Meanwhile, the much more serious error, misrepresenting the basic holding of Dougherty rather than merely attributing it to the wrong court, remains uncorrected to this day. Quite the contrary, Balko’s pitiful “but I’m mostly right, dammit” semi-correction reinforces that error, even while introducing two more:

I did make the mistake. And frankly, I wasn’t aware of it until I saw his post in a comments section. I mistakenly refered to the opinion in U.S. v. Dougherty as a Supreme Court opinion. In fact, the case was decided in the D.C. Court of Appeals (though the Supreme Court apparently didn’t object enough to review it).

First, Dougherty was never appealed to the U.S. Supreme Court, so love it or hate it, of course the U.S. Supreme Court wasn’t going to review it. Second, even if the case had been appealed to the U.S. Supreme Court, as Balko the crack journalist must have lazily assumed, and the Court had denied certiorari, that would tell us zero/zip/nada about how the Supremes felt about the underlying issue. Third, as anyone who’s actually read Dougherty can attest, the defendant in that case lost on the issue of jury nullification (though he prevailed on other grounds), so even if we were to assume that denial of cert implies agreement with the lower court decision (and we shouldn’t), that would either mean that the Supreme Court didn’t care about the jury nullification issue (since the case was decided on other grounds) or that it agrees with the anti-nullification opinion expressed by the D.C. Circuit court in that case.

Radley continues to cite another minor error that was corrected, which was also surrounded by other, more serious errors that were not:

[Patterico] has in the past also cited an error I made in a post on Terry [sic] Schiavo that was brought to the public attention by blogger XRLQ. I admitted error there, too, and posted a correction (note, I only admit to one of the many transgressions XRLQ accused me of — on bills of attainder. The rest are merely points of disagreement, which I’ll get to in a moment).

Actually, Radley admitted two errors in that post, one relating to bills of attainder (a concept he does not appear to understand at all), and one relating to ex post facto laws (which he had falsely assumed prohibited all laws with retroactive application, rather than only those that retroactively criminalize behavior or increase the penalty). However, the other errors I identified - the ones he refused to admit to or even to acknowledge the substance of - remain uncorrected. Does Balko seriously think that misstating Florida law, by claiming a person can order his vegetative spouse’s death where evidence of the spouse’s desires is “inconclusive?” What does he think half the trial - that whole “Terri’s wishes” stuff - was about? It’s not as though Michael Schiavo’s wishes were ever in doubt, so if Radley’s version of the law were correct, the Schiavo trial would have been a very short one indeed.

Another factual misstatent Radley now tries to sluff off as a mere “opinion” is his claim that six separate courts made six factual determinations about Terri Schiavo’s alleged desire to be starved to death. This is not an opinion; it is a statement of fact that betrays extreme naivete about how courts function. Facts are determined by ONE court, not six, now matter how strongly Balko may opinine otherwise.

On the Commerce Clause, Balko writes:

Let me give you one example. I once wrote that the U.S. Constitution gives Congress no authority to regulate the use of steroids in baseball. XRLQ responded with a lecture on the Commerce Clause, concluding that because the Supreme Court has given Congress broad Commerce Clause authority, I’m factually wrong.

Not quite. As anyone remotely familiar with this blog can attest, I’m not a fan of the Commerce Clause as it has been applied since Wickard v. Filburn. I was highly critical of my formerly favorite Supreme Court Justice, Antonin Scalia, when he took the expansive view of the Commerce Clause in Raich, and have generally argued that the commerce power ought to be restricted to regulating activities that really are interstate and really are fundamentally commercial in nature. That position itself places me at about the far right end of the spectrum, the one Radley must have fallen off of a long time ago if he really thinks professional sports aren’t commerce, or believes that they are generally confined to one state.

Um, no. I’m more than familiar with the history of Commerce Clause jurisprudence. I just happen to disgree with most of it. And there’s a pretty good case to be made that the founding fathers would, too.

