The Volokh Conspiracy
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Ruth Shalit Barrett Sues Over Retraction of "Mad, Mad World of Niche Sports Among Ivy League-Obsessed Parents"
One of the arguments: "The Atlantic's punitive condemnation of Ms. Barrett on the basis of her conduct as an emergent adult [when she was a 23-or-24-year-old journalist] runs counter to the defendants' own professed moral standards and editorial advocacy of forgiveness for errors made by individuals 25 and under."
Here's The Atlantic's Nov. 2020 retraction of the article:
Editor's Note: After The Atlantic published this article, new information emerged that raised serious concerns about its accuracy, and about the credibility of the author, Ruth Shalit Barrett.
We have decided to retract this article. We cannot attest to the trustworthiness and credibility of the author, and therefore we cannot attest to the veracity of the article.
We draw a distinction between retraction and removal. We believe that scrubbing the article from the internet would not meet our standards for transparency, and we believe it is important to preserve access to the article for the historical record. We have decided to take down the online version but to make available a PDF of the article as it appears in our November 2020 issue.
We are sharing with our readers what we have learned so you may understand how we came to this decision. We have established that Barrett deceived The Atlantic and its readers about a section of the story that concerns a person referred to as "Sloane."
The original version of this article stated that Sloane has a son. Before publication, Sloane confirmed this detail to be true to The Atlantic's fact-checking department. After publication, when a Washington Post media critic asked us about the accuracy of portions of the article, our fact-checking department reached out to Sloane to recheck certain details. Through her attorney, Sloane informed us that she does not, in fact, have a son. We independently corroborated that Sloane does not have a son.
In explaining Sloane's reasoning for telling our fact-checker she had a son, Sloane's attorney told The Atlantic that she wanted to make herself less readily identifiable. Her attorney also said that according to Sloane, Barrett had first proposed the invention of a son, and encouraged Sloane to deceive The Atlantic as a way to protect her anonymity.
When we asked Barrett about these allegations, she initially denied them, saying that Sloane had told her she had a son, and that she had believed Sloane. The next day, when we questioned her again, she admitted that she was "complicit" in "compounding the deception" and that "it would not be fair to Sloane" to blame her alone for deceiving The Atlantic. Barrett denies that the invention of a son was her idea, and denies advising Sloane to mislead The Atlantic's fact-checkers, but told us that "on some level I did know that it was BS" and "I do take responsibility."
Sloane's attorney claimed that there are several other errors about Sloane in the article but declined to provide The Atlantic with examples. Barrett says that the fabricated son is the only detail about which she deceived our fact-checkers and editors.
During the initial fact-checking process, we corroborated many details of Sloane's story with sources other than Sloane. But the checking of some details of Sloane's story relied solely on interviews and other communications with Sloane or her husband or both of them.
In reviewing the article again after publication, our fact-checking department identified several additional errors.
We identified the need to clarify a detail about a neck injury sustained by Sloane's middle daughter, to be more precise about its severity. We also identified the need to correct the characterization of a thigh injury, originally described as a deep gash but more accurately described as a skin rupture that bled through a fencing uniform. And we identified the need to correct the location of a lacrosse family mentioned in the article: They do not live in Greenwich, Connecticut, but in another town in Fairfield County. Before this retraction, we noted and corrected these errors in the online version of the article on October 30.
Before that, on October 22, we noted and corrected another error in the story: The article originally referenced Olympic-size backyard hockey rinks, but although the private rinks are large and equipped with floodlights and generators, they are not Olympic-size.
We have also updated Barrett's byline. Originally, we referred to her as Ruth S. Barrett. When writing recently for other magazines, Barrett was identified by her full name, Ruth Shalit Barrett. (Barrett is her married name.) In 1999, when she was known by Ruth Shalit, she left The New Republic, where she was an associate editor, after plagiarism and inaccurate reporting were discovered in her work. We typically defer to authors on how their byline appears—some authors use middle initials, for example, or shorter versions of their given name. We referred to Barrett as Ruth S. Barrett at her request, but in the interest of transparency, we should have included the name that she used as her byline in the 1990s, when the plagiarism incidents occurred. We have changed the byline on this article to Ruth Shalit Barrett.
We decided to assign Barrett this freelance story in part because more than two decades separated her from her journalistic malpractice at The New Republic and because in recent years her work has appeared in reputable magazines. We took into consideration the argument that Barrett deserved a second chance to write feature stories such as this one. We were wrong to make this assignment, however. It reflects poor judgment on our part, and we regret our decision.
