Do Tom Goldstein’s “dual roles run afoul of some journalistic norms”?

June 3rd, 2014
In his Sidebar Column, Adam Liptak addresses an issue of the SCOTUSBlog credential discussion that has been largely missing from the discussion. While everyone focuses on the fact that SCOTUSBlog is a blog, and that is is not a traditional media player, a lingering issue is the fact that its Publisher, Tom Goldstein, is primarily a Supreme Court advocate, who also acts as a journalist who covers that same body. Adam writes:

But Scotusblog has never gotten a press credential from the Supreme Court. Its Senate credentials were recently revoked.

Neither institution has explained what is going on, though everybody knows what concerns them: Thomas C. Goldstein, the blog’s publisher, also argues before the Supreme Court.

Adam continues to note that this dual-hatted role poses a “question for a journalism seminar” and “run[s] afoul of some journalistic norms.”

Whether Mr. Goldstein has a conflict of interest is a good question for a journalism seminar. Notwithstanding thoughtful policies to make the blog’s reporting independent of Mr. Goldstein’s law practice, his dual roles run afoul of some journalistic norms. So does his forthright acknowledgment that he would withhold information from readers if he thought publishing it would violate his ethical duties to the court.

During the hearing two weeks ago, the Senate’s Standing Committee on Correspondents asked Tom many questions about his “dual role.” Tom was asked what would happen if his ethical duty to the Court as an officer of the Supreme Court conflicted with his journalistic duty. His answer, which I think has to be correct as an attorney, is that his ethical duty to the Court would trump.
Here is the full exchange, courtesy of SCOTUSBlog (Amy Howe is paraphrasing Tom’s responses to their questions):
  • Hunter: When you live-tweeted from the lawyers’ lounge, were you acting as a journalist?
  • TG: Yes, which is why the Court has banned that practice.
  • Hunter: How do your readers know which hat you are wearing?
  • TG: When I am writing on the blog, I am acting as a journalist.
  • TG: Every once in a while, the Court screws up and discloses something to the public that it doesn’t intend to. It has probably happened 6 times in past 10 years.
  • TG: When the Court does that, I view myself as having two sets of ethical obligations in tension — to readers, to be accurate; and to Court, as an officer of the Court. If I discover one of these instances, then I won’t report on it. But if Lyle does, he would.
  • KH: Would you refrain from telling one of the reporters on the blog?
  • TG: Yes.
  • TG: Here’s what we did. The Court released orders forty minutes early once. We saw it and How Appealing saw it, and what I did was, because the other blog had already published what some of the cases affected were, I took what they had said and indicated that that was what they are reporting.
  • TG: It is at least marginally relevant that I can’t imagine any of these issues arising with respect to the Senate. I have never lobbied the Hill, we don’t have any of these competing interests.
  • KH: When your ethical obligations conflict with your journalist obligations, do the former supersede the latter?
  • TG: Yes, as Mike Bloomberg does, Rupert Murdoch does, Jeff Bezos does, but I am not aware of any material conflict.
  • KH: What structural firewalls are in place — is it up to you to do the right thing?
  • TG: I suppose there aren’t firewalls because you don’t develop a kind of architecture when something happens so rarely. The Court is very pleased that it does not disclose orders or opinions improperly anymore.
  • KH: Our rules state that the principal business has to be the daily dissemination of news and opinion. Is that yours as the publisher?
  • TG: Again I am glad that the rules don’t refer to the owner, so that if Jeff Bezos owns Amazon you don’t have to de-credential the Post. In June, the blog is my principal obligation. I
As an aside, I think Tom’s comparison of himself to Jeff Bezos of WaPo is inapt. Bezos is not on the masthead as Publisher, and would not pretend for a moment he is a journalist or opinion-writer for the paper. Goldstein is the publisher, who is also acting as a journalist and opinion writer, by his own admission. Especially during the liveblog, where we hear Tom’s unvarnished thoughts, there are going to be important publication decisions made in real-time that implicate all possible journalistic angles–reporting, editorializing, and analysis. While owners may set the editorial board of a newspaper, they generally do not perform all of the above roles. I wasn’t at the hearing, but I can’t imagine the journalists appreciated this snarky response to their repeated question.
Further, I can imagine circumstances where the duty to report on important news would conflict with the duty as a member of the SCOTUS bar.  If a reporter came into contact with something leaked from the Court, he or she may decide to publish it. If a member of the Supreme Court bar came into contact with the same document, there would be ethical imperative to not disclose it. The ethical duty would conflict with the journalistic duty. This in no way should be dispositive of the issue, but there are obvious tensions.
For example, in 2009, I received documents concerning property Justice Stevens owned in Florida, that may have been subject to the beach replenishment at issue in Stop the Beach. This may have been, but probably wasn’t, subject for his recusal. As I noted earlier, due to my view of legal ethics in this scenario, and respect for the Court, I decided not to make them public, and did not send them to anyone else.
Tony Mauro did learn of the documents, and did a write about the issue. And the story got out. Tony recounts how Ilya Shapiro (my frequent colleague, whom I strongly disagree with here) attempted to make the issue known:
Instead, Shapiro sent the material to several journalists, at least one of whom, he said, conveyed the information to Stevens and asked for comment, without success. Nothing more was heard on the subject until the argument began with Stevens not on the bench.
Would an active member of the Supreme Court bar, acting as a journalist, have been as willing as Tony to run the story? Or to contact Justice Stevens about a possible recusal? The answer would have to be no.
With that being said, I am entirely in agreement with Adam that the  government should not be in the business of singling out who is, and is not press. SCOTUSBlog should be given credentials. (Let’s hope Tom won’t throw me into the fountain in front of the Supreme Court. I hear some of Carol Anne Bond’s poisoned goldfish are swimming around).
I’ve previously blogged on this topic here, here, here, here, and here.
Update: In a post titled “On the front lines of the battle over the press pass,” Tom files a reply brief in the form of a blog post to the Standing Committee’s hearing, Adam’s blog post, and, I suspect, a few of the points I made. Here are the key discussions of his dual role as publisher:

It is true that I have two jobs.  A lot of people do.  Here, my job as someone who has practiced in front of the Supreme Court for fifteen years helps me run a news organization related to the Supreme Court.  And I have to have two jobs.  If I didn’t, we could not make enough money to keep the blog going.  It survives financially because I do not take a salary from it.  And that is going to be a recurring scenario:  subject matter experts are increasingly creating specialized publications that provide a public service.  If the Committee is going to forbid it, the Committee is going to exclude a lot of valuable emerging media.

Sensibly, the rules do not prohibit a publisher from having dual roles.  That Committee’s rules instead recognize that the applying organization can be affiliated with a non-news organization, so long as it is editorially independent.  (A good example is Kaiser Health News, which is affiliated with the Henry J. Kaiser Family Foundation.  And the Committee has another unpublished policy permitting foundation-supported media.)  But on the Committee’s view that the rule broadly requires almost complete separation, then the rule comes very close to meaning that it will credential only “news organization[s]” – i.e., the traditional media.

It is true that there are a very few things that I personally will not publish because doing so would violate my ethical duties as a lawyer.  That situation is more hypothetical than real, because it has come up maybe ten times in the blog’s eleven-year history.  It also relates only to what I report personally, and I do almost no reporting, and just as important: I’m not applying for a press pass, in which I have no interest.

But in any event, publishers constantly make decisions about what to publish based on what they believe is ethical.  That’s a good thing.  The public has an interest in knowing about a variety of national security secrets, the names of juveniles accused of crimes, and the victims of terrible assaults.  But publications regularly make judgments not to publish those things when some other social interest is substantially more important.