Sound Off: A Double Standard for 'Conservative' and 'Liberal' Labels?

Josh Blackman, a professor at the South Texas College of Law, on why he sees a bias in the way The Times uses political labels.

Patrick Healy is the assistant managing editor for Standards and Trust.

Josh Blackman, a professor at South Texas College of Law Houston, reached out after he was described as "conservative" in two Times articles within 24 hours. He said the label was accurate, but argued that The Times applied such labels inconsistently to academics and analysts -- using "conservative" far more. He did his own digging into our usage; so did we, and he had a good point. I asked him to talk it through.

Following is a lightly edited transcript of our conversation.

PATRICK HEALY: I'm Patrick Healy, the assistant managing editor for Trust and Standards at The New York Times. As part of a new weekly newsletter, I'm talking to readers of The Times about their questions, feedback and criticism of our journalism. I'm joined today by Josh Blackman, a law professor at South Texas College of Law in Houston. Josh is also an adjunct fellow at the Manhattan Institute and blogs regularly for Reason. Josh, great to have you.

JOSH BLACKMAN: Thanks for having me.

PATRICK: So Josh, you reached out after The Times twice described you as a, quote, conservative, end quote, law professor. And you said the conservative label was accurate, but that The Times applies labels like conservative and liberal inconsistently to law professors and analysts, and that a scholar's view should speak for itself. I'd welcome you unpacking that.

JOSH: Sure. This has been a longstanding grievance of mine, and not just against The Times, against all the major media outlets. I'll frequently talk to a reporter and they'll say something like, "How would you identify yourself?" And they're not asking for my pronouns. They're trying to get at my politics. And sometimes I'm of course like, you know, "I'm a law professor." And they say, "Well, how do you characterize yourself?" It's like, "Well, I'm a constitutional law professor," and I know what they're getting at. Eventually I just say, fine, if you want to call me conservative, you can.

And I suspect the reason why they do this is to give their readers sort of a grounding of where I'm coming from. And if this was sort of a neutral policy that's applied across the board, I wouldn't have much ground to object, but I find that it's not.

Back in February of this year, I was quoted twice in The New York Times back to back in the span of 24 hours, which is, you know, pretty cool. But I sort of noticed that both of the references were to Josh Blackman as a "conservative" law professor. And I just thought that was strange. So I went through the Westlaw archives and just sort of searched for "liberal" law professors and "conservative" law professors in the New York Times database, and it was far more likely that you're identifying a conservative than a liberal. And those numbers are stacked because liberals are quoted even more often. So the numbers even have a greater disparity.

And this sort of reinforces, I think, a perception that both the academy and frankly the media views a liberal position as a neutral position. And the conservative position is the other, the outlier. And that's why you have to have this sort of nomenclature, this sort of adjective to describe it. So I wrote a letter to the editor back in February. You did not publish it. OK. That's your prerogative, but I do appreciate the chance that you reached out to me and I'm glad to talk with you about it right now.

PATRICK: Yeah. Josh, I think there's real truth to your critique and it's something we need to do a better job on. It's kind of exactly what you said in terms of why we do it. We're trying to give readers more factual context about who's speaking or why their views rise to the level of a story. Sometimes it's notable that it's a conservative legal scholar criticizing President Trump's politics more than it might be surprising that a liberal is doing that.

But I do really think you're right. It can come off like The Times treats liberals as normal and conservatives as unique and worthy of labeling. In the legal academy, there are a lot of liberals, but that doesn't justify it. I think we need to be more discerning about it. I'm curious, though, if there are moments where and when you think such labels are necessary.

JOSH: Sure. You know, I found more effective than the label is to be more precise of what the professor's interest is. So for example, I actually went back and I just searched my name in the New York Times database, just for luck, and there are a couple dozen entries. And some of your reporters have said, well, Professor Blackman has filed briefs in support of the Trump administration, or has filed a brief in opposition to the Obama administration on health care, or, you know, has filed a brief in support of the Texas attorney general -- whatever it happens to be. That's actually a data point that's useful because it shows a person has sort of a dog in the fight. I've also seen, you know, Professor Blackman wrote a book critical of President Obama's health care policy. OK, well, that's not just a label; that is sort of describing what I've done and why my views might be germane to sort of the current events at hand.

