Cruel and unusual, continued

by Dan Kennedy

Now the Globe has a new publisher, Gilman, a New York Times Company veteran brought in last summer to replace Ben Taylor. The last of the Globe's former ruling family, Taylor was unceremoniously dumped amid whispers that New York was furious over his indecisive handling of the Barnicle situation. The Globe also has a new editorial-page editor, Renée Loth, who two months ago replaced the retiring David Greenway -- the man who hired Jacoby away from the Boston Herald in 1994. Faced with an ethical controversy that was drawing calls and
e-mails to the Globe and that was beginning to gain national attention on Web sites such as Slate and MediaNews.org, Loth and Gilman may well have figured -- given the Globe's recent past -- that overwhelming retribution was both prudent and necessary. But you've got to wonder about what sort of precedent they've established, and who might be the next to run afoul of it. (At the Globe, the editorial-page editor reports directly to the publisher, which means that editor Matt Storin was not involved in the Jacoby affair.)

"I would suspect that without the Barnicle and Patricia Smith cases this punishment wouldn't have happened, and maybe shouldn't have happened," says Tom Rosenstiel, director of the Washington-based Project for Excellence in Journalism. Rosenstiel stresses that his knowledge of the case comes solely from news accounts. But he faults the Globe for being "murky" in its explanation for why Jacoby was punished so harshly, adding, "Taking someone out and shooting him is less important than explaining what principles are involved."

Side by side Jeff Jacoby's July 3 piece, headlined 56 GREAT RISK-TAKERS, was preceded by many similar pieces. Some have been variously attributed to Paul Harvey and Rush Limbaugh, and others have been floating around the Internet for several years; just recently, Jonah Goldberg, Ollie North, and a state legislator from Ohio all published versions under their names. For a fuller treatment, see Timothy Noah's recent pieces on the subject in Slate. Jacoby says he had considered doing such a column for several years. And though he acknowledges having seen the earlier pieces, he insists he did a considerable amount of research, both in reference books and at authoritative Web sites. In fact, parts of Jacoby's column read like a response to the inaccurate versions, with several of the wilder claims in the earlier pieces eliminated. He also has information that's not in the Internet versions. In other words, Jacoby's is a significant improvement. Yet there is no question that Jacoby relied on the style and organization of the earlier works. Some examples based on a commonly circulated Internet version: * Internet: "Carter Braxton of Virginia, a wealthy planter and trader, saw his ships swept from the seas by the British Navy. He sold his home and properties to pay his debts, and died in rags." * Jacoby: "Carter Braxton of Virginia, an aristocratic planter who had invested heavily in shipping, saw most of his vessels captured by the British navy. His estates were largely ruined, and by the end of his life he was a pauper." * Internet: "At the Battle of Yorktown, Thomas Nelson Jr. noted that the British General Cornwallis had taken over the Nelson home for his headquarters. He quietly urged General George Washington to open fire. The home was destroyed, and Nelson died bankrupt." * Jacoby: "Thomas Nelson Jr. of Virginia raised $2 million for the patriots' cause on his own personal credit. The government never reimbursed him, and repaying the loans wiped out his entire estate. During the battle of Yorktown, his house, which had been seized by the British, was occupied by General Cornwallis. Nelson quietly urged the gunners to fire on his own home. They did so, destroying it. He was never again a man of wealth. He died bankrupt and was buried in an unmarked grave." (By the way, the bit about Nelson's urging that his own home be fired upon turns out to be untrue.) * Internet: "The home of Francis Lewis was destroyed. The enemy jailed his wife, and she died within a few months." * Jacoby: "In the British assault on New York, Francis Lewis's home and property were pillaged. His wife was captured and imprisoned; so harshly was she treated that she died soon after her release. Lewis spent the remainder of his days in relative poverty." This stuff has long since entered the public domain, and there are only so many ways someone can describe well-known historical events that have been written about over and over. Thus, it's patently unfair to describe Jacoby's actions as plagiarism. Still, Jacoby should have informed his readers -- as he himself acknowledges -- that he was walking well-trod ground. -- DK

To Loth, though, the principles are far from murky. "It was a violation of the Globe's policy on attribution. It's very clear," she says, adding that she had the final call after conferring with Gilman; that she considered the case on its own merits without regard to Smith and Barnicle; and that there is no truth to the accusation being spread by some critics that Jacoby was singled out because he is the op-ed page's only conservative. In fact, she says she'll take steps to ensure that conservative voices are heard from in Jacoby's absence. Jacoby says Loth made it clear that she wants him to leave. Loth's response: "It's not designed to get him to resign." Jacoby also claims that Loth told him that if he chooses to return, he'll have to change the focus of his column. Loth's response: "That was a private meeting, and I'm not going to talk about it." Two acquaintances of Loth told the Phoenix, on condition of anonymity, that Loth has made no secret of her distaste for Jacoby's work. Loth's response: "I don't know what they're talking about."

