

When Truth Survives Free Speech - warmfuzzykitten
http://www.nytimes.com/2011/12/12/business/media/when-truth-survives-free-speech.html?pagewanted=1&src=dayp

======
droithomme
Having, like the NYT journalist, read the decision and various information
about the case, I take almost the opposite tack. It's not the ruling on
whether she is a journalist that is irrelevant, that's actually the key point.
The person probably did engage in defamation.

The problem is the judge used this case to make a wide ranging and unnecessary
determination that bloggers are not journalists because they don't work for
big traditional organizations like the NYT. Now the NYT, the employer of the
author of this article, is, like many traditional media organizations,
financially threatened by independent bloggers who have been gaining massive
traction and readership over the last decade that draws away from traditional
large media. The publisher and supporters of giant consolidated media are
threatened by loss of consolidated points of media control which special
interests can leverage. Completely independent journalists, including many
bloggers, have been threatening the status quo for some time. Overreaching
court rulings that only those working for corporate agencies are "legitimate"
certainly serve the interests of those in power.

Whether the independent journalist/blogger in question was guilty of
defamation didn't require such a finding about their status as a journalist so
the decision is certainly overreaching.

On the issue of the Oregon Shield Law, the judge certainly misrepresented it
since by stating (exact quote from ORS 44.510) "'Medium of communication' has
its ordinary meaning and includes, but is not limited to, any newspaper,
magazine or other periodical, book, pamphlet, news service, wire service, news
or feature syndicate, broadcast station or network, or cable television
system.", it says INCLUDES BUT IS NOT LIMITED TO, in its definition of
"Mediums of Communication". The definition of "medium of communication" is
critical because in ORS 44.520 the law reads "No person connected with,
employed by or engaged in any medium of communication to the public shall be
required by a legislative, executive or judicial officer or body, or any other
authority having power to compel testimony or the production of evidence, to
disclose, by subpoena or otherwise..." Not just employed by, but connected
with or engaged in any medium of communication to the public. Any reasonable
reading of this law will include independent journalists and bloggers.

Full text of Oregon Shield law:
<http://www.orenews.com/web/legal/shieldslaw.php>

~~~
andylei
she's not a journalist. really.

the judge decided this based on the lack of "(1) any education in journalism;
(2) any credentials or proof of any affiliation with any recognized news
entity; (3) proof of adherence to journalistic standards such as editing,
fact-checking, or disclosures of conflicts of interest; (4) keeping notes of
conversations and interviews conducted; (5) mutual understanding or agreement
of confidentiality between the defendant and his/her sources; (6) creation of
an independent product rather than assembling writings and postings of others;
or (7) contacting 'the other side' to get both sides of a story."

(2) is maybe questionable; but (3), (4), and (7) are legitimate reasons.

~~~
lywald
Legitimate? Unless it's in a text of law, it's not legitimate. I could argue
that he's not a judge the same way.

~~~
CWuestefeld
_Unless it's in a text of law, it's not legitimate._

This is not correct. There's always some degree of ambiguity, and as the
Courts hear cases that test those ambiguities, those precedents -- known as
"case law" -- effectively become part of the law, even though they're not in
the text.

------
mcantor
I honestly do not understand this constant back-and-forth about credibility
and validity between "real journalists" and "bloggers". It's as if "real
journalists" are some kind of supernatural entity that descend from the
universe of Platonic truths to dispense objective information which we can
internalize and process without further judgment.

Journalists and bloggers share a fatal flaw: They're _human_. Someone signs
their paychecks. They have goals, dreams, and motives. Who cares whether
they're a "journalist" or not? What difference does it make?

~~~
brc
Exactly.

I see so many journalists complaining about blogs. And I ask : if you're so
underappreciated, why not start your own blog?

Journalists insist they have the training and wave memberships and credentials
around as if they mean anything more than paying dues and agreeing with other
people. When any cursory examination of media will find it riddled with
errors, not only of the typographical kind, but of the completely-incorrect-
facts kind.

It's just like any other industry that starts to get threatened by disruption
from new technology - all the new people coming in are 'unworthy' 'wrong' and
'bad for the industry'.

If you ever want to hear a tale of woe, talk to an old-school photographer
about digital cameras and the explosion of part-time hobbyists who do a little
bit of work on the side with their $500 SLR.

In reality they are all people just trying to make their way in the world
using whatever means they can.

------
darksaga
I think the more interesting part of this is why Google has allowed this woman
to manipulate the SERP's in order to bash this guy for so long. They usually
have an itchy trigger finger when it comes to burying sites like hers for
using keyword stuffing and other questionable SEO techniques.

Likewise, I'm surprised Mr. Padrick never contacted Google to have these pages
removed either.

Had either Google or Mr. Padrick done their due diligence, I hardly think this
case would have gotten as far as it did.

~~~
drinkzima
Google doesn't editorialize. What do you mean allowed?