But I think just a naked label, conservative or even liberal, without anything more, it doesn't really tell you much. So it presumes that, well, because he's conservative, you know, you should discount his views supporting Trump, or conversely, because the person's liberal, you should perhaps discount their views supporting President Obama or President Biden, whoever it happens to be. I would -- if you're trying to build up trust and standards, I would focus on the potential reason for a conflict or bias, and not just how the person identifies politically.

PATRICK: Yeah, I think you're really right about those clauses you mentioned that actually spell out interesting context that goes into your work, your scholarship.

You know as journalists, we do sometimes deal a lot in shorthand. We're looking for one word instead of 10. And I think that is a place where -- we talk about this internally with our Standards team -- it gets us in trouble. People wonder, well wait, why are you choosing that word instead of this other adjective, or do you apply it the same to Democrats as you do to President Trump?

I am curious, Josh: You work in the legal world where, maybe I'm making a big assumption, but there are a lot of liberals. How do you think, you know, the media should be dealing with the fact that for some of those folks, they actively don't want to be identified as liberal or they think that liberal is not the qualifier that captures, you know, what their point of view or their experience is. Do you think we should just do it anyway?

JOSH: Yeah, I think you sort of have to -- and again, perhaps not with the label liberal or conservative -- but "Professor Smith, Professor Jones has filed briefs or written articles in support of President Biden's policies" or conversely "has written articles critical of President Trump's policies." This is why I think the actual label is less important.

But let me just sort of take a step back. In the academy -- these numbers are public -- Republican versus Democratic affiliations are very off kilter. In some liberal arts disciplines it's almost 90-10, or a bit less so. Law is not quite as bad. There's a decent number of conservatives, but we're still a minority. And look, I'm fully cognizant that the reason why you're calling me is because of an attempt to have balance. And I think it's actually good, right? I think it would be far worse if The Times just quoted some liberal professors and left the other side unstated.

You know, Adam Liptak of The Times is a longtime friend of mine. He's been involved with this for a while. During the Obamacare litigation in 2012, there was a criticism of The Times that it gave too much weight to the conservative view, and that was ultimately a view that scored five votes at the Supreme Court -- that the Obamacare law was beyond Congress's powers. In fact, Linda Greenhouse, who's now a contributor to The Times, criticized Liptak, saying that he gave a false equivalency to a conservative scholar. So I commend The Times and also The Post and other outlets for trying to get both sides. But when you get both sides, you should treat both sides with the appropriate sort of lens so that readers know where they're coming from.

And I've -- there have been articles where it says, "Conservative Prof. Josh Blackman and Professor So-and-So." The other one doesn't get any label. And then so the reader says, well, the other person is just neutral, you know, just straight arrow. And this guy Blackman is coming here with an agenda and that's sort of just -- it doesn't convey the right framing for your readers. And I think -- shorthand or whatever it is -- whatever one gets the other should get.

PATRICK: Yeah, I can't stand that, man. I've seen that happen a couple of times in drafts. And I've done it myself, frankly, where I'm going for a certain kind of label for one person because I think, oh, that'll really tell the reader something super illuminating about what they're about to say, but then the other person is just treated kind of like a standard issue political science professor. And there's no kind of additional context. I think we have to be, you know, just sharper about that.

I talked to Adam Liptak before our conversation. I know he shares, you know, a lot of these views as well. I think what it is is partly, you know, when we ask ourselves this, OK, in a newsroom of 2,000 journalists, how do we get not just this kind of guidance, but a real kind of standard of consistency out widely? Or is it better just not to use labels altogether? Am I hearing you right? Your argument is not just to stop using them altogether, but to be smarter, consistent when you use them and really try to lean into more of those longer clauses, I guess, with context.

JOSH: Yeah, I know your word counts are tight and there's no actual column space anymore, but in theory at least, your columns are still very narrow. What I would sort of ask your journalists to do -- and some do it -- is they might say, you know, "What's your interest in this case? What's your interests in this issue? Have you written something on this topic?" And that will usually lend to a natural few words -- might not be one, might be four or five, maybe six words, I don't know -- but something that at least provides the framing.

