Wednesday, July 29, 2009

David Lat's Take on Covering the "Felony Arrest Case"

Ed. note: Above the Law editor David Lat sent us this thoughtful response to the points raised in the previous post about the issue. This is his full response, but we - call us crazy - edited out the name.

Hi all. It's David Lat here, of Above the Law. I've seen the (excellent and thoughtful) posts you've done about the matter [of the student who is facing felony arrest charges for spitting on a police officer].

Here is a ten-point response from me on this issue of revealing her identity. Feel free to use it if you like.

1. Our policy at Above the Law, as we've previously stated (look through our archives), is to maintain the anonymity of law students -- e.g., summer associates -- who do embarrassing things. The theory is that these youthful indiscretions are like sealed juvenile adjudications, which shouldn't haunt a person before she has even entered the legal profession.

But the policy has exceptions. We do name names if (a) the name is already mentioned in a public record (like a police report), OR (b) the name is already mentioned in a mainstream media outlet. Those are independent conditions; either is sufficient. In [this] case, BOTH were met.

2. By way of contrast, in most summer associate scandal stories, neither condition is satisfied. Rest assured that if a summer associate scandal generates a police report naming a law student, we will name that student too. (If we don't, call us out on it.)

3. We apply this policy consistently. It wouldn't be fair to other people we've named in the past not to name [this student] here.

4. Take the case of Marcus Epstein, the incoming UVA Law student who assaulted an African-American woman. We wrote about him, even though he wasn't even a law student yet, and we included his name. We can't have a rule saying, "if a white male gets arrested, name him; if a minority female gets arrested, keep her anonymous."

5. We were alerted to the [] arrest by multiple readers who requested coverage. It is newsworthy, especially given (a) the nature of the alleged crime (felony assault of a police officer), and (b) [the student's] prominence within the UVA Law community. Our duty is to our readers, not to any individual person.

[The student] has already been the subject of extensive positive media coverage -- e.g., for her work as an LSAT teacher, for her political campaign activity, for attending the inauguration with her son. It is untenable to argue that her Google footprint should be a one-way street, featuring glowing write-ups of her, but not reflecting her felony arrest for assaulting a police officer.

If [she] is exonerated, we will cover that prominently. We will also add a link to any such update in the original post, so anyone who comes across that original post -- e.g., via Google or some other search engine -- will know that she was exonerated.

8. We believe this policy strikes a reasonable balance between privacy interests and journalistic ones. If people don't like our policy, they are free not to read Above the Law.

9. Remember that ATL is just a blog -- one blog among thousands of legal blogs, and millions of blogs generally -- and an independent blog, not backed by the power of any major news organization (like the Wall Street Journal or the American Lawyer). To get deeply concerned about a person's reputation just because this person has been mentioned on a single random blog, while perhaps flattering to ATL, greatly exaggerates the blog's influence and readership.

If you do something unwise or unlawful, don't blame the media for covering it; blame yourself for doing it.

I am no stranger to receiving unwanted and negative media attention (which is why I'm not afraid of karma; I've paid my karmic debt in advance). In 2005, I was at the center of a highly publicized scandal arising out of my writing an anonymous gossip blog about federal judges, Underneath Their Robes, while appearing before these judges as a federal prosecutor. My story was covered by the New York Times, the Washington Post, and the Associated Press, among others; I was even on the Drudge Report.

After the story broke, I realized I had caused embarrassment and controversy for the office and was distracting from its mission. Accordingly, I offered my resignation to the U.S. Attorney, Chris Christie. He did not accept it, noting that I was doing excellent legal work as an assistant U.S. attorney, and he (generously) allowed me to keep my job as an AUSA (with the blog shut down by then). But at least I was willing to accept the consequences of my actions and take personal responsibility for them, instead of blaming the media for covering my misdeeds.

David Lat