Eugene Volokh's Blog, page 2722
September 1, 2011
"Corporate Media" Theory
In this post I discuss a companion paper for Left Turn, "Hands are Shaky and Knees are Weak? Are Journalists Really Dupes of their Corporate Bosses?". Here's how the paper begins:
"There are NO liberal media outlets: they are ALL owned by corporations. I can't even comprehend how you managed to deny that fact in your head."
That's what "Heir" wrote in the reader comment section of an article posted on politicalwire.com. "Heir" was responding to "passerby25," who had written that he or she believes that the media, on the whole, are slightly more liberal than conservative.
"Heir" is what I call a "corporate media theorist." This is someone who asserts that the views of journalists are largely irrelevant to how they report. Instead, much more important are the views of their corporate bosses. Here are a couple more typical claims of corporate media theorists:
"You're only as liberal as the man who owns you." –Eric Alterman. (This is the title of chapter two of his book What Liberal Media?.)"The press is the hired agent of a moneyed system, set up for no other reason than to tell lies where the interests are concerned." –Henry Adams, quoted in Robert McChesney's The Political Economy of Media, p. 28."[I]n reality, most journalists have about as much say over what is presented by newspapers and news programs as factory workers and foremen have over what a factory produces." –Robert Parry (quoted in Robert McChesney's The Political Economy of the Media, p. 58.)
I'll return to corporate media theory in a moment. But first, I want to make a brief digression about the notion of falsifiability in science and religion.
Karl Popper is responsible for introducing the notion of "falsifiability." His notion asks: "With a particular belief or theory that I hold, can I imagine a set of events that would cause me to abandon it?"
Many people—including two famous pupils of Popper, William Bartley and Antony Flew—assert that religious views are unfalsifiable.
I don't believe that is quite true, especially if the views are strengthened to belief in a particular religion. For instance, suppose Muhammed floated down from the sky, and once he reached earth, performed several miracles, then proclaimed, "I have been sent by God to tell humans that Islam is the true religion."
Although I am a Christian, if I witnessed that, I'd abandon Christianity and become a Muslim. Thus, my Christian beliefs are falsifiable.
I also believe the opposite is true: If Jesus floated down from the sky and did something similar, then I believe most Muslims would convert to Christianity.
But now suppose Jesus and Muhammed floated down from the sky, performed some miracles, then said, "You know, corporate media bosses really aren't that conservative, and they really don't exert much influence over how their journalists report."
Then I'm sure the corporate media theorists would immediately scream at Jesus and Muhammed and tell them why they're wrong.
Thus, in many ways, corporate media theory is more religion than most religions are religion.
Accordingly, my paper maybe was a waste of time. There's really no chance, no matter how sound its arguments and evidence are, that it will persuade any corporate media theorists.
Nevertheless, if you are sympathetic to such corporate media theories, I still hope you'll read it. And I hope you'll consider three quick thoughts, in addition to the arguments and evidence in the paper.
First, if corporate bosses are so conservative and so powerful, then why do they hire so many liberals?
Second, if journalists really are such dupes of their corporate bosses, why do they—especially the liberal ones—seek jobs in journalism?
Third, consider my earlier post, where I examined the L.A. Times article about UCLA admissions. Recall that the bias was not due to false statements. The bias was due to statements that the journalist failed to report. Specifically, I listed several facts that she omitted—facts that a conservative would want readers to learn but a liberal would not.
Suppose you were the journalist's corporate boss. And suppose you had complete control over what she wrote. Even if that were true, how would you know the facts that she failed to report? And if you didn't know those facts, how could you force her to report them?
Justice Liu
Yesterday the California Commission on Judicial Appointments confirmed University of California at Berkeley law professor Goodwin Liu to a seat on the California Supreme Court. The LA Times reports on the confirmation here.
When Zero Calories Isn't
Number of calories in an 8 oz serving of Diet Mountain Dew: 0
Number of calories in a 20 oz bottle of Diet Mountain Dew: 10
How can this be? A manufacturer may list something as zero calories so long as it has fewer than five calories per serving.
August 31, 2011
Jonathan Adler's New Chair
A reader mentioned that Jonathan has been named the inaugural chairholder of the Johan Verheij Memorial Professorship at Case Western Reserve University School of Law — congratulations to Jonathan on this eminently well-deserved honor!
