Monthly Archives: December 2005

Blogging the Murphy case

Despite my determination not to get sucked into blogland this week, things keep coming up. This morning I listened to a voice-mail left last week (sorry) by someone who didn’t identify himself, but who sounded as though he is a lawyer. He seemed to be quite familiar with Superior Court Judge Ernest Murphy’s libel case against the Boston Herald, and was contemptuous of my commentary about it.

I didn’t save his message, so no direct quotes. But I do want to consider his two main arguments:

1. Anyone who has done his homework would know that the reason Murphy asked Herald publisher Pat Purcell for $3.26 million rather than the $2.1 million a jury awarded him was because Murphy was figuring in interest.

There is a simple answer to this: No. Not true.

To review, on Feb. 19, immediately after the verdict, the Boston Globe quoted David Rich, one of Murphy’s lawyers, as saying that the award amounted to $2.7 million with the interest that had accumulated since the suit’s filing three years earlier. One day later, Murphy sent a letter to Purcell seeking $3.26 million as the price for ending the case.

Nor has Murphy’s lead counsel, Howard Cooper, explained the mark-up in a convincing manner. Last week, Mark Jurkowitz of the Boston Phoenix covered a news conference at which Cooper said the $2.7 million has grown to $2.95 million, as the 12 percent interest clock keeps ticking away. That makes sense. So what’s up with the $3.26 million? Jurkowitz wrote: “He [Cooper] claimed the judge’s dollar figure ‘could be seen to represent a hypothetical discount from the Herald’s worst case scenario,’ in which the paper could end up owing more.”

Huh? If Purcell had paid Murphy $2.7 million right after the trial ended, wouldn’t that have been the end of it? The “worst case scenario,” after all, involves several years of presumably fruitless appeals, mounting interest costs and huge legal fees, above and beyond what Purcell had already paid. None of those factors would have been in play last February. So we still don’t know what the answer is. Note: I’m not saying there isn’t a good answer — that would be going beyond the facts (see point #2, below). I’m just saying the $3.26 million hasn’t been adequately explained.

By the way, I’ve seen commentators — including at least one newspaper columnist — who haven’t even grasped the elementary point that interest costs have long since rendered the $2.1 million figure irrelevant. So this is hardly a shortcoming of blogs per se. (And in the case of Media Nation, not a shortcoming at all.) Which brings me to my caller’s next point.

2. It’s irresponsible for a blogger to write without doing any reporting. The lesson of the Herald case is that you have an obligation to report before you start typing.

Ah, the central dilemma of every blogger, or at least every one who takes his journalistic obligations seriously. Quite frankly, this is something with which I wrestle all the time. Most items on Media Nation, as well as across blogland, are unreported in the traditional sense — that is, I’m not picking up the phone and interviewing sources.

But that’s not what most blogs are. Rather, they consist of commentary on what other media are reporting. Is that a lower order of journalism than what you read in a good newspaper every day? Yes, of course. But it has value to the extent that a blogger can make sense out of the news in ways that you might not have thought about before.

A key to responsible blogging, I think, is disciplining yourself not to go beyond what you find in your excursions across the mediascape. Thus, I see absolutely nothing wrong with noting that Murphy asked Purcell for some $500,000 more than the $2.7 million judgment-plus-interest; that the tone of his letters to Purcell was bullying; and that well-known media observer Alex Jones had said the letters called Murphy’s own judgment into question. None of this goes beyond what’s on the public record. On the other hand, ascribing motives to Murphy’s behavior would be out of bounds unless I had some special insight I had gleaned — insight I could only gain by interviewing people.

I’m also free to express my opinion. And it remains my opinion that the Herald’s journalism with regard to Murphy, though sloppy and sensationalistic, did not rise to the level of reckless disregard for the truth, which is the threshold a public official such as Murphy must meet in a libel case. It is also my opinion that Murphy should have taken the Herald on in the court of public opinion — Holmes’ “marketplace of ideas” — rather than trying to intimidate the news media into soft-pedaling its reporting on public officials lest they be hit with a multimillion-dollar libel judgment.

