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It's a sad day when you find a lawyer asking why evidence of bias is important

Another "oops" in Lebanese photography, this time from the AP. Fact-checking seems to have gone out of style these days.

Worse than journalists, credibility seems on shaky ground with lefty law professors. The ever-dependable for the lunatic fringe view Brian Leiter takes Jim Lindgren to task for talking about these scandals:

Jim Lindgren (Law, Northwestern) here protests lack of attention being paid in the US media to the fact that Israel is killing large numbers of civilians in Lebanon, one-third of them children.

Whoops, sorry, I misread that:  his moral outrage is reserved for the fact that US media won't give sufficient attention to the fact that in at least one case a survivor of an Israeli airstrike went out of his way to make sure the media carried pictures of the children killed.  Shocking, just shocking.


Leiter's position is silly for at least three reasons.

First, he's playing the "But the Real Story is" game, something he's wont to do. The rules are simple: when Person A decides to talk about X, Person B (lacking much of any real value to say on X, often because it would require specialist knowledge) insists that the real story is Y, and that any talk at all about X is trivial. [1]

"But the Real Story Is" stands as the last refuge of the scoundrel with nothing to add. As with the underlying story in Rathergate, the evidence offered after the fact (in that case faked letters, in this case faked and staged photos) makes no particularly new observation, nor adds or detracts to the case made for Israel's offensive or Lebanese resistance. Prof. Leiter seems to have felt Israel's offensive unconscionable before the pictures, and Prof. Lindgren felt them justified, and the photos themselves offer no new information to change any minds. After all, we knew that children are dying, although the death counts go up and down depending on who does them and the time of day. The story of media manipulation--and media's willingness to be manipulated--yet has life in it as a controversy. [2]

Second, and most depressingly, why is a man who once told me he "expect[s] better of students who are planning on joining my profession" so disrespectful of the actual tools of law? I know that Prof. Leiter is a Law & Philosophy guy and the many jokes among students as to what "Law &" normally means. [3] Nevertheless, attacking bias in evidence presented by an opposing party is a critical litigation skill and a common tool of the legal trade. It's part of your regularly-balanced legal breakfast. Most if not all rules of evidence (and evidence courses) spend a great deal of time arguing about what "authenticates" a document, and what information can be used to show the bias of a witness.

These legal tools clash with what seems to be an informal norm increasingly common within the journalistic world: evidence that fits with a narrative is acceptable even if one can't confirm the facts. It's no bad thing that lawyers take the same methods of attack used to discredit a witness in court and apply them to journalists. Pace Leiter's suggestion that this is non-important, the staging of photographs violates a duty reporters have to their readers to present facts clearly and honestly. If the "candid" photograph of Green Helmet holding up a baby is no less posed than the image of Posh and Becks sitting upon thrones (in this week's Economist), then news services should not present these to readers as spontaneous events, even if they are symbolically representative of something "true." Leiter suggests that the "real story" is elsewhere, but to legal readers the falsification of evidence should be a story in and of itself.

Finally, the stories of photoshopping and staging retain their power because the malfeasance all seems to go in one direction: against Israel. Certainly there have been children in Haifa brought into hospitals wounded or dying, but no AP photographer has misidentified such a child as a victim of Hezbollah violence. No Israeli stringers have been found photoshopping additional missiles into the skies. There are some more or less flimsy excuses for this imbalance that don't involve intentional bias, mostly revolving around the difficulty of using employees (rather than stringers) in Lebanon. Yet this doesn't explain why, if the AP or Reuters knows that they are forced to use less reliable sources in Lebanon, their editorial controls are not strengthened to reflect this. Reuters may not be able to prevent their source from sending them photoshopped pictures, but there is no force in the world that compels them to print photographs that will embarass them later.

Even supposing the bias is unintentional, it remains a bias in favor of one side of an armed conflict. That bias goes to the credibility of the narrative presented by organizations like AP, Reuters or services that use their photography. It is reasonable, scholarly, and yes lawyerly to recognize that the credibility of a narrative of disproportionality may be called into question when presented by a party who makes frequent preventable errors, hides relevant information and insists in the face of contrary evidence upon its own objectivity. To say that the story is elsewhere, that evidence of bias is trivial, flies in the face of what we're taught--or at least should be taught--as lawyers.

[1]:It helps if, as Leiter does, you mischaracterize X and make up facts. First, Leiter is the only person, left or right, suggesting that "Green Helmet" (about whom much silliness has, admittedly, been written) is a survivor of any Israeli airstrike (not quite true), much less the one the airstrike shot in the video Lindgren presents. The most charitable view is that he's merely a civil defense worker, the least that he's a more or less official propaganda agent for Hezbollah. Secondly the accusation is of course much broader: that far from being an outlier ("in at least one case"), this kind of staging is business as usual for the stringers used by national media.

[2]: Of course, Leiter's accusation suggests that Lindgren is also playing "But the Real Story Is" with the mainstream media by "protesting" a "lack of attention." That's at best a mischaracterization. Lindgren's not really protesting, and I doubt he'd expect a response to his "protest." He's making an evidentiary point.

At the end of a post accusing the media of intentional or unintentional bias, the lack of reporting on the scandal is mentioned to further support the idea of bias. Journalism relentlessly insists that no mark of bias casts a shadow on their souls. The argument is not that "the real story is" the bias rather than the bombings, as the bombings are indeed the story. Rather, the hypothesis being advanced is that the storyteller cannot be trusted.

[3]: The kindest of jokes I have heard would be that "Law &" folks don't care much for anything that comes before the ampersand. One of the least kind was a classmate who joked that in his last year he took no "real law," and instead focused on "Law &" and "The Law of" courses.

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