Free Speech

Bret Stephens' Spiked Story on the Donald McNeil Firing, Published by the New York Post

"Unfit to Print: The Post publishes column The Times wouldn't"

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See here; an excerpt:

Last weekend, New York Times columnist Bret Stephens wrote a piece criticizing the rationale behind the forced ouster of Times reporter Donald G. McNeil Jr., but it was never published…. Since then, the piece has circulated among Times staffers and others — and it was from one of them, not Stephens himself, that The Post obtained it. We publish his spiked column here in full….

Late last week, Donald G. McNeil Jr., a veteran science reporter for The Times, abruptly departed from his job following the revelation that he had uttered a racial slur while on a New York Times trip to Peru for high school students. In the course of a dinner discussion, he was asked by a student whether a 12-year-old should have been suspended by her school for making a video in which she had used a racial slur.

In a written apology to staff, McNeil explained what happened next: "To understand what was in the video, I asked if she had called someone else the slur or whether she was rapping or quoting a book title. In asking the question, I used the slur itself."

In an initial note to staff, editor-in-chief Dean Baquet noted that, after conducting an investigation, he was satisfied that McNeil had not used the slur maliciously and that it was not a firing offense. In response, more than 150 Times staffers signed a protest letter. A few days later, Baquet and managing editor Joe Kahn reached a different decision.

"We do not tolerate racist language regardless of intent," they wrote on Friday afternoon. They added to this unambiguous judgment that the paper would "work with urgency to create clearer guidelines and enforcement about conduct in the workplace, including red-line issues on racist language." …

[But t]here is an elementary difference between citing a word for the purpose of knowledge and understanding and using the same word for the purpose of insult and harm. Lose this distinction, and you also lose the ability to understand the things you are supposed to be educated to oppose.

No wonder The Times has never previously been shy about citing racial slurs in order to explain a point. Here is a famous quote by the late Republican strategist Lee Atwater that has appeared at least seven times in The Times, most recently in 2019, precisely because it powerfully illuminates the mindset of a crucial political player.

"You start out in 1954 by saying, 'Nigger, nigger, nigger.' By 1968 you can't say 'nigger' — that hurts you, backfires. So you say stuff like, uh, 'forced busing,' 'states' rights' and all that stuff."

Is this now supposed to be a scandal? Would the ugliness of Atwater's meaning have been equally clearer by writing "n—, n—, n—"? A journalism that turns words into totems — and totems into fears — is an impediment to clear thinking and proper understanding….

We are living in a period of competing moral certitudes, of people who are awfully sure they're right and fully prepared to be awful about it. Hence the culture of cancellations, firings, public humiliations and increasingly unforgiving judgments. The role of good journalism should be to lead us out of this dark defile. Last week, we went deeper into it.

NEXT: Prof. Ann Althouse on Sound-and-Fury-Gate

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  1. How is this not a copyright violation? The Times owns Stephen’s work, at least in print news, via his employment contract no?

    1. We don’t know without knowing what Mr. Stephen’s’ contract says. If he doesn’t have a contract (obviously unlikely) he would be the owner of the copyright. The New York Times’ work for hire provision might only attach upon acceptance and print of the article. It would be logical that there is some form of provision that makes a carve out for things like books written by New York Times’ authors. But we really don’t know without seeing the contract.

      1. “If he doesn’t have a contract (obviously unlikely) he would be the owner of the copyright.”

        Is this correct, assuming that the is an employee? I thought work produced by employees was work for hire.

        1. I’m not sure. The vast majority of my IP law knowledge arises from law school. I know the burden is on the person claiming work for hire to prove it. IIRC, the work prepared in “the scope of employment” inquiry could end up being pretty squishy. But like I said, it’s not an area where I have much experience so if an experienced IP attorney said I was wrong or that my explanation was substantially incomplete, I wouldn’t be in the position to disagree.

        2. ” I thought work produced by employees was work for hire.”

          Turns out that this is a complicated subject, and so most jobs that require creating copyrightable material will involve a direct assignment, to get past the confusion, and, of course, contract law is not complicated at all so it doesn’t introduce any kind of overcompensation or assignments unintended by the creator(s) of copyrighted works for hire.

    2. As a lawyer, my first thought was copyright also, but from a different perspective.

      As to whether the Times owns the work, if he were an ordinary journalist, yes, of course. But I suspect that columnists have a different arrangement. And I suspect that the arrangement includes the provision that if they turn down a piece, he can publish it elsewhere.

      But my thought was: they’re trying to distance Stephens from responsibility for this by saying that they got it from someone other than him. Okay — but they couldn’t run it without his consent because of copyright, so isn’t that going to ruffle the exact same feathers as if he had sent it to the Post?

      1. As an engineer, my employer is entitled to patent anything I invent within the scope of my employment. (Not in unrelated fields, unless I did the work during work hours.)

        But if they decline to, I’m entitled to patent it myself.

        I’d rather expect this is similar for writers, at least in some fields, and rights reverted on refusal to publish.

