Janet Malcolm was a brilliant analyst of journalism’s ethics and morals

Janet Malcolm, at right. Photo (cc) 2013 by kellywritershouse.

Janet Malcolm, who died on Wednesday at 86, wrote perhaps our finest meditation on the ethics and morality of journalism. At The New Yorker, Ian Frazier has written an eloquent appreciation of her life and work.

“The Journalist and the Murderer,” a two-part essay published in The New Yorker that was later turned into a book, is ostensibly about a lawsuit filed by Dr. Jeffrey MacDonald, a convicted murderer, against Joe McGinniss, who wrote about the case in his bestselling book “Fatal Vision.”

MacDonald sued McGinniss for fraud and breach of contract because McGinniss — in order to maintain access — had continued to pretend that he believed in MacDonald’s innocence long after he’d concluded the former Army doctor really had murdered his wife and two young daughters. Malcolm argued that was no different from what all journalists do.

We all know the opening line to “The Journalist and the Murderer”: “Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible.” So let me treat you to her lurid yet precise closing, less often cited, on the foolishness of those who let themselves be seduced by a journalist:

Like the young Aztec men and women selected for sacrifice, who lived in delightful ease and luxury until the appointed day when their hearts were to be carved from their chests, journalistic subjects know all too well what awaits them when the days of wine and roses — the days of the interviews — are over. And still they say yes when a journalist calls, and still they are astonished when they see the flash of the knife.

As

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No. In fact I had hoped to be able to say — since the judge kind of cheated me out of my opportunity to be redirected — Dan [Daniel Kornstein, the defense lawyer] said I had time to be redirected — then Bostwick cleverly ate up all the time with a bunch of silly questions so that — the judge just let him go on and on — and then finally there wasn’t really time because I had to catch a plane at a certain hour. However, the material I gave to Kornfeld, was that having looked at all this and having slept on this material the night after my first appearance at trial, I had a kind of insight, if you will, that the four intruders represented, psychologically speaking, the only truthful thing that MacDonald had told — that there were really four intruders — but, of course, they weren’t exactly as he depicted them — but there were four people who intruded upon the hedonistic — and — life style and whoring around of Jeff MacDonald — and four people who, you know, intruded into his disinclination to be a responsible husband and father, namely Colette, Kristy, Kimberly, and the unborn son. In my text I rendered this as: No. In fact — and this, too, was something I wasn’t able to say in court, since Bostwick cleverly ate up all the time with a bunch of silly questions and I had to catch a plane — the four intruders who MacDonald claimed were responsible for the murders represented the only truth, psychologically speaking, that he told. There really were four people who intruded on the hedonistic life style and whoring around of Jeff MacDonald: the four people who intruded on his disinclination to be a responsible husband and father; namely, Colette, Kristen, Kimberly, and the unborn son.

And here is how Malcolm edited the quote for publication:

No. In fact — and this, too, was something I wasn’t able to say in court, since Bostwick cleverly ate up all the time with a bunch of silly questions and I had to catch a plane — the four intruders who MacDonald claimed were responsible for the murders represented the only truth, psychologically speaking, that he told. There really were four people who intruded on the hedonistic life style and whoring around of Jeff MacDonald: the four people who intruded on his disinclination to be a responsible husband and father; namely, Colette, Kristen, Kimberly, and the unborn son.

Quite a difference. Malcolm defends her method on the grounds that spoken English is impossible to render in written English except with extensive editing, but that it should remain true to what the person actually said. “The idea of a reporter inventing rather than reporting speech is a repugnant, even sinister, one,” she says, all the while insisting that’s not what she’s doing.

But most of us were trained on the AP Stylebook, which takes a rather different view of what constitutes an accurate quote: “Never alter quotations even to correct minor grammatical errors or word usage. Casual minor tongue slips may be removed by using ellipses but even that should be done with extreme caution.”

