July 24, 2015
Gawker And The Substance Procedure Gambit
Posted by David Zaring

A bit of a Friday digression, but it involves the oversight of a publisher by corporate types, so perhaps you'll allow it.  

After Gawker published a lurid story about a medium-at-best profile media executive, and received a great deal of criticism for doing so, the publisher decided to take the post down, over strong criticism from the firm's editorial director.  That director, and Gawker's editor in chief then resigned, and their stated reason for doing so was that, regardless of the quality of the original story, removing it over the objections of editorial violated the church-state separation between the business side and the writers.

I would describe this sort of argument as a procedure based argument, and I've always been convinced by Lawrence Tribe's criticism of process based theories.  He was thinking about con law, but the point is familiar to many lawyers; it's impossible to defend a process without adopting underlying substantive values.  Indeed, the very existence of those values makes a defense of process totally epiphenomenal.  So you can't be, like: our constitutional system of separation of powers is fantastic because of the way it separates powers.  What if it does so in ways that facilitate racial discrimination?  Or disenfranchises people?  Or results in Stalinist levels of business regulation?  It's impossible to defend a process without reference to the outcomes that it facilitates.

And so that's what I don't quite get about the free speech martyrdoms in the Gawker case.  You don't want to generalize from a sample of one, at least not too much, but in my view saying, as many Gawker editors have, that "this story was a mistake, but being told by management to take it down violates our essential freedoms" is at least somewhat incoherent.  Managerial noninterference is a process, and it's a process only worth having if it produces good outcomes. I'm unconvinced that the story illustrates a good outcome.

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