~~~
zem
it's not a questionn of editorialisation; it's whether one person using bad-
faith seo tactics can manipulate front-page results like cox did.

~~~
chc
It's not entirely clear to me that what she was doing was SEO. I mean, if
repetition and overuse of style tags is _all_ that's necessary to be accused
of keyword stuffing, we'd have to acknowledge the Time Cube guy as the father
of modern SEO.

And anyway, it doesn't require a lot of Google love to rank for the query
"Kevin Padrick of Obsidian Finance Group." That's about as long-tail as it
gets.

------
AndyKelley
This may sound a bit radical, but I'm not even sure I want the government
stepping in and doing anything about libel. It's already true that you can't
trust everything you read, and this includes articles from "official"
journalism institutions. It does hurt to have your reputation damaged, though.
That's a tradeoff that is a bit disconcerting, but may be worth it in order to
have a more strict, black-and-white definition of what the government can and
cannot censor. The more things that the government is legally able to censor,
the more subjective freedom of speech becomes, and the more it gets in danger.

~~~
Lukeas14
Defamation has always been an exception to free speech. It is also not a
criminal offense so the government doesn't have the ability to use it for
censorship. Cox is still free to write what she wants without repercussions
from the government. Being a civil case all the plaintiff had to do was prove
the defendant maliciously inflicted significant harm to his reputation in
order to be awarded a monetary judgement.

~~~
forensic
The real issue here is not so much the defamation, which happens all the time,
but the nature of Google, which gives this lady a giant amplifier for no good
reason.

------
danso
Carr ends with:

>> _Then again, I’ve got some institutional muscle when it comes to how I’m
perceived on the Web. All Mr. Padrick had was his good reputation. Too bad
there’s no algorithm to measure truth._

I know he's a writer and needs to end with a real zinger, but it's a cheap
shot against algorithms and their role in helping us make correct assessments.

1\. There _are_ algorithms which can gauge truth and accuracy. There's few
modern psychological theories so consistently proven than how algorithms can
outperform experts in making judgements.

2\. Despite a blanket dismissal of algorithms in general, Carr is of course
taking issue with companies like Google. Ignoring that truth-judgement over a
body of data as diverse as the web is going to be a very, very tricky problem
for computers and humans... is the Google search engine's only directive to
find "truth"? Ideally, the top search results contain the truth, but Google
makes a philosophical judgment that other factors (such as link popularity and
location) need to be considered when retrieving the most _relevant_
results...because relevance is easier and safer to judge than _truth_.

In the same vein, the New York Times would like to say that the advertisements
they run all contain truth. But truthiness is not the main criteria they use
when deciding which ads to run: advertisements are printed because
companies/interest groups/candidates put their money behind it.

~~~
byrneseyeview
Are there really algorithms for judging the truth? I think the closest we can
get is heuristics for identifying whether or not something is being actively
deceptive, but it's a big epistemological leap to say that we can definitely
determine truth in an algorithmic way.

Google is very good in these situations, but Google has a hard time
differentiating between a popular movement and a single determined
astroturfer. I'm sure Google would rather display a commitment to good
journalism ("You want to know about topic X? Here's what people are saying
about it.") rather than a pursuit of the truth, at least when it comes to
organic results.

~~~
danso
Sure, if the thing to be judged has a limited number of inputs and factors and
outcomes...which is something that does not apply to the content of the Web,
of course.

But in other cases where the answer is basically, "yes" or "no"...if an
algorithm chooses the right answer, doesn't that count as truth? Take for
example, the Apgar score, which consists of giving a newborn a score of 0 to 2
for five categories: complexion, pulse rate, reflex, muscle tone, and
breathing. <http://en.wikipedia.org/wiki/Apgar_score>

A baby that scores 8 is considered to be doing well. A baby with just 5 merits
additional examination.

This simple numerical score is credited with revolutionizing obstetric
medicine and is still used today, even though it was first published in 1953.
[http://www.newyorker.com/archive/2006/10/09/061009fa_fact?cu...](http://www.newyorker.com/archive/2006/10/09/061009fa_fact?currentPage=all)

I guess it's debatable whether this counts as an "algorithm"...but it involves
the mechanical evaluation of a "score", with set guidelines for when such
score is dangerously low. The fact that the scoring is done through human
judgment is peripheral to the matter...it's not hard to imagine a machine
being able to perform the same test (perhaps more accurately) were it cost-
practical to build such a machine.

One more interesting note: The Apgar score was not developed by an expert. It
was developed by a female doctor who had never delivered a baby (nor had a
baby) herself, but felt that doctors were giving up too quickly on sick
babies.

~~~
byrneseyeview
Yeah, that's more of a heuristic for determining the health of an infant. An
algorithmic approach would give you a definite yes-or-no for all baby inputs.