Loth adds: "I hope that Jeff can see that this really was a response that was appropriate. It's a difficult decision, but I really feel it was the right one."

Yet the brutal punishment Jacoby received has sparked an outcry -- not just from conservative outsiders such as Rush Limbaugh, Matt Drudge, and David Horowitz (and, locally, WBZ's David Brudnoy and civil-liberties lawyers Harvey Silverglate and Chester Darling), but from a number of Globe insiders as well, including business columnists Steve Bailey, Charles Stein, and David Warsh, and sports-media columnist Howard Manly.

Perhaps the most unlikely internal critic is Bob Hardman, a copy editor for the editorial and op-ed pages. Hardman is a gay man who has bitterly protested Jacoby's occasional descents into homophobia, which he charges have been marked by "at least carelessness and sometimes ill will." But he says of Jacoby's four-month suspension: "In this particular case, I want to say that it's extremely harsh, and I agree with those who say it's disproportionate. I believe that in a more collegial and cooperative environment this could not have happened, or would not have happened."

And what of the Globe's policy on attribution? A careful reading of the policy suggests that it's not as clear-cut as Loth seems to think. Here's the relevant section: "Information in the public domain, e.g., biographical data about famous individuals, needs no attribution. This last may seem like a wide opening to unattributed information because one person's public domain is another's closely held information. It's impossible to draw clear lines around this topic in a memo, but at bottom we need to take care with what we are publishing: If substantial information is derivative, we must note where the information came from."

Did Jacoby violate that policy? Probably. Is there room for another interpretation? Absolutely. "That can be used both for and against Jeff, but at the very least it is an arguable matter," says Hardman. That makes it all the more inexplicable that the Globe would hand out such a stiff sentence.

One would think, too, that Jacoby's intentions would play an important role in deciding the punishment. Yet on that score the evidence is clear that Jacoby meant no harm. On July 2, the day before his column appeared, he e-mailed it to about 100 friends and family members (including me, as a joke, since I had recently needled him for passing along Internet spam), preceded by this introduction: "Please note: This is NOT a mere rewrite of an anonymous piece that has been making the rounds on the Internet. That one is well-meant, but much of it isn't actually true. What follows should stand up to scrutiny. Have a great Fourth of July."

Jacoby's reward for presenting this exculpatory document was to be told that he was also being punished for sending his column out in advance of publication -- a violation of the Globe's exclusivity rights, to be sure, but hardly worthy of anything more than a "don't do it anymore" admonition. If only Jacoby had pasted the same introduction on his column when he turned it in to his editors, he'd still be working. Why didn't he? "The simple and honest reason is it just didn't occur to me," he says, explaining that the material he used struck him as being in "the public domain." He adds: "I believe in dotting every ethical i and crossing every ethical t, and, by that standard, sure, I wish I had added that in the column."

Loth and Gilman also overlook the fact that Jacoby has been good for the Globe. His loathsome anti-gay columns aside, Jacoby has, for six and a half years, ably provided the conservative voice the liberal Globe had long needed. His twice-weekly column is well researched and well written, one of the better reads on an often dreary page -- and never mind that I rarely agree with him. Just last year he won the first $10,000 Eric Breindel Award in Opinion Journalism, named after a deceased editor at the New York Post. Jacoby is sometimes late to weigh in on an issue, and he occasionally does little more than parrot what other conservative pundits have already said. But, overall, the guy is a major asset. Yet his reward, say some sources, has been to be treated like a pariah by those who oppose his politics. "I've always been saddened by the fact that he's ostracized at the paper," says Living/Arts columnist Alex Beam. "I just feel that the Globe has always held Jeff at a big distance and treated him differently, certainly as compared with our more socially acceptable columnists." (Not that Jacoby is blameless. He alienated many colleagues several years ago by writing critically about a staffer who'd decided to have a baby out of wedlock. He didn't identify her, but everyone knew who it was. Jacoby declines to talk about the incident except to say that he regrets his actions.)