Assumptions Built into the Proof of Media Bias
I appreciate Tim Groseclose's reply below, but I fear his response only makes me more deeply skeptical of the reasoning he uses. I'm going to hide most of my post "below the fold" because I don't want to steal our guest's thunder. But for those interested, I'll explain a bit below why I don't think the argument adds up.
In the post below, Professor Groseclose suggests that journalists are about 2/3 interested in persuading people and 1/3 interested in informing people. The reasoning appears to be as follows:
1) Assuming for the sake of argument that all of Groseclove's analysis is correct, unbiased journalists just trying to inform should have a slant quotient of 50;
2) Unbiased journalists would report as a centrist politician would report, and therefore would also have an sq of 50;
3) The pq of a representative in a particular district he found that happens to have a republican/democratic split similar to a particular group of reporters is 100.
4) If reporters were trying to persuade people, they would have the same sq as a class than the sq of the one representative he found — that is, 100.
5) The average slant quotient calculated by his study is 65.
6) Because 65 is about 1/3 the way between 50 and 100, it should be that journalists are about 2/3 interested in persuading people (the goal of politicians) and 1/3 interested in informing people (the idealized goal of journalists).
Assuming I have described Groseclose's reasoning accurately, I find it quite puzzling. Each step contains a series of assumptions built into it that are unproven at best and seem made up out of thin air at worst. For example, I don't know why we would expect a group of people that has the same Democratic/Republican ratio as the district that a particular elected official represents to share any particular characteristic with that elected official. Similarly, I don't know why we would expect the politics of a small group of reporters (washington correspondents) to match the politics of a large group (reporters as a whole). Further, I don't know why would expect a reporter's level of interest between two goals to have a linear relationship between their idealized sq and pq scores. And finally, the assumption at step 1 seems to make the argument circular: The study is correct if you assume the study is correct. But what if you don't think the study is measuring anything real at all?
Just to be extra clear, I don't doubt that media bias exists. I see it all the time. I also think it's plausible that the end result is right that journalists are 2/3 focused on informing and 1/3 focused on persuading. But there's a critical difference between explaining data in a rigorous way and coming up with a long series of seemingly-arbitrary steps that end up with a plausible-sounding result. After spending some time studying it, my fear is that Groseclose's reasoning seems more like the latter than the former.
An Update on My UCLA-Admissions Controversy
In my post yesterday, when describing Chapter 6 of Left Turn, I discussed an L.A. Times article about UCLA admissions. I noted that the article had a liberal bias—not because of any false statements but because it omitted some important true statements. In general, it reported many facts that liberals would want people to learn but omitted many facts that conservatives would want people to learn.
One of the facts that it omitted was the following:
Students who apply to UCLA are aware of the politically-correct, pro-affirmative-action attitudes, and in order to exploit them, a large number of minority students reveal their race on the personal essays that they write in their applications.
For this post, the key phrase in the above passage is "a large number of minority students reveal their race." When I wrote the initial draft for the chapter, sometime in late 2007, I originally wrote that "most" minority students (as opposed to "a large number") reveal their race.
I didn't know whether it was accurate to write "most," but I had seen lots of anecdotal evidence to suggest that it was .
The first piece of evidence was revealed to me in 1991. I was in a serious relationship with a black woman, who was about to apply to grad school. At first, she didn't want any schools to give her affirmative action. But when it became time actually to send out the applications, she became worried that she might not be accepted to any of the schools in which she was interested.
She consequently abandoned her insistence that she not receive affirmative action. "I don't care," she joked to me one day. "Just make me a token. I just want to be accepted to at least one of the schools."
"But how will they know you're black?" I asked.
"Well, one way," she responded, "is that my resume notes that I participated in the Black Peer Tutoring program."
"But how will they know you weren't just a white person tutoring a black student?" I responded.
"Because it's called black PEER tutoring. Get it? It means I'm black."
"Oh," I responded.
So, I've been aware, since 1991, that some minority students reveal their race in their applications. And I was aware that at least some minority students thought that doing that helped their chances of admission.
On top of that, several of my undergrad students have shown me the essays that they have written for their law-school applications. Almost all of the minority students, I've noticed, mention their race in the essays. In fact, many made race the focus of their essay. This was even true for some of the students who were members of races or ethnicities that do not typically receive affirmative action—such as Indians, Filipinos, or Armenians. Yet, some of those students would still make their race or ethnicity the focus of their essay.
