Author Pat Ryan

Actual malice, meet demonstrable truth

Pat Ryan Leave a comment

…not long after Joe Biden had been officially declared the winner of [the 2020 presidential] election, a bunch of disreputable right-wing sore losers—that’s the technical term—began to claim that the Dominion machines had somehow been tampered with, and that votes that had been duly cast for Donald Trump via Dominion machines had been secretly switched over to Biden’s column.

The fact that this thesis was very stupid did not stop it from gaining credence among many Trump voters. These people weren’t just angry that their candidate had lost the election; they were angry that Fox News wasn’t reporting that Trump had actually won the election. In retaliation, many of these Trump fans began to unofficially boycott Fox News, instead tuning in to other right-wing news networks, such as Newsmax, which were much more willing to indulge their conspiratorial fantasies.

Check out more of this nice, fun summary of Dominion Voting systems libel suit against Fox News here.  The libel suit is scheduled to go before a jury in a Delaware court tomorrow, assuming the two sides don’t reach a settlement between now and then.

As a recovering journalist myself, I’ll say it is my belief that it should be hard to get a libel verdict against a journalist, a newspaper or broadcast company.  The U.S. Constitution envisions a free press that facilitates a lively public debate of issues, and in the decision that set today’s judicial standard on libel law, New York Times v. Sullivan, Justice William Brennan wrote for a unanimous court that “debate on public issues should be uninhibited, robust, and wide‐open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”  The threat of litigation is often used to by people who come out on the bad end of those debates to try to scare a paper or a station into not running tough stories (see: Trump, Donald J.; litigation; threats of).

But that doesn’t mean that those who publish on paper, who broadcast through the air, or who post online, should have a free hand to say anything they want at any time with impunity; those who have truly been libeled do have recourse.  But keep in mind, reputable publications can make a strong defense by proving the truth of what they published: if a published statement is true, it is not libelous or slanderous. (It was not ever thus: courts no longer automatically consider statements that damage the reputation as obviously libelous.)  If what was published is factually true, it is not libelous and you cannot win a lawsuit alleging libel.

In a case where the plaintiff is a public figure or a public official, Times v. Sullivan set a high bar for proving you were libeled by a publication: you must prove that the defendant published a story “with knowledge that it was false or with reckless disregard of whether it was false or not.”  (A term you’ll often hear that is used to describe that state is to say the publication acted with “actual malice.”)  While publication of an erroneous story is bad and hurts the reputation of the publication, it is not a case of libel against a public figure or institution (which Dominion is) if the publication believed the story was true and had done the required work to gather the facts to come to believe it was true.

In Dominion Voting Systems v. Fox, the voting machine company claims Fox defamed the company by “spreading false claims that the company rigged the 2020 presidential election to prevent former President Donald Trump’s reelection.”

As noted in a New York Times story last week,

While legal experts have said Dominion’s case is unusually strong, defamation suits are extremely difficult to win because the law essentially requires proof of the defendants’ state of mind. Dominion’s burden will be to convince a jury that people inside Fox acted with actual malice, meaning either that they knew the allegations they broadcast were false but did so anyway, or that they acted so recklessly they overlooked facts that would have proved them wrong.

During standard pre-trial discovery in this case, Dominion uncovered information from inside Fox that Fox News Channel and its on-air talent and some of its management leaders knew that the claims against Dominion were not true (“with knowledge that it was false”) but published the stories anyway—over and over again—to keep from offending their viewers who believed the claims from Trump and his lawyers and other sycophants of a rigged election (“with reckless disregard of whether it was false or not”).

As it often does, Fox defends itself by wearing the mantle of mainstream responsible journalism operating in the public interest; it argues it reported the claims made by Trump and others because they were newsworthy.

Fox has argued that while it understood many of the claims made by its guests about Dominion were false, they were still worth covering as inherently newsworthy. Fox’s lawyers have taken the position that there is nothing more newsworthy than claims by a former president of the United States that an election wasn’t credible.

But Judge [Eric] Davis disagreed.

