Putting this here since this is the active thread on the NL situation. Hereās where I currently am:
I think NL pretty clearly acted poorly towards Alice and Chloe. In addition to what Ozy has in this post, the employment situation is really pretty bad. I donāt know how this worked in the other jurisdictions, but Puerto Rico is part of the US and paying someone as an independent contractor when they were really functioning as an employee means you had an employee that you misclassified. And then $1k/āmo in PR is well below minimum wage. They may be owed back pay, and consulting an employment lawyer could make sense, though since weāre coming up on the two year mark it would be good to move quickly.
I think some people are sufficiently mature and sophisticated that if they and their employer choose to arrange compensation primarily in kind thatās illegal more like jaywalking is illegal than like shoplifting is illegal. But I donāt think Alice and Chloe fall into this category.
Many of the other issues are downstream from the low compensation. For example, if they had wanted to live separately on their own dime to have clearer live/āwork boundaries that would have eaten up ~all of the $1k.
I agree with Ozy that NLās misjudgements here show a really bad fit for their chosen role in connecting and mentoring people.
While Iām overall very glad that LC put the time into collecting this information and writing it up, I think the rushed and chaotic approach to fact checking in the days and hours before publication was unfair to NL, massively increased the noise around this, and may have been enough to make their whole efforts net-negative through a combination of worse outcomes in this case and bad precedent. I think in future cases fact checking without giving the accused an incentive to retaliate against sources to prevent publication is practical with precommitments.
Iām frustrated with myself that in Run Posts By Orgs I didnāt get more into the fact checking benefits, and may have led the LC team to think that the adversarial fact checking stage here was supererogatory.
In general, I think sharing false information is fundamentally unfair to the accused, but if you draft a callout post youāll almost always have some of this: itās very difficult to get everything correct when you have only your own perspective and records. Pre-publication fact checking with the accused can mostly fix this, but someone writing about their own experience would then need to be working closely with someone that had hurt them. Since I think thatās too much to ask, we need to be flexible in that case. But when the person writing the post doesnāt have that relationship with the accused, interaction during fact checking doesnāt have the same harms.
Despite my process objections, I donāt think @TracingWoodgrains call to consider this a mistrial can work, and would actually be harmful. We need to do the best we have with the information we have, put things together, gather more information as needed, and make a coherent picture.
I broadly endorse your judgment on this topic inasmuch as Iāve observed it, for whatever that is worth. I do want to add the specific note that one of the most serious problems with the process issues is that they led to such an adversarial launching point to the topic that the response was in an unreasonably difficult position from the beginning. Ozyās article (while being on the whole a defensible view) criticizes the approach of the response quite harshly, but speaking with precision and grace in high-pressure, intensely adversarial situations with an audience primed to distrust you is a specific, rare skill with only limited bearing on someoneās approach in regular times.
You are likely right that a mistrial is unrealistic at this point, but inasmuch as people take the approach you advocate, itās worth emphasizing the reasons process concerns make putting things together so complicated.
I think in future cases fact checking without giving the accused an incentive to retaliate against sources to prevent publication is practical with precommitments.
There may be some tricky interactions with US defamation law here. One the one hand, thereās the likelihood that fact checking will reduce the risk of error, and there is no defamation without falsity.
On the other hand, getting a source to retract during the pre-publication review process could add heft to a threat (real or feigned) to sue for defamation. In the US, the constitutional minimum for defamation liability is negligence for ordinary figures; āactual maliceā (knowledge or reckless disregard of falsity) for public figures. If the would-be author knows prior to publication that the sources have retracted, that could significantly increase the defamation-liability risk under either standard. Thus, the target may have an incentive to pressure the sources into retracting to bolster the targetās defamation-suit threat against the would-be publisher.
Every situation is different, and would-be publishers should seek legal advice as appropriate. But my guess is that where the target is a public figure, following certain types of precommitment procedure might well cause a net increase in the risk borne by the publisher.
I think even this under-plays the fact-checking point. Itās very difficult for external observers to evaluate these sorts of situations, particularly when thereās fierce pushback from the accused party. The level of rigour in fact-checking even secondary details is one heuristic people can use to evaluate the journalistās case. If the accused can point out a litany of errors in the post it makes it much harder to trust the bigger claims. It also makes it immensely harder to persuade those sympathetic to the accused.
Habrykaās suggestion in comments elsewhere that this level of fact-checking is basically too much to ask for seems to miss this.
In that spirit, I feel I should point out that for Alice and/āor Chloe the compensation was eventually switched to cash on their request. I donāt think this at all undermines your pointsāitās clear that Kat thinks the in-kind compensation structure was an amazing offer that Alice and Chloe should have felt lucky to receive, and that her agreeing to the switch to cash was going above and beyond as an employer. But it seems important to make sure people donāt get an inaccurate impression, or at least donāt think you have one.