William Zinsser, in his classic book “On Writing Well,” includes a useful discussion of the issue ranging from Malcolm to the legendary New Yorker writer Joseph Mitchell, who took considerable liberties with what people told him. Zinsser’s verdict: “I know that it’s just not possible to write a competent interview without some juggling and eliding of quotes; don’t believe any writer who claims he never does it. But many shades of opinion exist on both sides of mine.”

I agree with Zinsser. When I’m writing longer pieces, especially books, I do some compressing and editing, but I would not go nearly as far as Malcolm. If a person is that inarticulate, well, that’s what indirect quoting is for.

I also disagree with Malcolm that what we do is “morally indefensible.” The idea that every interview is a con, and that our job is to smile and let our subject think we’re on their side before we plunge in the knife, is offensive and wrong. The value in Malcolm’s observation is that it makes us think about what we do so that we can be better journalists and — dare I say — better human beings.

By the way, I have long been convinced that Jeffrey MacDonald’s murder trial was grossly unfair and that he might even be innocent. Years ago I reviewed “A Wilderness of Error,” Errol Morris’ book about the MacDonald case, for BookForum. Morris is withering in his assessment of McGinniss; but he was frustrated with Malcolm, who was someone he admired, for failing to grapple with the possibility that MacDonald had not committed the monstrous crime of which he was convicted. You can read my review here.

Talking about the local news crisis with Frank News

I spoke with a news organization called Frank News about the local news crisis, the role of corporate chains and hedge funds in making a bad situation worse, and what steps might be taken to improve the situation. Please have a look.

The AP will no longer publish the names of suspects charged with minor crimes

The Associated Press, in a long-overdue move, has announced that it will stop reporting the names of suspects who are arrested and charged with minor crimes. The worldwide news agency says that not only do those names lack newsworthiness but the lack of follow-up means that it would never be reported if they were acquitted. John Daniszewski, the AP’s vice president for standards, writes:

These minor stories, which only cover an arrest, have long lives on the internet. AP’s broad distribution network can make it difficult for the suspects named in such items to later gain employment or just move on in their lives.

The AP will also “stop publishing stories driven mainly by a particularly embarrassing mugshot,” he adds.

A shocking omission from a high school yearbook

This is nauseating. From The New York Times:

Morgyn Arnold is a natural cheerleader. She grew up supporting her six older siblings at sporting events in Utah and followed in her father’s and sister’s footsteps by becoming a cheerleader herself.

For Morgyn, who has Down syndrome, being on the Shoreline Junior High School cheer squad gave her a chance to make friends and feel included after transferring to the school last summer.

But when the school yearbook came out a few weeks ago, Morgyn, 14, was not in the team’s photo or listed as part of the squad. The school has since apologized for what it called an “error,” but Morgyn’s sister Jordyn Poll said she believed that the exclusion was intentional.

It sounds like it wouldn’t have happened if the kids were in charge.

Bipartisan federal legislation would provide tax credits to ease the local news crisis

Bipartisan legislation has been introduced in Congress that would provide some government support for local news. The ubiquitous Steve Waldman, the co-founder of Report for America and the chair of the Rebuild Local News Coalition, writes that the bill “would provide more help for local news than any time in about a century, yet it’s done in a very First-Amendment-friendly way.”

Waldman has the details, so I’ll just hit the highlights:

  • It would provide a tax credit of up to $250 each year for subscriptions or donations to local news — a measure Waldman has been talking about for quite a while.
  • Payroll tax credits would be available to publishers for hiring or retaining journalists.
  • Small businesses would receive a tax credit for advertising in local news outlets.

The bill, known as the Local Journalism Sustainability Act, is co-sponsored by Reps. Dan Newhouse, R-Wash., and Ann Kirkpatrick, D-Ariz.

My reservation about this legislation is that would benefit chain-owned papers as much as it would independent papers and websites. I guess that’s OK, and it’s hard to imagine how to cut out the corporations while keeping benefits for independents. But I’m concerned that the legislation might freeze in place the advantage already held by corporate-owned legacy outlets without providing them much in the way of an incentive to improve their journalism.

