By Eugene Volokh
A colleague of mine at Mayer Brown — Andy Pincus, generally a liberal fellow and a big fan of The New York Times — reported to me an interesting fact about the The New York Times letter-to-the-editor policy, and I thought it was worth mentioning.
Pincus represents the petitioner in AT&T v. Concepcion, a pending Supreme Court case regarding the Federal Arbitration Act. The question in the case is whether it violates the Act for California to refuse to enforce arbitration clauses that don’t permit either class arbitrations or class actions in court, but include incentives that help plaintiffs vindicate their own individual claims. (The briefs are here.)
Three weeks after oral argument, The New York Times editorialized against Pincus’s position, and asserted that “courts applying law of at least 19 other states have reached the same conclusion as California, including five federal appeals courts.” Pincus and his co-counsel sent a letter to the editor addressing this and other statements in the editorial (complying with the Times’ 150-word limit). Two sentences read:
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The Times is just wrong in asserting that 19 states ruled arbitration agreements like AT&T’s unenforceable. Courts in six of those states upheld AT&T’s provision; courts in four others upheld agreements less fair than AT&T’s.
A week passed with no response. In the meantime, the Times published a letter from counsel for the other side expressly agreeing with the editorial (“As your editorial correctly explains ....”). Still, no opposing views appeared.
Then the Times did get back to Pincus, asking for approval of an edited version of the above sentences:
You assert that 19 states ruled arbitration agreements like AT&T’s unenforceable. Courts in six of those states upheld AT&T’s provision; courts in four others upheld agreements less fair than AT&T’s.
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This revision deleted the statement that the Times was wrong in its interpretation of the views of 19 States on the issue. Pincus responded that the revision was unacceptable and suggested a slight modification to soften the sentence in question (substituting “The Times incorrectly asserts” for “The Times is just wrong”).
The Times (emphasis added): “We cannot say ‘incorrectly’ because that is the province of corrections, in which case I would forward the letter to the corrections editor and it could not be considered as a letter. We prefer to consider your letter a clarification on the editorial. OK to go with what I sent?”
Pincus: “Our letter’s key point is that the editorial was wrong in what it said about the cases. I’m happy to think about other ways to say that — but it is the key point.” Too bad, said the Times: “In that case, I think you should forward the letter to Carla Robbins, the deputy editorial page editor, for possible correction. We won’t be able to consider it as a letter.” And that was that.
Pincus didn’t seek a “correction” because it seems unlikely that the Times would have issued a correction with regard to matters of opinion about interpreting judicial opinions (and of course corrections appear in a generally little-read section; letters to the editor appear on the editorial page). He wanted to argue to readers that the Times was wrong, not persuade the corrections editor of that (since such persuasion was highly unlikely). Yet the Times policy appears to say that such arguments that the Times is wrong are off-limits to the editorial page.
Now the Times is of course entirely free to publish or not publish any letter to the editor it wishes; and naturally, it can publish only a small fraction of those it receives. Still, it seems to me that a “no saying we’re wrong” policy with regard to letters to the editor is not a wise exercise of editorial judgment. And in any case, readers might find it useful to know that this is indeed the Times policy.