        1. It may come as a shock, since engineers by and large use facts and logic, but there is no correlation between anything done at the NYT and reality.

        2. I think the arrangment between you and your employer is a matter of the contractual arrangement between you, not patent law.

          1. It is, yes, and I’m aware of that. Without the contractual element, they’d have no claim on my inventions at all, and they could have written the contract to foreclose my patenting inventions they decline to. Instead they went with the terms that were usual in industry.

            I’m just saying I rather expect that Bret Stephens has a similar contract, so that this publication is no copyright violation.

            1. IIUC copyrights are different than patents, where copyright ownership of work by employees is indeed determined by copyright law. Employers own copyright of works created by employees.

              1. They have to be an employee, and the work had to be created in the scope of his employment.

              2. “IIUC copyrights are different than patents”

                there are a number of differences. Starting with, copyright law has a built-in “work for hire” structure already in place. But there are other important differences, starting with the time required to get protection. Copyright forms at the time of creation, but patent forms at the time the patent is granted, which does not happen until after several steps of a long procedure are followed. A would be patent-holder must prove that their invention is novel and not based on existing knowledge, while a would-be copyright holder doesn’t have to prove that their work is completely original, rather a claim that it is not must be brought and proven by someone opposed to the granting of the copyright.
                Independent creation is a defense to copyright infringement, but not to patent infringement. A software copyright can be overcome by reverse-engineering the original (which is why you can buy a PC computer from a company that isn’t IBM), but a software patent is infringed by reverse-engineering the original.
                Finally, copyright has a whole section regarding Fair Use, while patent does not.

        3. But Brett, what if your employer patents something and then shelves it, thus precluding anyone from using it?

          Remember too that patents are so different from copyright that many software companies chose copyright instead of patent because the latter is public info.

          1. Yes, that’s happened, it remains their patent. Good point.

          2. “But Brett, what if your employer patents something and then shelves it, thus precluding anyone from using it?”

            Then the invention is off-limits until the patent expires, then everyone knows exactly how to do it, and can proceed to do so as they see fit, without restriction.

      2. David — start with an even simpler question: who circulated copies of it in the first place. It would either have been him or the editor who spiked it who had copies of it, and I doubt that the latter did.

        1. It would either have been him or the editor who spiked it who had copies of it

          You don’t know that. You have no idea how many people’s hands it may have passed through in the course of creation, submission, evaluation, and ultimately, rejection. And not just the principles. There are the secretaries, copy clerks, mail room, etc.

        2. ” It would either have been him or the editor who spiked it who had copies of it”

          Or, you know, anyone who had access to the computer it was stored in, which brings in any number of editors besides the one who spiked the story, and any number of IT staff who have administrative access to the computer systems. Or, if someone left a hard copy lying around (with or without markups), then anyone with access to a copy machine.

      3. Technically true but there is no strict legal requirement that a copyright owner prosecute every violation, so post-hoc consent could be perfectly valid.

        And no one other than the copyright owner has standing to pursue any violation of a copyright.

    3. How would anyone argue a copyright-violation lawsuit, without saying “[*****r]”?

      https://www.youtube.com/watch?v=jQzI3k39Cfw

    4. The NYT may want to be careful how far they’d want to push that. The reason this is being published is that it was submarined by the NYT. The content of the article makes it newsworthy – it shows that the NYT is basically doubling down on its position by refusing to even publish a criticism of its reporters.

      If the NYT cried copyright, I’d ask it if authors of other leaked documents can demand they be removed form the paper because republishing them would be a violation of copyright.

      1. Next time I’ll read further down before making arguments better addressed below.

  2. I wonder if there’s a copyright issue here. Is it a fair use to publish the whole thing? Is it a work made for hire owned by the Times?

    1. I can’t imagine that it’s fair use.

        1. Yeah, it’s fair use to quote a lot of it, but while running the entire thing verbatim does not by itself defeat a fair use defense, you would need to show that running the whole thing was necessary to the legitimate (non-commercial exploitation) purpose, and that would be very hard to show.

          David’s speculation that the columnist may have a sort of “right of first refusal” provision where they can go somewhere else if the Times spikes it seems plausible.

          1. “Yeah, it’s fair use to quote a lot of it, but while running the entire thing verbatim does not by itself defeat a fair use defense, you would need to show that running the whole thing was necessary to the legitimate (non-commercial exploitation) purpose, and that would be very hard to show.”

            The propertied newsworthiness of the column is that this is what the NYT refuses to publish. Publishing only parts of it would undermine that– a reader could infer that it may have been spiked because of the parts that were omitted.

            1. *purported

            2. Would a court buy that argument though? Or would the Court say “you could have just quoted enough of it to provide the gist of Stephens’ position, and paraphrased the rest”?

              1. That’s the issue, of course. But the NY Post should argue that the Times refused to run it because of its offensive content (supposedly). The Post ran it to show everyone how inoffensive it was. That would be undercut if they just paraphrased it. A reader might say, well NY Post, what have you left off?

                It’s not a slam dunk, but the Post would have a good fair use defense, IMO.

