Pages Menu
Categories Menu

Posted by on Apr 16, 2010 in Law, Media, Politics | 0 comments

CBS News Gets Black Eye After Running Blog Column Alleging Kagan is Gay

elena_kagan_2009_9_5_10_10_12.jpgThe scramble among media in 21st century to find a balance between politics-based journalism and opinion and maintaining a semblance of traditional mainstream media journalistic standards and image continues — with CBS being the latest news organization to be badly stung in a tale of blogging standards (or lack of them) negating traditional news publishing standards.

The event: CBS’s fine online news site running a cross-posted blog post by Ben Domenech, a former Bush administration aide and Republican Senate staffer, who alleged that possible Supreme Court nominee Elena Kagan is a lesbian. The controversy: the White House insisted she was not gay, CBS dug in its heels and stood by Domenech, until it got an email from him — and then pulled the column and apologized.

This is a telling issue on several fronts. But it gave the CBS eye a black eye. Black eyes do heal. But it’s as if the standards of Walter Cronkite and so many other news pros were tossed out the window. The irony: it comes around the same time when Fox News yanked Sean Hannity from a Tea Party rally in an incident which underscored how Fox (particularly its maven Rupert Murdoch) is trying to soften its mega-partisan image among many on the left and center.

The best way to look at this controversy is to look at the Washington Post’s Howard Kurtz’s piece in some detail:

The White House ripped CBS News on Thursday for publishing an online column by a blogger who made assertions about the sexual orientation of Solicitor General Elena Kagan, widely viewed as a leading candidate for the Supreme Court.

Ben Domenech, a former Bush administration aide and Republican Senate staffer, wrote that President Obama would “please” much of his base by picking the “first openly gay justice.” An administration official, who asked not to be identified discussing personal matters, said Kagan is not a lesbian.

Aside from the fact that in 21st century that doesn’t matter to most people, at a newspaper or a typical broadcast outlet a line editor would ask the reporter: Is that an established fact? Has she said that? If it turned out that it was not something the individual said or established fact or even something that had a long paper/Google trail in the media (such as longstanding allegations about some singers and actors) that phrase would not see the light of day at most infooutlets.

In fact, if there was no paper trail, you couldn’t say “alleged” because it’s “alleged” by exactly, precisely who? The writer? Making an assumption? Or writing about what he/she heard? Are there unnamed sources?

Blogs operate differently from from mainstream journalism. Blog owners usually trust those invited to post on it. Blog owners and editors don’t usually re-report or carefully fact check posts. As someone who has also contributed to other blogs (Pajamas Media, The Huffington Post, Command Post, Dean Esmay, even a guest column on the LA Times’s lively blog), my submissions were not re-reported or micromanaged by the owners/editors. Even the posts I did on San Diego’s fires a few years ago on several big blogsites — all original reporting — were run on the assumption that I was honorable, professional and that what I submitted was factual.

CBS’s error here: no confirmation on something that violated traditional journalism standards in another way. READ ON:

CBS initially refused to pull the posting, prompting Anita Dunn, a former White House communications director who is working with the administration on the high court vacancy, to say: “The fact that they’ve chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010.” She said the network was giving a platform to a blogger “with a history of plagiarism” who was “applying old stereotypes to single women with successful careers.”

The network deleted the posting Thursday night after Domenech said he was merely repeating a rumor.

That’s the crux of it: CBS allowed itself to be a vehicle for spreading a rumor…which could then be picked up by talk shows…could then be picked up by media types with a political axe to grind…and then be asked as a question at Presidential press conferences and Sunday morning shows.

If you hear shifting sound, it is the sound of Walter Cronkite and Edward R. Murrow rolling over in their graves. MORE:

The flare-up underscores how quickly the battle over a Supreme Court nominee — or even a potential nominee — can turn searingly personal. Most major news organizations have policies against “outing” gays or reporting on the sex lives of public officials unless they are related to their public duties.

Indeed: mere allegations, suspicions or politically motivated rumors don’t usually get run by major news organizations until something happens to pitchfork the public official’s private life into the headlines. MORE:

A White House spokesman, Ben LaBolt, said he complained to CBS because the column “made false charges.” Domenech later added an update to the post: “I have to correct my text here to say that Kagan is apparently still closeted — odd, because her female partner is rather well known in Harvard circles.”

“Known”? Does this mean “confirmed?”