And the analogy breaks down here because the online ecosystem adapts very
fast. It would work if there was some sort of gene that led to premature
births _plus_ high Apgar scores (the equivalent of a malicious website that
ranks well).

That's why search is so tough: search engines and gaming have coevolved to the
point that in plenty of areas, search quality would go _down_ if people
weren't trying to game the algorithm.

~~~
Strilanc
Heuristics are algorithms and algorithms don't have to give definite answers.

~~~
acomar
No, that's just not true. A heuristic is a procedure that gives no guarantee
of a correct answer. An algorithm is a deterministic procedure that _does_
guarantee a correct answer. Heuristics are very useful in making difficult
decisions that don't have definite answers, but they are not algorithms.

~~~
ramidarigaz
Erm. Algorithms aren't necessarily deterministic.
<http://en.wikipedia.org/wiki/Nondeterministic_algorithm>

Primality testing is a very good example of a useful algorithm that gives an
answer that is _probably_ correct.

~~~
byrneseyeview
Thank you for the correction. I'd been using terminology ineffectively. The
way I was taught it was:

\- An algorithm is a step-by-step process for transforming any valid input
into a specific valid output. \- A heuristic is a process that brings you
closer to something that looks like an answer, but does not necessarily find
the best possible answer.

------
curiouskat
How is that different that Glenn Beck going after Google in "unaccountable
ways"? ([http://www.huffingtonpost.com/2011/02/17/glenn-beck-
google-s...](http://www.huffingtonpost.com/2011/02/17/glenn-beck-google-
soros_n_824446.html), [http://www.foxnews.com/on-air/glenn-
beck/transcript/beck-thr...](http://www.foxnews.com/on-air/glenn-
beck/transcript/beck-three-reasons-be-wary-google))

------
niels_olson
So, my ears pick up every few days while listening to NPR on the way to work
when reputation.com assures me as a physician that they can "delete unwanted
information from the internet". Has anyone had any experience with this or
another company?

------
lywald
I don't think it surprises anyone, and it didn't require a 2-pages analysis.
After reading one line on her blog everybody realized she's either crazy or
trying to scam. But I don't think it justifies a $2M fine...

------
mathattack
It's a tangent, but David Carr is an interesting bird, spanning both old and
post-Twitter journalism. You can get some insights on him in the recent NY
Times documentary ->
[http://en.wikipedia.org/wiki/Page_One:_Inside_the_New_York_T...](http://en.wikipedia.org/wiki/Page_One:_Inside_the_New_York_Times)

------
smoyer
I don't believe that journalists are shielded from defamation and libel laws
either ... So the judge's ruling must just mean she's a lousy writer?

------
MortonL
And this is why I stopped reading Mashable. They should have done research (
like the NYTimes did) before publishing their story. Pete, publishing first
doesn't make you guys a news organization- unbiased writing, research, and
accuracy do.

------
lisper
"She didn’t so much report stories as use blogging, invective and search
engine optimization to create an alternative reality."

And "real" media outlets NEVER do that. Oh, wait...

------
wingo
It may well be defamation. The courts should definitely look at it, after they
examine the case of the NYT selling the U.S. a war. (Which one? All of them,
actually.)

I know this sounds facile, but it does indicate the kind of journalism cases
that the court is interested in.

~~~
MartinCron
The court is interested in cases that are brought to them. It's hard for
anyone to have standing in suing the NYT for not doing enough due diligence
leading up to the war(s).

~~~
wingo
Point granted, though it is also true that financial investors are interested
in bringing cases. I'm still left with a bad taste in my mouth; maybe it's a
gut reaction to side with the weaker party.

Or perhaps I'm just being contrarian.

~~~
danso
Nothing wrong with being contrarian, but this is just a cheap rhetorical
tactic that turns a legitimate, specific debate into less useful clashing of
egos and worldviews.

How is: _"Well, look how the New York Times editorial board in 2003 incited
the entire country into war"_

...a legit rebuttal to: _"A 2011 columnist for the New York Times points out
that a blogger was primarily engaged in defamatory speech and so shouldn't be
given the legal protections afforded to journalists."_ ?

------
spodek
Perhaps beside the point, but part of journalism is good writing and the topic
of the article includes writing quality.

"... turned out to be a MacGuffin, a detail that was very much beside the
point..." -- is the reporter showing off he knows the word MacGuffin? He
simply defines it immediately afterward making the word needless.

As Strunk and White says, "Avoid fancy words: Avoid the elaborate, the
pretentious, the coy, and the cute. Do not be tempted by a twenty-dollar word
when there is a ten-center handy, ready and able.

Then "Even a broken clock is right twice a day, but there is nothing in Mr.
Padrick’s professional history or the public record that I found to suggest he
is any of those things..." ... using old cliches doesn't help either. It just
adds words with no meaning.

