Some pretty big news from The New York Times: Kathleen Kingsbury will become the new opinion editor, a position she’d been filling on an interim basis ever since James Bennet was pushed out for running a terrible op-ed that he later admitted he hadn’t read. From publisher A.G. Sulzberger’s announcement:
For those who have worked alongside Kathleen, this announcement will come as little surprise. She’s a natural leader, fearless journalist and creative innovator. She has a wide-ranging intellect, with a passion for exploring the ideas and arguments shaping the world today. A former foreign correspondent, business reporter and Pulitzer Prize-winning editorial writer herself, Kathleen is known in the department for championing her colleagues and elevating their work.
Kingsbury is smart and accomplished, having won a 2015 Pulitzer for editorial writing when she was with The Boston Globe.
The latest edition of the Media Nation Member Newsletter just went out. If you’re a paid subscriber and didn’t receive it, please look in your spam folder. I sent it out by bcc, which can sometimes mess with email algorithms. And if you’d like to get it delivered to your own inbox every Friday for $5 a month, just click here.
There’s a difference between rewriting history and making some of it more difficult to find. Which is why I think The Boston Globe is doing the right thing with its “Fresh Start” initiative, more commonly known as the right to be forgotten. The proposal was announced by Globe editor Brian McGrory last July, and is being formally put into effect today. In a Globe story, McGrory says:
It was never our intent to have a short and relatively inconsequential Globe story affect the futures of the ordinary people who might be the subjects. Our sense, given the criminal justice system, is that this has had a disproportionate impact on people of color. The idea behind the program is to start addressing it.
The idea is that the Globe might have reported on some past embarrassment about you — a minor arrest, or an arrest that led to a conviction that was not reported. You can appeal to the Globe to have the story updated or removed from Google search. The story would still exist. It couldn’t be removed from the print edition, obviously, and many libraries still carry newspaper microfilm archives. It wouldn’t even be removed from the Globe’s servers. But no longer would one of your less stellar moments rise to the top of a Google search about you, interfering with employment prospects and other aspects of your life.
In some ways, Fresh Start is similar to Gannett’s move in 2018 to take down mugshot galleries from its newspaper websites, which it extended to the former GateHouse Media sites in 2020 after that chain was merged with Gannett. “Mugshot galleries presented without context may feed into negative stereotypes and, in our editorial judgment, are of limited news value,” the company said in explaining its reasoning.
The Globe’s Fresh Start is a good step because it solves a problem without going too far. It merely restores the situation that prevailed before the internet, when you had to put some work into finding information that had been published about someone. That tended to separate those with a legitimate interest from the voyeurs.
It’s also a better solution than the mandatory right-to-be-forgotten laws in effect in Western Europe, where Google under some circumstances can be ordered to remove information about certain people. The First Amendment would make that impossible in the United States.
Thus it’s up to the media to take voluntary steps. As the Society of Professional Journalists Code of Ethics puts it, “Ethical journalism treats sources, subjects, colleagues and members of the public as human beings deserving of respect.”
More: Arun Rath of GBH Radio (89.7 FM) and I kicked it around on Friday.
A bill filed in the New Hampshire legislature would make it more difficult for the public to access police records, reversing a recent decision by the state’s supreme court that requires greater openness. The New England First Amendment Coalition reports:
Senate Bill 39 intends to exempt police personnel files, internal investigations and other law enforcement records from the New Hampshire Right-to-Know Law.
If made law, the bill would overturn a New Hampshire Supreme Court decision — Seacoast Newspapers, Inc. v. City of Portsmouth — that ruled such documents were not categorically exempt under the public records statute.
I suspect we’re going to see a lot of this as mainstream journalists, terrified of being accused of bias, seek to even up the score after four years of covering the worst president in our history. In his lead story on President Biden’s inauguration, Peter Baker of The New York Times writes:
At 78, Mr. Biden is the oldest president in American history — older on his first day in office than Ronald Reagan was on his last — and even allies quietly acknowledge that he is no longer at his prime, meaning he will be constantly watched by friends and foes alike for signs of decline.