                1. Much simpler.
                  The NYT cannot claim any monetary damages because they decided not to publish it so they suffered no financial loss.
                  If the sue the Post it will clearly be retaliation for embarrassing them and will embarrass the NYT even more.

              2. “Would a court buy that argument though?”

                Well, you’re the one with experience with the courts, but I’m certain a court would say,

                “Well, at first the court questioned the wisdom of the NYPost submitting an internet comment by an anonymous non-lawyer as its sole defense, but the clear concise argument by Mr. Pianist is irrefutable. Case dismissed on fair use!”

                You don’t agree?

                1. I think it’s hard, though not impossible, to win a “we had to use the whole thing” fair use argument. You have to convince the Court that the other factors weigh really strongly in favor of using the whole thing.

            3. The propertied newsworthiness of the column is that this is what the NYT refuses to publish. Publishing only parts of it would undermine that– a reader could infer that it may have been spiked because of the parts that were omitted.

              If the Post had published an article about the spiking of the column, and then had included most of the — or perhaps the entire, but I doubt it — text of the column somewhere therein, maybe. But simply saying, “Here’s a column owned by someone else that the Times wouldn’t publish” is not going to be fair use.

              1. They published an article about the spiking yesterday (It’s linked that the top of today’s item).

                The publication of the article appears to be follow-up coverage.

              2. They published an article about the spiking yesterday (it’s linked at the top of today’s item).

                Publishing the column itself appears to be follow-up coverage.

              3. ” But simply saying, “Here’s a column owned by someone else that the Times wouldn’t publish” is not going to be fair use.”

                Yeah, it makes sense that they wouldn’t have a fair use defense if they weren’t already covering the turmoil at the times.

                1. Depending on the circumstances, perhaps the happy ending will involve Stephens being separated from the New York Times after circulating the unpublished work in a manner that led it to the tabloid pages.

                  Affirmative action for conservatives at mainstream publications and educational institutions has not been much of a success. High-end readers are rarely looking for insight from clinger whisperers.

              4. I don’t see a difference between the two. It’s like the difference between simile and metaphor – they make the same point, but metaphor is stronger because it removes the unnecessary explanatory text and forces you to wrestle with the equivalency directly.

      1. I can. The whole point of what they did was to criticize the Times for not running it. I assume they started it off with something along the lines of “here is what the Times does not want you to read.”

        It is not a slam dunk, but if litigation ensues, I would definitely raise this as a defense. Use of the entirety weighs against fair use, but it is not dispositive.

        Here is a blurb I quickly found, I am sure I could find more if I had the time:

        A news organization (Bloomberg) tapped into an earnings report phone call made by executives of a foreign corporation (Swatch) to 132 analysts, and posted a recording and transcript of the phone call. Important factors: Bloomberg’s publication of the call was analogous to news reporting (publication of such calls is mandatory for American corporations). Because of that newsworthy purpose, a transformative use was not required. Further, the posting of the entire recording was necessary to fulfill this newsworthy purpose. The Second Circuit stated, “Bloomberg’s overriding purpose here was not to “scoop” Swatch or “supplant the copyright holder’s commercially valuable right of first publication,” but rather simply to deliver newsworthy financial information to American investors and analysts.” Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P. 742 F.3d 17 (2d Cir. 2014).

      2. “I can’t imagine that it’s fair use.”

        Pop over to 17 USC 107 and review.

    2. Seems like it’s integral to the reporting the internal issues at the times, something that is a big story right now.

      And the fact that they wouldn’t publish it means that it had little commercial value.

    3. 1. I suspect that the copyright in the column is owned in the New York Times, either because Stephens is an employee, or because there’s an agreement to that effect (whether a work-for-hire agreement or just an agreement assigning the copyright).

      2. There is a plausible argument that the Post’s actions are fair use, because there’s no effect on the market value of the work (since the New York Times is deliberately choosing not to exploit it); because the existence of the article (and its being spiked) has itself become an important news story; because the purpose of the Post’s publishing the spiked article is “news reporting,” expressly mentioned in the fair use provision of the Copyright Act; and because copying the whole thing is indeed necessary to show readers that the Post isn’t cherry-picking unrepresentative parts.

      3. There is also a plausible argument that this isn’t fair use, because the work is unpublished; because the Post is publishing it as part of the Post’s commercial publishing enterprise; because the Post is copying the whole thing; and because the Post isn’t transforming the work in the process of publishing it.

      4. This having been said, what are the chances of the Times suing? How would that look: “The Times so wants to suppress criticism of its decision to fire an employee — a decision that was itself national news — that it’s willing to sue another newspaper that published the criticism”?

      So I think the Post concluded that, at least so long as it has a defensible fair use argument (whatever its chances of winning at trial), it can ethically go forward with publishing Stephens’ article; and, a business and legal matter, there’s very little risk to its doing so.

      Does that make sense?

      1. Yes. IMO, the fair use defense would have a 70% chance of success.

        Other thing is, what is the downside. Injunction? Post can agree to that — we won’t run it again and will take it off our website.