Murphy has every right to hold his reputation in high regard. I wish he had the same regard for the central purpose of the First Amendment, which is to encourage vigorous, contentious and even irresponsible discussion of public affairs.

My previous Murphy posts are online here, here, here and here.

Do Oreos fly?

Perhaps not. A key point in Jeff Jacoby’s column on “liberal hate speech” is his assertion — based on a Washington Times account — that Maryland Lt. Gov. Michael Steele, a conservative Republican who’s African-American, was once pelted with Oreo cookies. (You know, black on the outside, white on the inside.)

But did it happen? Here’s what the Baltimore Sun reported on Nov. 15:

Various versions have been given over the past three years, but some Democrats question whether cookies were actually tossed….

News reports from the night of the Sept. 26 debate make no mention of cookies. The first reference came five days later in an article in The Sun in which [Paul] Schurick, then a spokesman for the Ehrlich campaign, said cookies were distributed in the audience….

Several audience members who attended the debate have told The Sun that they saw no cookies.

“It didn’t happen here,” said Vander Harris, operations manager of the Morgan fine arts center. “I was in on the cleanup, and we found no cookies or anything else abnormal.”

Thanks to Lis Riba, who picked this up from — yes — Steve Gilliard.

Trivial pursuit

Maybe I don’t get out enough — actually, maybe I get out too much — but I was struck this morning by the fact that Boston Globe columnist Jeff Jacoby led his annual roundup of liberal “hate speech” with an example from a blog I’d never heard of.

The offending blog is something called the News Blog, although its URL — — suggests something less grandiose than that. The editors are listed simply as “Steve and Jen,” an indication that the News Blog doesn’t quite have the muscle to be part of the Vast Left-Wing Conspiracy. And though Jacoby describes it as a “popular website,” it has not managed to crack Technorati’s Top 100.

If this is the best Jacoby can do, then liberal hate speech can’t be all that pervasive.

By the way, Gilliard has responded to Jacoby.

Little red faces

Jonathan Saltzman reports in today’s Boston Globe that the story about the kid who ended up on a government watch list for going to the library and asking for a copy of “The Communist Manifesto” — er, make that Mao’s “Little Red Book” — was a hoax.

Earlier this week, the story made its way into a Globe op-ed submitted by Sen. Ted Kennedy’s office. (I’m not letting the senator himself off the hook — after all, he let it go out with his name on it. I’m simply acknowledging the fact that he had only slightly more to do with that piece than you or I did.) Saltzman writes:

Laura Capps, a Kennedy spokeswoman, said last night that the senator cited “public reports” in his opinion piece. Even if the assertion was a hoax, she said, it did not detract from Kennedy’s broader point that the Bush administration has gone too far in engaging in surveillance.

Accurate but not true, in other words — a fine standard for the Globe op-ed page.

Needless to say, when a newspaper chooses to publish an op-ed piece by an outside contributor, its editors have an obligation to edit and fact-check that piece just as rigorously as they would if it were written by a staff writer — maybe more so.

I don’t think the Globe did anything particularly wrong in publishing Kennedy’s op-ed as it was written. After all, the “Little Red Book” story had been broken the previous Saturday by a well-regarded newspaper, the New Bedford Standard-Times.

But by Thursday, when Kennedy’s piece appeared in the Globe, the story was already the subject of widespread speculation that it was a hoax, an urban legend or both. Ideally, someone at the Globe should have flagged it before publication.

Going down with the ship

If the Bush administration won’t even embrace the legal defense offered by its most ardent supporters, then you can be reasonably sure those supporters are wrong.

