Ben Penn's False and Misleading Email to the Department of Labor

Frank Bednarz and Ted Frank submitted a FOIA Request to DOL for messages from Bloomberg Law's Ben Penn

|The Volokh Conspiracy |

I have blogged twice before about Ben Penn's false and misleading article for Bloomberg Law about my colleague, Leif Olson. One month later, the story remains without any retraction. There are several "updates" and "corrections" which make the article incomprehensible. Regrettably, people who Google "Leif Olson" will quickly see this hit job, without knowing the proper context. Penn has not tweeted since his "scoop." I can only hope he is under investigation, and will face the appropriate discipline.

This post focuses on recent developments in this saga. On September 3, 2019, Penn tweeted:

To Leif Olson's friends & others who take issue with this reporting, I sent a screenshot of a public FB post to DOL, seeking comment. 4 hours later I received this response: "Today, the Department of Labor accepted the resignation of Leif Olson effective immediately."

Is that all Penn did? Did he simply send a screenshot and seek a comment. At the time, I was incredulous. My skepticism was warranted.

Now, we know exactly what Penn wrote to DOL. Shortly after the article was posted, Frank Bednarz and Ted Frank of the Hamilton Lincoln Law Institute submitted a FOIA request to the Department of Labor. They requested any communications from Ben Penn to the agency.

Here is the message, sent on Friday, August 30, four days before Penn's article was published.

First, Penn wrote:

"In particular we are focusing on an August 2016 Facebook post in which Mr. Olson made a remark that references two anti-Semitic tropes. Screenshot is attached. These posts remain public at the time this email is being sent."

This message is extremely misleading: Leif's remarks "referenced two anti-Semitic tropes" to criticize anti-semitism. Penn's use of the word "reference" was deliberate. He did not say that Leif made anti-semitic comments, or engaged in anti-semitic acts. This precise use of language suggests Penn knew that his claim of anti-semitism was, at best, tenuous.

Second,  Penn wrote:

"Does the Labor Department find comments that are disparaging to Jews acceptable for a senior appointee?"

Again, nothing Leif wrote was disparaging to Jews. I doubt the people at DOL had the ability to parse through the grainy Facebook screenshots, and figure out their context. Penn's failure to provide the context is journalistic malpractice.

At bottom, Penn did not simply send the screenshot, and seek comment. His tweet was, at best, misleading. And he concocted alternative facts to cover up his own gross error. Memo to Bloomberg law: if you were looking for an easy justification to punish Penn, here you go. Journalists should not mislead the public on social media to defend their false stories.

Finally, Penn wrote, "Deadline is COB today. Might be flexible on that deadline, depending on when I hear back later today from editors." This last statement is perhaps the most troubling. I had largely assumed that Penn was acting on his own, and that a single, overworked editor only glanced at the piece. No. Editors (plural!) were closely involved with the publication process, and had four days to digest this record, and still published the article. Who knows how many hours the editors gave Penn to scroll through a decade of Facebook posts?!

This entire incident reflects so poorly on Bloomberg Law. Both Penn, and the editors who approved this story, should face severe consequences. This FOIA'd document provides all the evidence that any journalistic review would require

Finally, Bloomberg should add a clear disclaimer at the top of the article, stating that the organization retracts all claims. There is no reason to stand behind this story. Bloomberg has already assaulted Leif's character; at least it can rehabilitate his Google footprint.

Update: My colleague Ted Frank pointed out an important aspect of the timing. Penn emailed DOL on the Friday before Labor Day, and asked for a comment that same day. The story did not run until the Tuesday after Labor Day. This timing ensured that DOL was jammed up on a holiday weekend, and no doubt forced Leif to make a difficult decision under pressure. Had Penn given the agency more time, Leif may have been able to avoid this entire fiasco. Bloomberg should address when Penn completed his decade-long search of Leif's social media account, and why he decided to slam this issue right before a holiday weekend.

Frank Bednarz has also posted the email the Department of Labor sent back to Penn four hours later, confirming that Leif resigned. Ten minutes later, Penn followed up, and asked "Any further explanation as to how this slipped past vetting protocols and what prompted the resignation?" How?! Because it is utterly unreasonable to scroll through a decade of Facebook posts, and fail to flag two posts that were made with obvious sarcasm.

Bloomberg Law has had access to these emails for over a month. Yet, the institution, and its editors, still stand behind Penn. Shameful.

NEXT: Chicago Impounded This Grandmother's Car For a Pot Offense She Didn't Commit. Now She Owes $6,000

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  1. Here’s hoping this post will show up on google either before Penn’s post, or at least nearby.

  2. Penn has not tweeted since his “scoop.” I can only hope he is under investigation, and will face the appropriate discipline.

    Although one can certainly hope as much, it doesn’t seem especially likely, since Bloomberg Law is still publishing his work. His most recent article is from earlier today.

    https://news.bloomberglaw.com/daily-labor-report/labor-agency-frees-states-to-drug-test-jobless-aid-applicants

  3. “Leif’s remarks “referenced two anti-Semitic tropes” to criticize anti-semitism.”