“Just because someone is newsworthy doesn’t mean you can defame someone,” he said, referring to pro-Trump lawyers like Sidney Powell and Rudolph W. Giuliani, who appeared repeatedly on Fox News and Fox Business in the weeks after the 2020 election and linked Dominion to various conspiracy theories.

The judge admonished Fox’s lawyers, saying they cannot make the argument that the false statements about Dominion came from guests like Ms. Powell and not from Fox hosts. That argument is irrelevant, he said, because the fact remains that Fox is responsible as the broadcaster.

“It’s a publication issue, not a who-said-it issue,” he said.

There’s no guarantee to the outcome of a jury trial, of course…but if I may presume to summarize a closing argument for Dominion:

  • Fox lied about Dominion rigging its election machines to steal the 2020 presidential election from Crybaby He-Man
  • Dominion made every effort to inform Fox that what its guests and its hosts were saying on the air was incorrect
  • Fox knew that the accusations against Dominion that were being made on its programs were lies, but permitted them to continue
  • Dominion suffered monetary losses and losses to its reputation as a result of Fox’s broadcasts, and asks for money damages

Nice and neat, and not confusing.

Fox has been lying on the air to its audience for years, telling them (1) what they want to hear, regardless of whether it is true, and (2) what certain politicians have agreed to parrot, to build political consensus and power.  But this time, it lied about a company that was willing to call them out in a court of law, and the case has landed before a judge who has demonstrated his loyalty to demonstrable truth and facts.  For Fox, that is a whole new kind of audience.

Saboteurs in sheep’s clothing

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“They” say the depredations of age get each of us eventually, and maybe that’s responsible for what feels like my increasingb530dca6-86c1-4d7b-9fd1-e6ebb1bf3b41 inability to think of just the right word on short notice.  But whatever the cause, I owe a big thanks to whoever wrote and approved the headline on the March cover of Texas Monthly: “The Campaign to Sabotage Public Schools” hit perfectly as the word to describe the effort I’ve witnessed for years as radical evangelical Christians have undermined Texas public schools while insisting they are trying to save them.  Butter wouldn’t melt in their mouths.

For a quick refresher on the history of free public education in the United States, check out this short summary by the Center on Education Policy at The George Washington University.  The effort wasn’t without its shortfalls, but the driving force was the thoughtful insight that the future of America depended on educated Americans.

The Founding Fathers maintained that the success of the fragile American democracy would depend on the competency of its citizens. They believed strongly that preserving democracy would require an educated population that could understand political and social issues and would participate in civic life, vote wisely, protect their rights and freedoms, and resist tyrants and demagogues. Character and virtue were also considered essential to good citizenship, and education was seen as a means to provide moral instruction and build character. While voters were limited to white males, many leaders of the early nation also supported educating girls on the grounds that mothers were responsible for educating their own children, were partners on family farms, and set a tone for the virtues of the nation. The nations’ founders recognized that educating people for citizenship would be difficult to accomplish without a more systematic approach to schooling. Soon after the American Revolution, Thomas Jefferson, John Adams, and other early leaders proposed the creation of a more formal and unified system of publicly funded schools. While some Northeastern communities had already established publicly funded or free schools by the late 1780s, the concept of free public education did not begin to take hold on a wider scale until the 1830s.

It became understood across society that educating all of our children would be a benefit to the nation as a whole, and that the tax money needed to fund that effort was one of the responsibilities of citizenship, whether or not you had children and whether or not you sent them to the public school in your town.  Today, that desire and responsibility to promote a societal good is diminishing in some sectors of society; you’ve probably seen these people at work in your community as I have in mine.

The people who believe America is a “Christian nation” and that any effort to respect and accept other beliefs is misguided and unpatriotic.  The people who cannot abide that some people have different beliefs and ideas about what is right and how things should be done, especially when those other people do not share their religious beliefs; for these people, “freedom of religion” as a concept means that all Americans are free to worship as they do.  The people who protested COVID vaccine mandates as another flavor of criticism of established authority outside their “faith tradition.”  The people who now suddenly protest school library books as insufficiently representative of Christian evangelical mores.  The people who demonize the people who are willing to acknowledge the history of racism in this country, and the persistence thereof.  For them, public schools that teach children about math and science and literature and history to prepare them for participation in the secular world at large, and that do not take as their primary responsibility the religious indoctrination of students, are enemies to be defeated.  To be sabotaged, if necessary.

