Bloomberg Law's False and Misleading Report about Leif Olson

Reporter Ben Penn failed to detect obvious sarcasm, and made a blatantly false statement about Leif Olson's career

|The Volokh Conspiracy |

I have known Leif Olson since I moved to Houston in 2012. Leif is a smart attorney, a kind friend, and a committed father. I have also had the honor of working with Leif on several Texas cases. Recently Leif accepted a position with the Department of Labor. However, he resigned after Ben Penn, a reporter at Bloomberg Law, began to inquire about a 2016 Facebook post.

Penn wrote:

Olson, an unsuccessful GOP candidate in 2012 for a Texas district court judgeship, fired off a series of late-night posts on his personal Facebook page three years ago that started as a sarcastic quip about former House Speaker Paul Ryan's blowout primary victory. They then devolved into an exchange referencing two anti-Semitic tropes: that Jews control the media and that they look out for members of their own faith.

This characterization of Olson's post is not even remotely accurate. Vox–no fan of conservatism–offered this summary of the posts:

Written in the voice of a Breitbartist conservative who hates Paul Ryan, [Olson's] post assails Ryan for his "emasculating 70-point victory" after Ryan defeated Nehlen by that overwhelming margin. The comments are what got Olson in (undeserved) trouble: "Neo-cons are all Upper East Side Zionists who don't golf on Saturday if you know what I mean," and, after a friend joked about Ryan being Jewish, Olson added, "It must be true because I've never seen the Lamestream Media report it, and you know they protect their own."

You do not need a PhD in linguistics to correctly identify this as obvious sarcasm — another commenter on the thread praised the post's "epic sarcasm." Conservatives, especially ones of a neoconservative bent on foreign policy, have made sarcastic jokes like this about what they perceive as (and what sometimes, as in the case of Nehlen, is) anti-Semitic criticism of neoconservatism, a movement primarily founded by Jewish intellectuals.

It should have been painfully obvious to anyone reading the post that Leif was intended to be sarcastic. The editors at Bloomberg should not have let Penn publish this nonstory.

Moreover, Bloomberg's fact-checking failed. Penn's reporting about Leif's legal career contains at least one falsehood. He wrote:

In another high-profile case, Olson filed an amicus brief for the Cato Institute in 2015, asking the Supreme Court to strike down the Deferred Action for Parents of Americans and Lawful Permanent Residents program, or DAPA, an Obama administration immigration policy preventing some deportations.

This statement is simply false. In Texas v. United States, Leif served as local counsel for me, the Cato Institute, and Professor Rabkin, with respect to briefs filed before the Southern District of Texas, as well as the Fifth Circuit. He was not counsel for our brief to the Supreme Court. He did not "file[] an amicus brief for the Cato Institute in 2015, asking the Supreme Court to strike down" DAPA. This fact was easily verifiable.

Bloomberg should retract the piece, and apologize to Olson.

NEXT: Labor Department Official Quits After Bloomberg Law Reporter Discovers Anti-Semitic Facebook Post That Is Not Actually Anti-Semitic

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  1. “This Anglican clergyman wants to cook and eat Irish babies – click here for more outrage!”

  2. “Hey, buddy, can you spare some change? I used to be a high-rolling executive like you, until I called someone a shameless extrovert and a thespian.”

  3. Here’s Ben Penn’s defense:

    “Lost in all of this is that Olson was part of a team of political appointees tasked with the heavy lift of drafting wage-hour regulations that are high priorities for Trump White House, business community. They’re now down one adviser.”

    1. Something I haven’t yet seen addressed: is that enough to prove Actual Malice? I’m wondering if Penn set himself and his employer up for an epic lawsuit.

      1. I don’t know if it was AM but he admitted he functions as a political operative rather than a journalist. Bloomberg then admitted it supports political operations.

        1. “Actual malice” is a legal term of art that doesn’t actually mean anything like its colloquial meaning of being, say, “actually malicious”.

          It’s more about speaking with knowing or reckless disregard of the truth. Which a “political operative” certainly could do, but then so too could a “journalist”. So, too, a characterization of Bloomberg as “support[ing] political operations”.

