Actual malice, meet demonstrable truth

…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.

Say the truth

It feels like it’s been going soooo slooooowly, but maybe we’re going to see some movement.  Chairman Bennie Thompson says the first public hearings on what the House January 6 committee has learned will be held in early June, and committee member Jamie Raskin is describing what they have learned this way: “This was a coup organized by the president (Donald Trump) against the vice-president (Mike Pence) and against the Congress in order to overturn the 2020 presidential election” and “We’re going to tell the whole story of everything that happened. There was a violent insurrection and an attempted coup and we were saved by Mike Pence’s refusal to go along with that plan.”

Wait, what?  Saved by Mike Pence?

To be fair, I can remember feeling sort of satisfied at the time that Pence had finally stood up to his boss (I think there was some mention of overcoming obsequiousness in there) and refused to take part in such a blatantly illegal plan—a coup.  But I hadn’t considered that maybe we all owe Pence more of a debt than we realized.  Earlier this week MSNBC’s Chris Hayes laid out this interpretation.

I’m eager to see the evidence.  I’m eager to get on with it!  Not to rush to judgment, mind you, but it’s been almost 16 months: the legislative branch and the Justice Department and the court system have got to nail the people responsible for this illegal power grab, and do it soon…or we may find those traitors may be back in power in Washington and in a position to protect themselves forever.  We’ve got to take action to punish those who deserve punishment, and stand up to the haters.

None of the mechanisms to deter a rogue president would work to restrain a reelected Trump.

On that note, I was invigorated last week to stumble across a speech by Michigan state senator Mallory McMorrow.  In retaliation for her support of LGBTQ issues, one of her “colleagues” embraced the popular new right-wing slur by accusing McMorrow of “grooming” children for sexual exploitation.  In a fundraising message.  No evidence provided, of course.  But McMorrow didn’t just take it, or shrug it off; in less than five minutes she sent a positive message that hits the haters right between the eyes.

“Hate will only win if people like me stand by and let it happen.”

I want to take a lesson from Mallory McMorrow, and not to afraid to call them like I see them.  We need to make it OK again to say the truth that we see.  It’s how we can defeat the haters.

Democrats Ask if They Should Hit Back Harder Against the G.O.P.

The truth can hurt—tell it anyway

One of my first jobs after graduating from college was hosting a weeknight radio talk show in Austin, Texas.  This was the early 1980s and Austin was both politically and socially a very liberal town, yet over time I found a higher-than-expected percentage of conservatives among my audience on a radio station that played rock and roll the rest of the day.  I did interviews when an interesting guest was available—Madalyn Murray O’Hair came to the studio one night, had Timothy Leary on the phone once—but often it was an open line to talk about, and debate and argue, topics in the news.  I enjoyed the give and take with people who had a different opinion and were willing to make their case, and to listen to mine and respond on the merits.  I fancied myself left of center but not crazy; I had more than one caller who complimented me for being funny and so reasonable…for a liberal.

This was as a new American conservatism was eclipsing the old one: William F. Buckley, Jr.’s worldview was being subtly undermined and overwhelmed by the Moral Majority appeal to right-thinking Christian evangelicals who were urged to get involved and install their religious beliefs as secular law.  America was a Christian nation after all, they were told, so it was the right thing to do; any fancy intellectual arguments, or any point of view that sprung from a differing interpretation of the will of God, could be safely ignored.

And here we are.  Give the radical right credit: they played the political game on its own terms, they played it smart, and they won.  A lot.  We have the same American states, same U.S. Constitution and structure of government, and at least on the surface we have the same tradition of respect for the rule of law, for freedom of speech, for individual liberty and societal responsibility, as we did forty or more years ago.  But it’s not the same.

I try to be optimistic.  I believe that each new generation of Americans is more committed than the last one to the “liberal values” of racial and gender equity and equality, and the free exchange of ideas, and freedom of religion as well as freedom from religion, and that the fearful closedmindedness at the heart of the professional patriots of today will force their movement to wither and become the appendix of the American political system: present, but useless.

But in the meantime, I think the far right senses that its time is running out, and it’s desperately grabbing at any opportunity to maintain relevance and power, going all out to fortify their calcified beliefs in law and install like-minded judges to protect those gains.  Here in my state of Texas this week, a state legislator who is running in the Republican primary for attorney general has initiated “an inquiry into Texas school district content,” which is to say, he’s using his state house committee to investigate the books that public schools use to teach our kids.  (The vice chair of the committee says the panel never took a vote on this; she learned about it from a local school official.)