Taken individually, any of these incidents may seem like a grassroots skirmish. But they are, more often than not, part of a well-organized and well-funded campaign executed by out-of-town political operatives and funded by billionaires in Texas and elsewhere. “In various parts of Texas right now, there are meetings taking place in small and large communities led by individuals who are literally providing tutorials—here’s what you say, here’s what you do,” said H. D. Chambers, the recently retired superintendent of Alief ISD, in southwest Harris County. “This divisiveness has been created that is basically telling parents they can’t trust public schools. It’s a systematic erosion of the confidence that people have in their schools.”

The “they” behind this crusade are the current generation of a movement that has been trying to destroy public education for years.

The motivations for these attacks are myriad and sometimes opaque, but many opponents of public education share a common goal: privatizing public schools, in the same way activists have pushed, with varying results, for privatization of public utilities and the prison system. Proponents of school privatization now speak of public schools as “dropout factories” and insist that “school choice” should be available to all. They profess a deep faith in vouchers, which would allow parents to send their children not just to the public schools of their choice but to religious and other private schools, at taxpayers’ expense.

But if privatizing public education is today cloaked in talk of expanded liberty, entrepreneurial competition, and improved schools for those who need them most, its history tells a different story. In 1956, two years after the U.S. Supreme Court handed down its landmark Brown v. Board of Education decision, a group of segregationist legislators in Texas, with support from retiring governor Allan Shivers, began concocting work-arounds for parents appalled by the prospect of racial integration of public schools. One idea: state-subsidized tuition at private schools. That never came to pass, but it was Texas’s first flirtation with vouchers.

The dreaded vouchers.  The current effort in Teas, supported now for the first time by the governor as well as the lieutenant governor, uses the buzzwords “school choice” and “educational excellence” to advocate for a system that will take tax money out of the public schools and hand it over to the private schools, including private religious schools.  Yes: take public tax money and use it to pay for a religious school education for Texas children.

I don’t know that there was ever opposition to parents pulling their children out of the local public school and sending them to private schools—when they do so at their own expense.  My own parents footed the bill to send me to a private high school where they believed I would get a better education than in the Houston public schools.  Maybe they were right about that part.  But they never presumed to think that their public school tax money should be drawn out of the local public school district to pay their son’s private school tuition.  And I don’t want my secular tax dollars today supporting your favored religious institution, regardless of denomination.  And yes, that is exactly what this plan would do.

Pro-voucher people reject the argument that vouchers will only benefit the rich: they say vouchers will help the poor save their children from underperforming public schools.

That hasn’t worked out either. In various experiments across the nation, funding for vouchers hasn’t come close to covering tuition costs at high-quality private schools, and many kids, deprived of the most basic tools, haven’t been able to meet the standards for admission.

(Besides, just think about it: why are the schools “underperforming” in the first place?  Think it has anything to do with the effort over the years to reduce spending on schools or to divert school tax money into private school tuition?)

Voucher programs in Texas have failed at the legislature in the past because of opposition to the diversion of tax money, and due to the pragmatic concern of rural lawmakers who know that public school districts employ significant percentages of their constituents.  Draining the school budgets wasn’t/isn’t in their interests.  The lieutenant governor has favored some form of voucher system for years, but not the governor.

Governor Greg Abbott, knowing all too well the political headwinds that vouchers have faced, has long been wary of publicly supporting them, so he has undermined public schools in other ways. While campaigning early last year, he promised to amend the Texas constitution with a “parental bill of rights,” even though most, if not all, of those rights already existed. By then, “parental rights” had become a dog whistle to animate opponents of public education. (As the Texas Tribune put it: “Gov. Greg Abbott taps into parent anger to fuel reelection campaign.”)

During the recent intensifying crisis on the border, Abbott publicly floated a challenge to the state’s constitutional obligation to give all Texas children, including undocumented ones, a publicly funded education—a step his Republican predecessor, Rick Perry, had denounced years earlier as heartless. Then last spring, Abbott made headlines with his first full-throated public endorsement of a voucher program.

