The Volokh Conspiracy

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A few thoughts on publishing an Op-Ed in the New York Times


Last Friday, an editor from the New York Times asked if I would be willing to write an op-ed in support of the President's defense. I agreed. I had been planning to write something, and was glad to have the large forum. I did so with full knowledge that the criticism--on the right and left--would be significant.

The article was published in the early morning. About twelve hours later, the Times website is up to nearly 3,000 comments and counting. It was the lead piece on the opinion page for most of the day. I received about three-dozen "fan" emails. A few of them used racial epithets. (People made an incorrect assumption about my race based on my last name.) No anti-semitic email yet, but I've received those in the past. The negative emails far outweigh the positive emails. I suspect my Dean has also received some messages. I had given him a heads up. (One person wrote that he would contact my "supervisor!").

I received a handful of voicemails at my office, one of which said "I should be ashamed of myself." The person didn't leave a name. I did not check my Twitter mentions today, quite deliberately. Friends have told me they're pretty bad. Plenty of academic subtweeting. Indeed, at least one blog post criticized me, but did not name me--"some have argued." There maybe others, but they are hard to find.

I am grateful to my co-bloggers Jon Adler and Ilya Somin for offering substantive responses to my post. They model the best of what academic discourse has to offer. I will respond to them in due course.



NEXT: Does an Impeachment Overturn an Election?

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  1. Bummer. But I'm not sure why anybody would expect anything different from NYT readers, Academics, or Twitter.

    1. You're right. Some people should probably just stick to Breitbart, FreeRepublic, Fox, the Volokh Conspiracy, RedState, Limbaugh, Stormfront, and Instapundit.

      1. And perhaps you should stick to the Washington Post and New York Times, where your compatriots blovate.

        1. What's your next swipe at your betters?

          'Mainstream suckers are stuck with Harvard, Berkeley, and Columbia, while us real Americans get Liberty, Bob Jones, Grove City, and Wheaton!'

          'The elites can have their BMW or Mercedes or Porsche -- but real Americans know there's nothing better in life than using a couple of do-it-yourself oil change kits on a 17-year-old Chevy pickup!'

          'Keep going to those fancy sit-down restaurants, Kuckland -- guys like you will never get to know the heartland joy of washing down a jumbo Slim Jim and a thrift store Twinkie with an off-brand energy drink. And that's before the wad of sweet, sweet snuff . . .'

  2. I'm just disturbed to know it will be perfectly fine with you when President EvilDem holds Irsael's funding up until Bibi makes up, I dunno, child molestation charges against Don Jr.

    1. Has there even been an allegation that Trump requested Zelensky to "make up" charges against Hunter Biden? Or are you the one making things up?

      1. Yes the charges would have to be made up.

        1. I saw that Trump desired for Zelensky to make a public announcement concerning the investigation, which could presumably be understood as a way to ensure the Ukrainians followed through on what they were being asked to do. I have not seen any reference to Trump asking Zelensky to "make up" charges against Hunter Biden.

          1. Kleppe, have you been watching the live impeachment coverage? The evidence that Trump demanded (not asked for) an investigation announcement is already overwhelming. It would become stronger yet if the Senate were to decide to hold a trial of the evidence, and subpoena the documents Trump has refused to supply. Nobody defending Trump should do so without demanding an actual trial in the Senate, as the Constitution requires.

            1. Stephen, Kleppe already addressed that. Asking for an announcement is a commitment mechanism: Once somebody publicly announces they're going to do something, it becomes more difficult for them to back down from doing it.

              You have no evidence that he specifically wanted an announcement and no investigation. If he had at any point specifically said, "I want you to announce the investigation, and then not do it., that would be fairly damning, but you're only fantasizing that you have proof of THAT.

            2. Lathrop, I have watched the hearings (about 18 hours thusfar) because this is a major event in our history. My observations.

              The presentation is well-rehearsed, and effectively uses multi-media.
              The arguments tend toward the tedious (agonizingly detailed).
              The arguments are repetitive. I feel like I have heard the same thing 36 times now. The first 35 were enough.