What on earth is that supposed to mean? Not only is it unsourced, but we have no idea about the nature of those sources. Close aides? Members of Congress? Some guy who shook his hand at a fundraiser pre-COVID? More to the point, what does it mean that Biden is “no longer at his prime”? It could be anything from not having as much energy as he once did (almost certainly true) to, uh, wandering off at night.
Biden showed no signs of fading during the campaign, and in fact he only grew stronger once he realized he was going to have to fight for the nomination.
If there’s a reason to write a fully reported story on Biden’s mental acuity, then by all means do it. Otherwise, Baker and the Times shouldn’t let themselves be used as a conduit for fishing right-wing talking points out of the sewer and flinging them into the mainstream.
Please consider becoming a paid member of Media Nation for just $5 a month. You’ll receive a weekly newsletter with exclusive content. Click here for details.
I’ve been pretty critical of the #bothsides manner in which NPR covers politics. So it’s only fair to point out that Ari Shapiro wasn’t having any of it earlier this afternoon when U.S. Rep. Young Kim, R-Calif., started lauding the peaceful transfer of power.
Shapiro interrupted and reminded her that that’s exactly what we didn’t have this time. Yes, today was peaceful. The post-election period was not — especially two weeks ago.
That was a deeply moving, even emotional, event. Like many of us, I had waited for this day for four years. We still have a long way to go. But with Joe Biden and Kamala Harris in office, and with the worst president in history now gone, we have a chance at a new beginning.
Donald Trump’s presidency has been defined by shocking cruelty. Sometimes it’s been deliberate, as with his practice of taking children from the families of undocumented immigrants. Sometimes it’s the result of wanton neglect and cynical blame-shifting, as with his deadly handling of the COVID-19 pandemic.
There’s been such a never-ending torrent or horrors for the past four years that some of his misdeeds are in danger of being overlooked. One that we should be focused on, though, is the spree of federal executions he’s ordered during his final months in office.
Starting last July, 13 people were executed — six of them since the election, when Trump was defeated by Joe Biden, who has said he will not use the death penalty once he becomes president. By contrast, there had been only three federal executions since the presidency of John F. Kennedy, all presided over by George W. Bush.
Trump was in such a rush to kill that the final execution, of Dustin John Higgs, was carried out just a few days before Biden’s inauguration. And in a textbook illustration of how inequitably the ultimate punishment is used, Higgs was put to death for killing three women even though it was an associate, Willis Haynes, who shot them to death. Haynes received a 45-year sentence.
Capital punishment is a relic of the past — a barbaric measure not worthy of a decent society. Western Europe, Canada, Australia, South Africa and all of South America have either abolished it or no longer use it. Our peers are repressive regimes such as China, Saudi Arabia, Iran and a handful of others (including, oddly enough, Japan).
And despite our ignominious status as a country that still executes people, capital punishment has been waning even in the United States, according to the Death Penalty Information Center.
“At the end of the year,” the center said in a recent report, “more states had abolished the death penalty or gone ten years without an execution, more counties had elected reform prosecutors who pledged never to seek the death penalty or to use it more sparingly; fewer new death sentences were imposed than in any prior year since the Supreme Court struck down U.S. death penalty laws in 1972; and despite a six-month spree of federal executions without parallel in the 20th or 21st centuries, fewer executions were carried out than in any year in nearly three decades.”
Trump, lest you forget, called for New York to reinstate the death penalty following the conviction of five young men in a violent assault against a female jogger in Central Park a generation ago; they were later exonerated. Not much has changed. Trump’s current spate of executions, according to ProPublica, has been marked by stunning breaches of protocol and procedure.
“Officials gave public explanations for their choice of which prisoners should die that misstated key facts from the cases,” ProPublica reported. “They moved ahead with executions in the middle of the night. They left one prisoner strapped to the gurney while lawyers worked to remove a court order. They executed a second prisoner while an appeal was still pending, leaving the court to then dismiss the appeal as ‘moot’ because the man was already dead. They bought drugs from a secret pharmacy that failed a quality test. They hired private executioners and paid them in cash.”
Those who are sentenced to die for their crimes have generally done terrible things. They tend not to inspire much sympathy even from those who oppose capital punishment in the abstract. Yet, occasionally, innocent people are put to death. And even those who are guilty often have complicated backstories.
