Balkin/Ackerman Throwdown

Well, not quite--but "respectful engagement" just doesn't pop the same way. Still, any law geek readers (any of y'all out there?) shouldn't miss Jack Balkin's four-part response (Part One, Part Two, Part Three, Part Four) to Bruce Ackerman's Holmes Lectures, The Living Constitution.

Drumbl Making an Appearance at PrawfsBlawg

Washington & Lee Law Professor Mark Drumbl will be guest-blogging at PrawfsBlawg over the next few weeks. Drumbl, for those of you who don't know, is a baller and one of the most interesting theorists on the punishment of mass atrocities (genocide and the like). His book, Atrocity, Punishment, and International Law looks fantastic and got a great plug by Kevin Jon Heller at Opinio Juris.

Glad to see you in the blogosphere, professor.

Just as Predicted

Below is a screenshot of the top 10 Google search results for Adriana Dominguez, as of this evening (click for larger):


So, it looks like the New York Daily News has succeeded in its mission to ensure that "potential employers are sure to discover Dominguez's striptease with a quick Internet search."

O'Reilly: "Mechanism is better than policy"

It seems that Tim O'Reilly is backing away from his proposed blogger code of conduct:

So rather than a blogger's code of standards, perhaps what I ought to be calling for is moderation systems integrated with the major blogging platforms.

John at librarything wrote:

"One technical suggestion, employed by my employer: letting users flag inappropriate comments, which then become click-to-see. This lowers the visibility of the trolls, without censoring them. For an example, see this thread:

http://www.librarything.com/talktopic.php?topic=8702

Message 5 is no longer immediately visible, because it was flagged by a certain number of users as inappropriate. But it can still be seen, if you want to, by clicking on the 'show' link. It's a compromise, but perhaps a practical one.

Similarly, it might help the situation to let users configure whether or not they want to see flagged content, and set the default for flagged content to some sort of reduced visibility.

I really like this, as it addresses one of the biggest hesitations I personally have about deleting comments, namely that deleting part of a conversation can make it impossible to reconstruct what really went on. And there have also been problems in the past with blog owners selectively editing conversations to present themselves in the best possible light. A mechanism that preserves comments while hiding them "in the back room" so to speak would seem to me to be a really useful tool.

I'm in complete agreement with Tim, and have been a believer in this idea for a very long time. Unfortunately, it is unlikely that implementing this idea on a large scale will reduce criticism, as demonstrated by the continuing attacks on AutoAdmit despite that site having an off-topic filter that by default hides 99+% of offensive content.

More on Journalist Ethics and the New York Daily News

I recently received this email from Daily News reporter Veronika Belenkaya in response to my blog post about her story on the third year Brooklyn Law Student who appeared nude on the Playboy Channel:

I was aware of her boyfriend's involvement. But since at the time the article was going to print I did not have a 100% confirmation on his name or that he was in fact her boyfriend, we made a conscious choice to leave it out until we were sure.

Alright, fine. I think most people wouldn't fault a newspaper for choosing not to identify someone by name without confirming their actual involvement in an incident.

But then I saw this follow-up piece in Wednesday's Daily News. To their credit, the Daily News finally acknowledges the role of Adriana Dominguez's then-boyfriend, Sean Kalish, played in the video. However, the paper once again fails to identify Kalish as a third year Brooklyn law student or raise the possibility of potential character and fitness difficulties. Rather, the only purpose of unmasking Kalish appears to be to use him to attack Dominguez's judgment and question her moral character:

A Brooklyn law student who took it all off for Playboy TV has only herself to blame for the scandal, her ex-boyfriend told the Daily News yesterday.

Adriana Dominguez, who's in her final year at Brooklyn Law School, blabbed about her sexy exploits all around campus, said former flame Sean Kalish.

"She told everyone in school, 'This is what I did, watch this,'" said Kalish, 25, a fellow third-year student at the school.

"She even posted a link to it in her MySpace [online profile]," he said.

...

"She kind of thrives on this kind of drama," he said.

"I wish that Adriana had been a little more discreet about it," Kalish said.

One commenter to the previous post stated that the Daily News's "agenda is simply to sell as many papers as possible and that a news story about an attractive blonde law student appearing in Playboy is going to get more attention than one that talks about a guy in virtually the same situation." Even if this is the Daily News's only motive for running this story the way it did (and I'm not so certain that's the case), can one really argue that the Daily News reporter is engaging in ethical journalism, especially in light of this follow-up article?

Blogger Code of Ethics? How about a Journalist Code of Ethics first?

APRIL 13 UPDATE: See follow-up post here.


Yes, I know one already exists, though one would think otherwise given recent stories by supposedly legitimate media outlets. But how about actually enforcing journalist ethics in the news media before trying to force similar tenets on the blogosphere?

I have avoided blogging about the topic of media bias, largely because people would (rightly) question my own objectivity on that issue, given recent events. Though there is nothing more frustrating in the world than to see something in the newspaper that you are 100 percent certain is an absolute fabrication, it is almost as frustrating to see those same newspapers and other old media outlets attempt to sell themselves as objective and factually accurate while dismissing blogs and other new media as biased and full of errors.