              I really don't think it is a good idea to antagonize the Senators who will render judgment. I don't. And the House Managers are doing precisely that, with a lot of snide comments. But it is their case to present, in their way. They will have to answer for their strategy when this is all over.

              We are witnessing the actual trial in the Senate. The Senate will vote on calling witnesses after the House presents their case, and the POTUS' team presents their rebuttal. Let the process play out.

              1. Lathrop has pre-judged the case, even as he admonished others not to do so. Hypocritical imbecile with no self awareness. Ignore the troll.

                1. BigT....Truth be told, I am pretty sure that 99% of us have prejudged the case. That prejudging was also the case in 1868; perhaps not so much in 1998.

                  Our elected leaders cannot resolve their political issues. Therefore, We The People will solve the problem at the ballot box in November 2020.

                  1. Of course we've pre-judged it; They've been publicly pre-trying him for months. In most media outlets, pre-convicting him, too.

                    I think if the Senate decides to have witnesses, instead of just a brief presentation of arguments then an up/down vote, a lot of people are going to be shocked when they see BOTH sides of the case.

                    The House's evidentiary record was carefully curated, blocking witnesses and even lines of questioning that weren't favorable to their accusations. And, while they tried for a Senate resolution authorizing prosecution witnesses, but no defense witnesses, it got shot down.

                    If it comes to witnesses, it won't go well for the Democrats. That's my prediction.

                    1. Let the cards fall where that may. But for this to be a meaningful process, those cards must be dealt.

                    2. I think calling witnesses is a spectacularly BAD idea, Brett. Mostly because I think it would have the effect of dividing our Republic even further. But I also know that if you don't absolutely know the questions (and their answers) in advance, then you best not call the witness.

                      We need to get this trial done, and over with. The trial will not settle the issues that we have, presently. Only the ballot box will.

                2. BigT, there has been a lot of rehearsal in public on this one. I could be astonished, and see Republican senators (somehow) refute the factual presentation the impeachment managers presented. But how could it happen? Almost none of the evidence can even be in dispute.

                  Despite repeated claims to the contrary, the evidence is almost entirely first-hand testimony (and documents) from qualified witnesses, who did their testimony on television. What's to refute? They said what they said. They showed the documents they showed. Taken together, those make the case. The "taken together" part is the part too many Trump defenders ignore.

                  You may number yourself among the Trump supporters who suppose the case against Trump can somehow be overturned by irrelevancies, such as proving the alleged corruption of the Bidens (a subject upon which my view does not depend, one way or the other). I cannot say whether that distraction can carry the day politically (nor does it look like any factual predicate at all is necessary to carry the day politically), but whether it does or not, it will not overturn the case for convicting on high crimes and misdemeanors. Whatever happens in the senate, history will almost certainly convict Trump, and all the Republican senators who voted (and will vote again, I predict) to prevent an actual trial.

                  But suppose, somehow, the managers' case is attacked, and does fall apart. To make that happen, you would have to somehow effectively refute that mountain of evidence. It seems impossible to imagine, let alone accomplish. But if it happens, I will take off my hat, and congratulate whoever does it for a case well made against seemingly hopeless odds.

      2. Yes. That was the point.

      3. There certainly have been allegations of that nature, though not a scrap of evidence.

  3. There is no point in paying any attention to the frogs on twatter.

  4. Thankfully, no death threats. There are way, way too many of those in American political discourse. And law enforcement does not do nearly enough to track them down and throw people in prison who make them.

    1. If the police spent their time tracking down everyone who made death threats, they'd have no time to do anything else, and they'd still barely make a dent. The vast majority of them are just morons blowing off steam, and are rarely actionable anyway, lacking the elements to satisfy the "true threat" standard.

      1. The sorts of death threats I am talking about definitely meet the true threat standard.

        And piercing Internet anonymity a few times would have a huge deterrent effect.

        1. If we're going to pierce internet anonymity, I'd rather we start dropping SEAL teams on the clowns who make fake "virus alerts" show up on your computer, and try to trick you into clicking on them and installing their ransomware. They're causing a lot more damage than anonymous idiots making empty death threats.