          Which is to say, his and Bloomberg’s admissions (at least as you put it) are not really germane to the legal question that the actual-malice legal standard entails.

  4. Penn did not “accidentally” do anything here – he deliberately edited the Facebook screenshots to remove any trace of the conversation showing the jokes, he refused to add any discussion of the post the comments were responding to, and now he’s publicly celebrating that he got someone working on laws he doesn’t support fired.

    And despite “resigned”, there is no way in hell this was voluntary. I have no doubt he was told to quit, and threatened with being fired “for cause” if he refused. This way, he can still be hired by the government elsewhere.

    1. But you don’t understand, it’s okay to lie and cheat and libel if you’re doing it for the “Resistance”. Just ask Shikha and Binion.
      We’re fighting Literally Hitler here, sheeple.

  5. Heh heh, you’re going to love this one…so a black guy, a lesbian and a Jew walk into a bar, then the bartender stoops to pick up the penny, and then the Greek guy…

    Wait, I told it wrong, let me check my notes.

  6. Seems like the MSM is becoming more brazen with the politically motivated fake news. Usually they retract when they get caught.

    1. Why would he retract? That would threaten his new job at CNN.

    2. In the last year I’ve noticed that they are often outright lying without even making the pretense of basing it on an actual occurrence. With November 2020 approaching the clerisy must be getting frantic.

      1. Another lying bastard reporter. I don’t like Bloomberg and not because he is Jewish (I am more Jewish than he is… 100% European Jewish according to a DNA test). I don’t like him because he is a self righteous hypocrite.

      2. They’re not frantic, they’re doing a calculated ramp up.

        If tomorrow, suddenly, Google just returned a picture of Hitler whenever you did a search on Trump, FB autoblocked any favorable comments about him, and the MSM stopped carrying anything he said, even the TDS sufferers would notice and be disturbed. It might backfire.

        But if they ramp up to that gradually, to arrive at that some policy sometime in the summer of 2020, maybe people will just get used to it, without any moment when a critical mass of people wake up and say, “WTF?”

        It’s just going to keep getting worse and worse, as they prepare for the election, but frantic it isn’t. It’s calculated.

        1. I don’t remember your objection to the Volokh Conspiracy’s censorship of Artie Ray Lee Wayne Jim-Bob Kirkland.

          How should I perceive any principle (rather than partisanship) underlying this ostensible concern with respect to Google?

    3. Yes, it’s always on purpose when they retract. Bad faith is everywhere, if you just assume hard enough!

      If you want to know what bad faith looks like, look at this example. It is not like the others, as you yourself pointed out. Except unlike the narrative you chose to go with, it’s an outlier, not some proof of a trend that media is getting more brazen.

      1. I don’t think it’s an outlier. An awful lot of what they publish is BS.

        1. 90% of everything is crap.
          –Theodore Sturgeon

          1. I thought that quote originated with Kilgore Trout.

            1. Someone who isn’t Sturgeon originated Sturgeon’s Law?

        2. This comment contradicts your 8:47 pm comment, where you point out this isn’t the way the media usually acts.

          A conservative saying the media is mostly BS is par for the course these days. Whether that says more about the right or the media I leave as an exercise for the reader.

          You stood out because you went farther than bias to tin foil-land when you assumed the media regularly publishes falsehoods (‘politically motivated fake news’) on purpose. I’ll argue with you about bias. I’ll just roll my eyes if your going to go for media conspiracies.

          1. “A conservative saying the media is mostly BS is par for the course these days. Whether that says more about the right or the media I leave as an exercise for the reader.”

            Hmmm… In my experience the left says that Fox News is BS, the right says that all the other ones are BS. I’d say that both sides are partially correct. It’s all BS.

            Out of curiosity, does your broad defense of the media include Fox News?

            1. First, to set my scope, while I do think the narrative of media bias on the right is also dumb, here I’m narrowly defending the media’s good faith, not their quality.

              So yes, I think FOX’s news department isn’t full of people lying on purpose.

