Academic Legal Writing - Eugene Volokh [78]
It's certainly possible that the student was right. It's also possible, though, that she may have misheard, misremembered, or misinterpreted Scalia's position (for instance, treating a devil's advocate argument as a sincere assertion), or omitted some explicit or implied qualifier. It's likewise possible that the student was correct, but the opinion writer who quoted the student misinterpreted or misdescribed the student's account. We can't tell for sure—but the book's author should have alerted us to these uncertainties, by providing more than an unqualified assertion that “Justice Antonin Scalia agreed with this view that citizens have a constitutionally protected right to own machine guns,” with no explanation of the possible problems with the source.
So if you want to say something about Scalia's views in your own article, you certainly shouldn't just cite the book or the newspaper column. The source here seems so potentially unreliable that you might not want to use it at all. But if you do use it, you should at least make clear to the readers the possible accuracy problems—chiefly that the statement was made to a small audience, that there's only one source, and that the source's statement is itself being reported second-hand. For instance, you might say
Supreme Court Justice Antonin Scalia said at a private talk that citizens have a constitutionally protected right to own machine guns, according to a newspaper article that cites a high school student who was present at the talk. [Footnote: DeWayne Wickham, Scalia Is Wrong on Guns, Balt. Sun, Apr. 30, 1999, at 27A.]
(It's not necessary to say in the footnote that this is an opinion column, because the title makes this clear.)
4. Transcripts
Transcripts of news programs may seem more reliable than quotes in reporters' articles; you're supposedly getting the speaker's literal, unedited words. But be on guard for three problems:
a. Transcribers make mistakes. One NPR transcript, for instance, contains the puzzling assertion that courts will have to decide “whether a state even makes good religion.”33 What the speaker really said (the speaker was me) was “whether a state even may exclude religion.” The New York Times likewise once had to run the following correction:
Because of a transcription error, an article yesterday about Senator Alfonse M. D'Amato's remarks about Judge Lance A. Ito misquoted the Senator at one point in some editions. In his conversation with the radio host Don Imus, he said: “I mean, this is a disgrace. Judge Ito will be well known.” He did not say, “Judge Ito with the wet nose.”34
When a speaker sounds like he's saying something stupid, it might be the transcriber's fault.
b. In many radio and television shows, only a sentence or two from a long interview makes it into the program. The risk of being quoted out of context thus remains.
c. Even intelligent and articulate people sometimes misspeak. When writing, they can see their errors and correct them. When speaking, they might not have the airtime to correct themselves, or might not even notice the error, since they don't have a chance to proofread. Thus, even an accurate transcript might not accurately reflect the speaker's considered judgment.
So if you do want to quote a transcript as evidence of what the speaker believes or wants to communicate, be careful. If possible, e-mail the speaker to make sure that the quotes are accurate, especially if the quote seems surprising or damning.
5. Web sites
Web material, like printed material, is no more reliable than its authors. For instance, Web-based documents published by U.S. government agencies, such as the Census Bureau, are generally as reliable as these organizations' printed reports, and are generally more timely. A Web page containing a university's student conduct policies is likely to accurately state what the university's written policies actually are. A Web page maintained by an activist group is