Justice Anthony M. Kennedy's visit to a private high school caused a minor stir in 2008 when someone on his staff strong-armed the school newspaper into postponing publication of a story about his talk until he had a chance to check the quotations.
Justice Kennedy's host at the Dalton School, Ellen Stein, didn't see a problem: "This allows student publications to be correct," the school head told The New York Times. "I think fact checking is a good thing."
Of course it is. Proponents of pre-publication review argue that any conscientious and honorable journalist would want sources to check the work. The problem, as those opposed to the practice point out, is that such a review can quickly stray from fact checking to challenging the relevance of this or that fact.
The accuracy of quotations can be readily checked against an audio recording, but every quote is an excerpt from a longer stream of speech. Given the opportunity, a source may argue, with some justification, that the quote chosen by the reporter does not represent his or her point of view or eloquence as well as would some other quotes that the reporter planned to leave on the cutting room floor.
The source may even argue that the quote, accurate though it is, actually misrepresents his point of view. While some such objections may be dismissed as little more than expressions of the source's fervent desire to unsay an ill-considered remark, others may have some merit. As Eliot's Prufrock complained, "It is impossible to say just what I mean!"
Then there are descriptions of behavior. Let us suppose that the student journalist who covered Justice Kennedy's speech could not help but notice that he repeatedly tugged at his left ear lobe as he spoke. Review of a video recording of the event might confirm the mannerism, but the speaker might not see why attention need be called to it in a news story.
The fear, in short, is that pre-publication review could turn into a protracted negotiation session that ends, at worst, with the most interesting and enlightening material- the candid remark, the revealing detail-falling by the wayside, leaving only what is bland and safe and therefore, ultimately, false.
Writing about readbacks in the American Journalism Review in 1996, Alicia C. Shepherd began with the premise that reviews by a source are taboo, but then quoted a procession of reporters who routinely violate this prohibition. Most agreed with reporter and journalism educator Steve Weinberg, who argued back in 1991 that the best way to reconcile the need for accuracy with the prerogative of reporters to call 'em as they see 'em, is for the reporter to summarize facts and read quotes over the phone-with the proviso that the inclusion of accurate material is non-negotiable.
Such an arrangement, Weinberg said, has a benefit beyond catching errors. The promise of pre-publication review could very well persuade reluctant sources to agree to an interview, while encouraging willing sources to be more expansive. Both Weinberg and Jay Mathews, now an education columnist at the Washington Post, have said that in their own experience, fears of protracted negotiations with persnickety sources have not proved out.
In the case in question, according to The Times, Justice Kennedy didn't just check the Dalton School paper's version of what he said for accuracy. He "tidied" it up, in the words of the Supreme Court's public information officer.
Such an intrusion into the editorial process, some commentators argued, trampled the First Amendment rights of the student journalists. Here The Times may have muddied the waters by reporting that the justice's office "insisted" that he approve the paper's coverage of his talk before printing it. That sounds pretty compulsory, but as Justice Kennedy well knew, he could not actually compel the school to do anything.
Perhaps, though, Justice Kennedy's well-intentioned staffer only made a "request"-the word attributed to the Supreme Court's public information officer-to see the story.
That sounds better than "insisted," but neither is acceptable. Justice Kennedy, whose reputation as a First Amendment champion was dented by the Dalton dustup, knows better than to try to tell journalists, even fledgling journalists, their business-which in this case was to tell their readers what their distinguished visitor said, not what he meant to say or wished he had said.
Indeed, a student journalist who also complied with a request for pre-publication review after Justice Kennedy spoke at George Washington University last fall told the Wall Street Journal he found it particularly ironic that such a request should come from the office of a Justice who had defended the prerogatives of reporters in writing the majority opinion in Masson v. New Yorker Magazine. In that 1991 case, the Court rejected a libel claim against the New Yorker that was grounded in writer Janet Malcolm's fast-and-loose handling of quotations.
To Justice Kennedy's chagrin, as the Wall Street Journal pointed out, some bloggers were so eager to pillory Justice Kennedy for his hypocrisy that they glossed over the fact that it was someone who worked for Justice Kennedy and not the Justice himself who put the screws to the student journalists.
It's easy to say that the school should have known better, but who can blame administrators for letting courtesy to a visiting Supreme Court Justice trump other considerations? Justice Kennedy's office was wrong to have put the school in such an awkward position. But The Daltonian's faculty advisor was wrong when he said that the "constraints" placed on his students "did not diminish the experience at all." They most certainly did.
Incidentally, these same educators "constrained" their student journalists all over again a year after the Justice Kennedy contretemps-and again caught the attention of The New York Times- when they "ate" the student paper rather than let it circulate with an error that might embarrass the school. (A survey of student drinking habits published in October reported that 80% of respondents did not drink regularly. It should have stated that 80% said they did not drink at all. One might think that a simple correction in the next issue would have sufficed. But we wouldn't want anyone to get the idea that high school students drink, now would we?)
One rule of engagement that should have resonated with Dalton School teachers and administrators in both these situations: No bullying allowed.