical errors" were aspects that were considered in deeming that the posting was not protected speech. I was surprised and shocked that spelling and grammatical errors could ever have limited first amendment protections.
On pp 3 of the PDF transcript the context was clear. Justice Barksdale's statement was appropriate, as the exact transcription of the rap lyrics was needed to evaluate aspects that could impact the case. The quoted reference to spelling and grammatical errors was in lieu of multiple uses of "sic" deemed legitimate -- as described in this explanation from the Columbia School of Journalism.
The New York Times appears to have trivialized and distorted the process of the jurists arriving at their decision. If that is the case, the reporter who was tasked with reading the entire decision appears to have done this intentionally if not being grossly incompetent.
Please get back to me on this, as I presume others have contacted you on this issue.
Regards
Addendum:
101 page report on case from the Fifth Circuit Court of appeal; first 34 pages are decision by Judge Barksdale that was summarized in disputed paragraph in N.Y. Times quoted above.
PDF of Writ for Petition of Certiorari to The Supreme Court.
This video has the recording and commentary of the rap song, and a version of the text that is also included in the full transcript of the appeals court case.
---------------------
I sent the following to the author, who is a Colombia University. Law Professor:
Mr. Adam Liptak.
Your summary of the Taylor Bell 5th circuit decision appears to be seriously flawed as described in link below . Perhaps since the article was not specifically on this, you may not have studied it, in which case you owe Justice Barksdale an apology, and a correction for the record
--------------------
Response from Times Editor who was forwarded the complaint to the public editor (ombudsman):
Subject:
Dear Mr. Rodbell,
Thanks
for your email, which was forwarded to us from the Public
Editor's office (we handle factual corrections). We understand your
concern, but after reviewing this with an editor in our Washington
bureau, who consulted with the reporter, we do not believe any
correction is necessary. It's a verbatim quotation from the decision that captures the judge's tone, which is what the reporter was trying to convey in this column about a clash between rap music and the legal culture. The column does not say that the case turned on that tone.
I hope this helps explain. Thanks again for taking the time to contact us, and for your careful reading of The Times.
All best wishes,
JO
Assistant to the Senior Editor for Standards----------
I responded that I disagree and restated my objections; with no further response from standards editor or public editor of the N.Y. Times;
----------
During this period 12/22 or 23, the writer, Professor Liptak responded to me:
Dear Mr. Rodbell,
Thanks for writing and for your close reading of my article.
The quotation you discuss captures the judge's dismissive tone, which is what I tried to convey. The
opinion is, I think you will agree, shot through with that tone. There
was no risk that a reader would attribute "the numerous spelling and
grammatical errors" of a high school student to a federal appeals court
judge, but noting them certainly betrayed an attitude of superiority and
condescension.
I
didn't say the case turned on the judge's hostile tone, but I thought
it was an interesting and telling point in a column about a clash
between rap music and the legal culture.
With all good wishes for the holidays,
Adam Liptak
The New York Times
1627 I Street NW
Washington, DC 20006
----------------------------Liptak's last sentence of the first paragraph above is incoherent and does not address my accusation. It is undisputed that "numerous spelling and grammatical errors" was a quote by the judge, thus attributed to him. But these words in the 32 pages of the decision did not refer to the Judge's evaluation of the rap lyrics written by the student, but were part of a technical explanation for the reason the Judge did not add "sic" after each such non-standard word. Given this was not an evaluation of the rap lyrics by Judge Barksdale, it certainly did not betray his attitude of superiority and condescension. It is Professor Liptak's collage of words from the decision that falsely conveys to a reader that Judge Barksdale "betrayed" his attitude of superiority and condensation."
The effect of this collage, certified by the institution of The New York Times as a fair summary of the rationale for the decision, is to subliminally* convey to a fair minded reader that this decision of the court of appeals was a product of simplistic racism. It could very well be that this is so, that the decision was tainted by such pre-existing biases of the majority articulated by Judge Barksdale, but Liptak gave no evidence of this by including a phrase that was falsely defined as a reason for the decision.
I explained this to Mr. Liptak, the Times editor of standards and the Public Editor on several occasions, even citing an article in the magazine of the Columbia School of Journalism that defines the appropriateness of such a technical explanation being included in a court decision.
