One of the more difficult issues in journalism and publishingnot to mention defamation lawrevolves around the distinction between "fact" and "opinion." At the extremes, they're pretty clear: "Bill Clinton had at least one extramarital affair" is not in the same class as "Bill Clinton is a wonk". In the middle, though, particularly on issues of interpretation (such as those inherent in political debate), the distinction is unclear to start with, and usually made even more difficult by rhetoric that skirts the edge of intellectual dishonesty.
Although it doesn't go nearly far enough in its actual implementation of a realistic process, the New York Times at least acknowledges the issuebut not the cause. In an article today, the "Public Editor" (would be called "Ombudsman" if the job title was supposed to communicate responsibility and role, but that clearly is not a priority) discusses the NYT policy on corrections on the Op-Ed page. It's an interesting explanation, as far as it goes; but it doesn't go nearly far enough, because it doesn't discuss preventionor retribution.
It's more than just a question of legal liability, or of abstract intellectual honesty. An effective program to prevent misstatements of fact in the context of stating opinions is also a critical component of credibility, even if it is not specifically identified as such. Exhibit A: The raging controversy over Van Dyke's deceptiveeven mendacious"book note", which has probably resulted in serious harm to the credibility of not just the Harvard Law Review, but of student contributions to law reviews across the country. Mr. Okrent describes the NYT's attitude on columnists' histories of distortion as "subject only to the limits of legality, decency and publisher Arthur O. Sulzberger Jr.'s patience" at the time he began in the position, without much indication of change in the policy.
So, then, how does the NYT handle a columnist with a history of verified factual misstatements? Is there a "one strike" rule (one mistake is allowable, but the second results in removal)? Is it possible that the NYT would remove a columnist who persistently makes factual misstatements in support of opinions (leaving aside whether that has actually happened)? Without a standard, or even apparent consideration of this specifically, I am left with the disquieting conclusion that nobody really cares, so long as Mr. Sulzberger's patience has not yet been exhausted. Given the opacity of the process, the likely delays, and everything else that contributes to this situation, I can only conclude that the NYT's correction policy is designed to deflect criticism, not to deal with the underlying problemor at least that such is its effect.
My patience would have been exhausted quite some time ago by more than a dozen very prominent Op-Ed columnists, several of whom appear regularly on the NYT's Op-Ed pages. Without naming names, there is one somewhat extreme social conservativeby no means the most extremewho has (by my count) made seventeen verifiable factual misstatements in the last couple of years, most of which would have severely undercut the opinions if corrected (or, better yet, not made in the first place). I don't mean misstatements based upon political interpretation, either. I mean misstatements like continuing to attribute a view to a public figure three years after said figure publicly repudiated the view; like continuing to quote discredited statistics no longer cited by the original proponents; like using only a politically motivated English-language translation of material from a philosophical workbased upon an incomplete text of that workin the course of attacking the original author's integrity. This is not unique to social conservatism by any means; but the holier-than-thou attitude so often associated with this particular columnist (and I mean more than just a purely religious "holy") becomes merely hypocrisy in this context. And the less said about Rush Limbaugh and his "research" the better.
I am not proposing a numerical standard for dumping columnists; sometimesalthough not in the case of the columnist described in the previous paragraphan opinion based upon inaccurate assertions of fact has value in advancing public debate, if only because the inaccurate assertion of fact is plausible enough that it must be considered as a possibility. I do think, however, that the "exhaustion of patience" standard tries my patience far too much. I am also concerned that the NYT has not, until now, seen fit to even acknowledge that a policy for correction of factual errors by Op-Ed columnists even exists; but then, that would be a truly liberal (in the European sense) thing to do, so I'm not all that surprised. "Liberal media" my ass.
Clarification, 1400/28 Mar: My remark concerning the harm to credibility of student-contributed materials in law reviews reflects what I believe will actually happen, not what should happen. Professor Leiter is correct; a single instance, or even a single journal, should not result in lower credibility being attached to student work (if that is possible!). The irony that the "fellow traveller" approach is a dominant mode of what passes for argumentation in contemporary Op-Ed columns is not lost upon me; I doubt that it is lost upon Professor Leiter; but I suspect that it is lost upon Van Dyke, the current HLR board, and Messrs. Okrent and Sulzberger.