Sunday, February 13, 2005
Did the blogosphere "cause" Eason Jordan's ouster?
Law schools teach would-be lawyers to reexamine and then describe events through the peculiar terminology and structures created by caselaw and statutes.
Thus, for example, does many a first-year law student — having just bought a hot dog at a baseball game — find himself no longer thinking about the game or savoring the flavors and textures of the hot dog, but trying to pin the labels of the law on the transaction he's just completed: "Was there an offer and acceptance between me and the hot dog seller? Where was the offer? Was it express or implied? When I said 'Two extra-longs with chili,' was I making an offer to buy, or accepting the offer the seller had made when he posted his price signs? Or was the acceptance when I eyed the dogs, confirmed that there were two and that the chili had been added, and handed the vendor my $20 bill?"
If the law student gives way to the urge to say this sort of stuff out loud, his civilian friends will quite properly respond, "What the heck are you babbling about?!? Shut up and eat yer dog and watch the game, fer Pete's-sake!"
And I wouldn't blame you if that is your exact reaction to this post.
But the buzz in the blogosphere about the resignation Friday of CNN's Eason Jordan has me musing over what legal concepts and tags might be applied to this event. What started my musing was a post from my fellow lawyer-blogger Deacon over at Powerline, who wrote (in blessedly nonlegal terminology) of the (perhaps deliberative, even quasi-conspiratorial) noncontributions of the Mainstream Media in the Jordan affair (emphasis mine):
Several weeks ago, I appeared on a radio show to discuss the influence that blogs like Power Line have. The liberal host suggested that blogs don't have any real influence until they push a story into the MSM. I demurred, stating that by virtue of being read by 100,000 people or more, some of whom are themselves quite influential, a blog like Power Line has influence. But I agreed that, in the case of something like Rathergate, blogs cannot make a difference without MSM coverage.
After the Eason Jordan affair, I wonder whether I conceded too much. Most of the MSM never touched the story, yet Jordan is out. It can be argued that he's out because CNN realized that the MSM was on the verge of covering the story. But one can also make the case that he's out largely because some U.S. Senators learned about the story from blogs and expressed concern about it to Larry Kudlow. In that scenario, the fall of CNN's news chief can be explained entirely without reference to the MSM.
Deacon's observation — that the MSM essentially played no direct causal role in Eason's fall — set me to wondering, "Who did, then? Does the blogosphere deserve the 'credit' it's claiming or the 'blame' those like David Gergen would pin on it?" Which in turn summoned up in my mind what's probably the single most common legal instruction given by Texas judges to Texas juries:
PROXIMATE CAUSE means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
To pin civil tort responsibility on someone who's been accused of having set a course of damaging events in motion, a plaintiff generally has to show that the defendant's action was a "proximate cause" of the result that injured the plaintiff. No "proximate cause," no liability.
Every event has zillions of mere "but-for" causes, "without which cause such event would not have occurred." If Eason Jordan's mom had not thrown his dad that come-hither look some time in 1960, for example, Eason Jordan might never have been born and none of this would have happened. In tort law, showing "but-for" causation is necessary, but not sufficient, for establishing the defendant's liability. And likewise, when a pundit asks "What caused Eason Jordan's ouster?" he probably isn't talking about those sorts of remote and distant "but-for" causes. The pundit really wants to know about the cause (or causes) that were closer in time, and more intimately connected to, the natural and continuous sequence that produced the event and that could reasonably have been foreseen to result in that event.
Deacon's observation, then, could be rephrased in the language of his and my common profession into "the Mainstream Media was not a proximate cause of Eason Jordan's ouster." There were no significant actions, no meaningful words or deeds, from the MSM in the sequence of events that led to Jordan's ouster (although fear of consequences from the MSM's increasing involvement may have motivated some key actors at CNN). And by obvious contrast, the MSM eventually did become a key participant in the Trent Lott and Rathergate affairs.
Because the MSM was not the proximate cause of Eason Jordan's demise, then something or someone else must have been — and the obvious suspect that jumps to the mind of someone seeking to claim credit or assign blame is therefore the blogosphere. To again employ the language of tort law, it's not hard to trace the "natural and continuous sequence" by which the blogosphere's fact-checking, opinion-spouting, and relentless publicizing of Jordan's Davos comments eventually produced Jordan's ouster. And Jordan's ouster also was not only foreseeable (given prior examples like those mentioned above), but indeed it was the precise goal of at least some in the blogosphere.
So yes: The blog swarm (to use Hugh Hewitt's apt if nonlegal term) over the Eason Jordan affair was a proximate cause of his ouster.
But this conclusion naturally enough tempts some to draw inferences as to relative power to produce similar results in other cases. "Oh my gosh, look what the blogosphere has the power to do!" and "We [or 'they'] can do this sort of stuff either with or without the Mainstream Media!"
That, however, is too far a leap under either a legal or practical analysis — because as the above-quoted instruction warns, "There may be more than one proximate cause of an event." Put in less legal phrasing, the blogosphere may be responsible for Jordan's ouster, but it is not necessarily the only responsible party.
