From Right-of-Reply to Norm-of-Trackback

One of the things I love about the blogosphere is the way that comments let readers correct you or turn your attention to something you may have missed. One of my recent posts on copyright law illustrates how this process can work. James Grimmelmann has suggested that this right to comment, and to trackback to one’s own post upon linking to another’s post, is a big victory for free speech. While right-of-reply laws may be stymied by Miami Herald v. Tornillo, these innovations let everyone have their say.

Should the mainstream media adopt similar norms? Consider the case of a recent WSJ commentary entitled “The Innocence Myth,” arguing that the rate of false convictions is very low. You can find critiques of it online if you google “innocence myth,” and the WSJ does publish some skeptical letters to the editor. But my colleague Michael Risinger is about to publish a piece that he believes definitively refutes the WSJ piece. As he argues:

If one is at all serious about trying to determine the empirical truth about the magnitude of the wrongful conviction problem, one must make an attempt to associate the denominator with the same kind of cases represented in the numerator. . . . In an article now in galleys at Northwestern Law School’s Journal of Criminal Law and Criminology, I have tried to do just that. Using only DNA exonerations for capital rape-murders from 1982 through 1989 as a numerator, and a 407-member sample of the 2235 capital sentences imposed during this period, this article shows that 21.45%, or around 479 of those, were cases of capital rape murder. Data supplied by the Innocence Project of Cardozo Law School and newly developed for this article show that only two-thirds of those cases would be expected to yield usable DNA for analysis. Combining these figures and dividing the numerator by the resulting denominator, a minimum factually wrongful conviction rate for capital rape-murder in the 1980’s emerges: 3.3%.

The WSJ has so far failed to publish Prof. Risinger’s letter to the editor, and claims a policy against allowing responses to commentaries. But would it at least behoove the Journal to provide a link to Risinger’s work after this opinion piece? I don’t see how this could hurt. . . . especially given time already devoted to screening letters to the editor. The Journal could make the links inobtrusive, as it does in this fantastic article on predatory debt collectors.

I hope that more of the mainstream media (MSM) follows the lead of the Washington Post, which provides great links to blogs (and opportunities for comment) on virtually all of its online articles (including editorials). Perhaps “opening up” the letters to the editor section in this way will be a bit of a burden at the beginning. But as technology makes these online forums more permeable, the usual excuse of “space constraints” (for shutting out diverse views) will be less and less convincing.

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