The New York Times opinion section recently wrote about two especially harrowing cases. One was that of Lisa Montgomery, who was executed on Jan. 13, becoming the first woman to die at the hands of the federal government in 70 years. In 2004, Montgomery cut a baby out of the belly of a pregnant woman who was left to die. It was a horrific murder, the sort of act for which the death penalty would seem to be designed. (Incredibly, the baby lived.)
Yet Rachel Louise Snyder of American University, writing in The Times, painted a picture of Montgomery that was itself so horrendous that it’s hard to accept that justice required her execution. Repeatedly abused sexually by her father and his friends, brain-damaged by repeated blows to the head, Montgomery was a profoundly damaged woman who should have been allowed to live out her life in the custody of federal authorities.
The other case was more typical. Alfred Bourgeois was a Black man, as are a disproportionate share of those who are put to death. He was the subject of a long profile by The Times’ Elizabeth Bruenig, who witnessed his execution on Dec. 11. Bourgeois, too, had done something unimaginably awful — he slammed his 2-year-old daughter’s head repeatedly into the cab of his truck in 2002, killing her.
Yet, according to Bruenig, the reason Bourgeois was sentenced to death rather than life in prison was that he was also accused of having sexually abused his daughter. “Mr. Bourgeois’s lawyers — and there were many over time — were ultimately unable to overcome the lurid accusation,” Bruenig wrote. “Media reports inevitably focused on the appalling notion of a father raping his own toddler.” But according to Bruenig, there was good reason to believe that it never happened.
The Trump nightmare is nearly over. But it didn’t end soon enough for Lisa Montgomery, Dustin John Higgs, Alfred Bourgeois and the 10 other victims of Trump’s bloodlust. Few will mourn them. Yet their deaths in our name are an indelible stain on all of us. Let’s hope the Biden presidency represents real progress toward decency and justice — and not merely a four-year interregnum before we embrace our darker natures once again.
Donald Trump in 2016. Photo (cc) by Gage Skidmore.
Suzanne Nossel, the chief executive of PEN (Poets, Essayists and Novelists) America, is concerned that the second impeachment of Donald Trump could be used to weaken the legal standard for convicting someone of incitement to violence. I differ with her New York Times op-ed, and in fact I think criminal charges could be brought against Trump without doing any harm to the First Amendment.
Nossel, a lawyer, rightly differentiates between the impeachment proceedings, which are based on a layperson’s definition of incitement, and the legal definition. By any reasonable measure, Trump whipped a mob into a frenzy on Jan. 6 and pointed it in the direction of Capitol Hill, a reckless action that led to five deaths, including that of a police officer.
The legal standard, as Nossel explains, is much more narrow, based on the 1969 case of Brandenburg v. Ohio, in which a Ku Klux Klan leader, Clarence Brandenburg, was convicted of incitement under Ohio state law after telling those attending a rally that they should take “revengeance” upon Black and Jews. The Supreme Court overturned the conviction, ruling that Brandenburg’s threat wasn’t imminent or specific enough.
The Brandenburg decision was the culmination of a series of court rulings going back to Schenck v. United States (1919), in which Justice Oliver Wendell Holmes Jr. offered his famous metaphor that the law does not protect falsely shouting “fire” in a crowded theater. The standard the court arrived at was that speech could be banned if it presented a “clear and present danger.”
The Schenck decision is often reviled as repressive today, but it was a step forward at the time. For the next 40 years, the court sought to refine and narrow what was meant by a clear and present danger, finally arriving the Brandenburg standard. As Nossel explains, the legal definition of incitement is based on the idea that the language in question was intended to cause violence; that the threat of violence must be imminent; and that the language must be likely to result in violence.
I read the transcript of Trump’s remarks, and it seems to me that they could support an incitement conviction. First of all, there is the context. Trump lies, at great length and in fine detail, about the outcome of the election. You’ve heard it all before, but right near the beginning he says this:
All of us here today do not want to see our election victory stolen by emboldened radical left Democrats, which is what they’re doing and stolen by the fake news media. That’s what they’ve done and what they’re doing. We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved.