So here we are, with distrust in public schools advancing as fast as the latest COVID-19 variant. The forces behind the spread of this vitriol are no mystery. Those who would destroy public schools have learned to apply three simple stratagems: destabilize, divide, and, if that doesn’t work, open the floodgates of fear.

Here come the foot soldiers of the modern digital offensive: they lie about and harass people they disagree with, and amazingly (at least to me) very many of people who read those lies on Facebook believe them!  Same terrifying principle as with Alex Jones and his acolytes who not only bought what he had to say about the Sandy Hook school shooting being fake, but then took it upon themselves to attack the bereaved parents.  In the TM article, Mimi Swartz’ example of these tactics come from the Central Texas town of Dripping Springs, and she explains the rich and powerful players in the game.

In 2006 [James] Leininger found powerful new allies when [Tim] Dunn, with a major financial assist from the Wilks brothers, formed Empower Texans. Public education became one of its primary targets, in part because the property taxes that funded schools ran counter to their interests as billionaires and in part because they wanted more Texas children exposed to their version of Christian values.

(snip)

What voucher proponents needed most was a powerful champion who was also a gifted salesman. Former sportscaster and right-wing talk-radio host Dan Patrick happily stepped into the role. Elected to the state Senate from Houston’s prosperous, white, northwestern suburbs in 2006, the perpetually youthful but often choleric Patrick was lieutenant governor by 2015. Patrick found school choice and its kissing cousin, property tax reduction, to be winning issues among his right-wing base and his growing cadre of big-money donors, who, along with the backers of TPPF and Empower Texans, also included the billionaire deans of dark money, the Kansas-based brothers Charles and David Koch.

The American Legislative Exchange Council, commonly known as ALEC, is a powerful Koch-supported organization that has devoted much time and money to privatizing public schools nationally. According to a study by the watchdog group Common Cause, Texas has one of the highest concentrations of state lawmakers connected to the organization, at around 32 percent. One of the first bills Patrick introduced in the 2011 legislative session called for eliminating the ceiling on the number of charter schools allowed in the state. It failed, but the relentless Patrick rammed it through two years later. Echoing Republican U.S. senator Ted Cruz, Patrick would also proclaim vouchers to be “the civil rights issue of our time.”

(snip)

The state’s leadership has found other ways to undermine public schools. Texas, according to the latest data, ranks fortieth when it comes to school spending—$10,300 per pupil annually, compared with the national average of $13,500. According to a survey conducted by the Annie E. Casey Foundation, a charitable organization devoted to child welfare, Texas gets what it pays for, ranking thirty-third in the U.S. in the quality of its K–12 education.

Then there is the state’s ongoing loyalty to the STAAR test, the results of which are used to evaluate teacher and school quality. Its efficacy has been widely challenged by educators, parents’ groups, and academic researchers, who have found that the test’s demands are often well above grade level. And because the test is used as a yardstick to grade (and potentially close) schools, test prep has taken over actual teaching in many classrooms.

There’s much more worth your time in the story, which fleshes out the story of the attack on public education, in Texas and elsewhere, in the past couple of generations.  Some of it has been simple, racially-motivated white flight to the suburbs, leaving behind city schools with fewer resources available for the students who remain.  Not satisfied with their parents’ decision to take their ball and go to a new home, the children and grandchildren of those parents of the 50s and 60s are now trying to grab every last nickel they can out of the public school system to “protect” their own children from the real world.  I feel sorry for the children who will have to deal with that world without benefit of a “real world” education.

Don’t let the bully win

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If you’ve been having trouble believing that Vladimir Putin is an unhinged, authoritarian war criminal, I’d suggest you take a few minutes to check out this report from last week’s “60 Minutes” to learn more about the conditions in Ukraine today.  It’s a story about how the people of that country are dealing with Russia’s on-going assault on civilian targets: apartment buildings and schools, power plants and utility infrastructure, and the non-combatants who are suffering as “collateral damage” from attacks that violate global rules on the ethical conduct of war.  (Yeah, there are such things; crazy.)

