The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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."
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." https://t.co/PZbIScDHqe
— Ben Penn (@benjaminpenn) September 3, 2019
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.
Penn sent his email 11:14 AM Friday before Labor Day weekend with a COB deadline. Very good odds that a decisionmaker's vacation was interrupted with the threat of a bigger interruption if a scandal wasn't quelled. DOL might not have forced resignation if comment sought Tuesday.
— tedfrank (@tedfrank) October 4, 2019
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.