It seemed too strange to be true—and, in the end, it was. A story posted to The Huffington Post yesterday announced rather shocking news: “Scalia on Brown v. Board of Education: I Would Have Dissented.” On the site’s homepage—where the story spent much of the day—the headline was even more provocative:

The story, it turns out, was aggregated from Taegan Goddard’s Political Wire—which was aggregated, in turn, from a piece posted to Arizona’s East Valley Tribune newspaper Web site Monday evening. The dispatch in question, provided by the Capitol News Service, detailed the appearance made by Scalia and fellow Supreme Court justice Stephen Breyer in Tucson on Monday, at a talk (subject: “Principles of Constitutional and Statutory Interpretation”) sponsored by the University of Arizona’s law school.
Per the story:
Using his “originalist” philosophy, Scalia said he likely would have dissented from the historic 1954 Brown v. Board of Education decision that declared school segregation illegal and struck down the system of “separate but equal” public schools. He said that decision, which overturned earlier precedent, was designed to provide an approach the majority liked better.
“I will stipulate that it will,” Scalia said. But he said that doesn’t make it right. “Kings can do some stuff, some good stuff, that a democratic society could never do,” he continued.
“Hitler developed a wonderful automobile,” Scalia said. “What does that prove?”
But, hmm. Constitutional originalism is one thing; using that approach to defend, even theoretically, the myriad injustices of ‘separate but equal’ is quite another. And even in a media landscape populated by Balloon Boys and Real-Life Pirates and Porcine Viruses and Sarah Palin…some things are still, yes, simply too bizarre to be true. And ‘Sitting Supreme Court Justice Offhandedly Advocating Segregation’ is, indeed, one of those things.
What Scalia actually said—albeit in a roundabout way—was that “I would’ve been with” “Justice Harlan” in a text-based interpretation of the equal protection clause. That would be John Marshall Harlan, who dissented in the case not of Brown, but of…Plessy v. Ferguson.
Yes. The Tribune story, essentially and unfortunately—by way of whitewashing the subtler point Scalia was making about the tense relationship between an originalist approach to the Constitution (which requires the deciphering, the Justice noted, of what such “generalized provisions” as equal protection meant at the time of the Constitution’s writing) and a so-called “evolutionary” approach—confused two landmark Court cases: Brown, whose decision is the subject today of near universal acclaim…and Plessy, that of segregational infamy, whose decision is—and properly so—the subject today of near universal disgust. Of course Scalia would dissent from Plessy. One assumes that all the current Justices, regardless of their particular jurisprudencial proclivities, would do the same.
Which means, then: nothing to see here, folks. Scalia was not, in fact, advocating segregation yesterday. No incendiary affronts to common decency were afoot. (Unless, that is, one counts sloppy reporting.)
What’s notable about the Scalia narrative, though, is not merely the egregiousness of the words put in the mouth of the Justice. More interesting is the context in which the error grew—and the manner in which the erroneous story went viral. The story was picked up not only by the HuffPo and Political Wire, but also by TPM and New York magazine and the law blog Balkinization. It went from zero to zeitgeist in less than a day.
While that is unsurprising, it is also…worrisome. The Tribune story, after all, was riddled with red flags on the accuracy front. Not only was there the bizarre and inflammatory nature of Scalia’s supposed comment itself; there was also the choppy and occasionally verging-on-incoherent wording of the report—suggestive, in general, of some kind of context lost. But as the erroneous story made its way from Tucson to the explosive ether of the World Wide Web, those paving its path either missed those flags, or actively ignored them. As Salon’s Alex Koppleman notes:
Everyone gets a story wrong sometimes, there’s no avoiding that. But in this instance, the bloggers who picked up the article could and should have avoided the situation. Scalia was never directly quoted saying something like, “I think Brown v. Board of Education was wrongly decided. The article, or at least this part of it, relied on paraphrasing. On a big story like this one, the lack of a direct quote demands, even more than usual, some stringent fact-checking. Before posting, it’s just good practice to look for a primary source — video, audio or a transcript from the event — not to mention to check against Scalia’s previous statements and even call the court for comment. It may mean you have to wait a few minutes, even a few hours, before posting what others already have, but it’s better to be right than to be fast.
That’s true. And yet it’s also true, as Yale law professor and prolific blogger Jack Balkin—the person who actually realized that the Brown v. Board of Education reference was, indeed, a misquote—points out, that the blogs that linked the Scalia story were “relying on the fact that this was supposed to have been a fact-checked story by a reputable mainstream news organization.” They made a fair assumption that the information they were repeating for their readers was accurate. Though Balkin from the outset had (and expressed) doubts about the accuracy of the Brown quote in his post of the story—“Justice Scalia has always associated himself with Justice Harlan’s colorblindness language in Plessy,” he told me in an e-mail, explaining his initial skepticism about the quote—in this case, he writes, “the original duty was that of the mainstream media organization that published the piece in the first place.”





Thanks to Megan for a little hard research. Now if it can become part of the furniture of every MSM journalist that people on the political Left also lie, distort, act out of self-interest (material, status-based), have their nasty little bigotries . . . After all, the Scalia quote got around because their is an infrastructure of activists peddling this stuff.
After the fake quotes attributed to Rush Limbaugh made it at the speed of light to the MSM (I mean you, Rick Sanchez) without much checking, I'd like genuinely honest journalists exercise the same degree of credulity about quotes and statistics produced by liberal sources - as well as doing the same amount of ideological labelling for the consumer's benefit - as are already employed toward conservative ones. Also some assumption that these folks are just as greedy, self-interested, etc., as their opponents are would help.
Posted by Mark Richard on Thu 29 Oct 2009 at 01:45 PM
Undoubtedly it can be fast, convenient and inexpensive to obtain information from the Internet. However, we should not ignore the potential threat—lack of credibility. When viewers take information circulated on the Internet for granted, they can fall into the pitfall of getting all wrapped up in inaccuracies.
In this case, the misquote of Supreme Court Justice Scalia by a local newspaper was swiftly picked up and cross-quoted in several blogs without checking. Sometimes, a public figure or an organization just tosses control of storytelling into the eager and distorting hands of countless bloggers, critics and competitors with hidden agendas.
It is a valuable lesson for journalists and bloggers: Always check your source; do not assume the burden of accuracy was on the original source. It is not and should not be. With social media’s transformational impact on journalism, it takes uncompromised dedication to truth and transparency to disseminate news.
As for Public Relations practitioners, they need to remain vigilant and to react quickly when mistakes start circulating online. More often than not, erroneous information can spread across the Internet at a horrifying speed without viewer discretion.
Posted by Shuyan Liang on Wed 4 Nov 2009 at 12:15 PM