And also, I think it's sort of the broader issue. Your reporters need to have good Rolodexes -- those doesn't exist anymore -- but they need to have sort of a stable of legal scholars on sort of both sides of the issue. And they have to know that when something's breaking, OK, here's who you call on one side and here's who you call on the other side. And there's some of your reporters who know me and they talk to me from time to time, and others don't. I mean, I could give you another list of stories where they only give one side of the story. And those are the ones where they call the professor at Harvard or Yale, and just by virtue of doing that, you're calling only liberals, because Harvard has like two conservatives in the faculty. It's just not going to happen. I think Yale has maybe half a conservative in the facility, depending how you count. So they have to sort of branch out and, you know, there are podcasts, there's social media, they have to sort of track and follow the arguments being put forward in this arena.

And I know you always have these really fast deadlines; you know, Trump signs an executive order and you're on deadline to put something out in an hour. So maybe you don't always get it on the day one piece, but maybe the day two follow-up, you can sort of scoop around on social media, scoop around the blogs and see someone wrote something and then you can sort of inject it there. Having just sort of, I call it a stable or just a lineup of people who you know you can sort of get on the phone quickly or email quickly or text even quickly -- I've done that before -- and just say, I need a quote now. And that way you have it.

And then maybe even check if Josh was quoted by The Times this way today; how did one of your colleagues quote me last month or last year? And that we have just this sort of a directory of scholars and how they're identified. And that would -- whatever your Standards department comes up with -- that can then be sort of the nomenclature.

PATRICK: So Josh, I'd push back on this one, because I do remember when I started as a journalist, people would joke about, well, this is the dial-a-quote professor, and this is the go-to professor who's going to give you that great quote that you need for your third paragraph of a story before it jumps off the front page. I really think The Times, the newsroom, has gotten pretty far away from that. I don't think it's about false balance or false equivalency. But, man, what people really want in stories and they stay with are a surprise, and the unexpected. And if you're just quoting a bunch of liberal professors criticizing, you know, the Roberts court, it's really kind of boring journalism. So I know I can't speak necessarily for everyone, but I do think it's kind of night and day compared to how it used to be.

JOSH: No, I think you've gotten better and not just The Times, I mean, The Post and the other major media outlets. I mean I've been in this business now for 10, 15 years and I can see a conscious effort -- and maybe that's because the court's more conservative and maybe it's because we have a more conservative presidency, but I think there's a conscious effort to sort of give the other perspective and not sort of dismiss it, you know, like "Some scholars think this, but the majority reject it." You'll see that sometimes where they'll say, "Some scholars suggest that President Trump's order has a strong chance of surviving, but other scholars suggest that they're wrong." In other words, it's almost like the journalist mediating which side of the balance is correct. So I think you've gotten better at that.

And maybe a related issue is, a lot of the reporters who sort of write on legal issues in fairness don't have legal training and they're politics reporters, maybe they're immigration reporters, maybe they're climate change reporters, maybe they're reporters on health policy and there's kind of this Venn diagram where the law intersects with almost everything that goes into the newspaper -- almost everything. And they might know health law professors but they don't know common law professors; they might know immigration advocates, but they don't know people who worry about the separation of powers issue. So a lot of it, again, I think is done not in the moment when you have a sharp deadline, but sort of build up relationships in advance such that when the story breaks or when you know the story is going to break, you have your sort of stable of sources ready to go. And that way you're not inventing the wheel from scratch. And again, I know you're all so busy. You do so many breaking stories. This is almost like just like a picayune part and asking about five or six words in a 900 word story, but that's the topic for our discussion today.

PATRICK: Yeah, no, I mean, consistency is really important, Josh. And if we're going to say that we're consistent, we need to be consistent. I do think Adam Liptak and Abbie VanSickle are both lawyers who cover the Supreme Court, and you're absolutely right, that expertise, the breadth of perspectives that they get in the stories -- I know they're always trying to help their colleagues and be a resource about other people to quote or widening your kind of aperture of quotes.

Josh, I really appreciate you pushing on this. I think it is important, I think it is something we need to be better at. Thank you.

JOSH: My pleasure. Thanks for having me.