              FOX News’ commentators are crazy people these days.
              While I’ve seen some say FOX is structured to give their editorial department sway over their news departments, I’ve seen no real proof other than the odd one-off memo. So I dunno about that – I still check FOX for breaking news, as their graphics department remains the best.

              I’d also note that those crazy commentators cite the NYT and WaPo quite a bit in their rants. Funny since they push the media conspiracy as hard as anyone.

              1. Fox News is an entertainment channel. They get paid by delivering eyeballs to advertisers, so the programming that delivers the most eyeballs to advertisers gets. If batshit-crazy conspiracy theories deliver the eyeballs, that’s what gets put on air. That’s the nature of the game. The broadcast networks don’t expect the news divisions to make money (NBC’s does, because “Today”) The broadcasters have news programs because they get licenses from for the government, and those licenses require them to operate in the public interest.

                1. Everything you just said is wrong. The TV stations, not the networks, get licenses, and the network news divisions are (or at least traditionally have been; I haven’t checked recently) money makers for their networks.

                  1. “Everything you just said is wrong”

                    In the sense that none of it is, sure.

                    “The TV stations, not the networks, get licenses,”

                    The networks own TV stations. I’m sure they’ll be thrilled to learn that they no longer need to get broadcast licenses.

                    Network news operations are at best break-even, except (as noted) for NBC, which has huge piles of money coming from “Today”.

          2. “This comment contradicts your 8:47 pm comment, where you point out this isn’t the way the media usually acts.”

            Sure. When they get called out for bad faith, they usually post things like they did last week:

            “EDITOR’S NOTE: An earlier version of this story suggested that the author J.D. Vance lamented a falloff in white births; he was actually talking about American births.”

            That was indisputably bad faith, as the author made clear on her twitter: “my editor suggested that Vance’s comments might be added to the list of evidence being marshaled, & i agreed”.

            But it looks like Bloomberg’s dropping the charade.

            1. So this time is different, but you’ll bet that it’s a trend based on one data point and your own anecdote-fueled spite.

              That’s how narratives work; and narratives are tempting, but that’s not how you have to work.

              1. I dunno Sarcastro, we sure seem to have this conversation a lot on the blog. Every time the msm screws up a story, like the Covington kids, one of the many fake news stories during the Kavanaugh hearings, etc. you always claim it’s an outlier. There sure are a lot of outliers.

                1. Yeah, I will continue to hold that anecdotes are not data.

                  The media getting stuff wrong happens all the time. They also get it right all the time. And they have published standards for their journalism.

                  You’re the one arguing a plot.

                  1. Whenever anyone makes a mistake, you can choose to assume it’s part of a giant, overarching plot against you, or you can choose to assume it’s a mistake.

                    It’s one thing to point out that it’s possible that people are biased (in whatever it is they’re doing). It’s a much different thing to assert that they are.

                  2. “And they have published standards for their journalism.”

                    The publishing standard here is…?
                    The standard for the Covington smear was…?
                    The standard for the breathless Russian collusion stories was…?

                    I’d buy it was an accident if these “lapses” in their journalism didn’t always seem to go one way.

  7. I want to see Trump win so we can watch the clerisy melt down again.

    1. I get like that in the reverse sometimes. Not something to embrace.

      First, it’s putting your eggs in one basket when neither your or I know how 2020 is going to go.

      Second, spite-voting is super lame. Spite going against those darn eggheads? That’s extra super lame, especially when you haul off and use the word clerisy, showing you must be some kinda egghead yourself.

  8. You do not need a PhD in linguistics to correctly identify this as obvious sarcasm — another commenter on the thread praised the post’s “epic sarcasm.”

    For what it’s worth; this was the first I have heard of this article, and when I read it, I did not read it as sarcasm. So, it’s not obvious on its face. Let alone painfully obvious. You had a different reaction, clearly. But don’t fall into the trap of so many commentators, “X is so clear that anyone arguing the opposite is doing so in bad faith and/or because they’re brain-dead.”

    If the author edited or removed context to deliberately, well, remove context . . . that’s terrible. Bad journalism at best and dishonest journalism at worst. But that is a different point than, “No one could possibly have interpreted those relevant comments–in good faith–in the way Penn did.