The early responses to this survey that I wrote asking whether the description of substandard spelling and grammar is perceived not only as a quote of the Federal Appeals Court Judge which is self evident, but one of the reasons for his arriving at the decision, are now in. The results provide objective evidence to the accuracy of Liptak's explanation in his email above, "There was no risk that a reader would attribute "the numerous spelling and grammatical errors" of a high school student to a federal appeals court judge " Over 90% of those who took the survey refute Liptak's explanation, that could be stated as that lack of mastery of subjects taught in a high school English class, were one of the reasons the student was denied full 1st amendment rights.
Such false simplification, and defamation of the person of the individual who purportedly wrote them, Judge Barksdale, has an effect on public stereotypes of Southern judges, further exacerbating the vitriol of our partisan divide. The accuracy of an institution with a reputation for integrity, is what elevates this beyond the accepted low level of public discourse on the crucial issue of our day.
*subliminal is applied to the hundreds of thousands of readers of the N.Y. Times article that contained the instant paragraph, who did not consciously respond to its being of doubtful accuracy.
----------------------------
----------------------------
I described this to Eugene Volohk. a law professor at UCLA who after reading Liptak's article responded with:
Good catch as to the spelling/grammar error point – it was indeed unrelated to Barksdale’s argument.-----------
The “incredibly profane and vulgar” point is a bit closer, because that phrase was at least in the same sentence as the argument that the song contained “threatening, harassing, and intimidating language,” and this intimidating quality of the language ended up being linked to the “such conduct cannot be permitted” point. But there too I think you’re right, because Judge Barksdale isn’t saying that the song is intimidating because it’s profane and vulgar; he seems to be saying that it’s both profane and vulgar and, because of separate aspects of its content, intimidating.
I wrote this email to Mr. Volohk, who had said he was planning to write about this in his column in The Washington Post (in part below)
I see this as a type of smoking gun for what The Times is often accused of by their opposition, purveying dogma under the flag of "all the news that's fit to print."If I had not taken the effort, which wasn't that great, to click the link of the online article to the PDF of the decision to discover after three pages that the phrase, "numerous errors of grammar and spelling" was not a criticism of the rap song, but a technical explanation of the transcript, this distortion would not have been a non-event, only an invisible one. The more than hundred thousand people who read this one article will have been further led to think that the blatant racism of the South extends to federal appeals courts in that still unreconstructed region of America. The non effort at verification by those thousands of other readers says little about me .... but much about the passivity, and comfort in their biases of our country; and how the Times both feeds, and feeds on, this politically defined readership.
------------
My strong reaction to the distortion of the summary of the decision of this lawsuit was because it touches on so many stresses of our country. Rap music is many things, an anthem of a violence-prone demographic but also a unique form of expression among this group. Freedom of Speech is most sacrosanct in this country, but doesn't come without costs. If this case is accepted by the Supreme court it will be up to the nine men and women, all white, except the sole Black member, ironically being the most likely to endorse limits on this dominantly Black mode of expression.
This will be decided, even though by a small unelected group, with their reasoning laid out for all to see. Not everyone has the time and inclination to read through court decisions, so most rely on the summaries of authoritative sources, such as The New York Times. If scores of pages are to be condensed in a few lines, any intentional bias must be prevented or corrected. Unfortunately, in this case, the New York Times has chosen not to do this.
-----------
Article posted on this by Eugene Volokh in his blog in The Washington Post 1/8/15
While he linked my contribution reflected in this page at the end of his article, he softened his clear agreement noted above that the summary of the case in the Times article was clearly out of context. My suggestion that he clarify what I described as his "distortion of the Times' distortion," has not been taken up.
---------------------
On 1/16/16 I spoke to the media liaison employee of the Fifth Circuit Court, asking to connect with the author of the decision or those who joined with him. He implied that such non-accurate interpretations are not rare,and that "the written decision speaks for itself." He went on to say that we are not a public relations organization.
In spite of the spokesman's statement, the written decision, although linked from the Times article, only speaks when someone reads it. If there is a deviation between the summary read by hundreds of thousands and the full decision, read by hundreds, then it takes those such as myself and Eugene Volokh to speak for the Justices who carefully analyzed and define their rationale for their decision,.
The New York Times, no matter how much past the date of the article, must acknowledge its distortion.
--------------------- ------------------
--------------------- ------------------
-----------
Article posted on this by Eugene Volokh in his blog in The Washington Post 1/8/15
While he linked my contribution reflected in this page at the end of his article, he softened his clear agreement noted above that the summary of the case in the Times article was clearly out of context. My suggestion that he clarify what I described as his "distortion of the Times' distortion," has not been taken up.
---------------------
On 1/16/16 I spoke to the media liaison employee of the Fifth Circuit Court, asking to connect with the author of the decision or those who joined with him. He implied that such non-accurate interpretations are not rare,and that "the written decision speaks for itself." He went on to say that we are not a public relations organization.