They are heroic.  Inspiring.  To watch what they have to put up with – conditions they do not deserve, that they suffer as a result of an unprovoked invasion of their sovereign country – made me cry.  Made me wonder, what can we do about this?

The “we” in this case is the rest of the world, everybody outside of Putin’s borders.  The people who just assumed, one year ago when Russia illegally invaded its neighbor, that the global condemnation of this blatant aggression would lead in short order to a low-key pullback by Russian forces with attendant harrumphing about maintaining what he claims as the historical Russian Empire, and then some international back-and-forthing as this big thing faded into the background…so we could maintain our comfort level about life in general and go on to the next big thing.

(People inside of Putin’s borders, we could use your help, too.)

But that didn’t happen.  What I think those of us outside of the professionals in intelligence and diplomacy and history didn’t and maybe still don’t really understand, is that Putin is a criminal (no matter what George W. saw in his soul) and he doesn’t care what the rest of the world thinks or says about how he treats his neighbors.  He hasn’t won easily on the battlefield as he assumed he would, so on top of taking Ukraine’s land and its children he is launching terrorist attacks on the people in the hope that they will lose their resilience and force their government to give up the fight.

I wish I could think of something more “we” could do that would help those people.  Congress should be commended for joining much of the rest of the western world in continuing to provide military assistance to Ukraine so it can keeping fighting the fight. I get it that, when dealing with someone who has become as isolated as Putin, there are risks to us if he decides our support of Ukraine needs to be challenged, but we can’t abandon these people.  They are the latest victims of a megalomaniacal bully, one who can no more be counted on to stop bullying today than could the chancellor of Germany in 1938.

And now, a public service announcement on behalf of America’s sanity

Pat Ryan 1 Comment

It is the midst of winter here in the Northern Hemisphere…right now forecasters are forecasting their asses off about a major ice storm aimed at a hunk of the South.  The days are still comparatively short, and with the cold weather that has accompanied a lot of rain in our part of the world (is the drought over yet?) I am not alone in looking for more indoor distractions until golf weather returns.

But, please God, not this: American journalism outlets and associated information-providing avenues, would ya stand down on the perpetualization of the campaign for president of the United States!  Stop with the assumption that there is nothing more important to talk about, nothing so critical for me to know about, than who is favored and disfavored by people responding to public opinion polls.  Even if those people are telling the pollsters the truth, who cares right now?!  So much can happen in the months and months before anyone casts a meaningful ballot that these results are pointless; they only serve to keep funds flowing to the political-industrial complex.

It is too early.  It is soooo tiresome.  Even the primaries and caucuses that happen more than six months before the general election aren’t helpful in learning about candidates.  The whole thing has become a proxy for the on-going national food fight on “cultural issues” (that really aren’t even about culture) and not about administering government operations or even on providing leadership on issues.

And, at this point a year away from the first voters voting in the next national election, what you are telling us has proved to be, so often, so very wrong.  In Politico, Jeff Greenfield reminds us that in most recent years the “favorites” at this point do not win the contest.  You remember Howard Dean trouncing John Kerry in 2004, right?  And 2008, when Rudy Giuliani blew away John McCain while Hillary Clinton obliterated that senator from Illinois with the big ears?

The point here is not to argue for a vow of journalistic silence in the long slog leading up to the actual contests; it’s to put that part of the process into context, along with a serious dose of humility. Yes, Trump looks weakened, but are we really ready to anoint Ron DeSantis the nominee before he proves himself on the big stage? Yes, Biden is an octogenarian whose approval rating has been underwater since August 2021, but is anyone in his party really about to challenge his hold on the White House?

If you need something civic to worry about, worry about the government debt ceiling and the on-going budget deficits; give some thought to how our country can help our allies stifle threats from Russia and China; consider the real causes for and possible humane solutions to the humanitarian crisis at our southern border and the budget crisis it’s created for federal and state governments.  You could engage in the speculation about which team will win the Super Bowl or who will be selected as the next head coach of your favorite NFL team.  You could even talk to your friends about who will win The Bachelor, but please promise to do that verrry quietly so the rest of us can’t hear you.  But please leave the next race for president alone for now.

