Category: Woeful Journalism

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.

Dear Jon Stewart,

Thank you…you and the little army of writers and television gypsies that came together for good, at a time when your country, and I, needed you.  When we were lost, trying to rescue truth from the clutches of the radical political conservatives, and the evangelical Christian extremists, and the political organizations they controlled, you went to the front of the column and screamed, “Seriously?”

Journalism was little help in those dark times.  The major outlets were swampedjon_stewart3 by calls that blamed the “liberal media” for always taking sides against good honest conservatives, so they fell back to reporting controversial stories as little more than “he said/she said” exchanges and refused to identify blatant falsity as such.  They were outmaneuvered by the opposition; they were (and are) cowards, willing victims to what David Shaw of the Los Angeles Times beautifully referred to as “the four horsemen of the journalistic apocalypse: superficiality, sensationalism, preoccupation with celebrity, and obsession with the bottom line.”  So it was left to comedy, satire, to ride to our rescue.

The objection to Puritans is not that they try to make us think as they do, but that they try to make us do as they think. – H. L. Mencken

Almost any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so. – Robert A. Heinlein

It didn’t help that the barbarians at the gate, intent on replacing the tolerant democratic civil society we were aspiring to with a theocracy of their own religious beliefs, decided to unlevel the playing field and refuse to acknowledge any truths that didn’t support their worldview.  The “reality-based community” stood dumbfounded, scrambling for the proper reply to “No, the sky is not blue, and you can’t prove that it is.”  But you found a way.

You like to say that you were just a comedian; true enough, but on The Daily Show you were more than just jokes.  You aimed a most potent weapon—sunshine; the light of day; their own words; common sense—at people who were full of shit and assured us all that the smell was coming from somewhere else.  They deserved what they got from you, and we got to laugh.  And in the process—in pointing out that the emperor indeed did not have on any clothes, that what politicians said quite often was at odds with demonstrable truth, that the 24-hour news channels weren’t worth the paper they were printed on—you reassured a lot of us that there was still hope.  For that, thank you.

Fact is, you did a great job of it just this week and I grabbed the link.  So for old time’s sake, just once more, let me suggest—click the pic, ya maroons.

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This week’s winner of the Internet

Who was it who said there’s a sucker born every minute: P.T. Barnum?*  Roger Ailes?  Well, whoever it was would love this one:

I saw the story on the net Monday—actually I only saw the headline—

President of Argentina adopts Jewish godson to ‘stop him turning into a werewolf’

—and I thought, c’mon…this is the 21st century, right?  No elected national leader in the modern world is believing this, or even going along with it for the sake of his or her people (unlike national leaders who talk man-to-man to Santa Claus or pardon Thanksgiving turkeys for unspecified crimes).  Of course, it’s not true.

The Guardian took a bit of pleasure in popping this balloon:

Evidently, the chance meeting of a Latin American president with a colourful myth too good to fact-check proved irresistible – confirming as it did any number of stereotypes about erratic behaviour from national leaders in the continent of magical realism.

But according to Argentine historian Daniel Balmaceda, there is no link between the two traditions. “The local myth of the lobizón is not in any way connected to the custom that began over 100 years ago by which every seventh son (or seventh daughter) born in Argentina becomes godchild to the president,” he said.

It seems this tradition was born in 1907 when a couple from Russia asked Argentina’s president to be godfather to their seventh son: “The couple wanted to maintain a custom from Czarist Russia, where the Tsar was said to become godfather to seventh sons, and Argentina’s president accepted.”  The tradition in Argentina became law in 1974 and President Isabel Peron extended the benefit to seventh daughters; it was subsequently granted to non-Catholic children beginning in 2009.  The president’s godchildren receive presidential protection, a gold medal, and a scholarship until their 21st birthday.

It was Mark Twain who said, Never let the truth get in the way of a good story.  Many publishers and editors have been making a good living following his advice since long before the Internet came along, but now we can get the full story in fewer news cycles.  So in that sense we all won the Internet this week!

*(Come to fine out it was not P.T. Barnum, it was someone named David Hannum.  Read the interesting backstory here.)

You don’t give Mrs. O’Leary a forum to bad-mouth the firefighters, or let Capt. Hazelwood criticize how they clean up the oil spill

So extreme that they even scare Al Qaeda?  OK, you’ve got my attention.

What the hell is The Islamic State of Iraq and Syria, and how is it able to take over major Iraqi cities apart from the luck of only encountering feeble resistance from American-trained Iraqi government forces?  I don’t know, and it’s a little unsettling to read and hear the stories of these religious extremists blowing through city after city summarily executing those who don’t worship properly—as Sunni Muslims—and setting up their own governing authority.  The Iraqi government has asked the U.S. for help and our government is thinking it over.

In the meantime, because news networks have lots and lots of air time to fill, the punditocracy has cranked into gear to do what it does best: blow hot air.  Well, that’s just fine, I suppose, but…why, why, why, in the wide wide world of sports are they asking the opinions of the men who got us into the quagmire of Iraq in the first place for their opinions on what President Obama should do now?

Sargent Iraq arson

Thanks Ben Sargent and GoComics.com

Want to read some more—try here and here and here and here and here.  But as one might imagine, some of the best remember-what-these-nutballs-said-and-did-and-what-happened-because-of-it recollection has come from Jon Stewart on The Daily Show.  (click the pic to see what I mean)

wrong about iraq

Hey, talk show bookers and assignment editors: think, just for a minute, before you make your next move.  Looking for a good summary of what happened way back when–here’s one.

The totality of the Bush administration’s failure in Iraq is stunning. It is not simply that they failed to build the liberal democracy they wanted. It’s that they ended up strengthening theocracies they feared.

And it’s not simply that they failed to find the weapons of mass destruction that they worried could one day be passed onto terrorists. It’s that a terrorist organization now controls a territory about the size of Belgium, raising the possibility that America’s invasion and occupation inadvertently trained the fighters and created the vacuum that will lead to al Qaeda’s successor organization.

And all this cost us trillions of dollars and thousands of American lives.

(UPDATE: Yes, I did change the headline once I realized the error…I figure it’s never too late to get it right–PR)

America’s cable TV universe: where they turn news and tragedy into gossip right before your gullible eyes

During their coverage of Monday’s Washington Navy Yard shootings a good portion of America’s national cable news organizations clearly demonstrated just how far out of touch they are with what they’re supposed to be doing, at least if “reporting the news” or “practicing journalism” are what they think they’re doing.  (Hint: they’re not.)  Jon Stewart and “The Daily Show” stepped up Tuesday night to make the point, again, about as clear as it can be made.  Take a look (click the pics to see the clips):

Stewart starts out using their own work to show that the cable networks believe their job is to put people on the air to talk and talk and talk about an event, even when they don’t know what’s going on:

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Then he singles out CNN for special recognition as a paradigm…of regurgitation of contentlessness.  The funny part—and there is a funny part—is that the same people who are on the air, making wise pronouncements that much of the information learned early in a dynamic event like a mass shooting turns out to be flat wrong, keep repeating what they’ve heard without bothering to confirm the information.  (Confirming the information is a practice known as “reporting.”)  As Stewart points out, labeling the speculation as “speculation” doesn’t mean it’s OK to keep speculating…but they can’t help themselves:

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So, of course, “The Daily Show” news team springs into action to report on the CNN angle of the story…and knocks it out of the park:

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Cue Mr. Henley, please:

We can do “The Innuendo,” we can dance and sing

When it’s said and done we haven’t told you a thing

We all know that crap is King, give us dirty laundry