Attached to [Matt] Krause’s letter was a 16-page list of books published from 1969 to 2021 that included “Between the World and Me” by Ta-Nehisi Coates and “The New Jim Crow: Mass Incarceration in the Age of Colorblindness” by Michelle Alexander. Other books on the list deal with issues of race, gender identity and sexuality.

The Fort Worth Republican asked school leaders to identify where copies of the listed books were located in school libraries and classrooms and the amount of money districts had spent on them.

He also asked districts to identify any other books or content that address human sexuality, sexually transmitted diseases, or any material that “might make students feel discomfort, guilt, anguish, or any other form of psychological distress” because of their race or sex.

The far right is very good at creating a villain where none existed, then using that villain to whip up fervor among those who don’t know any better.  Think Joe McCarthy, but with a broader canvas.  In this case, appealing to the good Christian souls who don’t have a racist bone in their bodies to battle the evildoers who would indoctrinate the innocent little schoolchildren of Texas into thinking the unthinkable: that the racism of the present as well as of the past, including not just the toleration of human slavery but the promotion and protection of it in law and custom, has tangible effects that all we experience today.

Well, everyone’s entitled to their opinions…how they act on them is another thing.  In the Washington Post this week, Michael Gerson makes the point that only one side in the current ideological dispute in America is threatening the future of our country:

In a country of 330 million people, one can find plenty of anarchist rioters, Marxist college professors and administrators who use tolerance as a club to beat those they deem intolerant. But judging their threat as equivalent to that of the populist right is itself a threat to the country. At some point, a lack of moral proportion becomes a type of moral failure.

My main concern here is with previously rational and respectable conservatives who are providing ideological cover for the triumph of Trumpism on the right. Often some scruple prevents them from joining fully in former president Donald Trump’s gleeful assault on democratic legitimacy. So their main strategy is to assert that leftist depredations against democracy are equivalent. If both sides have their rioters and petty autocrats, why not favor the rioters and petty autocrats whose success will result in better judges?

But here’s the rub: By any rational standard, both sides are not equivalent in their public effect.

Only one party has based the main part of its appeal on a transparent lie. To be a loyal Republican in 2021 is to believe that a national conspiracy of big-city mayors, Republican state officials, companies that produce voting machines and perhaps China, or maybe Venezuela, stole the 2020 presidential election. The total absence of evidence indicates to conspiracy theorists (as usual) that the plot was particularly fiendish. Previous iterations of the GOP tried to unite on the basis of ideology and public purpose. The current GOP is united by a common willingness to believe whatever antidemocratic rot comes from the mouth of an ambitious, reckless liar.

Only one side of our divide employs violent intimidation as a political tool. Since leaving the presidency, Trump has endorsed the view that the events of Jan. 6 were an expression of rowdy patriotism and embraced the cruel slander that the Capitol Police were engaged in oppression. Turn to Fox News and hear hosts and guests referring to a coming “purge” of patriots, alleging that the left is “hunting” the right with the goal of putting conservatives in Guantánamo Bay, and speaking of “insurgency” as a justified response.

Only one political movement has made a point of denying the existence and legacy of racism, assuring White people that they are equally subject to prejudice, and defending the Confederacy and its monuments as “our heritage.” This is perhaps the ultimate in absurd bothsidesism. My side suffers from economic stagnation and the unfair application of affirmative action. Your side was shipped like coal and sold like cattle; suffered centuries of brutality, rape, family separation and stolen wages; and was then subjected to humiliating segregation and the systematic denial of lending, housing and justice. Who can say which is worse?

Gerson is not the first to make this point; it needs to be made more often, with volume and clarity.  This is not a “both sides of the story” thing where you intimate that the two sides just have a philosophical difference of opinion.  And here, journalism has let us down.

The practice of journalism in America has changed over the centuries, if not necessarily evolved and improved.  I come out of the post-Watergate era of journalism education, which taught us to get “both sides” of a story and not favor one over the other.  It was not that a reporter could not have a personal opinion on a topic, it was just irrelevant—the goal in writing a story was to uncover facts and context and assemble them into a narrative for the reader so he or she could better understand an issue and come to their own opinion about it.