Now Barrett's is suing; here's an excerpt from the just-filed Complaint in Barrett v. Atlantic Monthly Group, LLC, so you can decide for yourselves what to think of the argument (assuming the facts are as alleged):
In 2020, Ms. Barrett wrote a long-form investigative article for The Atlantic, "The Mad, Mad World of Niche Sports Among Ivy League-Obsessed Parents" (hereinafter, "Article"). The Article exposed efforts of the affluent residents of the Gold Coast of Connecticut to use niche sports to give their already-privileged children further advantages in the competitive admissions process at elite colleges and universities. The story drew praise from established journalists, collegiate sports officials, and NCAA athletes. New York Times columnist Ginia Bellafante called it "an excellent article" that "outlines the shifting fortunes of wealthy and maniacal parents who immerse their children in boutique sports—squash, fencing—purely as a means of lubricating the path to the Ivy League."
The Washington Post, an outlet that has displayed unrelenting hostility toward Ms. Barrett ever since she wrote a highly critical cover story about it for The New Republic, was a notable exception. In a series of articles, tweets and video links, Erik Wemple, the Post's chief media critic, targeted Ms. Barrett with a sustained campaign of mudslinging and vilification. He dredged up early-career mistakes that she had made in the mid-1990s, as a young reporter fresh out of college, and suggested that these missteps should have disqualified her for a writing assignment for The Atlantic twenty-seven years later.
He proclaimed that her article was full of "distortions and nonsense" and contended it depicted rich sports parents unfairly, making them "appear more unreasonable and tyrannical and status-conscious than they are." Mr. Wemple also slammed The Atlantic for running Ms. Barrett's piece under her married name, Ruth S. Barrett, arguing that her byline should have included her maiden name, as this was the byline she used when she was accused of journalistic malfeasance in her early 20s.
Under unrelenting pressure from the Post and Mr. Wemple, The Atlantic decided to retract Ms. Barrett's article. To justify this punishment—an extremely rare occurrence in journalism, generally reserved for instances of grievous error or fraud—The Atlantic published an Editor's Note … claiming that "new information" had come to light that revealed Ms. Barrett, a contributor under contract, was actually a disreputable journalist whose facts could not be trusted. Specifically, The Atlantic claimed that it had to retract Ms. Barrett's deeply reported piece not because of any meaningful deficiencies in the piece, but because it "cannot attest to the trustworthiness and credibility of the author, and therefore we cannot attest to the veracity of the article."
In order to support its character assassination of Ms. Barrett, which was the foundation for its false contention that The Atlantic could not "vouch for the accuracy of the article," Defendants claimed that Ms. Barrett (1) was forced out of her job at The New Republic in 1999 following the "discovery" of "plagiarism and inaccurate reporting" in her work, (2) deliberately hid her history from readers by insisting on a misleading byline she had not used "in the past," (3) induced a confidential source to lie to The Atlantic's fact checkers, and (4) made "several other errors" in her depiction of that confidential source. Each of these claims is demonstrably false.
Although the Editor's Note accuses Ms. Barrett of engaging in the cardinal journalistic sin of "fabrication," the only falsehood that The Atlantic ever uncovered in the Article (even after it conducted a post hoc investigation) was the inclusion of a minor masking detail intended to shield the identity of a confidential source, identified in the Article and herein as Sloane. Ms. Barrett had added a single reference to a fourth child ("and son") at the request of Sloane and her husband, who were concerned that The Atlantic's vivid depiction of her as a Fairfield County mom with advanced public-health degrees, a trampoline in her backyard, and three daughters who play squash and fence on a national level was tantamount to identifying her by name. Documents and screenshots in Ms. Barrett's possession conclusively establish that this two-word reference was included in the piece at the express request of Sloane and her husband—not at the urging of Ms. Barrett, as The Atlantic falsely claimed.
This trivially erroneous detail had no material bearing on the substance of the Article, and such masking is not unusual when necessary to protect individuals—especially minor children—from being identifiable in an article. In fact, The Atlantic's editors had already employed this same masking technique in editing the Article, proposing to alter a lacrosse coach's quote so that it referenced "multiple" students rather than a single student. [Details omitted. -EV] …
Separately, on January 30, 2021, the Washington Post published a story in which anonymous "sources" at The Atlantic stepped forward to impugn Ms. Barrett further, purporting to explain the primary reason the magazine felt compelled to retract her truthful, meticulously documented article: The Atlantic abandoned the Article after having established that Ms. Barrett had been "'complicit' in disguising the identity of the story's central character." These anonymous Atlantic editors, along with their colleague Mr. Peck, appear to have forgotten that the story's central character—otherwise known as the story's central source—cooperated with The Atlantic on the condition that her identity be disguised, just as these editors insisted on not being named themselves as they smeared Ms. Barrett in the pages of The Washington Post….