In spite of the spokesman's statement, the written decision, although linked from the Times article, only speaks when someone reads it. If there is a deviation between the summary read by hundreds of thousands and the full decision, read by hundreds, then it takes those such as myself and Eugene Volokh to speak for the Justices who carefully analyzed and define their rationale for their decision,.
The New York Times, no matter how much past the date of the article, must acknowledge its distortion.
--------------------- ------------------
--------------------- ------------------
Event of 2011 - not directly related to the material above on the article by Adam Liptak
-----------------------
The following is a description of my intervention with the New York Times for an error in reporting in 2011. It is included in this posting about the above 2015 article on an Appeals Court decision to show my expectation of respectful cooperation with readers whose attempt is to improve the accuracy of this news organization. A careful reading, from bottom to top for chronology, shows the contrast to circle-the-wagons mentality that I am currently challenging. Abby Goodnough was the reporter for the Times. Who supported both of my suggested corrections, even though only one was appended to the article.
The following is a description of my intervention with the New York Times for an error in reporting in 2011. It is included in this posting about the above 2015 article on an Appeals Court decision to show my expectation of respectful cooperation with readers whose attempt is to improve the accuracy of this news organization. A careful reading, from bottom to top for chronology, shows the contrast to circle-the-wagons mentality that I am currently challenging. Abby Goodnough was the reporter for the Times. Who supported both of my suggested corrections, even though only one was appended to the article.
I see what you mean about the photo
caption, which I did not write or even see until now. I’ve told the
editors we should run a correction.
Thanks, Abby
From: Al Rodbell
[mailto: alvrdb-brt@yahoo.com ]
Sent: Wednesday, October 05, 2011 11:18 PM
To: Goodnough, Abby
Cc: nytimes, public
Subject: RE: READER MAIL: Abby Goodnough
Sent: Wednesday, October 05, 2011 11:18 PM
To: Goodnough, Abby
Cc: nytimes, public
Subject: RE: READER MAIL: Abby Goodnough
Abby
Goodnough
Reporter,
N.Y. Times
Dear
Ms. Goodnough
Thanks
for your response.
You
wrote " I did not assume it was a large airplane and don't believe
the story implies that."
You may
know what you assumed, but a writer is always the worst person to know what
an audience will infer. This is dependent on their background
knowledge,mindset and specific knowledge of the subject. Anyone who had
seen a news report, almost all of them using the term model or toy planes,
would not be confused at all. But those who had not, like myself, and
others whom I sent a link of your article,, asking "what is the
approximate wingspan of the plane, 5 ft or 50ft?" were not clear that it
was closer to five feet. I can send you the exchange of letters if
interested.
To
understand my motivation for pursuing this you may want to read this article that was the only comprehensive defense of the recent N.Y. Times piece on
Darrell Issa that appeared in his California
congressional district. I predicated it on the inherent accuracy of
the N.Y. Times, which makes me feel I have a right, and an obligation to
ensure that this trust continues to be justified.
I
suggest you read again the comment by user G2Geek, who, based on other
comments, seems to have expertise in this area of counter terrorism. He
explains the potential public harm of your article leading/allowing some to
believe it was a full size drone,
I have
no desire to personally criticize you, as your reporting should not be
evaluated on any single article. Since the DOJ report was unclear, and
you were constrained by quoting their ambiguous words, even though you
understood that it was a small plane, the article was, in fact, confusing to,
at the least, some of your readers.
A close
reading of the DOJ press release shows the conflicting purposes of their
report; assuring the public that there never was a real danger, yet by
calling the weapon a "large remote controlled aircraft filled with C-4
plastic explosives." pointing out the massive harm that was averted. The
report describes the drone in two different places once as "large"
and later as "small" reflecting their mixed message that while
there never was a danger, it was a really big danger that there never was!.
The
caption of the photo is clearly misleading. If it was supplied by the
Times, this too should be corrected. Rather than " A model of an
F-86 drone, a real version of which was reportedly given to the suspect, it
should read,something like " A model of an F-86 drone like to the one reported
procured by the accused" This single additional correction would
clear up any remaining ambiguity.