        Damages — maximum statutory damages for willful infringement of a single work is $150,000, and I doubt it was registerd in time to qualify for statutory damages. That leaves actual damages (zero) and defendant’s profits (maybe they could contrive some kind of argument her, but I doubt it.)

        1. Oh, Bored, aren’t works now automatically copyrighted upon creation pursuant to the DMCA?

          This came up with my dissertation — they tried to gouge a couple hundred dollars more out of me to register the copyright but conceded, when I pushed the point, that it already was copyrighted.

          1. Oh, Bored, aren’t works now automatically copyrighted upon creation pursuant to the DMCA?

            No. Nor pursuant to HIPPA, either.

            Works are copyrighted upon being fixed in a tangible medium pursuant to the Copyright Act of 1976.

            1. I thought that to be eligible for statutory damages and attorney fees (but not actual damages) you have to have registered the copyright with Uncle Sam. So basically, although you have a presumptively valid copyright immediately upon creation, you do not have your full panoply of enforcement remedies.

              1. That’s correct. You must have registered the copyright before the infringement or within 3 months of publication.

                1. If the New York Post likes Stephens’ work, perhaps it will do The New York Times’ readership a favor and hire him. A switch could benefit both sides of the equation.

                  1. Which part of this column do you disagree with?

                    1. You are looking for a substantive critique of the column itself rather than just Arthur’s routine objection to expression of opinions to the right of his own, along with personal shots directed at the author of those opinions? You haven’t been around long enough to realize that a grown-up response like that isn’t likely from Arthur? There was a time when Arthur was on occasion good for meaningful contributions, but that is years in the past now where he is concerned. Ageing? Or the cumulative effects of sour ruminations?

                    2. That column neither informed the reader nor appeared to be based on reliable, comprehensive information. It was a simplistic whine against the background of other reports. In general, however, Stephens is a clinger, and The New York Times publishes too much content from clingers.

                    3. “It was a simplistic whine”

                      Coming from you, that seems like a compliment.

        2. And 5: Discovery can be a b*tch…

          1. Discovery of what?

            1. Far too many people think that discovery, annoying as it is, is enough to scare people into settling. They are usually disappointed when they bring a lawsuit based on this belief.

              1. “Far too many people think that discovery, annoying as it is, is enough to scare people into settling. ”

                I would imagine this would vary greatly depending on where the bodies are buried, and what kind of paper trail exists to lead someone to them.

              2. In this case, I would think the Post would welcome a lawsuit. Which is why I don’t think one will be brought.

                And remember, discovery is a two-way street. Both sides have to endure it, and face the possibility of embarassing information coming out.

              3. It’s of a piece with, “Oh, you won’t have to do any work on this case; they won’t want the bad publicity so they’ll just settle right away.” My favorite prospective client argument.

                The larger point I was getting at in this particular instance is that one is only entitled to relevant discovery. There may be some types of cases that would allow for a fishing expedition through a party’s entire electronic file storage, but a case like this would not be one of them. If the NYT sues the NYP for copyright infringement, the issues are who owns the copyright and what the damages are. Nothing else. That’s going to be a very boring discovery process.

      2. ” There is also a plausible argument that this isn’t fair use, because […]”

        Because it may be the case not that the Times isn’t publishing it, only that they aren’t publishing it YET. Deciding when to publish is one of their exclusive rights protected by copyright. (assuming, as above, that the Times owns the copyright. If they DON’T own the copyright, they have absolutely no copyright cause of action).
        Which brings up a separate consideration, the employment contract. Does it provide that author will not publish elsewhere during term of employment? This is a fairly common term in creative contracts (meaning contracts that govern creatives, not contracts that are themselves creative). Does the Times have a tort claim agains the Post for interference with contract? That sounds like a better avenue than a copyright claim, except for the possibility of statutory damages if the Times prevails.

    4. Here is the thing about copyright violations, one of the elements is you have to show the violation impeded your own use of the item. So if the Times can’t show that they intended to use the column for their own profit, then the can’t assert any damages against the Post for violating their copyright.

      1. No you don’t have to show that. You can register the copyright in, and sue for infringement of, an unpublished work.

        1. Did they already register it before it was published?

          I doubt it.

          1. They don’t have to register before it was published, they just have to register before the lawsuit is filed.

  3. It’s brilliant writing and it’s the truth. Let the NYT sue the Post for copyright violation. The NYT didn’t reckon it valuable so the damages will be trivially small.

    1. There are statutory damages available for copyright infringement.

    2. “It’s brilliant writing and it’s the truth.”

      I see scant evidence Stephens knew the circumstances underlying McNeil’s departure. Nothing Stephens wrote seems persuasive against the argument that he is just a conservative whining reflexively about someone being called to account for bigoted conduct.

      1. What’s the evidence the circumstances of McNeil’s departure were other than as reported? And what was his bigoted conduct?

        1. (I’m not saying those things don’t exist. I just don’t know what they are or are purported to be.)