Nevertheless, despite these anecdotes, I did not know whether it was correct to write "most" in the above sentence—that is, to claim that most minority students reveal their race in their application essays.
However, because I happened to serve on the faculty oversight committee for UCLA admissions, I could actually learn whether it was correct to write "most" or not.
So in Spring 2008, I wrote the director of UCLA admissions, asking him for a random set of 1000 files.
He and his superiors denied my request. I eventually resigned in protest from the committee. My resignation received much attention from the media, including a few posts on Volokh Conspiracy. (See, for example, here and here.)
But, as I can report today, that resignation would have never happened if I hadn't been writing a book on media bias.
My Response to Prof. Kerr's Reply to My Response
I think my and Milyo's results in many ways support and are consistent with the points that Prof. Kerr made.
To see this consider this fact: As surveys show, in a typical election, Washington correspondents tend to vote 93–7 for the Democrat.
It happens that the district that contains Berkeley, California voted about 90–10 for Obama. Thus, the district votes very similarly to Washington correspondents, and if anything it votes slightly more conservatively than Washington correspondents. Accordingly, if the sole goal of journalists were to persuade people, then their reports would sound approximately like a speech by Barbara Lee, the House representative from Berkeley, California. Lee's PQ is approximately 100. Thus, if the sole goal of journalists were to persuade, then their average Slant Quotient would be about 100.
Instead, according to my and Milyo's results, the average Slant Quotient of mainstream news outlets is about 65.
Meanwhile, if the sole goal of journalists were to inform people—and to inform them in a centrist way (that is, to choose the facts that a centrist would think are the most important)—then they would report with an SQ of 50.
My results suggest that journalists adopt a weighted mix of the two goals—with about 2/3 of the weight on informing and 1/3 of the weight on persuading.
Fourth Amendment Rights in Stolen Computers
A few readers have flagged a new district court decision, Clements-Jeffrey v. City of Springfield, that raises an interesting Fourth Amendment question: When does a person have Fourth Amendment rights in the contents of a stolen computer? A few decisions have held that a person doesn't have Fourth Amendment rights in the contents of a stolen computer when they know the computer was stolen: That seems correct to me, as the Fourth Amendment requires some legitimate relationship between the person and the space searched before allowing the person to have Fourth Amendment rights there. See, e.g., Minnesota v. Carter. The trickier question raised in Clements-Jeffrey is what result if the person didn't know the laptop was stolen. Put another way, what is the mental state required to retain Fourth Amendment rights in stolen property?
A bit about the facts. The plaintiff in this case is a 52-year old substitute teacher who bought a laptop for $60 from a 9th grader at her school. She used the computer to communicate with her long-distance boyfriend, and exchanged sexually explicit communications with him. Unbeknownst to her, the laptop had surveillance software installed on it and monitored her private communications. It turns out that the computer had originally been purchased by a school district, which had installed the surveillance software to help locate the laptop if it was lost or stolen. The computer had been stolen, and then sold eventually for $40 at a bus station to the 9th grader who then sold the laptop for $60 to the teacher. The school then had the company that ran the surveillance tool fire it up and intercept the plaintiff's communications, which it turned out were with her boyfriend and involved some rather compromising images. She sued, alleging Fourth Amendment and statutory claims.
There's a lot happening in the District Court decision, but I want to focus on just one question: Whether the plaintiff retained Fourth Amendment rights in the laptop that turned out to be stolen. The district court decision leaves a bit unclear as to whether the parties actually disagreed on the legal test, but the district court judges appears to assume that the proper test is whether the plaintiff knew or should have known the laptop was stolen:
The parties . . .vehemently disagree about whether Plaintiffs' subjective expectation of privacy was objectively reasonable. Although this is a question of law to be determined by the Court, see Welliver, 976 F.2d at 1151, in this particular case, its resolution turns on a question of fact-whether Plaintiffs knew or should have known that the laptop was stolen.
As the Tenth Circuit Court of Appeals has explained, "[b]ecause expectations of privacy derive in part from the right to exclude others from the property in question, lawful possession is an important consideration in determining whether a defendant had a legitimate expectation in the area searched." United States v. Lyons, 992 F.2d 1029, 1031 (10th Cir.1993).
