Cole/Weisberg Correspondence on Hitchens
With Mr. Weisberg's permission, I am posting our correspondence on the Hitchens hatchet job on me in Slate earlier this week.
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From: Jacob Weisberg
Sent: Thu 5/4/2006 6:15 PM
To: Cole, Juan
Subject: RE: Forwarded from Weisberg
Dear Juan Cole,
Thanks for yor message. I certainly know your work and have seen it cited in Slate and elsewhere. I don't want to commission a reponse from you, but you are welcome to write a response which we will post in the Fray and excerpt at the end of the original Hitchens piece. That is how we do letters to the editor here. I'm afraid I don't understand your various accusations, which presume some knowledge I don't have.
I don't know what manuscript or piece you are talking about. And how has Hitchens stolen your email? If someone you sent a message to forwarded it to Hitchens, that is not "theft" by any definition I am familiar with -- it is something that happens all the time on the web. I would suggest that you try to respond calmly on the substantive issues.
If you are making some sort of legal threat against us, I should have our lawyer
respond.
Yours sincerely,
Jacob Weisberg
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From: Cole, Juan
Sent: Friday, May 05, 2006 12:31 AM
To: Jacob Weisberg
Subject: RE: Forwarded from Weisberg
Dear Mr. Weisberg:
Thank you so much for your prompt reply.
I will consider doing as you say and writing a response for the Fray and also for the bottom of the original Hitchens piece.
I am sorry that I did not do a better job of explaining the issue of the purloined email. It is not a matter of going to the law, but it is a matter of Slate's reputation, especially in the blogosphere . . .
The email correspondence that Mr. Hitchens published without my permission had not appeared publicly. The emails were sent to a small private list, of scholars and experts, for reaction, and I was aiming to write something journalistic or give a major address on Ahmadinejad. The list to which I sent the emails has a requirement that no material appearing there be forwarded off the list. Obviously, a list member violated his pledge and passed the messages to Hitchens.
For Hitchens then to publish early drafts of something I was working on, and to use them as a basis for a vitriolic attack on me was just wrong as a matter of law. (Again, I do not say this with litigation in mind, only as a matter of principle). It violated my copyright in my manuscript. and scooped me, reducing the value of the material. That the emails had not appeared publicly, and were not intended to be so, removes considerations of fair use. I append below, purely for your information, the reaction I got to all this from a friendly attorney.
But I think that the Hitchens article was much worse as a matter of unethical journalistic practice than it was as an infringement of the law. Hitchens, having come into this material, could have called me and interviewed me. Journalists interview me all the time. I could have been given the opportunity to set them in context and to respond to his points. How could he possibly even understand what I was getting at from a couple of disconnected emails someone handed to him? How could he do his job that way? He could have sought my permission to publish my private email. In essence, he rushed off blind to do a hatchet job on me, one he has clearly been put up to by unsavory individuals. That's not journalism, and I don't have to tell you that.
So I sppose the thing that would most sadden me would be a failure among the Slate editors to understand that what Hitchens did really was wrong and unethical and bad journalism.
cheers
Juan Cole
Appendix:
In a case where the Defendant magazine sought to use the "fair use" defense when they published previously unpublished portions of (you're going to love this) President Ford's memoirs, (you're going to love this) in The Nation magazine in an effort to scoop a sanctioned article about to appear in Time Magazine. Ginsberg wrote for the majority in shooting down fair use. Most cases have moved from the "public figure" viewpoint to "public discourse" but it's the same thing. The case also holds that unpublished material the author never intends to see the light of day is protected and that's still good law. Actually it's great law. The right of first publication looms large against the defense of fair use. The question is whether the unauthorized publication intends to supersede the as yet unpublished material. Cite: Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, U.S.N.Y.,1985.
Clearly, Hitchens intended to pre-empt you and supersede your eventual publication when he printed material he expects you to eventually publish and changed its meaning to fit his own goals. There are many other factors, but that one is key. Some other things that I think factor in your favor is that the limited dissemination of this material to peers for their review in order to help you refine your eventual publication is exactly the type of pre publication work the copyright act intended to protect when it incorporated common law protections into the act. Scooping, when getting the material from another's work and not on your own, is never fair use . . .
