Saturday, October 6, 2018

Journalism, Truth and Originalism

10/6/2018—I now see that Kimberley Strassel, columnist for the Wall Street Journal, did not mean what she wrote. But what she tweeted, which was retweeted by Randy Barnett, thus probably indicating his approval, demonstrates how nihilism infiltrates a culture, even a culture that thinks it believes in truth.

Here is the tweet: “Actually, the goal of journalism is presenting facts--and presenting them on both sides of any given issue. Americans then get to work out themselves, on the basis of those facts, the truth. We don't need press to divine it for us. Just try who/what/where/when/why/how”

The tweet was in response to Matthew Dowd, ABC News political analyst, who had written, “So kim so what do you think the goal of journalism if it isn’t the truth? Do you think we should have people on panels that argue the earth is flat?”

Now the reason I say that Strassel does not believe what she wrote is that she does not practice it on twitter. On twitter, she tells a story she believes to be true—-for example, that Democratic Party tactics over the Kavanaugh nomination were an unprecedented attack on a nominee.

That is a factual claim in a sense, but it is also an important truth claim. Any news report that, at least over time, did not make it clear that the Kavanaugh attacks were something new, would not be telling the story about the nomination.

Strassel might say here that twitter is not journalism, but the line between them is not particularly clear. A real reporter is always a reporter.

Notice that Strassel did not respond to Dowd’s actual example. You don’t put a flat earth person in a story and say neutrally that some people say the earth is flat. If there is a demonstration of people claiming the earth is flat, it would be poor journalism to present that claim as possibly accurate. The story would have to say that the flat earth position contradicts all that is known about the earth.

In the context of flat earth claims, the correction is not needed. But the broader point is that facts depend on values, as the philosopher Hilary Putnam showed years ago. That doesn’t make facts a matter of opinion, because those values—-consistency, integrity, beauty—-are themselves a matter of truth. Science does not advance based on facts, but on these values.

The goal of journalism is to present the relevant facts and explain their relevance. That is telling the story, which by the way is how journalism self-defines: telling the story.

When Walter Cronkite finally concluded and announced that the Vietnam War was being lost and that the government was lying, he was not violating journalistic norms. He was explaining the meaning of the relevant facts.

The reason Strassel wants to deny all this is that much of the media is biased. It claims that truth is on one side when there is actually room for perfectly reasonable disagreement—-that Justice Thomas is a sexual predator, for example, which is taken for a fact by much of the Left, but of course may be completely false.

But debating bias is hard. Denouncing truth is unfortunately easy. And so Strassel makes the big mistake of undermining truth.

The reason that Randy Barnett retweeted Strassel is that proponents of originalism make the same mistake she did. There is a truth of free speech, equal protection, free exercise, takings, etc. There is even a truth of fundamental, nontextual rights. Liberal jurisprudence has abandoned the search for these truths and just proclaims certain outcomes. Frustrated with that process, conservatives deny there is any truth to these values and so retreat to making historical claims about original public meaning (claims that often turn out to be disguised truth claims anyway, but that is for another day).

Showing that liberal claims are false is hard. In fact, conservatives are not even sure anymore that they are false. Denying truth, on the other hand, is easy.

Ironically, the framers themselves were liberals—-they thought there was a truth to free speech and would not be unhappy that we now know more about free speech than they did. The framers were not nihilists. Conservatives are turning themselves nihilists because they don’t understand their own position.

Randy Barnett wants to return to the Lochner era of judicial evaluation of economic legislation. But Randy does not ever want to defend such judicial outcomes on their merits. He wants to say that he is just returning to the framers’ understanding.

The framers, however, are all standing there saying, Randy, in a world of trillion dollar corporations and massive human populations that change the climate by their very existence, the meaning of individual liberty and limited government have to change. If you try simply to go back to us, you mistake us and undermine our goals.

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