Iām a bit confused about the āillegal more like speeding is illegal than like shoplifting is illegalā analogyāspeeding seems clearly worse given how many people die in road accidents; large chains just price in a baseline level of theft.
Society defines operating an automobile over a certain rate of speed (āspeedingā) as illegal. Weāve decided there need to be some fairly bright-line rules, and so weāve made speeding illegal in some circumstances where it is a fairly rational, victimless thing to do. Indeed, we donāt want a ton of litigation about whether someone was driving unreasonably fast for the circumstances, so weāve defined driving over X mph/ākph as illegal (absent special circumstances like a true emergency).
Another offense like this: letting your dog out in public without a leash. Itās often a reasonable enough thing to do, but (at least where I live) the effect of the law is that the police officer gets to decide whether you should be ticketed, and the police officerās exercise of discretion is essentially unreviewable. The lawās authors perfectly well knew that lots of people would let their dogs off leash, and the cops would generally do nothing or issue a verbal admonition.
In contrast, most people see shoplifting as inherently wrong (lawyers would say: malum in se, rather than malum prohibitium). Although there can be defenses, we do not expect people to regularly break anti-shoplifting laws, or for the police to decide which shoplifters were acting unreasonably.
At least in the US there are some illegal activities that are very common and socially accepted. Learning that someone made a habit of going a small amount over the speed limit, jaywalking, or consuming marijuana at home probably wouldnāt make most people think poorly of them. Other things, even ones with arguably low social cost, are seen as pretty unacceptable: shoplifting, insurance fraud, going through red lights when you can see no one is coming.
I donāt want to get into whether speeding or shoplifting is actually worse (though you and Will are welcome to keep exploring that!) since what Iām gesturing at is only about how people generally think of the offense; Iāve edited the comment to change āspeedingā to ājaywalkingā.
Iām not convinced the social cost is low, and Iām not convinced for shoplifting either; hence the āarguablyā. I think insurance fraud, though, is often quite a lot like shoplifting? Youāre getting something for free from a large company, they have budgeted based on a non-zero amount of it, the costs are spread across all their customers, risk of death to anyone is very low, etc.
āHow many people die in road accidentsā doesnāt tell you much about the badness of speeding without the denominatorāwhich in the US is approximately everybody approximately all the time.
I would still think the āmicromurderā of speeding is higher than that of shoplifting? I still think Iām missing something in understanding the analogy
I donāt think this is empirically true. US speed limits are typically set lower than the safest driving speeds for the roads, so micromurders from speeding are often negative in areas without pedestrians.
Putting this here since this is the active thread on the NL situation. Hereās where I currently am:
I think NL pretty clearly acted poorly towards Alice and Chloe. In addition to what Ozy has in this post, the employment situation is really pretty bad. I donāt know how this worked in the other jurisdictions, but Puerto Rico is part of the US and paying someone as an independent contractor when they were really functioning as an employee means you had an employee that you misclassified. And then $1k/āmo in PR is well below minimum wage. They may be owed back pay, and consulting an employment lawyer could make sense, though since weāre coming up on the two year mark it would be good to move quickly.
I think some people are sufficiently mature and sophisticated that if they and their employer choose to arrange compensation primarily in kind thatās illegal more like jaywalking is illegal than like shoplifting is illegal. But I donāt think Alice and Chloe fall into this category.
Many of the other issues are downstream from the low compensation. For example, if they had wanted to live separately on their own dime to have clearer live/āwork boundaries that would have eaten up ~all of the $1k.
I agree with Ozy that NLās misjudgements here show a really bad fit for their chosen role in connecting and mentoring people.
While Iām overall very glad that LC put the time into collecting this information and writing it up, I think the rushed and chaotic approach to fact checking in the days and hours before publication was unfair to NL, massively increased the noise around this, and may have been enough to make their whole efforts net-negative through a combination of worse outcomes in this case and bad precedent. I think in future cases fact checking without giving the accused an incentive to retaliate against sources to prevent publication is practical with precommitments.
Iām frustrated with myself that in Run Posts By Orgs I didnāt get more into the fact checking benefits, and may have led the LC team to think that the adversarial fact checking stage here was supererogatory.
In general, I think sharing false information is fundamentally unfair to the accused, but if you draft a callout post youāll almost always have some of this: itās very difficult to get everything correct when you have only your own perspective and records. Pre-publication fact checking with the accused can mostly fix this, but someone writing about their own experience would then need to be working closely with someone that had hurt them. Since I think thatās too much to ask, we need to be flexible in that case. But when the person writing the post doesnāt have that relationship with the accused, interaction during fact checking doesnāt have the same harms.
Despite my process objections, I donāt think @TracingWoodgrains call to consider this a mistrial can work, and would actually be harmful. We need to do the best we have with the information we have, put things together, gather more information as needed, and make a coherent picture.