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From: Jacob Weisberg
Sent: Fri 5/5/2006 10:22 AM
To: Cole, Juan
Subject: RE: Forwarded from Weisberg
Dear Mr Cole,
I have read your message and also your blog post today. In my judgment, there is no ethical issue here. Commentators are under no obligation to call people they write about. And Hitchens correctly described the email he quoted from as being from your Gulf discussion group. Your substantive disagreement about the translation and the issues around it are a fit matter for public debate, which appears to be taking place.
Yours sincerely,
Jacob Weisberg
posted by Juan Cole @ 5/05/2006 07:07:00 AM
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51 Comments:
In other words, Slate draws more value from Hitchens being a flamethrowing jackhole than it does from being honest.
If only Doonesbury hadn't tied themselves in with Slate...
I think Mr.Weisberg has a tiger by the tail and is afraid to let go. The comments in Fray were decidedly in your favor and more than one poster suggested they avail themselves of a real journalist. Christopher Hitchens lacks the talent to become anything other than the Neo News blather he has signed up for.
Anyone who knows his work I am sure comes to the same conclusion.
Oh, and I cancelled my subscription to Slate. There is enough bad info out there I don't need to muddy up my InBox
Thanks for all the great information and insight.
Wrensis
well done Mr Weisberg, for trashing any reputation for journalism Slate may have had. Your wilful attempts to misunderstand and disingenuous replies betray a lack of ethical standards we have come to expect in american 'journalism'. That you pretend not to understand Hitchen's woeful attempt to slander Dr Cole, only serves to confirm the impression that publishers will happily print any diatribe from Washington right wing cranks however poor the journalistic standards, inability to understand the issues, and crude attempts to slander those who point out the inconvenient facts. Your patronising and feeble response to Dr Cole says more about you and your magazine than any amount of the verbiage you print.
The "I really don't care and ther enothing you can do about it" defence. Great, just great....I have used Slate as a reference source in the past, I shall not make that mistake again.
Weisberg seems to be trying to get around the ethical issues by claiming that Hitchens is a "commentator." This implies 1) "commentators" don't have the same professional and ethical standards to uphold as journalists. We knew this already, but it's interesting for him to make it clear. 2) Hitchens is not a journalist but now in the same line of work as Rush Limbaugh. So you can quit wondering what happened to him as a journalist. He isn't one. 3) Slate shouldn't be considered a "news" magazine, as that falls under the domain of "journalism."
Okay. Now we know where Weisberg and Slate stand in the matter of ethics. Perhaps we might want to remind NPR, which co-produces at least one program with Slate, that they have a stake in how Slate behaves.
Kudos for getting Mr. Weisberg's permission to post the e-mail thread but from my reading of his first it's not needed.
“it is difficult to get a man to understand something when his salary depends upon his not understanding it.”
— upton sinclair
My personal favorite of all the moments in this email exchange was when Mr. Weisberg accused you of not being "calm." I had heretofore only seen such language addressed to women. I'm astonished and, secretly, somewhat touched to find it applied to a male scholar of such high repute as yourself. It makes it less engraging when I see it applied generically to women.
aimai
Based on Weisberg's "I don't care, up yours" response, as well as his "well, write something we'll drop into the black hole we call the fray", I would strongly consider suing.
If you win, you diminish Hitchens AND Weisberg and strengthen the law.
If you lose, you diminish Hitchens AND Weisberg and show the law in this day and age is powerless.
Best wishes.
Weisberg seems to being willfully obtuse. Very unimpressive responses from him.
Juan,
Suggest you write a piece in Salon about this incident, Hitchens (the "gin soaked popinjay,") and Slate's response and link to it in your response on Fray to ensure maximum readership.
I'm no lawyer, and I'm operating here on my sometimes faulty memory, but this may be germane: Writer Joyce Maynard had an affair with famed author JD Salinger. Years after the affair ended, she wanted to sell letters Salinger wrote her during the affair to help pay for her kids' education. She was able to sell the letters because physically the letters belonged to her. However, the content of the letters has not and can not be published, because Salinger owns the copyright to the content.
It seems to me that legally Hitchens would own Cole's email in a physical sense (to the extent email is physical) but Cole retains copyright of the content.
In any case, I think there is no question that publication of material not intended for publication is ethically problematic.
Sorry, but you gave up your right to be treated like a professional when you decided to join the ranks of the damn dirty bloggers. Even if you occasionally get paid for your writing, you're still nothing but a punk amateur for blogging.