  5. I am a little surprised that you offered to write an article for the NY Times given the environment (or agreed to their offer to write one). I understand the reasons, broadening the audience, increasing the diversity of viewpoints available, and so on. But, I've followed some other moderate libertarians around over the years, in their transitions between different publications, including flipping through the comments and such, and as of late, going to a large liberal paper has...significant downsides.

    What immediately comes to mind is Megan McArdle's transition to the Washington Post, and frankly, the comments area became far, far more negative than in her previous publication. And it gets to you. And it's not needed. And a critical mass of Reverend Kirklands drives away normal commenters and normal thinkers, reinforcing a spiral that encourages more vitrol.

    I frankly don't know what to do about it. Perhaps more rigorous decorum needs to be enforced. But it's an issue. Perhaps it started with Jon Stewart a while ago. But that's neither here nor there.

    Here's what I will say. I applaud your dedication. However, it's not, in my opinion, worth going back to the Times. The negativity isn't worth the benefit.

    1. Stick to the right-wing sites, perhaps those with an increasingly purified standard for acceptable conservative thought. You'll experience less heartburn if you avoid the mainstream.

      It's not going to matter much. The better ideas are going to continue to win.

      Oh, and Artie Ray Lee Wayne Jim-Bob Kirkland endorses your position on decorum and comments. A site that doesn't engage in partisan, viewpoint-controlled censorship isn't really trying.

      1. You ever realize that you increasingly use the language and tactics of the so- called "clingers" and "racists" that you claim to dislike?

        Eh, never mind. Probably not.

        Civility and open, polite, and respectful discourse is key to a functioning society. Attacks by ad hominem and insult to shout out uncomfortable ideas are counter-productive in the long run

        1. Self awareness is in short supply among the left.

    2. I think that the point of persuasive writing is precisely to address an audience that has different opinions, and change their mind. People generally do not want to get out of their comfort zone, and react negatively. I think people have always been this way, its just that now you know with the comments. The comments section makes it free and anonymous for people to share their unfiltered thoughts which they would previously hold back. Twitter has become a liberal bubble I do not find it useful either. No ones mind can be changed in 144 anonymous characters.

      Lots of vitriolic comments simply means you have struck a nerve.

      Is it worth the benefit? Well, they read it! That's a start. For every person who made a vitriolic comment there are many others who at least paused and considered the argument. Repeat this enough times, people get desensitized to the discomfort and then critical thinking can begin.

      1. You make good points, and I don't disagree with them. I agree with them quite a bit, in fact. It's the other side which I consider.

        You know, if this was in public, you might see one or two random hecklers, and a bunch of people listening, and perhaps even some nodding. But, over the internet, the people listening "disappear" as do the nodders. All you see are the hecklers. And all the hecklers see is other hecklers, and it encourages them. And sometimes it's hard to tell. Are you speaking/writing to a room with 1-2 hecklers, and the rest being an attentive audience? Or are you speaking to a room of hecklers throwing tomatoes?

        And then you get into the threats and the letters, and the doxxing, and....sometimes you wonder, if it's just a bunch of hecklers, is it worth it? Really? Is it worth perhaps you job, perhaps your family? That's all.

        1. If the goal of hecklers is to shame you into silence, its like First Amendment terrorism, you simply cant let them win. You have to take the fight to them.

    3. "The negativity isn’t worth the benefit."

      You are kidding, right?

      People write op eds for the NYT because of their egos. The negativity is a big part of the benefit, it feeds the ego.

  6. Josh - we don't agree on much, politically. But I enjoyed both your op-ed and the responses of your colleagues. Keep doing what you do.

  7. I'm still waiting for the Times to apologize for Walter Durant and the pro Stalin propaganda they pushed and also for the worst form of smearing of Italian Americans after the worst lynching in American History (New Orleans to Italian Americans). The Times is a sh$$y bolshevik rag..always has been..real Americans they sure are not

    1. Well, I'm still waiting for the Italians to apologize for the destruction of Carthage.

      1. David,
        Heh. Best comment of the day.

      2. I'm waiting for Theia to apologize for leaving Gaia like a Courtney Love hotel room.

  8. Josh, I'm curious what conclusions you draw about your experience given the description you provide? Obviously, getting offensive emails or voicemails is not a pleasant experience. However, the NY Times has something like 5 million subscribers; even assuming all 3,000 comments were negative, that means fewer than 0.06% of people exposed to your op-ed acted negatively, let alone poorly. That's a rounding error, so I'd be really hesitant to draw conclusions about "The New York Times" or its readership from that experience as TwelveInchPianist does above.