Now you might say Trump actually believes this. But over the weekend it was reported that Trump, in the White House, has railed about his defeat with associates. According to Axios, he has gone so far as to say, “Can you believe I lost to that fucking guy? That fucking corpse?” So he knows. He’s lying. And though that lie doesn’t amount to incitement, it prepares the crowd for what follows.
The most incendiary language comes at about the 18-minute mark:
After this, we’re going to walk down and I’ll be there with you. We’re going to walk down. We’re going to walk down any one you want, but I think right here. We’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.
Trump immediately follows up with what could be considered exculpatory language: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” But we’ve heard him do this many times over the years. If you’re on the jury, would you let him off the hook because, in course of an hour-long speech aimed at stirring up a frenzy, he used the word “peacefully” — once?
Later in his speech, he says, “We got to get rid of the weak congresspeople, the ones that aren’t any good, the Liz Cheneys of the world, we got to get rid of them. We got to get rid of them.” Again, maybe there’s just enough ambiguity here — that sentence is preceded by “a year from now, you’re going to start working on Congress.” That sounds like he could be referring to primary challenges. But Cheney and other Republicans who voted for impeachment are receiving death threats, The Daily Beast reports, and it’s hard to make the case that Trump’s words didn’t have more than a little something to do with it.
I think we also need to keep in mind that Trump took part in a rally at which his son Donald Trump Jr. and one of his lawyers, Rudy Giuliani, spoke even more recklessly than he did. Giuliani spoke of a “trial by combat,” which he ludicrously claimed later was a reference to “Game of Thrones.” Trump Jr., among other things, said:
It [the gathering on the National Mall] should be a message to all the Republicans who have not been willing to actually fight, the people who did nothing to stop the steal. This gathering should send a message to them: This isn’t their Republican Party anymore. This is Donald Trump’s Republican Party.
Again, Junior could, at least in theory, have been referring to primary challenges. But he was speaking to an angry mob, not a gathering of precinct captains. We have to look at what he had to know the effect of his words would be. There’s no reason we have to interpret what he said in a light most favorable to him.
In other words, it’s possible that Giuliani and Trump Jr. could be in legal jeopardy. And it’s also possible that a jury could use what they said to clarify the president’s own statements.
Would it be wise to prosecute Trump for incitement once he’s out of office? Probably not. This is a close enough call that there’s a good chance he’d be acquitted, which would make the case against him look like a politically motivated attack by his enemies. The best route, it seems, is to hope that the Senate convicts him by the necessary two-thirds vote followed by banning him from holding office in the future, which only requires a majority.
In any case, a possible incitement prosecution is likely to be the least of Trump’s concerns once the clock hits 12:01 p.m. on Wednesday. He faces financial ruin and endless legal problems, both civil and criminal. If he pardons himself, that will be challenged in court. If he prevails, he still faces trouble in a number states, which are not bound by a federal pardon.
But an incitement prosecution is an interesting thought exercise. It could well be that Trump went further than Clarence Brandenburg, sheets and all, in unleashing mob violence. That’s quite a distinction.
Please consider becoming a paid member of Media Nation for just $5 a month. You’ll receive a weekly newsletter with exclusive content. Click here for details.
I’m listening to the audio version of Terry Teachout’s 2013 biography of Duke Ellington, which has led me to seek out some Ellington rarities. One that I stumbled across is a 48-minute BBC documentary called “Reminiscing in Tempo,” which was first released in 1994. Apparently this is the second half. I don’t know if part one is available anywhere or not.
Today is Martin Luther King Jr. Day, so I was especially taken with a story about the first time Ellington met Dr. King. Apparently each was awestruck by the other. It’s a nice story. And the film is terrific, with lots of archival footage. The video is pretty rough in some parts, but the audio is fine throughout. Just close your eyes.
“Reminiscing in Tempo,” by the way, is the name of an extended piece that Ellington recorded with his orchestra in 1935. Teachout doesn’t think much of it, but Ellington considered it one of his masterpieces. Give it a listen.
I also learned from the Teachout bio about “Black and Tan Fantasy,” a 1929 fictional film starring Ellington and one of his many paramours, Fredi Washington. It’s 15 minutes long and is absolutely wild. The video and audio quality are excellent once you get past the opening credits.
Update: I left out the link to “Black and Tan Fantasy,” but it’s now fixed.