I broadly endorse your judgment on this topic inasmuch as Iāve observed it, for whatever that is worth. I do want to add the specific note that one of the most serious problems with the process issues is that they led to such an adversarial launching point to the topic that the response was in an unreasonably difficult position from the beginning. Ozyās article (while being on the whole a defensible view) criticizes the approach of the response quite harshly, but speaking with precision and grace in high-pressure, intensely adversarial situations with an audience primed to distrust you is a specific, rare skill with only limited bearing on someoneās approach in regular times.
You are likely right that a mistrial is unrealistic at this point, but inasmuch as people take the approach you advocate, itās worth emphasizing the reasons process concerns make putting things together so complicated.
There may be some tricky interactions with US defamation law here. One the one hand, thereās the likelihood that fact checking will reduce the risk of error, and there is no defamation without falsity.
On the other hand, getting a source to retract during the pre-publication review process could add heft to a threat (real or feigned) to sue for defamation. In the US, the constitutional minimum for defamation liability is negligence for ordinary figures; āactual maliceā (knowledge or reckless disregard of falsity) for public figures. If the would-be author knows prior to publication that the sources have retracted, that could significantly increase the defamation-liability risk under either standard. Thus, the target may have an incentive to pressure the sources into retracting to bolster the targetās defamation-suit threat against the would-be publisher.
Every situation is different, and would-be publishers should seek legal advice as appropriate. But my guess is that where the target is a public figure, following certain types of precommitment procedure might well cause a net increase in the risk borne by the publisher.
I think even this under-plays the fact-checking point. Itās very difficult for external observers to evaluate these sorts of situations, particularly when thereās fierce pushback from the accused party. The level of rigour in fact-checking even secondary details is one heuristic people can use to evaluate the journalistās case. If the accused can point out a litany of errors in the post it makes it much harder to trust the bigger claims. It also makes it immensely harder to persuade those sympathetic to the accused.
Habrykaās suggestion in comments elsewhere that this level of fact-checking is basically too much to ask for seems to miss this.
In that spirit, I feel I should point out that for Alice and/āor Chloe the compensation was eventually switched to cash on their request. I donāt think this at all undermines your pointsāitās clear that Kat thinks the in-kind compensation structure was an amazing offer that Alice and Chloe should have felt lucky to receive, and that her agreeing to the switch to cash was going above and beyond as an employer. But it seems important to make sure people donāt get an inaccurate impression, or at least donāt think you have one.
Iām a bit confused about the āillegal more like speeding is illegal than like shoplifting is illegalā analogyāspeeding seems clearly worse given how many people die in road accidents; large chains just price in a baseline level of theft.
Society defines operating an automobile over a certain rate of speed (āspeedingā) as illegal. Weāve decided there need to be some fairly bright-line rules, and so weāve made speeding illegal in some circumstances where it is a fairly rational, victimless thing to do. Indeed, we donāt want a ton of litigation about whether someone was driving unreasonably fast for the circumstances, so weāve defined driving over X mph/ākph as illegal (absent special circumstances like a true emergency).
Another offense like this: letting your dog out in public without a leash. Itās often a reasonable enough thing to do, but (at least where I live) the effect of the law is that the police officer gets to decide whether you should be ticketed, and the police officerās exercise of discretion is essentially unreviewable. The lawās authors perfectly well knew that lots of people would let their dogs off leash, and the cops would generally do nothing or issue a verbal admonition.
In contrast, most people see shoplifting as inherently wrong (lawyers would say: malum in se, rather than malum prohibitium). Although there can be defenses, we do not expect people to regularly break anti-shoplifting laws, or for the police to decide which shoplifters were acting unreasonably.
At least in the US there are some illegal activities that are very common and socially accepted. Learning that someone made a habit of going a small amount over the speed limit, jaywalking, or consuming marijuana at home probably wouldnāt make most people think poorly of them. Other things, even ones with arguably low social cost, are seen as pretty unacceptable: shoplifting, insurance fraud, going through red lights when you can see no one is coming.
I donāt want to get into whether speeding or shoplifting is actually worse (though you and Will are welcome to keep exploring that!) since what Iām gesturing at is only about how people generally think of the offense; Iāve edited the comment to change āspeedingā to ājaywalkingā.
Insurance fraud has low social cost? Explain?
Iām not convinced the social cost is low, and Iām not convinced for shoplifting either; hence the āarguablyā. I think insurance fraud, though, is often quite a lot like shoplifting? Youāre getting something for free from a large company, they have budgeted based on a non-zero amount of it, the costs are spread across all their customers, risk of death to anyone is very low, etc.
āHow many people die in road accidentsā doesnāt tell you much about the badness of speeding without the denominatorāwhich in the US is approximately everybody approximately all the time.
I would still think the āmicromurderā of speeding is higher than that of shoplifting? I still think Iām missing something in understanding the analogy
I donāt think this is empirically true. US speed limits are typically set lower than the safest driving speeds for the roads, so micromurders from speeding are often negative in areas without pedestrians.