    In hindsight, do you think your decision to write the op-ed was a bad idea? A good one with some unfortunate side effects?

    1. That circulation number you cite sounds a bit high. I just checked, and it’s an order of magnitude too high. NYT circulation is less than half a million.

      1. Typical, I think you'll find that number is print only. In their most recent 8-K filing they claim they hit 3.4 million total "core news subscriptions" in 2019. Jeff's 5 million total figure is higher because it includes non-news offerings, e.g. 600,000 Crossword subscriptions.

        1. Yes, I was adding reported print and digital subscriptions from November 2019 (the most recent I could find casually). I will happily concede the 600k crossword subscriptions, but I don't think it materially impacts my point: this post and its title suggest to me that Josh's main takeaway from publishing in the Times is that people had an overwhelmingly negative reaction to his op-ed because of his choice of venue. I don't think that's supported at all by the evidence, and I worry that trying to draw conclusions based on an insignificant fraction of the readership makes people susceptible to confirmation bias. There are probably a few dozen nuts out there who would write death threats if the op-ed were about his choice of breakfast cereal; you just have to write them off as unrepresentative of the majority.

  9. I read the oped on NYT. I was surprised that such simplistic and blinkered arguments would pass muster in a college law class. The oped ignored much of Trump’s corrupt behavior in disputing the first count, and never even mentioned the second count. I came away thinking that studying law must be much less rigorous, and much more malleable than I had imagined.

    1. I could hardly disagree more with the op-ed, yet I have to say that had you bothered to read the OP you'd know why the second count wasn't mentioned.

  10. my co-bloggers Jon Adler and Ilya Somin

    We'll just judge you by the company you keep: bigots with TDS.

    1. So your objection is that Josh is insufficiently pro-Trump? Ok lol.

  11. "one of which said I should be ashamed of myself."

    That could have been Trump.

  12. Professor Blackman, I submitted a negative comment to the NYT, a polite one. My advice now? Stop whining in public, and get better grounded in the subject you wrote about.

    This is not in the slightest a dispute over constitutional law. It is about facts, which the House managers have now proved beyond doubt. If you disagree, then the most charitable supposition available is that you have not been following the impeachment proceedings live, but instead got your view of the facts elsewhere. Go back and review the House and Senate proceedings as they unfolded.

    And while you are at it, please join the demands for an actual trial in the Senate. Without documents and witnesses you have a sham, not a trial. A constitutional law professor probably knows that. Why not say so?

    1. Without documents and witnesses you have a sham,

      Sort of like the House indictment which lacked both, right? And yet in the same comment you assert the facts are proven. Could you be less self aware?

    2. "proved beyond doubt" !!!

      oh my...

      Nothing is "beyond doubt." Only priests are so certain. You have merely replaced religion with ideology. You are practicing faith based law and politics, the house managers are your priests.

      1. dwb68, nah. Until I saw what they did in the last 3 days, I have been mostly criticizing all the Democrats for incompetence. And even though the evidence presentation has been not only impressive, but probably irrefutable, I still think making the presentation was the wrong way to go politically.

        The best point the Democrats had going was that the American people understand that without documents and witnesses, it is not a trial. After the Democrats' amendments were all defeated, they should have left it at that. Just announced that the Republicans had ruled out the trial required by the Constitution, so the Democrats would absent themselves until a real trial was agreed to, if ever.

        Let the Republicans degrade the process from a sham to a farce, all in their own name. Let the Chief Justice preside over that, if he can bear it. Let history sort through the evidence, and pronounce the verdict. If it is a foregone conclusion you will lose now, then do the best you can to win later.

        That is my view. And ideology has nothing to do with it. I was just surprised to see how well the House managers did with their thankless task.