Of course, no one (including Jordan's supporters and apologists) believes that the polished and word-smithed explanations given by Jordan himself, or by the CNN top execs who actually swung the axe, were comprehensive and fully candid. Howard Kurtz' WaPo article points to other possible proximate causes when he reports that "Jordan was eased out by top executives who had lost patience with both the controversy [over Jordan's Davos remarks] and the continuing published gossip about Jordan's personal life after a marital breakup." Deacon and others have also pointed to Jordan's previous "covering up Saddam Hussein's atrocities," CNN's fear of Congressional investigations, CNN's concerns over public reaction when and if the Davos videotape were to be released (with the controversy suddenly "going visual"), and even CNN's long-term falling ratings.
In the decisionmaking process within CNN, all of these factors may have been proximate causes of Jordan's ouster — not the blog swarm alone. And it's entirely possible that none of them alone could have tipped the result — Jordan may have fallen victim to a "perfect storm" — and that various of the decisionmakers gave different weights to the differing causes.
All of this is a long-winded way of using the peculiar terminology of the tort system to express a fairly simple warning: Neither the celebrants nor the lamenters of the blogosphere's role in the ouster of Eason Jordan should draw overbroad conclusions about the blogosphere's power to achieve such results by itself in other cases.
And one need only view Dan Rather's still-grinning presence on CBS News' Sixty Minutes, if not in its evening anchor chair, to find a contrary example in which the blogosphere's swarming wrath — even abetted by eventual MSM attention — failed to achieve a fully comparable result, notwithstanding what was (in my judgment) a far more culpable original offense that should have justified an outright sacking.
Other weblog posts, if any, whose authors have linked to Did the blogosphere "cause" Eason Jordan's ouster? and sent a trackback ping are listed here:
(1) PC made the following comment | Feb 13, 2005 1:42:27 PM | Permalink
Bummer Deitz mentions but for and proximate causes:
(2) jb made the following comment | Feb 13, 2005 5:42:38 PM | Permalink
Hey, wait a minute! Wasn't the "proximate cause" of Mr Jordan's current predicament his potentially slanderous statement at the Davos meeting? That is the one indispensable link in the chain that got his fanny fired. I'm an MD, not a JD, so I don't think in convoluted ways like y'all do, but if he had not made his little speech, anything the MSM or the blogosphere said about him would be irrelevant.
jb, I certainly agree that Mr. Jordan's comments were a proximate cause of the blog swarm and of the other resulting events that may have led to his professional demise. That's my point there can be, and quite often is more than one proximate cause.
In tort law, the allegedly damaged plaintiff's own conduct is indeed subject to scrutiny, and under the doctrines of contributory or comparative negligence, may be used to diminish or block the plaintiff's recovery for a wrongful act of the defendant that was also a proximate cause of the plaintiff's damages.
Anticipating someone's next question: Does Eason Jordan have a plausible civil claim against anyone in the blogosphere for his ouster? The short answer is "Nope, not a prayer."
(4) Joe made the following comment | Feb 13, 2005 7:36:53 PM | Permalink
Just a note to let you know that you have fast become one of my favorite blogs.
(5) Jonathan Sadow made the following comment | Feb 14, 2005 4:37:35 AM | Permalink
The important thing to note about the Eason Jordan affair is not so much how important a proximate cause blogging is but rather that blogging is a proximate cause at all without MSM participation. Didn't "experts" tell us that blogging as the primary source of information about an incident could never effect change but instead required the amplifying imprimatur of the MSM?
(6) R Robertson, Brownsville TX made the following comment | Feb 15, 2005 1:55:25 AM | Permalink
I am not really with you on the proximate cause analysis ... If we are going to throw terms around to explain this new blogswarm thing through legal jargon, I would argue that standing or suffrage or civil rights is more like it.
The MSM is acting a lot like those mythical potbellied good old boy southern rednecks acted when blacks rose up to enjoy their equal rights. Billy Joe Bob and the MSM get all pissed off, shreaking that the world as we know it is going to come to an end now that the lower forms of life are finding their voice.
As we know from the civil rights movement, everyone is much better off today than they were previously and the the political pie got bigger somehow so that nobody lost anything by increased participation. The same will happen with the blogs. MSM will not die...they will be ever better purveyors of information and opinion.
The blog is just the newest vehicle by which people who always have had 'standing' to engage in public discourse, without the means to exercise it, are getting their opinions heard.
And one final note that agrees with Beldar. Blogs have no direct power to off these guys like Rather and Jordan. It is not as if they are experts in the black arts ... I know my Jackie Chan movies, and Hugh Hewitt is no ninja stud. Without the laziness of the MSM, who surely are cribbing by sneaking hourly peeks at these evil blogs since the bloggers do a lot of their work for them, none of these guys ever would have taken a fall.
Over at my blog, I speculate on a possible additional proximate cause of Jordan's departure: his CNN bosses decided he's crazy.
THE HOUSE OF SAUD MUST BE DESTROYED -- AND WILL BE!
(8) Ken made the following comment | Feb 18, 2005 1:38:48 AM | Permalink
The blogs didn't fire Jordan. They had no such power. He worked for CNN. All this crap about unfairness to poor Jordan is astonishing.
And apparently CNN didn't fire him either. He resigned. What is said at CNN apparently stays at CNN.
People will be assessing this new media (blogs) for years. Soon journalism schools will conclude they invented them. (Didn't Al Gore did take a journalism school post in 2001?)
The great merit of blogs is low cost. Anyone can challenge the MSM.
Until now the MSM shaped the news by simply deciding what would NOT be published. Blogs totally destroyed that censorship.
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