    Aren’t you just confirming here that Penn’s statement in the letter was true? Penn says that Leif referenced two anti-Semitic tropes. You admit that Leif in fact did reference these tropes, but then add why you believe he did so. The why entails interpretation and inference, the question as worded by Penn asserts a fact and does not attempt to interpret the motives of the speaker.

    “Second, Penn wrote: “Does the Labor Department find comments that are disparaging to Jews acceptable for a senior appointee?” Again, nothing Leif wrote was disparaging to Jews.”

    Here you add an inference to the question that Penn posed to DOL. The question does not ask whether DOL finds Leif’s disparaging comments acceptable, which would then imply that Leif made such disparaging comments. Rather, it asks, in general terms, whether DOL finds comments disparaging of Jews as acceptable behavior for senior staff. Presumably the answer would be no. Next question. Again, this seems like another example of Penn wording a question as to have as few underlying assumptions as possible. You think the interpretation of Leif’s comments is clear though, and thus you’re upset Penn didn’t incorporate the interpretation into his questions.

    “Who knows how many hours the editors gave Penn to scroll through a decade of Facebook posts?!”

    How many Facebook posts is a decade? If Tom has one decade of apples and Sally has three decades of apples, what is the total number of apples they have? Does Leif post on Facebook multiple times a day, and every day without a break? Because that is going to be quite different from someone who posts once a month, or who goes for extended periods of time without posting. Maybe number of posts isn’t a good measure, since the length of the post will also be a relevant factor. Does Leif write long posts, or does he write short posts? Simply quantifying the posts as a decade’s worth, and then from there arguing Penn couldn’t have “scrolled through” (maybe he used PgDn) them in a specific time-frame, seems misleading, and possibly LawBlawger malpractice.

    “There are several “updates” and “corrections” which make the article incomprehensible.”

    What exactly is the problem then? Incomprehensible means not able to be understood, or not intelligible. An article written in wingdings would be incomprehensible. If the article is in fact incomprehensible, as you assert it is, then Leif has nothing to worry about if it pops-up on a Google search; the person who clicks it won’t be able to understand it, and if they cannot understand it, then how can Leif’s reputation be harmed? If Leif’s reputation is harmed by the article, then it must in fact be comprehensible, meaning your claim is false and misleading.

    You and Penn should connect and collaborate on future rhetorical projects.

    1. To claim, hey, he was only pointing out a fact of a posted phrase, knowing full well it is all about the context, is deliciously facetious.

    2. Who knew that Ben Penn commented on VC?

    3. Dear Mr. QuantumBoxCat’s employer:

      Here is an internet post where your employee, QuantumBoxCat, referenced a desire to have sex with children. Do you find it acceptable for your employees to have sex with children?

      I publish in 10 minutes.

      1. No, no, no, you can only ASK why he had sex with a gerbil.
        After getting it drunk.

  4. BREAKING: Internet commenter praises Bloomberg as “a bunch of geniuses.”

    1. This is NOT a reply to Eddy. I want to clarify clear that my comment immediately below this (for now), should have been placed as a reply to Ben Fenn QuantumBoxCat

  5. Did you really rape that 12-year old neighbor boy? And his 3-year-old sister?

    I didn’t say you did. I merely asked … so I could appear as freaking stupid as you. But I only got maybe 1/4 of the way down that low.

    Your gutter tactics, and infantile logic, make it very likely that you are Ben Penn. Bad fakery. And totally amoral.

    Did you really also rape their newborn kitten?
    I merely asked!

    (I did not ask if he actually raped those kids’ pet hamsters, all three of them. That part seems kinda silly.)

    1. (OOOOPS????? Mine was addressed to QuantumBobCat, for anyone who doesn’t already know.)

  6. Professor Blackman….Nowhere in this post is the screenshot of the FB posting. That would be important in determining the context here. Can you update this blog to include the FB post in question?

    1. He could only do that if the FOIA response included the screenshot. (See, for example, the image after “Here is the message, sent on Friday, August 30” — the pictured email says the screenshot was an attachment.) Did the FOIA response include the contents of the screenshot?

  7. Josh, you’re really just cementing your position here as another David Bernstein, who only seems to surface when he has some particular gripe or vendetta he wants to pursue. This is your third post where your only apparent goal is to get some journalist fired.

    Just give it a rest.

    1. But, to be fair, some journalists should be fired. The profession has a lot of cleaning up to do if it is ever going to restore its reputation.

    2. David Bernstein? I think you’re misspelling “Dale Carpenter”…

  8. “He did not say that Leif made anti-semitic comments, or engaged in anti-semitic acts. This precise use of language suggests Penn knew that his claim of anti-semitism was, at best, tenuous.”