        1. The best point the Democrats had going was that the American people understand that without documents and witnesses, it is not a trial. After the Democrats’ amendments were all defeated, they should have left it at that. Just announced that the Republicans had ruled out the trial required by the Constitution, so the Democrats would absent themselves until a real trial was agreed to, if ever.

          But the Senate didn't formally rule out witnesses at that time. They decided that they would defer on witnesses until after the other evidence was presented.

          1. Nor did the Senate formally rule them in. If Republicans see the light, and agree to vote for documents and witnesses, then that would be the time for the House managers to rejoin the process, and support it with their own votes. Then let the trial begin. Simple, right?

            By the way, a rushed conclusion portends worse trouble ahead. Lev and Igor have turned into a world-class loose-cannon emergency. No one should forget that they have been charged with using money from a source linked to Russia to influence the election. Now we find out they not only associated with President Trump (using money from unidentified sources to get close to him), but also discover they have been taping him, apparently multiple times (this morning's latest news). Is it really possible that Republicans want to acquit Trump while everyone is in the dark about whether Lev and Igor have been blackmailing him, possibly on behalf of Russia? Seems like this might be a good time to put the trial on hold, while an all-out investigation into Lev and Igor sorts this out.

  13. I'd say the negative comments (less any threats) are well deserved with comments like:

    "...the House of Representatives has transformed presidential impeachment from a constitutional parachute — an emergency measure to save the Republic in free-fall — into a parliamentary vote of 'no confidence.'"

    Really?!? We have to reach Civil War proportions to start an impeachment?!?

    I like how you simply omitted the OMB funding issue (you know THE thing that is the REAL issue).

    And I don't see how your little story about Johnson/Marshall translates into a "personal" political benefit for Johnson.

    All-in-all, it's a weak article with zero legal/academic input and is well deserving of negative comments.

    1. IIUC you believe the Congress controlled GAO opinion over the President controlled OMB and the law itself?

  14. Good lord this is petty.

    1. Yup.

      Negative comments. Horrifying!

      Read the comments section here, Josh.

      Read the reactions to David Post, or any other post critical of Trump.

      And to those trying to single out the NYT and WaPo as particularly bad, forget it. Comments sections are like that. Read the comments on other articles at Reason. Not a lot of intelligence on display.

      1. "Read the reactions to David Post, or any other post critical of Trump. "

        Yes, yes, negativity is only expressed against Trump critical posts.

        Responses to pro-Trump posts are always Platonic level.

      2. Prof. Blackman loves the comment section here. These are his peeps.

        After years with all of those "elites" and lefties at law school, the Volokh Conspiracy is heaven for him.

  15. Amusing news about the NYT. Apparently they had an expose available last May of Hunter's Burisma dealings, all ready to go, and spiked it when Biden announced. Including State Department emails discussing how it was a severe ethics problem that was complicating their anti-corruption efforts in Ukraine.

    And the "whistleblower" was involved in the meeting.

    1. A few notations of interest -

      separate from WB allegations, Ciaramella is person of interest through his hosting of Jan 19 meeting with Ukrainian prosecutors at which linkage of IMF $1 billion to Shokin firing was revealed and which connected to Sytnyk's release of Manafort Black Ledger.

      His named activities give reason to subpoena him. While WB law limits ability of IC to identify him, WB law doesn't appear to prohibit a congressional committee from asking Ciaramella about WB/leaking activities. If Ciaramella's "WB" activities were non-criminal, no basis for 5th

      Seems the impeachment process is more about stopping any investigation of joe & Hunter Biden's corruption and the deep state's support / involvement in the corruption

      1. Exactly. Once again the Progressive Democrats are projecting their own actions onto others!

        1. The birthers are hot on the trail of another one . . . Go get 'em, clingers!

          The Volokh Conspiracy will be here to help, so long as it wouldn't interfere with any judicial nominations or faculty applications.

  16. It's hard to engage in reasonable discourse these days because people will just come out and start insulting you instead of responding to your points. I appreciate the people willing to put themselves out and still be reasonable. Maybe it will eventually bear fruit.

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