Most news organizations would have pulled it after that. Why? Because that’s CYA — someone trying to justify running something to defuse possible trouble. And the update is a clear violation of standards CBS or any respectable mainstream news outlet would use. Blogs? Websites owned by inviduals or groups? They might run it. But NOT (the old) CBS…NBC.. Reuters…AP…Time…Newsweek…the Christian Science Monitor.. US News…AFP…Press Trust of India.

And not — by the way — Fox News.

Unless it was now an issue “out there” — put on a major news organization’s website and justified because it was a blogpost:

Kurtz notes that CBS at first defended the column, noting that it appeared in an opinion section that has contributions from left and right blogs (a little sticking point to the mainstream media: there are also centrist and independent sites on the Internet). And herein is the problem: contributions, fine. This site contributed to Newsweek’s The Gaggle blog groupblog during the election. Internally we did internal emails about putting our best efforts foward. It was assumed that if anyone wrote something way out there or a major allegation that could not be backed up it would hurt our reputation and end our contributions to Newsweek.

But in this case, saying that an allegation that violates traditional journalism standards is OK because it was opinion doesn’t cut it.

What if someone in a blog post alleges that “it is generally known” that a staunch family man or woman in Congress actually has a string of lovers. Is that OK without confirmation?

Of what if someone wrote that it was “generally known” that a religious leader was seen looking lovingly at a sheep he was sneaking into his office? It’s OK to post that without confirmation, too?


Dan Farber, editor in chief of, said that Domenech’s column “just got through our filters” and that if his staff had seen “a controversial statement like that, we’d want to get more evidence of its accuracy” before publishing it.
Fair enough.

“But once it is out there,” Farber said, “the better approach is just to address it head-on rather than trying to sweep it under the rug.”

.Sweep what under the rug? A statement not confirmed by the story’s subject and denied by the White House — an allegation out from under the rug because CBS let it’s website shove it there?

Hear that shifting sound again?

So why did CBS remove it?

He changed his mind about yanking the column after receiving an e-mail from Domenech, which the blogger also sent to The Washington Post. Farber said in a statement that “after looking at the facts we determined that it was nothing but pure and irresponsible speculation on the blogger’s part.”

The time to look at the facts would have been as SOON as the White House said it was not wrong or confirmed by Kagan. If CBS News is a major news organization (which it is) then the bigwigs had a duty to respect its integrity and reputation.

Go to Kurtz’s link since he also details the blogger’s short stint on the Washington Post — but that background info is NOT the issue here.

The bottom lines? Here you had:

  • CYA by the blogger after he was challenged.
  • CYA by CBS that was as much spin and as believable as the Democratic and Republican stragegist hacks who people talk shows and give their talking points spin that everyone knows is spin. The bigwigs hoped that the report was accurate so they stood by it and argued “Well if the issue is out there now [the issue CBS helped put out there] then, by golly, it is now an issue!”
  • CBS could have short-circuited this as soon as it heard from the White House by pulling the post and saying there were questions raised about it and until they were resolve the post will be off of its site. But IT DID NOT.

    Law professor Jonthan Turley writes:

    Domenech added his own apology: “I offer my sincere apologies to Ms. Kagan if she is offended at all by my repetition of a Harvard rumor in a speculative blog post.”

    When I teach defamation, we often discuss allegations that someone is gay under the common law. It is an example of part of the evolving social standards of what constitutes a per se category of defamation. At one time, it was considered such a category, but, as society has increasingly accepted homosexuality (and after criminal laws on homosexuality were struck down after Lawrence v. Texas), that is changing. Certainly an Obama official is unlikely to claim that being gay is defamatory — even though this blog would likely meet the test under New York Times v. Sullivan and the actual malice test (requiring knowing falsity or reckless disregard).

    Domenach is the co-founder of the RedState blog and writes for Human Events, and other conservative publications.

    And Kurtz adds this as the end:

    Rumors invariably raise a difficult journalistic choice: whether to report on them and give them credence, or withhold them and fail to acknowledge what insiders are discussing. Marc Ambinder, a blogger for the Atlantic, wrote Monday about what he called “a baffling whisper campaign” about Kagan “among both gay rights activists and social conservatives. . . .

    “So pervasive are these rumors that two senior administration officials I spoke with this weekend acknowledged hearing about them and did not know whether they were true. . . . Why is she the subject of these rumors? Who’s behind them?”

    And remember this:

    American history is filled with whispering campaigns.

    But major news organizations don’t always give those whispering full permission to use their sound systems to blare them.