          1. There apparently was more information underlying the McNeil problem than a single use of a vile racial slur. Third parties reportedly complained about a number of comments and elements of conduct and character. Other employees reportedly indicated McNeil’s conduce was objectionable. McNeil acknowledged his ‘big mouth’ got him into trouble. McNeil was told his conduct beyond the racial slur would be investigated. He decided to go fishing in the mountains rather than wait for the results of that investigation. He also said he would have more to say after some time has passed. It would be good to get more information from McNeil and anyone else with relevant information.

  4. Did they actually fire him because he used a racial slur? Or did they fire him because he was white – specifically, a white person doing things they think only black people should be doing?

    Think Bostock.

    1. Good question. But I can’t answer because of taboos concerning such matters.

    2. Nailed it.

    3. I think this is right.

      If they treat their employees equally based on race, then surely they’ll fire everybody who has used the Two Syllables That Must Not Be Uttered. This would eliminate at least half their black workforce, because remember intent doesn’t matter. If on the other hand they take the position that they discriminate against employees on the basis of race, then a court should nail, and SCOTUS should upheld, a massive racial discrimination lawsuit, citing Bostock at least 20 times.

  5. “In response, more than 150 Times staffers signed a protest letter.”

    Lots’a Woke snowflakes at the Times. Wonder how they’ll feel when the even more Woke come for them for being insufficiently doctrinaire?

    1. Ever see the video of the Evergreen College Dean asking permission to use the bathroom? That’s how they will react, mostly.

      https://www.intellectualtakeout.org/article/evergreen-insanity-students-forced-college-pres-pee-under-escort/

      1. “Ever see the video of the Evergreen College Dean asking permission to use the bathroom? That’s how they will react, mostly. ”

        Pointing to anything that happens at Evergreen as evidence of anything happening anywhere else is foolishness. Might as well drag Reed College in, while you’re at it.

        1. I’m shocked that Oberlin hasn’t made an appearance during the cancel-a-thon.

          It would be nice if getting their asses kicked by the townie bakery taught them a lesson, but I doubt that is the case.

    2. Sad to say, but I could see signing such a protest letter.

      Why unnecessarily make yourself a target of the lynch mob? Conversely, what good will you accomplish by doing so???

      No, I wasn’t always this cynical. There was a time when I tried to stand up for what was right. It didn’t work out so well…

      1. I’m sure you could, but that’s because in addition to be being an imbecilic, immoral liar, you’re also a spineless coward.

        1. The paradox is that Dr. Ed’s “that reminds me of this one time at band camp” stories are only believable if they involve him unintentionally recounting some glaring personality flaw. One of the consequences of being a compulsive liar is that people only believe you if you’re confessing to things no person would lie about.

        2. And your mother wears army boots.

          So there…. “)

    3. Lots of woke snowflakes at The New York Times.

      Lots of racists, xenophobes, gay-bashers, vile racial slurs, and partisan censorship at the Volokh Conspiracy.

      The natural order.

  6. Inmates of the NYT asylum running wild outside their cells.

    Love it!

    1. This blog has become mostly resentful clingers nipping at the ankles of, and declaring Trump-level total victory against, their betters.

      I guess that provides some brief respite for conservatives who have lost nearly everything to all of this damned reason, science, modernity, education, inclusiveness, and the liberal-libertarian mainstream in our American culture war.

      I am content.

      1. Your complaint appears to be that the blog managers keep a narrow window of discourse and that the commentators are not critical enough. That’s fair. I feel the same way about a lot of news and comment outlets.

        1. My complaints include the misleading partisan curation; the incessant hypocrisy; the viewpoint-driven censorship; the low-grade lathering of the bigoted right-wing rubes; and the frequent appearance of racist slurs.

          The Conspirators get to write what they wish. Others (when not censored) get to comment with respect to that content.

  7. As far as ownership, we don’t know Stephens’ contract with the NYTimes, so we don’t know the details.

    Are Times columnists treated as employees or contractors? That makes a difference for work for hire. My impression is the latter, but not sure.

  8. So a few clarifications, since they seem necessary in light of some of the misconceptions in the above comments:

    1. McNeil was not fired. As noted in the editorial, he “abruptly departed.” In other words, he resigned. Whether you want to say that he was pressured to, forced to, “constructively discharged,” etc., it is important to note that.

    2. As has been recounted in multiple outlets, there were multiple issues reported by numerous (I’m not trying to overstate this, just that I’ve read different accounts, but usually some combination of six or more parents and teenagers) individuals that McNeil had issues on the trip to Peru in 2019, which were reported at the time. Only one thing was the reported use of the “n” word.

    3. The NY Times has (correctly, IMO) retracted the opinion that intent doesn’t matter.

    I think that there is some admirable, and proper, concern about whether simple missteps or misstatements should be offenses worthy of termination. Today’s orthodoxies may be tomorrow’s offenses (I am still unclear why “Oriental Flavor” is a thing for Ramen at the supermarket, but why not?).