On the other hand, I agree with Waldman that the legislation is ingenious in the way that it would provide government support for local news without making news organizations dependent on currying favor with the very people they’re covering. Another smart move: benefits would be limited to organizations with fewer than 750 employees, which would leave out the large national newspapers.

Overall, it’s a pretty interesting step that might help ease the local news crisis. I don’t see this as a comprehensive solution, but even a boost on the margins would help.

Apocalypse now: When political fervor turns religious

Painting by Frederic Schopin (1804-1880) depicting the First Crusade — “Battle delivered under the walls of Antioch between the crusaders led by Bohemond and the army of Karbouka, general of the Sultan of Persia, June 1098” (via Time.com)

In the spring of 2016, as it was beginning to look like Donald Trump might actually win the Republican presidential nomination, I attended a talk at the Harvard Kennedy School by Michael Ignatieff, a prominent Canadian politician and academic. He was appalled by Trump’s rise, as were we all. But I was struck by his peculiarly Canadian analysis.

“Politics,” he said, “should be boring.”

Read the rest at GBH News.

Two Globe copy editors are retiring

A couple of stalwarts on the Boston Globe’s copy desk are retiring. The following is an email to the staff from Mary Creane, the Globe’s senior assistant managing editor for production. The last line is key: “We will be filling both jobs.” What follows is the text of her email, which someone forwarded to me a little while ago.

Hi All

Bob Scherer-Hoock has decided to hang up his pica pole, proportion wheel, and non-repro blue pen (look them up).

Bob has been a rock on every iteration of the copy desk for many years. He helped with the implementation of four (maybe five) content management systems and still finds ways to make Methode do things that baffle many of us.

If he has touched a story, it has come out better. If he has laid out a page, it is uncluttered and clean.

We will miss his skills, but also his dry and penetrating wit and his compassion.

Bob’s last shift with us is July 8.

ALSO

John Harrington is leaving us as well. John has been a stalwart on the desk with a speciality in Business and Boston.

He knows where everything is in Boston and can tell you where to eat and what to get when you get there.

Stories edited by John are more clear and have fewer extraneous words than when he started.

We will miss his broad knowledge of the city and its history as well as his humor and haikus.

John’s last shift with us is July 15.

We will find a way to say goodbye properly, in the meantime, ask Bob all your Methode questions now and get John to give you a dining recommendation….

We will be filling both jobs.

 

SJC rules that deception in recording someone does not violate the law

Joe Curtatone. Photo (cc) 2019 by the Somerville Media Center.

The state Supreme Judicial Court on Monday issued an important — and, to me at least, surprising — clarification of the Massachusetts wiretapping law, ruling that it’s not necessary to obtain someone’s consent before recording them. All that’s needed, the court said, is to inform the second party that they’re being recorded. That doesn’t change even if the person making the recording lies about their identity. Here’s Travis Andersen’s account in The Boston Globe.

The case involves Kirk Minihane of Barstool Sports, who in 2019 recorded an interview with Somerville Mayor Joe Curtatone by claiming to be Globe columnist Kevin Cullen. Minihane then played the interview on his podcast. Curtatone sued, arguing that he would not have agreed to being recorded if he had known he was speaking with Minihane rather than Cullen. Justice Frank M. Gaziano writes:

Minihane did not secretly hear or record the challenged communication within the meaning of the act, because the plaintiff knew throughout the call that his words were being heard and recorded. The identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant; rather, it is the act of hearing or recording itself that must be concealed to fall within the prohibition against “interception” within the act.

And here’s Gaziano’s conclusion:

Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an “interception” within the meaning of the Commonwealth’s wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.

The first indication of where the case might be headed came earlier this year, when the ACLU and the Reporters Committee for Freedom of the Press filed a brief in support of Minihane and Barstool.