Of course, the truth is there have always been more than two sides to most stories, and any reporter’s worldview influences how they go about the uncovering of facts and context.  Editors are there to help smooth that out so the final product is accurate, and fair, and enlightening.  But in the end, the journalism is done for the benefit of the customer: the reader, the listener, the viewer.  We sure as hell are not there to campaign for any politician, yet for generations politicians and their supporters have accused reporters and their employers of being unfair: if you write bad things about me, you’re against me; you’re biased.  It doesn’t matter whether the “bad things” are in fact true, or that the reporter or the paper routinely publish “bad things” about all candidates from all parties.  (From our perspective, those are all good stories!)

But over the years, some outlets—many of them—developed a preemptory defense against accusations of unfairness: report facts, but don’t add context that leads to a judgment about the participants; then they can’t accuse you of being unfair.

Of course, they still can and do make the accusation, so the strategy is flawed on its face.  But in a tragic example of the law of unintended consequences, that acrobatic effort to produce “neutral” journalism is failing the customer.  As Jackie Calmes writes in the Los Angeles Times, in the case of national politics today it is failing the country.

I started to chafe at false equivalence a quarter-century ago, as a congressional reporter amid Newt Gingrich’s Republican revolution. One party — his — was demonstrably more responsible for the nasty divisiveness, government gridlock and norm-busting, yet journalistic pressure to produce seemingly “balanced” stories — pressure both ingrained and imposed by editors — prevented reporters from sufficiently reflecting the new truth.

By 2012, as President Obama dealt with the willful obstructionists, conspiracists and racists of an increasingly radicalized Republican Party, political scientists and long-respected Washington watchers Thomas E. Mann and Norman J. Ornstein put the onus for the dysfunction squarely on the GOP in their provocative book “It’s Even Worse Than It Looks.” Significantly, they implicated journalists: “A balanced treatment of an unbalanced phenomenon is a distortion of reality and a disservice to your consumers.”

The ascension of Donald Trump four years later should not have been such a surprise. With his continued hold on the Republican Party in the Biden era, Mann and Ornstein’s admonition is truer than ever.

Yes, it’s critical for political journalists to remain fair and balanced, in contrast with the right-wing network that cynically co-opted those adjectives. And, yes, variations on the word “lie” justifiably made it into the mainstream — something I never thought I’d see, let alone write — to describe what comes out of Trump’s mouth whenever his lips move. Sadly, that was progress.

(snip)

This is a Republican Party that is not serious about governing or addressing the nation’s actual problems, as opposed to faux ones like critical race theory.

Healthcare costs, child care, climate change, income inequality, you name it — Republicans don’t even acknowledge the problems, let alone propose solutions. Statewide candidates from Nevada to Virginia echo Trump in claiming that addressing (nonexistent) election fraud is, as he put it in another statement Wednesday, “the single most important thing for Republicans to do.”

Republicans in Congress scandalously opposed a bipartisan commission to investigate the Jan. 6 insurrection, which threatened them as well as our democracy. They won’t support a must-pass increase in the nation’s debt limit, despite the trillions of debt that they and Trump piled up. Yet it was Sen. Charles E. Schumer of New York, the Democratic majority leader, who came in for pundits’ rebuke last week when he lambasted Republicans for flirting with a default, just after they’d allowed a temporary debt-limit measure to pass. What was he supposed to do? Celebrate the Republicans’ “bipartisanship” in defusing, only until December, the dynamite they’d lit under the economy?

On Saturday, the Senate’s most senior Republican, Sen. Charles E. Grassley, gleefully accepted Trump’s endorsement for reelection at a rally in Iowa where Trump repeatedly lied that he’d beaten Biden. The next day on “Fox News Sunday,” the second-ranking Republican in the House, Rep. Steve Scalise of Louisiana, repeatedly refused to say that the election was not stolen from Trump.

Democrats can’t be expected to deal with these guys like they’re on the level. Nor should journalists cover them as if they are.

Telework Journal: The first thing you learn

When it was becoming clear that fighting the novel coronavirus meant we wouldn’t be able to keep coming to the office, my bosses were annoyingly repetitious with the email reminder that everyone should pack up what they would need to work remotely, and the question, do you have everything you need.  I smugly thought, well I have my laptop and an Internet connection at home so yes, I do; stop bugging me.

