In theory, fact-checking is a valuable media enterprise. No one will do it perfectly — human beings are fallible, after all — but to do it well requires a kind of flinty moral courage. Every reporter has his own biases, and sometimes the demands of the job will conflict with the desires of his heart. Sometimes, the fact-check will torpedo his own team.
Yesterday, PolitiFact failed this test.
At issue were blatant lies from two leading Democratic candidates about the police shooting of Michael Brown five years ago. Here’s what Elizabeth Warren and Kamala Harris tweeted:
5 years ago Michael Brown was murdered by a white police officer in Ferguson, Missouri. Michael was unarmed yet he was shot 6 times. I stand with activists and organizers who continue the fight for justice for Michael. We must confront systemic racism and police violence head on.
— Elizabeth Warren (@ewarren) August 9, 2019
Michael Brown’s murder forever changed Ferguson and America. His tragic death sparked a desperately needed conversation and a nationwide movement. We must fight for stronger accountability and racial equity in our justice system.
— Kamala Harris (@KamalaHarris) August 9, 2019
As I explained in detail in a piece last week, the claim that Brown was murdered is decisively contradicted by the Obama Department of Justice’s comprehensive report on the incident. The DOJ found that there was “no credible evidence that [Officer Darren] Wilson willfully shot Brown as he was attempting to surrender or was otherwise not posing a threat” and that the officer “did not act with the requisite criminal intent” necessary to prosecute him.
To put it plainly, there was no murder, and when Warren and Harris claim otherwise, it matters. Police shootings and the broader issue of alleged systematic racial animus in American law enforcement represent two of the most consequential and contentious political and cultural issues in the United States. They are incredibly complex — for example, while the DOJ found that Michael Brown wasn’t murdered, it did find overwhelming evidence of systematic misconduct, including racist misconduct, by the Ferguson Police Department — and emotional issues. Discerning the true facts in any given shooting is paramount, and requires a fearless commitment to the truth.
The Washington Post’s Glenn Kessler gets it. His fact-check was a masterpiece of the genre, a lengthy, detailed accounting of the truth that inexorably reached the only supportable conclusion: “Harris and Warren ignored the findings of the Justice Department to accuse Wilson of murder, even though the Justice Department found no credible evidence to support that claim.” He gave their statements four Pinocchios.
Let’s now turn to PolitiFact’s extraordinary analysis. It starts out promising, with an early confession that “in discussing the case with legal experts, however, we found broad consensus that ‘murder’ was the wrong word to use — a legal point likely familiar to Harris, a longtime prosecutor, and Warren, a law professor.”
But hold on, says PolitiFact, we shouldn’t necessarily be focusing on, you know, actual words. That could be problematic. No, really, that’s where this “fact-check” goes next:
That said, experts who have studied police-related deaths and race relations said that focusing too much on the linguistics in controversial cases comes with its own set of problems.
And what are those problems? Well, according to these “experts,” examining the “linguistic distinction” at issue feels “like an attempt to shift the debate from a discussion about the killing of black and brown people by police.” Consequently, “rather than discussing the need for de-escalation tactics and relations between police and communities of color,” the “experts” claim, “this has become a conversation about legal terms. Quite frankly, it’s a distraction that doesn’t help the discussion.”
And whose fault is that? It’s the fault of senators who didn’t just engage in “linguistic distinctions” but rather made legally and factually false assertions.
Don’t tell PolitiFact, however. It said that because “the significance of Harris’ and Warrens’ [sic] use of the word is open to some dispute, we won’t be rating their tweets on the Truth-O-Meter.”
Is it really “open to dispute”? The word “murder” is a defined term under applicable law. Warren is a Harvard Law professor. Harris is a former prosecutor and state attorney general. They virtually define the term “legal elite.” False claims that a person committed a crime are actionable under longstanding defamation doctrines. So why can’t PolitiFact conclude that they lied? Feast your eyes on this paragraph:
“When my grandmother read the newspaper, she would sometimes blurt, ‘It’s a crime!’ in response to a story,” said Ben Trachtenberg, a University of Missouri law professor. “Everyone present realized that she did not literally mean that someone described in the article had violated a criminal statute. It seems at least possible that (Harris and Warren) wished to convey a sentiment like my grandmother once did and did not intend to apply the criminal law of Missouri as one might on a law school exam.”
I look forward to PolitiFact’s applying this “granny test” to all future legal assertions, including those made by former prosecutors and law professors .
PolitiFact really gives the game away at the close of its piece. The truth is less important than the “larger issues.” Again, the paragraphs have to be read to be believed:
Joy Leopold, an assistant professor of media communications at Webster University in Missouri who has studied the Brown case, said it’s not uncommon for smaller issues such as legal terminology to crop up in controversial cases like this.
“Focusing on the language opens up the opportunity for some to discredit the conversation about police brutality and the criminal justice system in general,” Leopold said.
Isn’t “focusing on language” what PolitiFact exists to do? If it’s not going to evaluate the truth of a politician’s statements, then what’s the point?
One can certainly debate the larger implications of given facts, but one can’t change the facts themselves. Moreover, it’s entirely possible for an analyst to respond to the truth of the Michael Brown shooting and say, “There was no murder here, but that does not mean that there is no larger problem with police violence in the United States.”
It’s not only possible, it’s easy. For example, in my own fact-check of Warren and Harris, I said this: “I’ve written about the issue time and time again and have come to believe not only that too many American police officers resort to deadly force too quickly but also that there is an unacceptable pro-police bias in our criminal-justice system.”
We live in a big, complicated country where not every event that occurs will fit our preferred narratives or reinforce our existing biases. A good fact-checker would remind us of that fact on a regular basis, “larger issues” be damned. We can, in fact, handle the truth.