The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier this month, an article on Bloomberg Law surfaced purportedly anti-semitic facebook postings by Leif Olson. Of course, the postings were in no way anti-semitic, and indeed were mocking anti-semites. The report was false and misleading. Since publication, Bloomberg Law has refused to retract the article. Instead, it has issued several revisions and modifications that make the story incomprehensible. I can only hope that the purported reporter, Ben Penn, is being investigated, and will face discipline. (He has not tweeted since the original story was published).
My goal here is not to further excoriate Bloomberg's indefensible publication. Rather, I will focus on an element of Penn's story that has not gotten much attention. He wrote:
"A review of a decade of Olson's Facebook posts shows that he usually promotes his Christian faith and conservative views."
This statement is stunning. A reporter spent countless hours scrolling through ten years of Facebook posts. How much time did this task take? Do journalism schools now offer classes in timeline scrolling? Hashtag analysis? Sarcasm detection? Deleted tweet recovery?
Penn did not perform this grueling search as part of a general profile of Leif. Rather, Penn had a specific goal in mind: search and destroy. He was looking for something– anything–that could be deemed offensive. (Penn utterly failed on that front). I would surmise that Penn also performed a similar search-and-destroy mission for other Trump Administration officials. That he didn't write about them suggests he didn't find anything to use. The best he could find were Leif's non-anti-semitic posts.
There is another reason why Penn's statement was stunning. Journalists routinely complain about being forced to produce vast amounts of content under tight deadlines. Reporter often call me and request a quote instantly, because they are facing a deadline–whether or not I've had time to consider the issue! I get it. Social media has transformed the news landscape. The first to publish gets the glory.
Given these constraints, why would a reporter spend countless hours aimlessly scrolling through Facebook posts with the sole purpose of surfacing offensive tweets? There are so many other useful tasks a reporter can perform. Moreover, why would any competent editor at Bloomberg approve of such a task? Note to Bloomberg: this failure belongs also to your editorial team–they should face discipline as well as Penn.
Recently the Des Moines Register faced a similar situation. The Washington Post offered this summary:
Was the Register on a search-and-destroy mission, like Ben Penn was at Bloomberg? No. The paper explains that it was trying to write a balanced profile of Calvin that unexpectedly turned up a few inappropriate tweets:
Some of you wonder why journalists think it's necessary to look into someone's past. It's essential because readers depend on us to tell a complete story.
In this case, our initial stories drew so much interest that we decided to write a profile of King, to help readers understand the young man behind the handmade sign and the outpouring of donations to the children's hospital. The Register had no intention to disparage or otherwise cast a negative light on King.
In doing backgrounding for such a story, reporters talk to family, friends, colleagues or professors. We check court and arrest records as well as other pertinent public records, including social media activity. The process helps us to understand the whole person.
This explanation seems reasonable. Calvin was thrust into the spotlight, and the local paper decided to figure out who he was. This task stands in stark contrast with Ben Penn's facebook crusade: his sole purpose was find bad stuff on Leif. Bloomberg would never have run a story if Olson's social media was clean.
The Register also explains why it decided to write about the old tweets, once they were discovered:
Once we have obtained information in background checks, how do we decide what to publish?
It weighed heavily on our minds that the racist jokes King tweeted, which we never published, were disturbing and highly inappropriate. On the other hand, we also weighed heavily that the tweets were posted more than seven years ago, when King was 16, and he was highly remorseful.
We ultimately decided to include a few paragraphs at the bottom of the story. As
This analysis is incomplete. On the one hand, the tweets were inappropriate. On the other hand, the tweets were posted when King was 16–not even old enough to form a legal contract! Why, then did the paper opt for disclosure? The editor does not say.
Regrettably, the norm today is predictable: whenever anyone is thrust into the spotlight, for even the most insignificant reasons, an army of social media spelunkers climb through every crevice of the insta-celebrity's timeline to find something–anything–to embarrass him. Conservatives do it to liberals. And liberals do it to conservatives. This circular firing squad needs to end–eventually, everyone can be cancelled. He that is without without social media sin among you, cast the first tweet.
What, then is the relevance of old, offensive tweets? To be sure, these posts shed some light into a person's views at an early juncture of his life. But I am generally skeptical they provide much insight into how they currently approach the world–especially when the postings are old, and were published before a person's professional career began.
How should our society weigh these old postings? I do not propose some sort of statute of limitations, in which past writings are off-limits. Rather, I suggest a different test: when a person's established body of work is entirely inconsistent with, and indeed in tension with earlier postings, such nascent musings should be entitled to less weight. Under the opposite rule, everyone will be forever tainted by their worst moments. Our society should afford those aspiring for higher status the opportunity to grow, reflect, and recant.