I absolutely sympathize with Juan Cole, and the Slate editor is a jackass. Hitchens...well, we know what he is.
But I suggest Dr. Cole leave that discussion group, unless and until the person who forwarded his email(s) steps into the open and acknowledges his mistake. There ought be another mechanism for ideas-in-progress.
I got one overarching message from Weisberg's second email to you, loud and clear: he is terrified of a lawsuit.
You should probably consider filing one.
I guess it goes to show, Colbert may not have been "funny" but he sure as hell was right.
"Slate" is nothing but neo-fascist trash. They are home to both Hitchens and foaming-at-the-mouth racist Mickey Kaus.
Rip them limb-from-limb, sir. Nothing less will do.
Slate sucks.
If Mr. Weisberg cared even a little bit for Christopher Hitchens, he's try to get him some help, maybe have an intervention for him.
I've seen the ravages of alcoholism up close in my family, and Mr. Hitchens is suffering badly. He's in a late stage and if he doesn't get help soon, we're going to pick up the paper and read about his demise. That wouldn't give me any pleasure.
I've seen Hitchens several times in the last few weeks on tv, and heard him on the radio. He's not even trying to keep up appearances any more. On the Hugh Hewitt show, he was so out of it that his segment had to be cut short, with Hewitt making up some excuse about "difficulties with allergy medicine" and reminded his listeners how "bad the cherry blossoms make the air in DC during the springtime". On tv, Chris has sloshed his way through several interviews, forcing the stations to bleep him and apologize for him.
I imagine that Hitchens is so full of rage and self-loathing at being used as a dancing bear by third-rate talk show hosts like Hugh Hewitt.
I hope that Mr Weisberg has a little more human feeling for one of his employees. Maybe watching a miserable wretch spew war-loving rhetoric and psychotic Clinton hatred is entertaining to Hewitt's audience, but it's doing great harm to Hitchens, who at one time was a respected writer.
I've never read Slate much, but this episode makes me less likely to visit their site. I guess it's sort emblematic of the state of American journalism - a formerly bold and honest reporter now willing to be a warmonger and tool for the price of a few drinks.
So, Hitchens is a "Commentator"
and not in any way, shape, or form a "journalist"?
wtf ever happened to professionalism?
Slate and Hitchens don't need to show any hint of respect, yet assume they will be respected?
Bye-bye Slate, I always thought you were dumbed down anyhow, I now recognise your style as simply dumb.
on second thought, sue the bastards.
Ah, to be a "commentator":
"Commentators are under no obligation to call people they write about."
And at Slate, editors are under no obligation to edit.
Mr. Doucheberg must have attend the Bush School of Leaderness. Lesson 1: when someone criticizes you, dismiss their criticism (more or less) politely and move on. Lesson 2: the best way to avoid seeing, hearing or speaking evil is to stick your head in something.
Note that since I'm merely commenting, I'm under no obligation to contact Mr. Doucheberg about how he prefers to be called, his education, or his nightly ritual of throwing puppies off tall buildings.
It's one thing to make a mistake. It's a different matter altogether to pretend that something wrong is right.
Whether he is being dishonest, stupid, or his ethics are absent - why should I trust Slate's judgement after this?
I just de-linked from Slate.
Jacob Weisberg is effectlively saying, “Yeah, we violated journisitc ethical practices and quite possibly the law – so sue me.” That’s how I read his response. So my advice would be to sue the @%$# out of him, Slate and Hitchens. He’s begging for you to do it.
Mr. Weisberg writes that, "Commentators are under no obligation to call people they write about."
Well, that's not exactly true if you consider Hitchens to be a journalist (though I think "hack" is certainly more appropriate). According to the Society of Professional Journalists Code of Ethics (http://www.spj.org/ethics_code.asp), all journalists should "test the accuracy of information from all sources and exercise care to avoid inadvertent error. Deliberate distortion is never permissible," and to two, "diligently seek out subjects of news stories to give them the opportunity to respond to allegations of wrongdoing." Clearly Hitchens did no such thing, and since his piece is almost entirely about you, and not mere "commentary," I would say that he is definitely liable to reach you for comment. Also, by only selectively quoting a rough draft, he is guilty of deliberate distortion. So much for ethics.
It seems to me that Slate is just a fancy blog. You can't get a subscription to a hardcopy version, can you?
People who live in glass houses shouldn't throw stones.
