Over at The Volokh Conspiracy, Randy Barnett has apologized to Larry Lessig in mischaracterizing Lessig’s position by using the following headline: Larry Lessig: If the Republican Justices Do Not Agree With Me They Will Be Acting Politically.
So what, you may ask?
Well, the lede in Barnett’s original post reads:
“Well, that is not exactly what he says.”
According to Lessing, a bunch of people on the Twitter then jump all over him and call him mean names. Lessig then responds in the Atlantic, and offers what Barnett suggests is a “very useful blogging suggestion”:
“One final quibble, this time beyond the constitution:
Randy’s essay is a nice example about how the ethics of writing need to evolve in the Twitter age. He wrote his piece for a blog. In the days when people would come to a blog as a whole, the harm in titling a piece with a complete falsity is small — at least when you correct the falsity in the very first sentence of the piece.
But in the age of Twitter, this behavior is not harmless. For the title lives separately from the substance. It has been hilarious to watch the outrage at my “outrageously hypocritical” argument (as one person earnestly wrote me in an email) spread across Twitter, fueled by Randy’s completely false title.
It is better behavior, I suggest, not to induce such misunderstanding. Especially when it might be interpreted as being motivated by a disagreement with the politics of the person attacked.”
Barnett then offers the following explanation:
“It was the point of my piece that the substance of Larry’s analysis reflects the title of my blog post, notwithstanding he puts the criticism that the Republican Court is acting “politically” in the mouths of “students” and “cynics” to whom he would have no substantive response (“I would have to concede the appearance that it’s just politics”). This enabled him to criticize Justice Scalia for a being political should he vote to invalidate the individual mandate, while expressly denying he so believed (“even if I don’t believe I could ever believe it”). So my title was deliberately chosen to reflect what I viewed to be the take-away of Lessig’s essay, and because I do not approve of the rhetorical tactic he employed. When taken in context with the text of my blog post, I believe the title to be fair comment, especially as the title’s literal meaning was expressly qualified in the first sentence and that I included the entire unredacted passage from his original essay.
Having said this, Larry makes a very good point about Twitter dissemination. Because I don’t use Twitter, and don’t read Tweats [sic], I did not anticipate this secondary distribution of the title alone and was oblivious to how this secondary distribution of the title without the accompanying context of the blog post might affect its meaning. Had I realized it would have this effect, I would not have used the title I chose. For this I sincerely apologize to my friend.”
Huh? Blame Twitter? Barnett’s explanation sounds more like the Chewbacca defense:
Here’s my legal blogging tip: Provocative headlines are for flawgers, not blawgers, especially academic ones.