An individual who knowingly possesses stolen property does not have a legitimate expectation of privacy in it. See United States v. Tropiano, 50 F.3d 157, 161 (2d Cir.1995) ("we think it obvious that a defendant who knowingly possesses a stolen car has no legitimate expectation of privacy in the car"); United States v. Hensel, 672 F.2d 578, 579 (6th Cir.1982) (holding that defendant who knowingly possessed a stolen truck had no legitimate expectation of privacy and therefore lacked standing to challenge its search). In a similar vein, the Ninth Circuit has held that one who obtains a laptop by fraudulent means lacks a reasonable expectation of privacy in the contents of the hard drive. See United States v. Caymen, 404 F.3d 1196, 1201 (9th Cir.2005).
Defendants argue that because Plaintiffs knew or should have known that the laptop computer being used by Clements–Jeffrey was stolen, Plaintiffs had no objectively reasonable expectation of privacy in their Internet communications. Plaintiffs, however, deny that they knew or should have known that the laptop was stolen. This creates a question of fact that must be resolved by a jury.
My own reaction is to step back and question whether the plaintiff's Fourth Amendment rights are actually lost if she didn't know the laptop was stolen but merely should have known that. The question is, what's the required mens rea for whether a person has a reasonable expectation of privacy? The issue hasn't come up much because people usually know their relationship to property to establish Fourth Amendment protection in it. Your house is your house, and you probably know the facts relevant to whether you have legitimate rights to it. Computers are easily movable, however, so it's more common not to know if a computer was at one point stolen. The "should have known" standard used by the district court essentially applies a mens rea of negligence as to the element of the laptop being stolen. A person who is negligent as to whether property is stolen has no Fourth Amendment rights in that property if it turns out it was stolen. Off the top of my head, I don't know any cases on this specific question. (I would guess some have come up with stolen cars. But that's just a guess.)
As a normative matter, I would think a higher mens rea is more appropriate to whether a person has a reasonable expectation of privacy in property that they actually believe is theirs. A person who has a genuine but unreasonable belief that property is properly theirs should have a reasonable expectation of privacy in it. Why? Mostly because I can't see why a person's appreciation of the risks that something out there might defeat their claim of right to property should eliminate those rights. The Fourth Amendment properly protects the sharp and the clueless alike. A person retains Fourth Amendment rights in their home even if they live in a bad neighborhood and don't lock the front door. Protecting private spaces in such a weak way may be unwise, but the Fourth Amendment protection has never hinged on such distinctions. That's my gut reaction, at least.
The Compleat Lawyer
"No man can be a compleat Lawyer by universalitie of knowledge without experience in particular cases, nor by bare experience without universalitie of knowledge; he must be both speculative & active, for the science of the laws, I assure you, must joyne hands with experience."
–Edward Coke, Preface to A Book of Entries (1614).
Hurricane Irene:
As many of you know, I spend my summers (and as much time as possible in other seasons) up at our place in southern Vermont (Marlboro, to be precise). And as everyone knows by now, we got creamed by the storm on Sunday. It was an astonishing and awe-inspiring experience to go through — I've posted a video that I took during the height of the storm showing the condition of the (one) road that leads from our house, and one of the "little stream" that runs just behind our house, that will give you some idea of what it was like.
[ Update — for some reason the video links above didn't work for everyone. Here are the YouTube links for the video of Butterfield Road, and the video of the stream out behind our house]
As a friend of mine put it, it makes you think a lot about physics. It's just water, earth, and gravity ... a combination of an astonishing amount of rain, steeply sloped hillsides, and ground that was more-or-less completely saturated even before the storm hit. To give you an idea of how much water we're talking about, take another look at that video of the stream behind our house. This little brook — much too small to even have a name — would, ordinarily, in late August, have a trickle of water in it, at most. The watershed that feeds it covers an area of around 5 square miles — one of thousands of such little watersheds feeding into little streams in southern Vermont (all of which feed larger streams, which feed larger streams, etc.). Five square miles is about 22 billion square inches. Eight inches of rain (which is about what we got) falling on that one little watershed makes for around 175 billion cubic inches (around 100 million cubic feet) of water.
All of that water has to make its way behind our house. If the banks of our little stream are, say, 10 feet apart, and if all of the rain that fell on that watershed had to make it through that space at once – say, in a single column of water, 10 feet in diameter — the column would be around 60 miles high.
It didn't have to make it through all at once, of course, so it wasn't 60 miles high ... but that gives you the idea. Watching it flow by, tearing up everything in its path, is a sight to see.
Eugene Volokh's Blog
- Eugene Volokh's profile
- 7 followers