Among those shaking their heads about Jacoby's treatment is Fast Company columnist John Ellis, a moderate conservative who left the Globe's op-ed page last year. "It is just unbelievable," he says. "They fired him. They put him in a situation where if you're a self-respecting human being, you can't go back to work. It's incredible. This is management by hysteria."

The punishment handed out to Jacoby doesn't come close to squaring with other examples. In April, the Globe removed Anthony Flint as the City Hall bureau chief and transferred him to the business section after he was found to have solicited letters of recommendation for a Harvard fellowship from Mayor Tom Menino and from developers he covered. Flint didn't miss a paycheck, and this fall he's going to Harvard. In 1996, cartoonist Paul Szep was suspended for just two weeks without pay for blatantly copying two illustrations, one of them a caricature of Texas senator Phil Gramm that had been on the cover of Mother Jones. The suspension was confidential, and would not have come to light had someone not dropped a dime to the Phoenix. ("I wasn't privy to the Szep thing," Loth says.) And for those who think Times Company values may finally have arrived at 135 Morrissey Boulevard, keep in mind that, in 1991, New York Times reporter Fox Butterfield was suspended for just one week after ripping off several paragraphs from a Globe story about (I'm not making this up) plagiarism. The fact that Butterfield went on to have a great career proves that giving someone a second chance can be the right thing to do. Yes, the Globe has occasionally axed people for plagiarism, but the point is that the paper has been consistently inconsistent. In any case, not even Loth accuses Jacoby of anything that serious.

In conversations over the past week, Jacoby, not surprisingly, came across as shellshocked. "At the moment, I think this has made me radioactive," he says. "It has dropped mud over a good name I have been protecting in 12 years of opinion journalism. And in some ways that's the piece of it that leaves me with a really sick feeling." So earnest is he that, when asked whether there's anything else lurking in his background, he reveals that he once passed along a few widely circulated jokes about "Hebonics" that he'd picked up from the Net. ("What time is it?" "Vat do I look like, a vatch?") As for his next step, he says, "I'm still thinking it through. I'm still taking counsel. I'm taking heart from the supportive messages that are pouring in."

It may be too soon for Jacoby to realize it, but, in the end, he'll be fine -- just like John Schulz, who's still teaching at BU. The overreaction itself may work to Jacoby's advantage: in time, he'll be known not as someone who may or may not have done something unethical, but rather as someone who got screwed for a simple, unintentional lapse in judgment. Washington Post media reporter Howard Kurtz didn't tip his hand in his Tuesday piece on the issue, but he had told both the Phoenix and the Wall Street Journal that he considered Jacoby's transgression so minor that he wasn't going to write about it until the suspension was handed down.

Ombudsman Jack Thomas did not return a call seeking comment, but he told WGBH-TV's Greater Boston that calls and e-mails supporting Jacoby were pouring in -- from conservative parts of the country such as the South, as though that diminished their relevance. Maybe Jacoby's supporters will be able to talk the Globe into a lesser punishment, but let's face it: how much clearer a signal is he looking for that it's time to move on? Already there's talk that the New York Post or the Washington Times may offer Jacoby a job. Notoriety can be a good career move. In Jacoby's case, it's an added bonus that his notoriety derives more from his superiors' overzealousness than from his own shortcomings.

As for the Globe, the Jacoby affair leaves more questions than it does answers. Renée Loth, a smart, formidable woman who worked her way up through the ranks, may have been the right pick to run the editorial and op-ed pages, but does she have the ability to manage a fractious and ideologically diverse staff? For that matter, if Jacoby leaves, will she have an ideologically diverse staff? Does Richard Gilman, who was brought in mainly to fix the Globe's flagging business operations, have what it takes when a prickly editorial problem crosses his desk?

The early signs do not bode well.

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Dan Kennedy's work can be accessed from his Web site: http://www.shore.net/~dkennedy

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Dan Kennedy can be reached at dkennedy[a]phx.com

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Articles from July 24, 1997 & before can be accessed here

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