Today, the New York Daily News ran a front page article about a third year Brooklyn Law School student who appeared nude on an episode of a Playboy Channel TV series that aired in January with little to no fanfare but attracted attention when a 45 second clip of the broadcast appeared on the internet three weeks ago and quickly "spread... among students and some faculty at almost every New York law school."

Before I comment any further I should make one thing clear: this law student certainly put herself in the public eye by voluntarily appearing on this television show. It is difficult to predict how the public will react to attention-seeking behavior--even people who engage in virtually identical attention-seeking acts may end up with widely divergent outcomes. Thus, it is difficult for me to sympathize with this law student when she says that she "did not expect it to become so widespread." While it may be unfortunate that the media chose to cover this story in such a way, the media (as well as anonymous internet users) certainly had the right to do so.

That said, certain aspects of the Daily News's coverage of this story do not sit well with me, and deserve further attention and discussion:


1) The Daily News did not report the news--it created it.

Did a law student appear nude on the Playboy Channel? Yes.

Did law students at her school see a video of her appearance? Yes.

Was her career ever in jeopardy? No.

Well, at least not until the Daily News got involved.

The Daily News reporter writes, among other things, that "potential employers are sure to discover Dominguez's striptease with a quick Internet search." But this is simply not true. Although Dominguez's video spread through email and was discussed on a few isolated message board threads, as of this writing none of those discussions appear in any Google searches for Adriana Dominguez (see for yourself). Given that she shares her name with a Spanish actress, a University of Texas lecturer, and an executive editor at HarperCollins, it is highly improbable that an employer googling her name would ever stumble upon this video. Similarly, it is unlikely that the New York bar's character and fitness examiners would have become aware of this incident through Google.

Until now. Though this law student had completely G-rated Google results prior to the story, in less than 12 hours the Daily News article has already shown up in Google as the 21st result for her name, and is likely to enter the top 10 relatively soon. In other words, the Daily News did not report on an existing controversy--it actually created a controversy when none existed prior to its involvement.

2) The Daily News ignores the OTHER third year Brooklyn Law School student who appeared on the Playboy Channel

But perhaps the most perplexing aspect of the Daily News's coverage of this "story" is its application of double standards. While the Daily News plasters Ms. Dominguez's photo on the front page of the newspaper and makes repeated references to her career as a lawyer being in jeopardy (including the possibility of not making it through character and fitness), the article fails to mention that, according to several sources, the male performer in the video is also a third year student at Brooklyn Law School. This individual is not a mere bystander--he has dialogue, and participates in the much-written about spanking scene (see here--note that while the link contains censored pictures and commentary, it is not safe for work).

Don't get me wrong: I do not believe that either of these students should be subject to increased scrutiny by the character and fitness committee, let alone have their law licenses denied as a basis of their participation in this video. But if the Daily News and other media outlets are going to place her photo on the front page, identify her by name, and speculate that the video "could have dire consequences for the would-be lawyer," result in "tough questions from the Committee on Character and Fitness," and potentially "wreck her future," should they not subject her male law student co-star to comparable scrutiny? Or do the Daily News and Brooklyn Law School believe that it is perfectly acceptable to appear in a pornographic video as long as you are a man?

3) What's the Daily News's agenda?

Make no mistake about it: there was an agenda here. Everything from the front page placement to the failure to mention the male law student indicates that we are not looking at an unbiased and neutral piece of journalism. Someone--whether the reporter or whoever contacted the reporter--wanted this article to run in the form it did, and unfortunately we have no way of knowing who that someone is or what that someone's motives are. I wish I could say this is an isolated incident, but having been the victim of similar hit pieces, as well as having friends who work at traditional media outlets, I suspect stories like this are the rule rather than the exception.


Are some bloggers biased or have a hidden agenda? Most certainly. Are many blogs factually inaccurate? Of course. Do some bloggers lack civility and use their blogs to ruin the reputations of others? You bet.

Does this make blogging worse than the traditional media? No: it's just that many bloggers will acknowledge all of the above, while the traditional media simply refuses to acknowledge that it suffers from these same problems.

As for a blogger code of ethics, I think we should pass for now, in the interests of regulatory parity--we can revisit that subject once the traditional media starts to take ethics seriously.

E-Scholarship

Peggy McGuiness excerpts from an interesting speech by Nancy Rogers, chair of the AALS and Dean of the Ohio State Law School (Moritz). It's a good read for anyone interested at the next stage of interaction between blogging and scholarship in the legal academy.

De Novo Looking For Contributors

I can't take advantage of this, because I still am not technically a law student. But Blog de Novo, one of the pre-eminent law student blogs, is looking for a new crop of contributors to take over the reins now that's its current set of bloggers is graduating.

De Novo is a wonderful part of the blawg community, and I'd hate to see it go defunct.