And if you need something to keep you warm on these cold winter days and nights, curl up with The Columbia Journalism’s Review of how American journalism handled coverage of Donald Trump.  There’s something here to warm the hearts of media-haters everywhere.

Florida man referred for criminal prosecution

Pat Ryan 1 Comment

The House January 6 committee’s investigation has produced all the evidence that should be needed to send a former president to jail.  (Who would have believed we’d ever come to that point in this country?)  Testimony from Republicans – from people who willingly and eagerly worked for the former guy, yet also valued their own good names and reputations and the importance of truthfulness under oath – makes it unavoidably plain, to any clear-eyed person able to honestly evaluate the evidence, what happened.

Before the election was even held and before anyone had been able to count any votes, Donald Trump laid the groundwork for his con by asserting that any election he might lose would of necessity be fraudulent, and his hangers-on assembled baseless “legal” theories to advance the story that Trump was a victim…that all Americans and patriots were victims of Democrats and progressives and America-haters, that the people whom they had let themselves believe were pedophiles and socialists and opponents of fascism and Trump-haters had stolen their country.

As the votes were being counted the Trumpers pursued dozens of cases in court – in many cases, shopping for Trump-appointed judges they expected would be willing to do anything to please “Mr. Trump” – and they lost, over and over and over again, the judges all finding that there was no basis for the complaints and no evidence to prove them.  There was not, and still is not, evidence to prove that there was fraud committed in the 2020 general election for president that was significant enough to change the outcome.  Hence, no reason to rise up in rebellion.  Still, the crybaby con man refused to accede to reality, despite the efforts from family and friends and staff and lawyers and insightful bloggers that he man up and do the right thing: peacefully stand aside for his lawfully-elected successor as president, as American law and tradition have held for more than 225 years.

Trump encouraged supporters to organize a rally in Washington on the day Congress was to certify his defeat, where they could stage a demonstration that appealed to his overweening sense of himself, his unshakeable narcissistic belief in the grandeur of him!  After all, who else but Trump could engender such devotion from the suckers and losers he so detested, that these proud Americans would stage an armed assault on the seat of their own government on his behalf?

Again today there was an air of disbelief from committee members who told the part of the story about how Trump never made any effort to stop this attack on America – never called on any law enforcement assets or federal agencies to defend the Capitol, never issued a call to his supporters to straighten up and go home.  Are we surprised at that, really?  I’ve got a clear picture in mind of him glued to TV and patting himself on the back in the realization that this plan that was so crazy it just might work…was working!  Until it wasn’t, I guess…until enough supporters on the outside looking in, and enough members of Congress on the inside looking out and pleading for help, gained the critical mass to convince even the Great and Powerful Trump that the jig was up.  Even then he couldn’t make himself admit to being in error: he professed his love for these “special” Americans who were at that moment still committing treason and gleefully sharing the incriminating evidence of their crimes on social media.  Geniuses.

Any list of his questionable behavior since his return to private life – since his big boy pout of “snubbing” Joe Biden’s inauguration – is irrelevant to the possible criminal charges of inciting or assisting an insurrection, obstruction of an official proceeding of Congress, conspiracy to defraud the United States, and conspiracy to make a false statement that arise from the January 6 attack on the Capitol.  (Perhaps another time.)  I applaud the committee’s recognition that others in government played a role in Jan. 6 that should not be ignored: kudos for the Ethics Committee referrals against House Republican leader Kevin McCarthy and GOP members Jim Jordan, Scott Perry and Andy Biggs for (like Trump) refusing to comply with committee subpoenas.  You can’t just thumb your nose at a Congressional committee and expect there to be no consequences.

Of course this isn’t the first time we’ve had ample evidence of Trump’s…shall we say, wrongdoing; Congress made history when it twice impeached him for high crimes and misdemeanors.  Well, Democrats in Congress did that; the feckless Republicans succumbed to a partisan effort to protect their own – a president of their own party, and more crucially their own jobs and power from the electoral annihilation they expected they would suffer from their MAGA constituents.  The Republican leadership of the incoming Congress will be powerless to stop this disbanding select committee’s work or the publication of its findings.  It’s up to the Justice Department now to do something about protecting the integrity of our democracy from those who think the laws do not apply to them.