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Matthew Hoy currently works as a metro page designer at the San Diego Union-Tribune.

The opinions presented here do not represent those of the Union-Tribune and are solely those of the author.

If you have any opinions or comments, please e-mail the author at: hoystory -at- cox -dot- net.

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Wednesday, September 28, 2005
Nevermind: The New York Times yesterday published an article assailing John Roberts over a memo that he wrote criticizing the Supreme Court's decision in New York Times v. Sullivan.

There was just one problem with the article -- Roberts didn't write the memo that was the basis of the article, Bruce Fein did.

An article yesterday about Judge John G. Roberts Jr.'s views on libel law attributed a critique of a Supreme Court decision to him erroneously. Mr. Roberts did criticize the decision, New York Times v. Sullivan, in a 1985 memorandum. But a separate unsigned 30-page critique that was among the papers released from his years as a lawyer in the Reagan administration was not his; it was written by Bruce Fein, who was general counsel for the Federal Communications Commission in the Reagan administration. A corrective article appears today, here. (Go to Article)

Unfortunately, the Times' link to the corrective article also points to the erroneous article. You can read that article here.

I'd be curious to hear the backstory on this mistake. What made the Times believe the unsigned memo was authored by Roberts. Was this an honest mistake? Most newspapers I'd give the benefit of the doubt, but this seems to be the type of shoddy work I'd imagine that Bill Keller's minions would do, so, according to the Keller standard, it must be the worst explanation I can think of.

*UPDATE* A letter posted at Romenesko's Media blog poses the same question.

9/28/2005 3:14:09 PM

From JOHN WALTER: Missing from the astonishing New York Times correction on their Roberts libel memo story is any hint of WHO mistakenly identified the memo's author. One is sent scrambling back to yesterday's text, only to find that the original story quotes no source on this; it just states his authorship as fact. Does that mean Adam Liptak reached a false conclusion himself, finding the document among other papers; if so, isn't it the Times correction formula to say "Due to a reporter's error"? Or, instead, was Liptak misled by Someone Who Had an Agenda -- and the Times just 'fessed up to this yet?

I don't expect that we're going to find out the answer to this question.

1:29 AM

"Was this an honest mistake?"

Yes, it was. As the original article points out, the contemporary response by Roberts to Schumer's question was "a faint echo" of the unsigned 30 page memo. In other words, while Roberts today is not "caustic" as the original memo was - for which Fein claims authorship - he appears to be in general agreement with it. Furthermore, in his recent reply to Schumer's questions, according to the original article, Roberts wrote that "questions about the scope of Sullivan remain."

The original article also made the point that whatever Roberts' personal views on Sullivan, when a case came up that was germane, he "'applied Sullivan generously'" which an expert stated was "'evidence of a fidelity to stare decisis.'"

How was the mistake made? Apparently, as the correction article implies, the 30 page unsigned memo was part of a large number of papers from Roberts' files under Reagan that were made available.

Also among those papers was a second, short memo from 1985 that Roberts did indeed sign that was critical of Sullivan, but not as "caustic" which suggested a compromise for scaling back press protection by limiting the size of libel awards.

Seeing as how both memos were critical of Sullivan, one was signed, and both were in Roberts' files, the reporter erroneously attributed the unsigned memo to Roberts.

The corrections makes the point that Roberts is, in fact, no great fan of Sullivan, but he is not a furious critic of it either. Furthermore, the first article makes clear Roberts respects precedent whatever his personal opinions.

It was a careless mistake, plain and simple. It shouldn't have happened, plain and simple. But it would be a stretch to call it a malicious mistake.

This is coming from someone who has little good to say about the NY Times coverage of politics - they have proven themselves over and over lapdogs of the Bush administration - or of Judge Roberts himself - a man that used to be called "ultra-conservative" before the Birch Society platform was adopted wholesale by the Republican party.

That said, Roberts came across in the first article, and especially in light of the correction in the second, as a very decent and honest jurist.

Whether he actually is in his new job, only time will tell.
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