It took less than two days of working from home—of both my wife and me working from home—to realize a few of the things I hadn’t given any thought to getting prepared.  The first thing was, my desk chair is trash.

Actually better to say that it was not built for the task.  For years I’ve had a series of very simple height-adjustable, no arms task chairs at my desk at home.  They have always been just fine for a quick session at the computer, or even an hour or two playing games or writing a blog post.  By the end of my second full day using that chair to work from home, spending some number of hours in the chair in between leg-stretchings and lunch, it was clear this was not going to work.  The local office supply store was open yesterday and had a good selection; I made my purchase, brought it home and in an hour I’d assembled it and had it in use.  Much better.

IMG_0659[1]                     IMG_0660[1]

Another thing I learned is that our Internet service does have the bandwidth to support two laptops on the Internet simultaneously.   I don’t know that everything would still run so well if someone was streaming a movie at the same time, but no one is doing anything like that so we appear to be in good shape.  What else did I learn?  I learned, again, that astronauts are pretty smart.

Today I learned it from Anne McClain, an Army officer and helicopter test pilot, and world-class rugby player, who spent six months living and working on the International Space Station from late 2018 until last June.  (Talk about working remotely!)  Well, today she tweeted a great thread of advice about living and working in confined spaces from the folks who have made a science out of that:

Click that tweet to get the rest of the thread, and some good suggestions about “the human behaviors [that] create a healthy culture for living and working remotely in small groups.”  Something we will all be doing for the foreseeable future.

Telework Journal: Stage 1, we hardly knew ye

As of this morning NASA Headquarters and all of the field centers across the country went to what is called Stage 2 of the response framework.  That tells you everything you need to know, right?  Cutting to the chase, it means work for me enters a new phase.

Because it’s NASA we’ve got at least our share of jargon, and in this case apparently no need to specify what we are responding to much less provide clarity as to why such response needs its own framework.  But given the context of the news of the world, you can probably guess that we are responding to the threat of COVID-19, and Stage 2 means that all NASA civil servants are “strongly encouraged” to work remotely if possible.

Caveat 1: if your work cannot be done remotely, you can still come to the office anyway.  Caveat 2: contractor employees “should reach out to their contracting officer’s representative” to find out what we’re supposed to do.  In this case, we’re teleworking, too!

There are some things I do at work that have to be done at work, things involving both the recording of episodes of a podcast and the live broadcasting of a little weekly television show (which we lovingly and with full irony refer to as “the big show”), so right now I’ll still be going to the office.  Not every day, and even then not all day.  But this is a big deal for me: with only a few exceptions (search “Furlough Journal” blog posts in that box over to the right), “going to the office” for work is what I’ve been doing since the Carter Administration, so this could take some getting used to.

Not complaining…I know this whole situation is going to get worse all across in America: today more localities are asking, or ordering, restaurants and bars to close except for takeout or delivery to cut down on our chances of being in large crowds, whether we want that or not; here in Texas the state education commissioner is warning that public schools could remain closed for the rest of the school year; although there have been no deaths reported in our area (yet) the first area man who was reported positive without a travel-related cause is in very poor condition.  So I’m very lucky that my biggest problem (so far) is getting smart about working from home, and a friend at work has helped us all by finding a list suggestions how to make the most of that.  It starts by arguing in favor of wearing pants.

Perhaps the most harmful decision I made in those early years was the embrace of the “No Pants Freelance” lifestyle. I took it literally, often only working in a t-shirt and underwear. Hey, I never saw clients, why get dressed? Well, turns out that was a terrible decision.

Not only does your personal hygiene suffer, your mental clarity will too. Over days, weeks, and months, I became a shell of a human. Depression and anxiety start to take over, and before you know it, you’re a complete mess both in and out of work. This was precisely what I wanted to avoid this time.

I’ve now built a morning routine, which I’ll get to shortly, but the culmination is getting dressed for work. I put on pants everyday. Pants. Not shorts, not pajama pants, but a pair of pants. I’ll wear a button down shirt or t-shirt each day, but the pants are essential. This is my brain telling my body that I am going to work.

I’m trying to keep in mind that whatever hardship I think I’m enduring now (1) isn’t so hard, and (2) has a damn good reason behind it.  Matt Pearce off the Los Angeles Times put it very well:

So did this elementary school principal:

I also love this…if you love “Schitt’s Creek,” so will you: