Category: History

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.

Don’t let the bully win

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.

Florida man referred for criminal prosecution

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.

Fundamental dishonesty

It wasn’t a “driveway moment” because I wasn’t in my driveway, I wasn’t sitting in the car listening to the radio to hear the end of a story that had sucked me in.  No, I was still on the road headed home from the grocery store when I heard two words that broke through and provided some clarity of mind, finally, amid the onslaught of distressing rulings from the Supreme Court of the United States.

Just a week ago, the court’s six “conservative” justices ruled that a program in Maine that subsidizes tuition for certain private schools in rural areas of the state cannot exclude religious private schools from the program.  Two days later the same six found that a New York law placing strict limits on carrying guns in public violates the Second Amendment.  And the day after that, those same six members not only found that a Mississippi ban on abortions after just 15 weeks was constitutional, they went the extra step and overturned the nearly 50-year old precedent of their own court that established a woman’s right to an abortion.

The separation of church and state.  The rights to privacy, and to safety, individual liberty, and self-determination.  The targets of this Supreme Court and the “conservative” movement in general couldn’t be clearer.  With each new Republican-appointed justice on the court, and each new ruling by the new majority, they demonstrate their mission to remake America as a paradigm of Christian nationalism.  It seems clear that the decades-long mission to destroy the secular society that has grown up since World War II just can’t be denied, not even when the inconvenience of the facts gets in the way.

It was Nina Totenberg on the radio reporting on the ruling in favor of the high school coach who insisted on holding a prayer circle at midfield after football games, and Justice Neil Gorsuch’s opinion scolded the school district:

“Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his religious exercise and free speech claims,” Gorsuch wrote.

The three dissenters said that account of the facts blinkered reality (emphasis added). Writing for the three liberals, Justice Sonia Sotomayor said that Kennedy’s prayer was neither private speech, nor benign. She pointed to the fact that the coach conducted a media blitz leading ultimately to the field being stormed and students being knocked down. And she said “schools face a higher risk of unconstitutionally ‘coerc[ing] … support or participat[ion] in religion or its exercise’ than other government entities.”

“This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state,” Sotomayor wrote. “Today’s decision elevates the rights of a school coach who voluntarily accepted public employment, over the rights of students required to attend public schools and who may feel obligated to join in prayer.” In doing so, Sotomayor claims, the court gives “short shrift” to the constitutions ban on state entanglement with religion.

University of Virginia law professor Douglas Laycock usually files briefs siding with religion advocates. But not in this case. He called Monday’s ruling, “fundamentally dishonest” and pointed to the third sentence of the Gorsuch opinion, which characterizes coach Kennedy’s conduct as “quiet isolated prayers,” stating, “They weren’t quiet and they weren’t isolated. They were leading the students in prayer, and to say that’s okay undermines all the school prayer cases.” By that he means Supreme Court decisions barring teacher- or student-led prayers in public school classrooms, and ceremonies like graduation.

It was like a fire alarm went off inside my head: “fundamentally dishonest.”

Yes—the fundamental dishonesty of these justices, and of the Christian religious extremists who have been fighting the secularization of American society for generations!  They have had a winking understanding with a certain segment of America: anything is permissible—the end justifies the means—when it comes to returning America to be the Christian country we all “know” it should be, including lying under oath in order to gain positions of power.  Don’t believe me?  Look at the video of the confirmation hearings over the years of the “conservative” justices now on the court: is it just a coincidence that when the Senate Judiciary Committees asked these nominees about Roe v. Wade, these individuals had the same answer, in virtually the same words, words meant to leave the impression that they believed in the doctrine of stare decisis in general and specifically for this case?  I think not.

In a concurring opinion on Dobbs, Justice Clarence Thomas says the quiet part out loud about using the wedge they perfected in overturning Roe to take aim at other precedents that guarantee other rights to Americans.

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote on Page 119 of the opinion in Dobbs v. Jackson Women’s Health, also referring to the rulings that legalized same-sex relationships and marriage equality, respectively. “Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.”

Just coincidence, right, that the other cases on his mind are the ones that guaranteed the rights to same-sex marriage, and same-sex sex, and the use of birth control.  BIRTH CONTROL!?  He wants to return to a time when the use of birth control by married couples in the privacy of their own home could be and was prohibited by states?  Who can even imagine such a thing?

I know who…so do you.  And I don’t take any comfort—at all—in the protestation from the other five “conservative” justices that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”  When there is fundamental dishonesty, I have doubts.

