Posted 6:28 AM by Robert

Davis Descending LVIII: Susan Estrich Defends A Republican. But She's Wrong Again!

Susan Estrich, an expert in sexual harrassment law and a Democratic activist, condemns the Los Angeles Times for the timing and content of its Arnold-and-six-women article. I agree with her that the Times has been a cheerleader for Davis, that this article has little news in it, relies on nameless sources to an extent reaching to the very limits of journalism ethics, did not warrant front-page placement and is presented suspiciously close to election day.

But the Times was justified in running this (weak) piece. That Times coverage of the recall has been and is tendentious in favor of Governor Davis is true and appalling - but other articles are not material in determining whether it was proper to run this particular article. The article is light on news - but so are many articles in the Times. The scarcity of news should have counseled against front-page placement - but that does not mean the article should not have been run. Moreover, the article does have some news value because some specific allegations not previously published are included and some readers do care about the kind of possible character traits that the alleged incidents can be read as suggesting. Think Anita Hill. And nobody inside or outside Mr. Schwarzenegger's camp is yet saying that the allegations are grossly wrong or taken out of necessary context - the way ABC News has done with its story. [Caveat: Mr. Schwarzenegger has claimed that some of the article is not correct. But, as the Wall Street Journal puts it: he confirmed the thrust of it.]

The use of nameless sources is a real problem and seems to reach the limits of accepted practice. But it does not appear to go beyond accepted (or, at least, common) practice. And it seems that most of the women just insisted on being nameless - so the Times had to accept that fact. Yes, the Times should have spent more ink challenging the reasons some of the women insisted on remaining nameless (fear of retaliation) and explaining what that means about their credibility. That's not good, and is a real blot on the Times editors and reputation. But it's not that hard for interested readers to fill in that part for themselves. This is a detail. An important detail - but a detail.

The entire substance of the criticism of the Times seems to come down to one question: timing. Specifically, (1) did the Times have to wait until this late in the recall campaign to run this article, and (2) assuming the article could not have been run before it was, should it have been withheld because the election was too close?

The Times says it needed the time - and that it had to wait to confirm the story and get the information. That it would take seven weeks to do that is certainly plausible. The election was only recently scheduled - and the Times had no obvious reason to prepare or begin this story before the recall was certified and Mr. Schwarzenegger declared himself a candidate. So when could it have appeared, if not now? In the absence of evidence suggesting that the Times sat on this story, I cannot see why we should believe that the article could have been run before it was.

That seems to leave the question: should the Times nevertheless have declined to run the story because it's just too late?

No. That's just clearly wrong.

The allegations have some relevance to the election decision for many people. And these types of charges are not distractions for the voters, they are very much part of Mr. Schwarzenegger's history and well-established reputation - as he essentially admits in this case. The media is supposed to publish such things.

And the timing here is not to the contrary. This is an unusual, compressed campaign - as the California constitution requires. Many features of this election - including matters of timing - are very unlike those of ordinary elections. It's absurd to argue that the Times is somehow bound to scheduling consistent with ordinary elections. Mr. Schwarzenegger and California accepted those unusual features when he declared his candidacy and they chose to hold this election. Mr. Schwarzenegger seems to have benefitted greatly from those unusual election features, including the timing. For example, various courts have rejected efforts by people hostile to Mr. Schwarzenegger to postpone the election - people who argued that the same compressed schedule leaves inadequate time for "fair" election procedures. Of course, whether something benefits Mr. Schwarzenegger or not is not the test - the test is whether the people of California benefit. Voters have been made a little better informed and not seriously distracted because this article ran. And that's most of what counts most.

The very absence of much "news" in the article and the inevitability of such charges mean that Mr. Schwarzenegger has not been blindsided at all. He has reacted in quite a competent and effective manner - although only the election will tell for sure. But that's the way things should be.

Some observers think that because voters have already made up their minds on this particular old issue, the timing of the article essentially defangs it to Mr. Schwarzenegger's advantage. Earlier publication would have been worse for him. If that's true, the the main criticism of the Times should be that it's timing was bad because it didn't hurt Mr. Schwarzenegger enough.

So, while it's nice to see Susan Estrich coming to the defense of a Republican, it's unfortunate that once again I cannot agree with her judgment.

MORE Kausfiles has lots of good things. He points out that Susan Estrich blasts the LA Times on its own Op-Ed pages, something which would never have been allowed by the New York Times.

Advantage: Left Coast!

Also, it seems as though the Davis camp has likely been involved in trying to distort and aggrevate the sex charges. With this kind of counter-story emerging, the original LA Times article is likely to have even less effect on, and be more discounted by, even more voters.