Sue 'em.
Wow, that is truly shocking. I mean, just absolutely shocking.
No more Slate for me.
Don't be so quick to leave Slate, guys. Weisberg, Kaus and Hitchens are the exception to the rule; besides where else can you find both sides of ANY argument in one place nowadays?
Hitchens is a drunken thug though. That much is obvious.
Bleh. I'm with you, Juan. And I happen to be an ethicist (unlike Weisberg)!
Weisberg's simply a lazy editor -- or none at all. Ethically bankrupt defending Hitchens. (Drinking buddies perhaps?)
More to the point:: There's a mole in your email discussion group. That's a problem with internet trust -- no one knows if you're a dog.
You're a public figure. Don't use the internet to publish something you wouldn't want to be made public and misinterpreted.
Alas, would it were different, would that frogs had wings, they wouldn't bump they little butts when they jump....
The Slate editor seems to believe that the sending an email is akin to putting something into the public domain.
Lawyers, accountants and others often put a lot of legalese at the end of their emails clarifying the opposite especially for those who errantly receive a wayward message.
Corporations have had to justify through the court system when its appropriate to peer into employee's email.
A closed mailing list with a non-disclosure agreement does present an ethical situation and pending any consequences described in the agreement possibly a civil case.
If one sent a personal letter to another, that is not the same as giving the copyright. The reciepient can quote from it and report on it, but technically cannot distribute it without getting the author's permission. But in this case, there seems to have been some sort of NDA in place to even stop that. In most cases, its not worth suing because no commercial damage is typically done with most email forwarding. However, if it includes unpublished work of commercial value then damages may be possible.
I think the one who passed on the email to Hitchens has the greatest risk of liability.
The ethics of Hitchens and the unnamed source, and even now the editor seems to be contrary to journalistic integrity.
Alas, it may be now too late
To grant us all a new, clean Slate
What's fair is foul, a sullen fate
To fall so low what once was great
+++
What part of "not to be taken off-list" (I paraphrase) does he not understand? If I were you, Dr. Cole, that would be the sum total of my next commentary, with lawsuit attached.
Crikey- is it any wonder that Fox News is the "most trusted" in a recent poll when you have a response from some gutless apparatchik at Slate refusing give any credence to Dr. Cole's complaint? Slate is, and will remain, garbage. But then, its goal is to Sell, Sell, Sell, not be a forum for substantive journalism. Sue the bastards, Juan! And take that nauseating drunken fascist Hitchens down too!
He is skirting the issue by calling Hitchens a commentator. This is simple equivocation and has nothing to do with the issues surrounding how the material for Hitchens's article was procured. Commentators are bound by journalistic ethics also.
To put it bluntly, Mr. Weisberg sees no ethical problem with Slate publishing a misleading article based on a purloined listserv message.
To put it bluntly, Mr. Weisberg sees no ethical problem with an action with serves his own agenda.
To put it bluntly, Mr. Weisberg cares neither for Slate's credibility nor another's privacy.
To 'woosh's point, at the bottom of every email a company I work for sends is this footer:
"Confidentiality
****************
The information contained herein is strictly proprietary and confidential and is intended solely for your exclusive use.
By accepting these materials, the recipient agrees to hold and treat the material contained herein in the strictest of confidence. Any dissemination, distribution, disclosure, copying or the taking of any action in reliance on the contents of the information contained herein is prohibited without the prior written consent of [redacted]"
I don't know how well this legalese would hold up in court.
Seems to me that Mr. Weisberg is conflating private email with published commentary.
Bloody Hell, you Americans lefties are can be pedantic puritans. Some of the best writers, commentators, journalists and progressive leaders in history love to drink and some have even been known to be alcoholic.
Australia's WW2 Labor prime minister John Curtain suffered that illness but didn't prevent the great Social Democrat from mobilising the entire nation to meet the Japanese advance in South East Asia while its most experienced soldiers were helping to hold the Nazi advance in North Africa and its airmen were assisting the Battle of Britain.
At the same time, Nazi tyrant Adolf Hitler was a fair dinkum teetotaler.
Mr. Weisberg,
Are you saying you wouldn't fire someone at Slate who started forwarding Chris Hitchens' internal emails to Juan Cole?
What if they were your not-for-publication emails? Are you trying to claim you, or Hitchens have never said anything in an email you would be uncomfortable having published? I call Bullshit if so.