Massachusetts has often been described as a “two-party consent” state when it comes to recording conversations. But even before Minihane recorded Curtatone, it was clear in some legal circles that the word “consent” was misleading. For instance, here is an explanation of the law published several years ago by the now-defunct Digital Media Law Project at Harvard’s Berkman Klein Center for Internet & Society:

Massachusetts’s wiretapping law often referred to is a “two-party consent” law. More accurately, Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium…. Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not “secret”). Under Massachusetts’s wiretapping law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.

Even after Monday’s SJC ruling, the law in Massachusetts remains unusually strict. According to the law firm Matthiesen, Wickert & Lehrer, 38 states plus the District of Columbia merely have a “one-party consent” law. Since the person making the recording has obviously given their consent, that means recording someone secretly in those states is legally permissible.

I tell my students that if they want to record an interview, whether in person or by phone, to ask for the subject’s consent. Then, after they turn on their record, tell them that they’re now recording and ask if that’s all right. That way, not only do they have the interview subject’s permission, but they have that permission on record. Minihane’s victory doesn’t change the ethics of recording someone without their knowledge.

One aspect of Monday’s ruling worth thinking about is that two-party consent, even under a looser definition of “consent,” can make it harder to engage in certain types of investigative reporting. Minihane obviously was just recording Curtatone for entertainment purposes. But undercover reporting, though less common than it used to be (thanks in part to the Food Lion case), can be a crucial tool in holding the powerful to account.

In Massachusetts, it remains illegal for a reporter to secretly record someone. The SJC’s decision doesn’t change that.

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Can community journalism be saved?

Ellen Clegg and I talked with Hillary Chabot of News at Northeastern about our book project, tentatively titled “What Works: The Future of Local News.”

How minority rule is turning the U.S. into an undemocratic country

Photo (cc) 2014 by the National Museum of American History

This essay was first published in the Media Nation member newsletter. To become a member for $5 a month, please click here.

Like many of us, I worry about the state of our democracy. I write about it from time to time, but what concerns me especially is that it’s almost impossible to see any way out of our dilemma. That’s because we need systemic reform in order to move toward democracy. Not only is it in the interest of Republicans to oppose that reform, but there’s also no way of overcoming their opposition.

Obviously a lot of attention has been focused on Democratic Sen. Joe Manchin’s opposition to getting rid of the filibuster, which means that President Joe Biden won’t be able to pass any of his non-budget priorities through a simple majority. But we all know the problem goes deeper than that, because the Constitution is heavily tilted toward the small-population states, which are overwhelmingly Republican.

At the presidential level, we need to get rid of the Electoral College, a vestige of slavery that resulted in the elections of George W. Bush in 2000 and Donald Trump in 2016 even though they lost the popular vote. Yes, the Electoral College has always been with us. But before Bush, the last time a candidate was elected president despite losing the popular vote was in 1888. Because of shifting demographics, such outcomes have become increasingly likely.

Nor is the problem solely at the presidential level. The 50 Republican senators represent just 43.5% of the electorate, according to calculations by the Daily Kos, whereas the 50 Democratic senators represent 56.5%. That’s an enormous gap, yet between the filibuster’s requirement of 60 votes to move forward on anything and the small-state advantage, Chuck Schumer might as well hand his gavel over to Mitch McConnell.

The House is at least theoretically democratic since districts are drawn on the basis of population. But partisan gerrymandering has resulted in Republicans having more seats to which they should be entitled. That will certainly prove to be a factor in the midterm elections, when the Republicans will in all likelihood regain their majority.

And I haven’t even mentioned Republican efforts across the country to pass voter-suppression laws that would disproportionately affect people of color.

This state of affairs would be bad enough if Republicans were committed to our democratic system. But we can see that they’re not, and their willingness to repeat the Big Lie that Trump won re-election last fall has become a loyalty test within the party.

We can all think of ways to solve these problems, but even to write about them seems like an exercise in futility. The Republicans would block any changes that would diminish their power. And we will continue to move deeper into minority rule.