    That said, I am going to wait for McNeil, or the people that were on the trip to Peru, to speak out about the even before I draw any larger conclusions as to whether this was an example of a PC culture run amok, or a journalist choosing to resign on his terms instead of face additional and unwanted scrutiny.

    (So that I don’t need to say it- no, as a general rule, I don’t think that saying the “n” word in a non-discriminatory manner should be an offense that gets you terminated, but I also wouldn’t recommend it.)

    1. I don’t think you’re going to hear McNeil speak out. My guess is that there is a confidentiality provision in the severance agreement, as well as a provision in which he agrees to not speak critically of the NYT. It would be consistent if the NYT would release him from those provisions — the same demand they made of other companies that had similar provisions regarding women who had settled claims of sexual harassment — but I wouldn’t put my money on the NYT doing that. Not to mention that McNeil, to the extent he wishes to work in the media, might elect not to speak out even if he was released from those provisions

      1. I think it is likely that there are confidentiality provisions (and non-disparagement).

        As a general rule, the actual and public reasons that someone resigns are usually less than the actual reasons, in much the same way that while it always possible that people really just want to spend more time with their family … that’s not always what is going on.

        I would not hold it against him if he chooses not to speak; but I am not entirely sure that people are doing him a great service if he doesn’t want this continuing on in the press.

        1. But what seems to be undisputed is that the NYT wasn’t originally going to fire him, and then chose to do so only after staff members complained. So while, yeah, we don’t know the whole story, we do know (to some degree of certainty) that it wasn’t a flagrant firing offense.

          1. I think it is most correct to say that the recent reporting of the incident that had occurred in 2019 (and had previously been investigated) is what caused the current issue.

            Which is not uncommon as you know DMN. Many employers are happy to take a lesser action unless and until it becomes a public issue.

    2. On #2, did the letter signed by the 150+ staffers reference any of these other actions, or was it solely addressing the n-word-during-dinner issue? From what I can tell it was the latter, which does not speak well of the staffers or the supremely spineless Baquet.

      1. No, it wasn’t. Among other things, it called for a “reinvestigation” of the 2019 trip, as well as “any newly surfaced complaints.”

        It is my understanding that McNeil was informed that there would be further investigations and disciplinary action pending investigations (based on what I have gleaned from the coverage).

        I think that two reasonable suppositions can be drawn:
        1. There were additional issues, and McNeil didn’t want to deal with them surfacing, and an agreement was reached.

        2. McNeil saw the writing on the wall, didn’t want to be the victim of a witchhunt, realized he was too old for this s***, and resigned.

        Either seems possible.

        1. Seems like they just let him know that they’d keep finding reasons to discipline him until he quit or was fired.

          1. Seems like 12”misogynist is trying to form words?

          2. Or perhaps Mr. McNeil recognized as investigation developed that his ‘big mouth had finally caught up with him,’ as he reportedly described it.

    3. “McNeil was not fired. As noted in the editorial, he “abruptly departed.” In other words, he resigned. Whether you want to say that he was pressured to, forced to, “constructively discharged,” etc., it is important to note that.”

      Being pressured to resign is basically a constructive termination. People often use “fired” to describe someone’s being forced to resign, it’s in fact more correct than to say that the person resigned, if the resignation wasn’t voluntary.

      1. Hey, it’s 12″Misogynist.

        I would correct what you wrote, but I’m not going to read it.

        1. I don’t know what history there is between you and 12″ though it seems you see him as a misogynist, rightly or wrongly. But I will tell you that you diminish yourself, not him, with these lame personal shots. Not advisable for a long-time member of this community such as yourself, who is usually good for meaningful contributions, unlike some.

          1. Shrug.

            When 12”misogynist relies directly to one of my posts, that’s what I do.

            When he posts his bile somewhere else, I ignore him.

            He knows this and contiinues; I am unbothered by his trolling.

  9. THE VOLOKH CONSPIRACY

    This White, male, conservative
    blog has operated for precisely
    ONE (1) DAY
    without gratuitous use
    of a vile racial slur.
    This ‘free speech champion’
    blog has operated for precisely
    658 DAYS
    without imposing partisan,
    viewpoint-driven censorship.

    Two-year anniversary approaching on the censorship. Two-day anniversary within reach on the racial slur.

    1. “gratuitous”

      That is the word in you rambling that is doing all the work.

      1. Look up the most recent (of many) examples: February 10, 2021.

        Or just enjoy watching better people win the culture war, and wondering why that occurs.

      2. “That is the word in you rambling that is doing all the work.”

        I thought lawyers were supposed to be able to write in English?

    2. “This White, male, conservative
      blog has operated for precisely
      ONE (1) DAY
      without gratuitous use
      of a vile racial slur.”

      And the NYT has operated 10 days without using it.

    3. I think you need to look up “gratuitous”, you seem confused about its meaning.

      1. I think you should look up the use of that slur at the Volokh Conspiracy on February 10, 2021 (or on plenty of other dates); check the definition of “gratuitous;” and let us know how your search for Obama’s Kenyan birth certificate is going.

