Media Wars, Episode II: The Media Strikes Back

Three weeks after Judge Richard Posner’s disquisition on the media in the New York Times Book Review, the responses are in. The NYT Book Review publishes five letters, including Eric Alterman, Bill Moyers, and NYT Executive Editor Bill Keller. Posner chose not to respond, which is a bit surprising, since the letters all have their flaws. Let’s take Keller for an example:

The saddest thing is that Judge Posner’s market determinism leaves no room for the other dynamics I’ve witnessed in my 35 years in newspapers: the idealism of reporters who think they can make the world better, the intellectual satisfaction of puzzling through a complicated issue, the competitive gratification of being first to discover a buried story, the pride in striving to uphold a professional code of fair play, the quest for peer recognition and, yes, the feedback from attentive and thoughtful readers. He makes no allowance for the possibility that conscientious reporters and editors are capable of setting aside their personal beliefs or standing up to their advertisers (and the prejudices of their readers) to do work they believe in. Would he be so cynical about a world he actually knows? Is the behavior of the American judiciary explainable purely as a response to economic self-interest? Should we assume that all judicial rulings are panderings, either to the voting public or to the executives who hand out judicial appointments? Or should we allow that reverence for the law, a respect for how democracy functions, a sense of fairness, the satisfaction of a well-reasoned argument ? judgment ? have some relevance to how judges behave?

I’m not sure I completely buy Posner’s original thesis, but this response by Keller is cartoonish and uninformed. Of course journalists can write stories contrary to their personal prejudices — one of Posner’s points in the initial review was that market competition forces journalists to put aside their prior beliefs. As to whether media is capable of “standing up to their advertisers (and the prejudices of their readers),” I’m pretty sure that Posner’s theory would allow for this possibility — but it’s always the exception and never the rule. Posner’s trying to explain the overall trend, not the exceptions. Oh, and I’m pretty sure Posner would be eminently comfortable with theories that postulate “the behavior of the American judiciary [is] explainable purely as a response to economic self-interest?” There’s a small-but-emerging literature in political science about explaining opportunistic behavior among judges — click here for one example. How do I know that Posner would be comfortable with this argument? See Richard A. Posner, “What Do Judges Maximize? (The Same Thing Everybody Else Does),” Supreme Court Economic Review, vol. 3 (1995), pp. 1-28.