I have
copied this exchange of emails to the public editor whom I had emailed
previously
Regards
Al
Rodbell
Encinitas
CA
--- On Wed, 10/5/11, Goodnough, Abby From: Goodnough, Abby Subject: RE: READER MAIL: Abby Goodnough To: " alvrdb-brt@yahoo.com " < alvrdb-brt@yahoo.com > Date: Wednesday, October 5, 2011, 2:50 PM
Dear Mr. Rodbell,
Thank you for your e-mails. I read your post on dailykos. You are correct about the fact that the undercover agents did not directly provide Ferdaus with a plane; they gave him the money for it. We are running a correction on this. I don't, however, believe any other correction is warranted. I did not assume it was a large airplane and don't believe the story implies that. Best, Abby Goodnough -----Original Message----- From: ordercs@nytimes.com [mailto:ordercs@nytimes.com] Sent: Wednesday, October 05, 2011 5:20 PM To: Goodnough, Abby Subject: READER MAIL: Abby Goodnough Email: alvrdb-brt@yahoo.com URL: Comments:
Abby,
No response from anyone at the Times. Wrote another article on Dailykos with the Times target of my criticism, but I carefully read the DOJ report and understand how you could have been confused, as they began by describing the plane as " large remote controlled aircraft" and that could have been confused with an actual drone aircraft.and only later use the words,"Ferdaus stated that he planned to attack the Pentagon using aircraft similar to "small drone airplanes" filled with explosives and guided by GPS equipment" I assume the caption on the photo was yours, and not from the DOJ. as you appear to have assumed that it was a full size airplane. I may be the only one on this right now, and I'm a N.Y. Times fan. The article should have a correction added that clears up any confusion. The integrity of this paper means more than any employee, executive or reader. So, let's acknowledge that there was confusion, and by doing so preserve the Times reputation. Al Rodbell Here's the dailykos essay http://www.dailykos.com/story/2011/10/05/1022865/-NYTimes-circles-the-wagons?showAll=yes&via=blog_475686 If your article was misleading, so was the DOJs release, which raises other serious issues. I don't want to let this drop for reasons I alude to in my essay, as we all must learn from this. Al Rodbell Clear analysis of Liptak summary, by retired lawyer, Robert B.
Hi Al
The
excerpt from the article (in the Times) you quote is very misleading. It suggests
Judge Barksdale ruled that a rap song was not protected by the First
Amendment solely because it was "incredibly profane and vulgar and
contained numerous spelling and grammatical errors". And went on to
state "if there is to be education, such conduct cannot be
permitted". I read the entire 33-page opinion by Judge Barksdale, and I
interpret it to mean the song, and the way it was published, was not
protected under the First Amendment because it was "threatening,
harassing and intimidating" to two teachers at the school, and that it
"caused a substantial disruption at the school or could reasonably be
believed to cause one".
By
the way, the Judge is correct in saying the words of the song are
incredibly profane and vulgar. I suggest you read the words
in question, and see if you agree. But that would not have deprived
them of First Amendment protection. Instead, that was due to the fact
that they threatened, harassed and intimidated two particular
individuals (two teachers at the school)---in this regard, the song
stated, among other things, "You've f----d with the wrong one/going to
---a pistol down your mouth/ POW, and warning them "to watch {their}
backs" and that they would "get no mercy" when such actions were taken.
The
punishment the school dealt out to Mr. Bell ( the student involved) was
a temporary suspension and placement in an alternative-education
program for the remainder of the nine-week grading term. What are your
views on that?
Bob
----------- This was my comment to the last article posted by ombudsman Margaret Sullivan. She wrote a paragraph on each of five impediments to her doing her job, that of raising the standards and integrity of The New York Times. I focus on one them in my comment that follows:
How true is this:
"3. Defensiveness. Although The Times runs many corrections and has two staff people, including a senior editor, whose main job is correcting errors, it’s safe to say that many Times journalists find it hard to admit they got something wrong. In fact, what’s much more likely than any such admission is the tendency to double down"
----------------
In a world where spin, distortion and lack of integrity is almost ubiquitous, I had somehow believed that the N.Y. Times rose above it. This is about something that would have been meaningless is a lesser newspaper, but the Times is seen as special. Friends challenged my claim, arguing that one as esteemed as being not only a reporter, but a professor of law and journalism would have no motivation to write such an obvious distortion.
The only explanation is to show that he could, and that the Times would back him up.
This tells the story, with link at the end to correspondence with editors, writer and many others. The problem is this isn't egregious, and only shows me that the Times is no better than the others.
http://publictennis.blogspot.com/2016/02/the-virus-of-toxic-partisanship.html
Margaret, it's not to late to run a correction.
AlRodbell.com
-----------This comment was never posted, but it provides the answer that I have been seeking in this long endeavor. |