    This is a pretty sharp turn. In one sentence, you say quite firmly that there’s no accusation of anti-semitism. But then, in the very next sentence, suddenly there WAS a claim of anti-semitism.

    1. Read it again, in full context

      1. OK. Here’s a summary of what I get from this:

        1) a guy the author likes said something that didn’t offend the author, but might have offended a third person, if that person were particularly prone to offense.

        2) a different guy pointed out that the first guy said what he said.

        3) EGADS!!!!!!!

        1. Not even responsive to what I said. A diversion.
          Your original blunder was asserting two supposedly opposite claims of of anti-semitism. Here’s a reminder, of your own words that you … forgot?.

          This is a pretty sharp turn. In one sentence, you say quite firmly that there’s no accusation of anti-semitism. But then, in the very next sentence, suddenly there WAS a claim of anti-semitism.

          When challenged … WTF is THIS:

          1) a guy the author likes said something that didn’t offend the author, but might have offended a third person, if that person were particularly prone to offense.

          2) a different guy pointed out that the first guy said what he said.

          That’s a very sharp turn, in your own words.
          Shameless or forgetful (of your own words, still quite visible)

          Do you have a THIRD set of whining?

          1. Are you extremely stupid, or are you very stupid? It’s definitely one of the two, but which one?

            1. ONE MORE TIME FOR THE MORALLY IMPAIRED.

              Here’s a reminder, of your own words that you … forgot?.

              This is a pretty sharp turn. In one sentence, you say quite firmly that there’s no accusation of anti-semitism. But then, in the very next sentence, suddenly there WAS a claim of anti-semitism.

              When challenged … WTF is THIS:

              No answer. Cowardly (and snarky) evasion

              1. Needs no response, as the original point remains intact and complete… and unchallenged.

                1. WTF?

                  and unchallenged.

                  You went ape-shit BECAUSE you were challenged!!!!

                  Now you AGAIN deny YOUR OWN WORDS …,. THE MOST BLATANT LIE OF THE MONTH

                  1. The only ape-shit-going is on your part.

                    But by all means… continue to perform for my amusement.

                  2. “Now you AGAIN deny YOUR OWN WORDS …,. THE MOST BLATANT LIE OF THE MONTH”

                    This is indeed a blatant lie. I don’t deny MY OWN WORDS. They’re right there, and just as accurate now as when they were first written.

          2. “Not even responsive to what I said.”

            In the sense that it is a direct response.

            You said “read it again, in context” so I read it again, and provided the context.

            Then, much like our current President, you confuse bravado for skill. One you have, the other you lack. (Hint: It’s the second one you have none of.)

            1. Snarky genius doesn’t even know what “responsive to” means, in a conversation. And LIES about what I said (partial quote of the LEAST relevant portion).

              THIS IS WHAT HE RAN AWAY FROM

              Not even responsive to what I said. A diversion.
              Your original blunder was asserting two supposedly opposite claims of of anti-semitism.

              You had BEGUN with ANOTHER another selective quote, where THAT context also proves you a fraud. THAT is what I called out. And THAT is what you’re running from. Twice now

              STILL cannot defend WHAT I QUOTED, of his own words. He will now likely … Play more mind games. Spew more infantile personal assaults. Another false denial of words in plain view, Deny being proven a lying cyber-blowhard. Their playbook.
              (flush)

              ” YOUR ORIGINAL BLUNDER WAS ASSERTING TWO SUPPOSEDLY OPPOSITE CLAIMS OF ANTI-SEMITISM.”
              ***Can you hear me NOW?

              1. You lose even WORSE than your lies, Pollock

                Bloomberg Law has RETRACTED that story and APOLOGIZED to readers, for their ADMITTED FAILURE to maintain journalistic standards,

                https://reason.com/2019/10/04/bloomberg-law-finally-retracts-its-false-and-misleading-story-about-leif-olson/#comment-7959884

                Now … your standards? There’s something very fishy about you

                1. Both very stupid AND extremely stupid.

                  Have a nice day, anyway.

              2. “” YOUR ORIGINAL BLUNDER WAS ASSERTING TWO SUPPOSEDLY OPPOSITE CLAIMS OF ANTI-SEMITISM.””

                By, um, quoting directly?

                1. ” YOUR ORIGINAL BLUNDER WAS ASSERTING TWO SUPPOSEDLY OPPOSITE CLAIMS OF ANTI-SEMITISM.””

                  By, um, quoting directly?

                  “supposedly” chump
                  One more time for the morally challenged .. You are a PROVEN liar on the MEANING of what you quoted … which may be why you REFUSED to defend it.

                  1. Refused to defend it? Against what? It stands on its own. Needs no defending.

  9. “Shameful.”

    That’s a strange slur from Conspirators who have ostentatiously avoided addressing issues associated with Pres. Trump (while he is in position to nominate for federal judicial positions).

  10. The timing of the retraction might possibly be related to the Texas Defamation Mitigation Act, which I’ve linked and explained in this comment on Prof. Blackman’s newer post.

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