    1. For what it’s worth; this was the first I have heard of this article, and when I read it, I did not read it as sarcasm.

      I suspect that many readers of Penn’s article did not pick up on Olson’s sarcasm. That’s NOT Olson’s fault. It is Penn’s fault. Penn framed the article to lead his readers to expect to see antisemitism where there was none. Had you first read Olson’s original post, you, like most of Olson’s readers, would have seen the sarcasm. You would have seen Olson was mocking an antisemite — the exact opposite of what Penn misled his readers to believe.

      The proper standard is NOT to judge Olson by what Penn wrote. Nor should the standard be to judge Olson on a basis of he wrote something that was possible to misunderstand (after Penn removed context and miss-framed what was said). Civil discourse cannot thrive under such a standard. We ALL depend on the charity of our listeners to do their best properly understand what we intended to convey. A society that punishes things that can be (willfully) misunderstood is a silent society.

      1. So you’re saying Hitler wasn’t so bad?

        /sarc

        1. Hitler was not nearly as bad as the modern-day Democrats.

          1. If you ask modern-day Democrats “Why was Hitler bad?”, they’ll say “Because he committed genocide.” So, as long as they stop short of genocide, they think they’re in the clear.

            1. Exactly right, Ed. Democrats did not care that he was an insane leader who launched a world war. Or that this war resulted in the deaths of millions and millions (and millions and millions and millions). It’s only the genocide against the Jews (and gays and disabled, and Roma, etc etc etc). It’s why you constantly hear Democrats praising Hitler’s abilities as a leader and a great man . . . other than that pesky Holocaust, of course.

              That is some perspicuous and perspicacious analysis. Said no one ever. But don’t give up, Ed. There will always be a place for you at “The Daily Stormer.”

            2. Other than the genocide and wars of aggression progressivism was, and remains down with the signature elements of fascism.

              1. Do love the nigh-Godwin.

            3. Yes, Dems are always thinking ‘if I’m just a bit less evil than Hitler, I’m all good!’

        2. Let me clarify that “/sarc” means sarcasm. Sheesh.

      2. “I suspect that many readers of Penn’s article did not pick up on Olson’s sarcasm. That’s NOT Olson’s fault. It is Penn’s fault. Penn framed the article to lead his readers to expect to see antisemitism where there was none”

        By referring to it as sarcasm?

    2. If you edit and reframe something someone says enough, it’s easy to eliminate the sarcasm and make it look like the person is serious.

    3. “For what it’s worth; this was the first I have heard of this article, and when I read it, I did not read it as sarcasm.”

      Well, let’s see…

      “The guy just suffered a massive, historic, emasculating 70-point victory. Let’s see him and his Georgetown cocktail-party puppetmasters try to walk that one off.”

      Sorry dude, but if “emasculating 70-point victory” didn’t tip you off, maybe the whole reading thing isn’t your cup of tea.

      “If the author edited or removed context to deliberately, well, remove context . . . that’s terrible.”

      The author removed the down thread posts indicating “epic sarcasm”.

    4. For what it’s worth; this was the first I have heard of this article, and when I read it, I did not read it as sarcasm. So, it’s not obvious on its face. Let alone painfully obvious.

      No, it was obviously painfully obvious. No native English speaker over the age of about six could read Olson’s comments in good faith and not understand that they’re sarcasm.

      He talked about an “emasculating 70 point victory,” making fun of both how badly Nehlen was crushed in the primary and the alt-right habit of associating politics with sexual prowess.

  9. I wonder if this is the refutation of the Popehat rule? If you fuck a goat sarcastically, have you really fucked a goat?

    1. I really need the old ability to like comments here.

  10. (1) The Volokh Conspiracy that so strenuously defends Mr. Olson for making fun of hard-right bigots banned Artie Ray Lee Wayne Jim-Bob Kirkland for doing the same thing. #Scruples!

    (2) Mr. Olson was not fired. He quit, likely in connection with an opportunity provided by the Trump administration to resign before being fired. I doubt the Trump administration sided with the Bloomberg journalist in sacking Mr. Olson. To the contrary, it seems likely the Trump administration recognized that Mr. Olson was mocking hard-right bigots — and told him ‘you can’t treat our base that way.’