Calling it a listserv doesn't make it public domain. It's the difference between a conference call, and a public speech.
Whoever did this also succeeded in diminishing the value of the gulf2000 listserv as Professor Cole, and all other members of that list will no doubt either stop posting to it, or begin filtering what they say.
To that extent, the enemies of open discourse and free thought have won.
Fabian- the trouble here with Hitchens is that he's a fascist who really sucks as a writer even when he's sober- which is apparently not often enough. Other than that I have no problem with him. Cheers!
The classic "sandbox" defense - If I put my fingers in my ears real tight, I can't understand what you're saying, but I am trying...
Juan Cole is right; Mr. Weisberg and Hitchens are wrong, and I suspect Mr. Weisberg knows he is wrong. He is probably already talking to his lawyers.
Sorry to see this happen to you Juan Cole. I have enjoyed your informed articles, and you certainly do not deserve this.
Keep fighting the good fight,
Steven Joseph
Email is the property of the author of the email not the property of the recipient (just as letters are the property of the author of the letter, not the recipient). One needs permission from the author of the correspondence in question to publish it, even if it is sent to a number of people in a private listserv. Just because words may be written in electronic form, doesn't mean anyone has the right to use them as they wish. Anything original one writes is under copyright as soon as it's in written form. That's why sometimes you see compiled letters to so and so, but you don't get to see the return letters, because they haven't received permission to publish them from the author of said letters. Electronic doesn't mean free. Obviously you know this already. Just wanted to make that point in support of you.
I wonder what discredits Slate more. Having been a Microsoft production at inception or printing Christopher Hitchens's drunken ravings? Hmmm. Might be a toss-up.
In the general climate of our culture, I am not surprised that another example of lying, stealing, and general lack of ethical behavior it reaching our attention.
Slate's shallowness, as an online publication, especially highlighted when it is also broadcast on NPR, has been evident to me from my first visits. I go there, rarely, and mostly, to read Doonsbury.
Suing, for someone who has more important work to be done, informing us about Persian culture and language, seems to me, to be counterproductive. Professor, you have exposed the theft of your ideas, the lies of Hitchens, and the blatant disregard of his "editor."
That is sufficient to act as the perverbial stone in the pond, and the ripples will ripple back and forth on the Net, perhaps, amplifying what you originally wrote. This is action which has value to your ideas and to the debate about going to war with Iran. You are wise not to jump into a lawsuit.
fabian, you must be a hardly-ever-right winger, you (purposely, i imagine) miss the point entirely in favor of the strawman "what's wrong with being a degenerative drunk?"
or else your comment might be incredibly subtle satire, i'm not sure.
as i've said elsewhere, i stopped using slate as a source for anything since they wrote a piece about blogging referencing my blog (in the title of their piece!) and not only not linking to it, nor even acknowledging it, but not even having the courtesy to answer my numerous emails asking them to do as much.
at least prof. cole got a response (probably 'cuz they smell lawsuit down the line!)
Well. I keep Slate on my list of news sites, despite the occasional idiocy from Kaus and Hitchens. It's hard to do this, because I like reading Timothy Noah's Hot Document series, and there are a few really original columns out there, but I'm dumping Slate off my list of reads for now. I just don't have time to feed the trolls who feed Chris Hitchens, who is a fuckwit, especially if they can't be bothered to enforce some kind of integrity on the process. Why is Slate better than some random blog?
aiAh, well then. Perhaps this is why I stopped reading and using Slate as a reference some time ago.
Thanks for having your blog, Prof.
I must say I've always enjoyed reading Christopher Hitchen's work, but always with a nod and a wink. He is very amusing at times, generally at his own expense. I'm sorry for that, as he had potential to be great once.
You sir, Prof. Juan, are an invaluable and great patriot. Truth to power, sir. Truth to power.
This tells me all I need to know about the ethics and professionalism at Slate. I don't feel the need to ever visit the site again.
Defending Slate, sort of:
While I find Weisberg's evident lack of an editorial policy ("hey, whatever brings in readers") disappointing, the magazine is not too terrible. The law articles are good, if that's your bent, and the economics ones are OK sometimes, but the mag's real strength is the user interaction. If you have the patience for it, you find the gems in the "Fray" are worth the trek through the waste.
One dude bothers to track some of the better posts here. Judge for yourself.
K (gotta lose the picture)
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