    Ben Smith:

    The flap began with a conservative blogger on CBS’s website mentioned in a rumor that she was a lesbian (something that has been hashed out at some length on gay blogs), saying it made her more likely to be nominated. When the chatter hit CBS, the White House decided to kill it, going hard at CBS and calling the claim “inaccurate” and even “a false charge,” as though she’d been accused of something bad.

    Now Human Rights Campaign is piling on, calling the flotation of the rumor a trick “straight out the right-wing playbook.”

    That’s ridiculous. The gay blog Towleroad, not typically an arm of the right-wing conspiracy, has been cheerfully speculating for months. Republicans on the Hill decided last year, when two open lesbians were considered for the court, that they wouldn’t make an issue of it. And that’s a good political decision: Most Americans don’t think sexual orientation should be a factor in hiring.

    Huffington Post:

    Leading gay rights group are accusing Republicans of trying to rile up their conservative base by launching a whisper campaign against potential Supreme Court Justice Elena Kagan — suggesting the current Solicitor General is a closeted lesbian even though she’s not.

    In its first entree into the upcoming Supreme Court nomination process, the group Human Rights Campaign blasted the increasingly public discussion of Kagan’s sexuality, calling it a play “straight out the right-wing playbook.”

    Brad De Long:

    Howard: nobody besides Ben Domenech has ever said that Elena Kagan would be the first “openly” gay justice.

    Indeed, my six-degrees-of-separation-links leading toward Ms. Kagan say that they do not believe that she is a lesbian at all.

    It’s not about how the battle over a Supreme Court nominee can turn searingly personal.

    It’s about how news organizations hire, print, and display dumbness and incompetence.

    You should be ashamed of yourself foor misleading your readers….


    Anita Dunn, who’s working with the administration on the high court vacancy, said: “The fact that they’ve chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010.” The network has pulled the post.

    Don Surber:

    Once again, liberals show their true colors. This White House unwittingly showed the liberal streak of anti-gay feelings, which are usually restricted only to gay Republicans.

    I do agree with her that Ben Domenech is “applying old stereotypes to single women with successful careers.”

    I did not like it when they did that to Condoleezza Rice and to Janet Reno.

    And CBS should have pulled it down, which it did.

    People are entitled to some privacy in their lives, although people in the entertainment field seem to sadly be an exception to the rule.

    My money is still on Kagan. As for Ben Domenech, I don’t think he’s going to be blogging for CBS for too much longer.


    It appears that the politics of selecting a Supreme Court justice has crossed over to sexual identity politics as well.

    Steve Benen:

    Ben Domenech, fairly characterized as a “serial-plagiarist and right-wing blogger,” hasn’t stopped publishing embarrassing content. The question is why CBS News would endorse Domenech’s more outrageous claims.

    Yesterday, Domenech published un-sourced gossip about Solicitor General Elena Kagan’s personal life on his website, stating without evidence of substantiation that Kagan is “openly gay.” CBS nevertheless sought and received Domenech’s permission to re-publish his piece on the news outlet’s website.

    …As for the veracity of the Domenech’s rumor, who cares? Kurtz talked to an administration official who said Kagan is not a lesbian, but what difference does it make?

    The question is one of professional standards — which in this case, CBS chose to ignore.

    NY Magazine:

    The White House isn’t going to be able to stop the press from writing about it, so they shouldn’t try. They’re putting themselves in a bad position by giving this story line credit, and making their denials that she’s gay a story in itself. If Kagan isn’t gay, people will say she is anyway, but no one will be able to prove it. Republicans won’t have the guts to get up and call her gay in nominations hearings if it’s just a rumor. They’ll just go after her record and say she supports gay rights, which isn’t particularly worse than what they alleged about Sonia Sotomayor’s positions.

    If she is gay, and a news outlet finds proof, the White House has basically disqualified her for the Supreme Court by making a lie part of her fundamental story (and by making it seem like being gay would somehow make her unfit for the role). …

    …At the end of the day, it’s unattractive of the White House to react to someone calling Kagan gay the way they would if someone had said she did something illegal or amoral. And by doing so, they’ve called much more attention to the issue than they would have if they had just let a random opinion blog post on stand. Are they going to go after every news outlet that alleges there’s something gay about Elena Kagan? That’s not going to work, and will only make the situation worse. The whole “is she or isn’t she” plot will profoundly undermine her credibility. If the White House continues down this road, they’ll have removed one of their top candidates for Supreme Court from consideration before she could even truly be considered.

    Now you can follow Joe Gandelman on Twitter.


    WP Twitter Auto Publish Powered By :