An example: On Wednesday, the Weekly Standard published a commentary by Edward Morrissey, of the conservative blog Captain’s Quarters, arguing that the no-warrant wiretaps by the National Security Agency are fully legal under the Foreign Intelligence Surveillance Act (FISA). Morrissey quotes extensively from FISA in an attempt to make the case that “FISA authorizes warrantless surveillance in its opening chapter.” Much of this has to do with the question of whether or not the wiretaps were used to spy on “U.S. persons” as defined under the law. Morrissey argues that they were not. He also writes:

Moreover, the NSA’s efforts did not take place in darkness. The FISA court did get informed of the issue, and the leaders of the oversight committees in both houses of Congress from both parties took part in the decision. It does not appear that the Bush administration sought to hide this from the other two branches of government, but sought to include them in the oversight of the new process as much as possible within the secrecy needed to conduct the program during wartime.

If one reads further into the Times‘s long and detailed article, the Bush administration received precedential decisions from courts that acknowledged the executive authority to wage war included a broader authority to set the parameters of espionage in order to guarantee security. Clearly, the administration has sought to comply with the letter of the law while getting the best possible information as quickly as it could to prevent another devastating terrorist attack.

This all sounds fairly reasonable — until you realize that the Bush administration itself isn’t buying it. Barton Gellman reports in today’s Washington Post that the White House is continuing to advance the argument that the no-warrant searches were authorized by Congress’ near-declaration of war, passed in the aftermath of the 9/11 attacks. Gellman adds that the latest iteration of this justification — in the form of a letter to Congress written by Assistant Attorney General William Moschella — acknowledges that President Bush’s October 2001 wiretapping order did not comply with the “procedures” of FISA, a law passed in 1978.

Sorry, Captain Morrissey, but it looks like you don’t know what you’re talking about. Moschella’s argument is that the White House is violating FISA, but that it’s all right because FISA was overridden by the war resolution. That is pretty much the opposite of what Morrissey wants us to believe.

As for the administration’s attempts to hang its legal hat on the war-resolution coat rack, former Senate Democratic leader Tom Daschle has an op-ed piece in today’s Post revealing that, at the time, the Bush administration actually did seek broad authority that would probably have legalized warrantless wiretaps — and that it was shot down. Daschle writes:

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to “deter and pre-empt any future acts of terrorism or aggression against the United States.” Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize “all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided” the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words “in the United States and” after “appropriate force” in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

It’s becoming almost impossible to reach any conclusion other than this: Bush didn’t get what he wanted, so he broke the law.

Aye, aye, Captain?

The politics of Holocaust-denial

The Boston Globe’s op-ed page today runs a piece by Karim Sadjadpour and Ray Takeyh that argues, among other things, that the vicious anti-Semitism of Iranian President Mahmoud Ahmadinejad is an anomaly. They write:

Iran’s belligerent foreign policy toward Israel is among the more puzzling issues in international relations. At a time when most Arab governments, including the elected Palestinian leadership, have come to accept Israel’s existence as an unalterable fact, non-Arab Iran continues to call for eradication of the Jewish state. Over the course of the last several weeks President Mahmoud Ahmadinejad of Iran attacked Israel as a “tumor” that should be “wiped off the map of the world” and asserted that the holocaust was a “myth.”

So I guess Israel no longer has to worry about Arab countries — just non-Arab Iran. That’s a relief. But wait. Elsewhere today, the Globe publishes an Associated Press article that begins thusly:

CAIRO — The leader of Egypt’s main Islamic opposition group said yesterday the Holocaust was a “myth,” and he slammed Western governments for criticizing disclaimers of the Jewish genocide.

The comments by Muslim Brotherhood chief Mohammed Mahdi Akef — made on the heels of his group’s strong showing in Egyptian parliamentary elections — echoed remarks made recently by Iran’s hard-line president, Mahmoud Ahmadinejad, which sparked international outrage.

“Western democracies have slammed all those who don’t see eye to eye with the Zionists regarding the myth of the Holocaust,” Akef wrote in a weekly article meant as a directive to the group’s followers on its official website.

Isn’t Egypt, you know, Arab? Isn’t the Muslim Brotherhood the single biggest threat to the Mubarak regime? Isn’t Osama bin Laden’s number-two, Ayman al-Zawahiri, connected with the Muslim Brotherhood? (The answer to that would be yes.)

So much for Holocaust-denial having fallen out of fashion in the Arab world.