        1. “I think you should look up the use of that slur at the Volokh Conspiracy on February 10, 2021”

          How was that gratuitous? The joke wouldn’t have worked without mentioning the word.

          1. How much of the bigotry you exhibit is presented just to act the contrarian angry at modern America, and how much of it is genuine bigotry?

            Not that it matters much. A bigot is just an obsolete, ugly bigot for the most part.

            And the core audience of right-wing blogs.

            1. “How much of the bigotry you exhibit is presented just to act the contrarian angry at modern America, and how much of it is genuine bigotry?”

              Lol. Unlike you, Arthur, I don’t present any bigotry.

              1. Feel free to repeat the bigoted joke, bigot.

                Don’t worry — this blog won’t mind. Steer clear of criticizing conservatives, but use all of the vile racial slurs you wish.

                1. “Feel free to repeat the bigoted joke, bigot.”

                  It was a riff on the Monty Python “He said Jehovah” skit.

                  “From now on, no one is to cancel anyone until I blow this whistle. Even if they do say nigger!”

                  Allow someone with an education to explain it to you. Using slurs to demean people is bigotry. Using them to joke about taboos is not. Got it, idiot?

                  1. This is the level at which the Volokh Conspiracy operates.

                    Plenty of multi-hued bigotry complemented by frequent racial slurs and by calls for liberals to be gassed, shot in the face, sent to Zykon showers, and placed face-down in landfills. None of it censored by Prof. Volokh.

                    Prof. Volokh repeatedly censors the use of terms such as “c-p succ-r’ and ‘sl@ck-j@w’ — when used to describe conservatives — however.

                    And this is what passes for ‘champion of free expression’ among Republicans.

                    A few of the Conspirators have landed spots on legitimate law school faculties, but this blog seems to be pulling up the ladder.

                    1. “Prof. Volokh repeatedly censors the use of terms such as “c-p succ-r’ and ‘sl@ck-j@w’ — when used to describe conservatives — however.”

                      Arthur, has Prof. Volokh censored the mention of the word copsucker, or has he merely asked you not to call people copsuckers? An ask which, apparently, has left you butthurt for several years.

                    2. I wrote that people who providing slobbering succor to abusive police are lousy c-p succ-ors. The comments containing that term were deleted more than once, after which I was instructed not to use that term again.

                      I welcome Prof. Volokh’s blatant, documented, repeated, partisan hypocrisy with respect to viewpoint-driven censorship. Even Cousin Eddie could recognize the value of such a gift.

  10. If, as has been reported, Mr. McNeil created friction with The New York Times by making ‘repeated sexist and racist remarks,’ perhaps he will find a blog that could be a natural fit for him.

    1. Arthur, you keep linking irrelevant videos with ads to your comments. Are you some sort of spam-bot?

      1. Ask someone with an education to try to explain them to you. If necessary, travel to the nearest town with a legitimate college or university.

  11. Started reading, will continue, but this TDS stuck out like a sore thumb:

    [Intention] is a cardinal consideration in pardons (or at least it was until Donald Trump got in on the act)

    I guess he’s the new kid on the block and hasn’t had time to go around it yet.

    1. Stephens is speaking to a liberal audience, in their key. A small potshot at Trump here likely makes them more receptive to his argument. It was a good idea.

      (Besides which, do you actually dispute the logic? Is contrition a typical element in deciding whether to issue a pardon? Has Trump ignored contrition in cases like Flynn, Arpaio, Bannon? He has done what Stephens said he did.)

      1. I dispute that Trump was the first. That’s first class TDS.

        1. Of course other presidents issued self-interested pardons. But they were so exceptional that 20 years later we’re still talking about Clinton’s pardon of Marc Rich. And properly so. Trump made the exception the rule. His abuse of the pardon power may not have been unprecedented, but the extent of it was. By a long shot.

          1. That list is a bit of a joke, you know. For instance, of course a lot of the people being pardoned are going to have some relationship to Trump, when he’s pardoning them because the DOJ was persecuting people having relationships to him, in an attempt to force them to agree to implicate Trump in something.

            1. Conspiracy theorizing is a superpower. Sure, the theories are baseless, but they’re also unfalsifiable.

              Can I prove there wasn’t a sekret DOJ conspiracy to persecute Trump’s allies? Of course not. No more than I prove the LAPD didn’t frame OJ or that a cabal of Hawaiian bureaucrats didn’t plant forged records of Barack Obama’s supposed American birth. You may as well argue the Flying Spaghetti Monster manufactured all the proof of criminality by Trump’s cronies. It’s equally fantastical, and equally impossible to disprove.

              But here’s the thing: when your argument relies on unfalsifiable conspiracy theories, you’re left the realm of rational debate. There’s no wrongdoing from which the most notorious criminal can’t be exculpated (to a sufficiently credulous audience) by an utterly unfalsifiable conspiracy theory. That’s what makes it such an awesome superpower.

        2. “I dispute that Trump was the first.”

          Cool. Now point to where anybody claimed Trump was the first.

          1. Reading is hard.

            “[Intention] is a cardinal consideration in pardons (or at least it was until Donald Trump got in on the act)”

  12. Shame on the publisher of The Pentagon Papers! I continue to be amazed at how large corporations are being intimidated by their employees. There are plenty of good reporters who would want to work for the Times. Reporters unhappy with management decisions are free to leave.

    1. Don’t think of it as a corporation. Think of it as a cult or a religious congregation with very strong taboos. Leaders need the members. No one wants to be shunned or excommunicated. They are all true believers in every sense.

      If your religion says that one race of people matters in a specifically profound way, what do you do when individuals of that race have plausible complaints? You can’t tell them they’re free to leave. That’s blasphemy.

    2. “Reporters unhappy with management decisions are free to leave.”

      Assuming, of course, that they don’t take their readers with them.

  13. I’m rather surprised at the direction in which this comment thread went. Provisions of copyright law as they might apply in this instance are what most saw as the most interesting issue in this rather remarkable NYT columnist vs the publisher and other NYT employees story?!

    What does this story tell us about the state of affairs at the NYT? Was this Bari Weiss v NYT redux? Is the Grey Lady losing confidence in itself (less hubris would be a good thing there) and these tremblers are a reflection of that? Why should Stephens proposed column ruffled Sulzburger’s feathers so much, if at all?

    I do know from an experience 20+ years ago with the WaPo that these formidable papers can be very unwilling to publish criticism of themselves no matter how deserved except perhaps in the form ineffectual letters to the editor. It is only on rare occasions that they will let themselves be criticized on their own op-ed pages by anyone. Too bad, since it would be to their credit if they did.

    1. neurodoc, I was just about to write this comment, starting with attention to what you noted—how the thread began as a legal-issues discussion, and then veered suddenly to inside baseball about the NYT. I had expected the inside baseball stuff to start right at the top. It was interesting that it didn’t.

      I’m a big fan of considering media policy and media practices for their own sake. Nothing wrong with doing that, especially if your interest in doing it is to figure out how best to cover the news, or which media to rely on.

      But note, that isn’t what this discussion is doing. This started out about the law, then shifted gears, to get into conspiracy theories, mainstream media bashing, white grievance, privileged elites, and all the other overworked tics which keep so-called movement conservatives in unproductive uproar about the media.

      I have advice for movement conservatives about media. It is good, pragmatic advice. Keep your attention on the output, not on what you suppose goes on behind the scenes. Learn to judge the quality of the media by what you see in the output, and leave the other stuff alone. Two reasons to do it that way:

      1. For about 99.9% of the stories, the output is all you are going to get. You aren’t going to have an inside take on those, and if what you think you learned about the 0.1% gets spread out and generalized as explanatory of the stuff you have in front of you, well, you risk confusing yourself, a lot.

      2. The way news stories get presented—the structure of the stuff you can see for every story—matters far more, and tells you far more about the behind-the-scenes culture of the news medium. That’s true because 99.9% is so much bigger than 0.1%. And it’s especially true because what gets published is the point, and what else happens is not the point.

      Think of it this way. All the folks working in media are sunk in confusion, all the time. Confusion is the defining characteristic of incipient news. Confronting that, media people are stuck with their personal motivations, stuck with co-workers’ motivations, stuck with factual uncertainties, stuck with deadlines, stuck with prejudices, stuck with organizational conflicts and personal conflicts, and stuck with their sources—basically, stuck with reality—until it comes time—deadline time—to pick out some part of that witches’ brew to endorse as the truth and publish.

      Naturally, at deadline, media types look for the sunniest, right on the surface, best illuminated part of the swamp they can see, and publish that. For better or for worse, that becomes your news. On its face, it is not a 100% reliable method. Plenty of stuff will get through that needed more light than it got. The media people mostly hope to go back over that stuff, and clean it up, get more light on it, by the next deadline.

      The news gets reported, but it also evolves. News consumers need to keep that in mind.

      Different news organizations do evolution better than others, and those tend to be ones you can recognize best by what you can see plainly, in the stuff that gets published. The best news stories—the ones you can rely on the most—are the ones which tell you the story as a narrative of discovery. If when you encounter the story you see the reporter at work, building from preliminary named sources toward others, and giving you the sense of what happened to get this particular illuminated bit into the light—and especially if the dimness of shadier parts gets forthright qualification—you probably don’t need, and should not try to use, presumptions about what actually happened out of sight in the swamp. If the reporters and editors couldn’t get that straight, what makes you think you can, with your far more limited view?

      Please, feel free to use all your skepticism, and all your cynicism too, if that’s your taste. But don’t use it to the point of presumption. Don’t use it in the teeth of well-reported evidence to the contrary—evidence you can actually see in front of you, published and un-refuted.

      Try instead to make yourself a connoisseur of the visible 99.9%—the quality of the published products from various media. Let the points of comparison have to do with the interplay of light and darkness, and what you can see in each narrative about efforts to untangle them. Forget the 0.1% you are destined to see dimly at best, and can never untangle. If you try that, a lot of what you take away will just be prejudices you started with.

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