Actually, it’s a pretty crappy case if Radley’s post on the do not call list is any indication, but that’s neither here nor there. If Balko had written something to the effect of “in my view, neither the Commerce Clause nor any other part of the federal Constitution authorizes Congress to regulate professional sports,” that would have been a mere statement of opinion, albeit a rather wacky one on the level of “I don’t think the Founding Fathers intended the First Amendment to cover TV, radio or the Internet.” What he did instead was too write an unqualified statement of fact:

Equally behooving is not to advance a position so patently frivolous that Balko himself does not really agree with it. After all, his article does not claim that the federal government has no role in regulating professional sports - as it must if he really buys into that crap about it not being interstate commerce. In the same article as the above quote - the same paragraph, even — Balko also wrote this:

If owners are colluding to keep an athlete from attaining his fair market value, it’s a matter for the Justice Department, or for state attorneys general.

[Emphasis added.]

The Justice Department cannot prosecute people on its own, and I can’t imagine a libertarian like Balko would want it to have that power. All it can do is enforce laws enacted by Congress. In the case of collusion, that would mean the Sherman Act, the Clayton Act, and the related antitrust laws from which Congress has seen fit to largely exempt professional sports. To suggest that the Justice Department look into allegations of collusion is either to argue for an executive nullification of that exemption by the Judicial Department, or it’s a simultaneous argument that Congress has a power to regulate professional sports as interstate commerce for purposes of antitrust laws, but does not have any such power to regulate professional sports in a manner that Balko doesn’t like. He can’t have it both ways. Either Congress can regulate professional sports or it can’t, and if it can’t, the rest of the federal government sure as hell can’t, either.

Radley then returns to his usual standby, the ad hominem.

It’s this kind of thing that Patterico and his ally XRLQ repeatedly cite to point out my “problems with the facts.” It’s bullshit, frankly. To be honest, I’ve read enough of both of them to know to put little value in either of their opinions.

I’m more interested in the facts he bungles than I am about opinions, so I frankly couldn’t care less what opinions Radley holds about mine or Patterico’s - particularly since both opinons appear to be based entirely on his disdain for those who question him. It does bear noting, however, that if he actually had read either of our blogs extensively (and no, searching a blog’s archives for your own name is not “extensive”), he’d know that both of us hold quite a few opinions that are similar to his - including the closest view of the Commerce Clause any self-respecting attorney can hold without being rightly laughed out of court. We just try harder to get the facts right and to avoid frivolous legal arguments - or at least, to know when we’re expressing legal arguments others are likely to find frivolous, and then to make the case as to why they are not. Unfortunately, Balko doesn’t really mean what he said; all he really meant was “I’d rather insult people who point out my mistakes than own up to them.”

But as a journalist, my credibility is pretty important.

Really! If that’s the case, he probably should re-read both my posts and Patterico’s. Plenty of ideas there as to why he’s not credible now, any of which can be read as constructive criticism for how he can become so. No, calling someone a douche (as distict from showing him to be a douche) does not make you more credible. Neither does misstating the very basis of a past argument. Fixing your errors - all of them - without downplaying their significance would be a great start. Working closely with people who know the subject area better than you - say, a constitutional lawyer, or at least a practicing one - would be an even better (albeit not infallible, alas) way of prenting such errors from occuring in the future. But simply bitching out the people who identify the errors you make - even you honestly but mistakenly believe them not to be errors - does nothing to bolster anyone’s credibility.

And when these two put up posts or pop into the comments sections of other blogs with a long list of links to my “factual errors,” someone unfamiliar with my work isn’t likely to actually click through the links to see how bogus their claims really are. They’re more likely to just look at the long list of links, associate my name with “not credible,” and move on. That’s why I think it’s important to address them.

Or perhaps it’s why he felt the need to misstate both his past misrepresentations and the responses they generated, in the hopes that the vast majority of his readers, being unfamiliar with Patterico’s work and certainly with mine, are unlikely to actually click through his links to find out what the errors really were. They’re more likely just to look at his long rant, associate our names with “bogus claims,” and move on. Right?

Radley closes his whinepost by whitewashing his correction record and, with a sleight of hand that would do TruthOut, DKosm Glenn Greenwald, the National Enquirer or the Weekly World News proud, changing the subject from credibility to a traffic:

I’ll close this post by conceding that I am of course not immune to mistakes. But when I’ve made them, I’ve copped to them. Given that I continue to get published, and continue to build a readership here, there are obviously a fair and growing number of people out there who are fine with my reporting and commentary.