Enough

Joe Holley is a writer here in Texas with a background in newspapers and magazines right up to his own books.  He writes the feature column Native Texan in the Houston Chronicle about Texas places and people and history, and today he started off referring to “The Captured,” a history of frontier Texas telling the story of Anglo children captured by Indians in the late 19th century.  He uses it to touch on the harshness of life on the Texas frontier in those days, facing not only the Natives but the constant threat of disease, and outlaws, you name it.  And yet, Holley says,

…it’s only today’s Texas, our Texas, that experiences mass shootings in a suburban high school, in churches, a Walmart, an Army base, the streets of Midland-Odessa, a Luby’s Cafeteria and a small-town elementary school. Our frontier forebears, whatever their own travails, would have been aghast, unbelieving.

I’m wondering, why aren’t all of us today just as aghast and unbelieving?  Sure, with each new horror we mumble some hopefully appropriate words to express shock and disbelief, but are we really so surprised?  I mean, it just keeps happening, over and over again; can we really still be shocked, and really feel the emptiness in the pits of our stomachs that we ought to feel when innocent children are massacred with weapons meant for war on the battlefield?  This time, in Uvalde, it was fourth graders…nine and ten year olds; it was six-and-seven-year olds in Sandy Hook in Newtown, Conn. ten years ago.  The Washington Post chose the almost arbitrary starting point of the Columbine shootings in 1999 and calculates that more than 311,000 American children, at 331 schools, have been exposed to gun violence at school in those years.  All the students in that time, right up through today’s college graduates, have normalized the grotesque concept of the active shooter drill as just a part of life.

Why would a person take a gun to a school and open fire at…some kids, ones they often don’t even know?  Why did I take a magnifying glass to school in the fourth grade and focus sunlight to burn holes in a classmate’s sweater I found hanging on a fence at recess?  Same response to both questions: who knows?  Short of finding that answer, we should be doing something to try to reduce the chances of our schools become killing grounds, and of our own children and those of our friends and neighbors becoming one of those small images in a large collection of class photos that identify the dead.

Holley recalls the 1937 natural gas explosion that killed some 300 students and teachers in New London, Texas, and that the Texas Legislature and then Congress responded to that by requiring the “odorization” of natural gas so future leaks could be detected before they became catastrophes.  What can we, through our elected representatives, do now to make a meaningful change in the normal course of business that will better protect our children’s lives when they simply go to school?

Among the common sense suggestions I’ve read since last week – and not that it hasn’t been suggested before – is that we stop letting children buy these guns legally.  Our laws prohibit those under age 21 from buying alcoholic beverages; why not guns, too?  Connecticut Sen. Chris Murphy, who’s been working on gun restriction legislation since he represented Newtown in the House of Representatives, argues that “most of these killers tend to be 18, 19 years old.” and PolitiFact has rated that claim as Mostly True: “That’s largely accurate when looking at school shootings alone, according to a Washington Post database of school shootings since 1999. The database did include shootings that did not result in a death, and the share of teenagers committing mass shootings overall is smaller.”

Also judged to be Mostly True is the assertion last week by Golden State Warriors coach Steve Kerr, that “90% of Americans, regardless of political party, want universal background checks.”  PolitiFact finds that “For years, polls have shown a majority of Americans support gun background checks for all buyers. Some polls show overall support in the ballpark of 90%. Support is lower among Republicans (emphasis added), but polls still indicate majority backing” for a review designed to make sure that guns are not being sold to people who are not permitted under law to possess guns, people who have been “convicted of a serious crime or committed to a mental institution.”

No right guaranteed under the United States Constitution is absolute.  The law recognizes, even when some Americans don’t or won’t, that rights come with some limitations.  Even your right to life is not absolute, not if you are convicted of committing a crime for which the approved punishment is the loss of your life.  Your right to be free of government censorship of your expression of your thoughts and feelings doesn’t mean your speech can endanger the health and safety of others with impunity.  And none of us has an unrestricted right to gun ownership.

Please, let’s get creative.  Adding mercaptan to AR-15s won’t stop school shootings, but expanding background checks and limiting gun ownership by minors will help.  We’ve got to find something else that will make a difference.  We can’t just accept that this is the way things have to be, and there’s nothing we can do.  I don’t want to settle for the situation Holley found himself in as he finished up his phone call with the Uvalde County Judge, Bill Mitchell:

When it came time to hang up, I tried to tell him how sorry I was. My voice broke. So did his. Perhaps for both of us, the faces of those little kids swam into view.

We were two men of a certain age. We’ve seen much over the years. Words failed us.