In the end, as Ms. Barrett and Sloane had feared and predicted, The Atlantic's excessive specificity about Sloane and her family rendered them vulnerable to being identified and outed. Mr. Wemple zeroed in on Sloane after he located the California Summer Gold tournament roster and identified her daughter as the only competitor who withdrew.
Mr. Wemple then learned that Sloane does not have a son. He took this information to The Atlantic, asking for public confirmation. "Wemple is continuing to dispute the story," the Article's fact-checker and Senior Associate Editor at The Atlantic, Michelle Ciarrocca, texted Ms. Barrett on October 26, 2020. "[A] whole new list of items, but responding to some would compromise Sloane's identity. He's claiming she doesn't have a son?!"
Rather than thanking Mr. Wemple for his interest in the piece and explaining that The Atlantic does not discuss its confidential sources—which is standard journalistic practice in this circumstance—The Atlantic appeared to go into panic mode. Editors at the magazine confronted Ms. Barrett and demanded to know whether Mr. Wemple was correct in his surmise about the composition of Sloane's family. Ms. Barrett asked the editors if this information was for the magazine's internal use or if they intended to share it with Mr. Wemple. The editors informed Ms. Barrett that if they learned that Sloane did not have a son, they intended to disclose this personal detail not only to Mr. Wemple of The Washington Post, but also to the public directly, in the form of a stand-alone correction.
Ms. Barrett expressed her opposition to this plan. She believed the public disclosure of this information was improper and would risk compromising her source, as the fact-checker feared. The editors disagreed and said that the priority now had to be "accuracy." Ms. Barrett was essentially ordered to put her obligation to her superiors at The Atlantic above her contractual and ethical obligations to her source. Ms. Barrett did not cooperate. At the time, Sloane had gone dark and had stopped responding to The Atlantic's inquiries and requests for additional information about her family. Ms. Barrett did not feel it was her place to unilaterally reveal personal details about her source that went against her source's expressed wishes, and that would be published in The Washington Post and The Atlantic.
Although The Atlantic later told the Post that it was Ms. Barrett's "complicit[y] in disguising the identity" of her source that caused the magazine to retract the Article, The Atlantic and Mr. Peck initially made bolder claims, falsely indicating that the Article as a whole was unreliable and fraudulent. On October 30, 2020 Mr. Peck sent an email to the entire editorial staff of The Atlantic, requesting the patience of his staff as editors commenced an investigation to "understand fully the scope of deceptions and errors in the article." Mr. Peck's false and defamatory memorandum was leaked to the Post's Erik Wemple, who tweeted it out in full the next day. The Atlantic then published its Editor's Note, which reiterated the central claim of the Peck Memorandum: "We cannot attest to the trustworthiness and credibility of the author, and therefore we cannot attest to the veracity of the article."
In fact, The Atlantic was well positioned to attest to the veracity of Ms. Barrett's article in its totality. An in-depth investigation conducted by the magazine's Director of Research in the expectation of finding extensive "deceptions and errors" in Ms. Barrett's article uncovered only one trivial factual inaccuracy: an anonymous lacrosse-mom source described by Ms. Barrett as being from Greenwich was actually from a neighboring town. At this point, The Atlantic had already acknowledged and corrected another minor factual error flagged by Erik Wemple: Ms. Barrett had referred to the fabled backyard hockey rinks of Darien, Connecticut as "Olympic-size" when they could be more accurately described as commercially sized or NHL-sized. Notably, The Atlantic's fact-checker, who was also a senior associate editor at the magazine, took responsibility for this second error: "Olympic sized rinks are even bigger than NHL. I should have flagged this[.]" The fact-checker reassured Ms. Barrett that articles often contain small, unintended errors that do not erode their veracity. "Every piece has mistakes," she emailed Ms. Barrett on October 22, 2020. "It's just a matter of who actually notices!"
Apart from the son, the town of the lacrosse mom and the precise size of a hockey rink are the only errors that The Atlantic has acknowledged and corrected in the Article. They are also the only errors Ms. Barrett is aware of in the Article. Both are so trivial and insignificant as to hardly warrant correction—let alone the full retraction of a serious and meaningful piece of journalism…..
No previous lapses by Atlantic writers—some of which involved minor errors and some of which involved serious factual inaccuracies and misrepresentations—merited public repudiation of the writer or retraction of their work. [Details omitted. -EV] …
In its Editor's Note, The Atlantic libelously stated that Ms. Barrett left The New Republic in 1999 (when she was 29), "after plagiarism and inaccurate reporting were discovered in her work." In fact, Ms. Barrett's journalistic lapses at The New Republic did not occur in 1999. These infractions occurred over a twelve-month time span, between 1994-1995. The plagiarism episodes amounted to two separate incidents involving a total of six unattributed sentences. The first incident occurred in July of 1994, when Ms. Barrett was 23 years old. The second occurred in July of 1995, when Ms. Barrett was 24 years old. Counter to The Atlantic's false claims, no plagiarism or inaccurate reporting was "discovered" in her work in 1999; nor was she found to have committed professional infractions of any sort after this 1994-95 time period.
The false and misleading timeline propounded by The Atlantic is of critical importance, according to articles the magazine has published in its own pages regarding brain development in emerging adults (18-25-year-olds). Under these principles, the alleged infractions of a 23 or 24-year-old individual should be treated with greater humanity and mercy than if he or she had committed the same acts when five or six years older. The Atlantic's punitive condemnation of Ms. Barrett on the basis of her conduct as an emergent adult runs counter to the defendants' own professed moral standards and editorial advocacy of forgiveness for errors made by individuals 25 and under. Perhaps this is why The Atlantic opted to falsify its timeline of transgression and insinuate that these professional lapses occurred in 1999, when Ms. Barrett would have been almost 30 years old, instead of in 1994 and 1995, when she was a 23-year-old reporter fresh out of the The New Republic intern pit.
Readers of the Editor's Note, which alludes repeatedly to "plagiarism" along with other misdeeds from Ms. Barrett's past, would reasonably conclude that Ms. Barrett had committed grave, legally actionable plagiarism while a writer at The New Republic. In itself, the fact that The Atlantic has deemed it necessary to exhume and aggressively publicize conduct that occurred almost 30 years ago would suggest that the misconduct must have been especially egregious. In fact, Ms. Barrett's improper use of unattributed material in her political profile-writing of the 1990s, while admittedly sloppy and reckless, was considered gray-zone plagiarism at the time. [Details omitted. -EV] …
The Atlantic could conceivably have a strict zero-tolerance policy regarding plagiarism and believe that any individual who has ever committed it should be unemployable in journalism forever. But this is not the case. The Atlantic has knowingly and enthusiastically published the work of … other writers who have acknowledged a far more egregious past history of plagiarism….
The Atlantic's Editor's Note additionally defames Ms. Barrett by claiming that she left The New Republic in 1999 after "… inaccurate reporting w[as] discovered in her work." This is false. Not a single error or factual inaccuracy was "discovered" in her work in 1999. Furthermore, a review of The New Republic corrections archive shows that no errors were found in any of Ms. Barrett's articles in 1998, 1997, or 1996….
The Peck Memorandum and the Editor's Notes also smear Ms. Barrett with the false claim that in preparing the Article, she requested a new byline in an attempt to deceive readers about her identity and professional history. In fact, contemporaneous correspondence shows that Ms. Barrett did not choose her own byline for the Article; rather, a byline ("Ruth Barrett") was chosen for her. [Details omitted. -EV] …
Defendants neither verified their accusations independently nor gave Ms. Barrett an opportunity to respond ahead of publishing these statements—a violation of a common journalistic practice that The Atlantic and its fact-checkers routinely engage in with subjects of its publications. [Details omitted. -EV]
Not content with destroying her journalistic reputation and career through false and defamatory publications, The Atlantic also breached its contract with her. These breaches all flow from the same course of conduct—The Atlantic abandoning its own writer and its obligations to her at the first sign of criticism by a powerful, vindictive media critic with a megaphone and a mean streak. For instance, the Contract expressly required The Atlantic to hire an agent and "make such intellectual property rights available to interested parties and to market such rights." Instead of adhering to these contractual obligations, The Atlantic interfered with efforts to create derivative dramatic works.
In November of 2020, Ms. Barrett received an inquiry from an executive at a Hollywood production company who had read her Atlantic piece on niche-sports bedlam and was interested in developing it for television. Ms. Barrett retained an entertainment lawyer who reached out to The Atlantic to request a "chat" about "dramatic or similar rights." The Atlantic went off the deep end, telling this attorney that The Atlantic intended to "vigorously oppose" any effort by Ms. Barrett to dramatize her work, as such an effort would only "breath life back into this retracted Article." As a result, that project, and all other efforts to create derivative works, have been thwarted.
The Atlantic also breached its contractual duty of good faith and fair dealing to Ms. Barrett. An author who contracts with a reputable publishing company to provide an important investigative work that is the product of painstaking research and craftsmanship at a minimum expects that the company will not sacrifice that work and the personal and professional reputation of the author at the first sign of criticism from a competitor outlet, and that the company will not endeavor to withhold the Article from public view and deprive individuals or entities intellectual rights to the Article, contrary to its express contractual duty. At its core, The Atlantic's conduct was suffused with bad faith. Instead of standing up for its own writer and defending her when she found herself in the crosshairs of a powerful enemy, The Atlantic immediately liquidated all its values and sided with the bully….