    1. You make a good point, Arthur. In general, the Trump administration is just as bad as the journalists. But in this specific case, the Trump administration didn’t do anything dishonest. It is entitled to ask the guy to resign for whatever reason it wan’t. But in this case it was Bloomberg Law that got caught in a lie.

    2. Was Artie Ray Lee Wayne Jim-Bob Kirkland one of your personae? If so, how did he differ from your current persona?

      1. “If so, how did he differ from your current persona?”

        He was smarter.

      2. Artie Ray is my cousin. A son of the South, he advanced stridently conservative positions, often in a manner certain readers found amusing — and was banned for it.

        1. “often in a manner certain readers found amusing”

          But did they find it amusing in the same sense you did?

          1. I was referring to educated, modern, reasoning readers.

            1. You’re right, this is an outrage, and I hope you retaliate against Reason by boycotting their comment section forever.

              1. It’s not an outrage. It’s a handy point of evidence indicating that the Volokh Conspiracy’s incessant potshots at the liberal-libertarian alliance concerning censorship are just cherry-picked, low-grade, partisan polemics.

      3. Given that Kirkland has been trolling the VC for more than a decade with no repercussions, and given that he lies about everything else, he’s obviously lying about having been banned. I wish he were banned, as he is a bigot who contributes absolutely nothing of value and just tries to derail discussions (as he’s doing right now!), but he hasn’t been and never was.

  11. The outrage about the ostensible victim of a misleading report would be much more worthy of respect were it not launched by the people who went after Shirley Sherrod, took to the torches based on Project Veritas reports, and wallowed in birtherism.

    1. Aren’t those precisely the people Mr. Olson was mocking in his facebook post?

      1. Not really. Mr. Olson seems firmly embedded in the audience that adores Project Veritas, Instapundit, RedState, Breitbart, the Daily Caller, FreeRepublic, and the like.

        He may draw the line at Stormfront, though, which could explain his break from the Trump administration.

        1. I was under the impression that he was expressly criticizing Breitbart. I base that opinion on the follow-up post, in which Olson explained that he was trying to criticize “garbage like” an article posted on Breitbart.

  12. “I’m not racist, I was just telling those racist jokes ironically!”

    In the history of the world, has that ever persuaded anyone that wasn’t already biased in the speaker’s favor?

    That said, this is the same lawyer who sued Texas because it wasn’t homophobic enough, so I’m not sure it’s a big loss.

    1. Apparently you’re completely unfamiliar with the concept of comedy.

      Mel Brooks’ movie “Blazing Saddles” included a lot of racist characters who were uncomfortable with the idea of a black sheriff. The actors who said that dialogue, you see, were PRETENDING to be racists in order to MOCK racism. They’re not actually racists who made jokes about racism, they played comedic characters who held racist views.

      That’s essentially what Olson’s comments were: he was mocking anti-semitic ideas, not making a racist joke.

      1. I remember Margaret Hamilton going on Mr. Rogers’ show to explain that she wasn’t *actually* the Wicked Witch of the West, she just played a witch in a movie. This was a key distinction which apparently needed to be explained to some children.

        “this is the same lawyer who sued Texas because it wasn’t homophobic enough”

        He sued Houston for providing same-sex partner benefits to city employees. Far from challenging Texas law, he *invoked* Texas law to say it prohibited Houston from acting as it did. That suit was first filed in the Jurassic Era, around 2013, when it was believed that the states could regulate marriage.

      2. ” They’re not actually racists who made jokes about racism, they played comedic characters who held racist views.”

        The difference being that the fictional characters didn’t have to TELL people how not-racist they were.

        It’s a fairly safe bet that anything that follows “I’m not a racist, but…” comes from a racist.

        1. Sure, but in this example, there was never a “I’m not anti-semitic” comment. He said ridiculous things that an anti-semite might agree with in order to mock the insane views held by antisemites.

          1. When you do that, you run the risk that the credulous might think you’re saying antisemitic things not because you intend to mock antisemitism, but because you intend to advance antisemitism.

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