Tag: Jeremy W. Peters

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.

In the wake of the Newtown school shooting

Passing along links to what I think are worthwhile reads on the school shooting in Newtown, Connecticut, and the aftermath…

For starters, here’s a dispassionate chronology from the Hartford Courant of just what happened in that school that morning. Just the facts ma’am, as best as they are known at the time.

Adam Lanza blasted his way into the Sandy Hook Elementary School. He fired a half-dozen thunderous rounds from a semiautomatic rifle to open a hole big enough to step through in one of the school’s glass doors.

Once inside, he had to make a choice.

Principal Dawn Hochsprung’s office was straight ahead. To the right, 25 or so children were rehearsing a play in the school cafeteria. To his left were the first-grade classrooms.

Lanza turned left.

The initial reaction of most people is disbelief that such a thing could happen…yet it’s been happening more and more frequently in recent years. In Slate Emily Bazelon wonders, if this doesn’t make us change our attitude about guns, what would?

In the United States, we’re divided, and we have no universal basic knowledge of weapons. We make it incredibly easy to buy the kind of weapons that shoot and shoot again instantly, but we don’t search people at the doors of schools or malls or movie theaters, and we don’t post armed guards in these places. We have the guns without the safety checks. We call that freedom.

Of course there are plenty of people renewing calls for more gun control, for outlawing assault weapons, for some kind of change in the law to make us feel safer. But it’s not just “gun control” people; some pretty staunch gun rights advocates are urging another look at the subject with an open mind.

Joe Manchin III, the pro-gun-rights West Virginia senator who drew attention in 2010 after running a commercial that showed him firing a rifle at an environmental bill, said that “everything should be on the table” as gun control is debated in the coming weeks and months.

David Frum makes a great point about the nuts and bolts part of any change in gun laws: he believes the push must come from outside government, along the lines of what Mothers Against Drunk Driving did to change the culture, to avoid politically polarizing the debate and dooming any chance for agreement.

That campaign should be led from outside the political system, by people who have suffered loss and grief from gun violence. Only that way can the campaign avoid being held hostage by the usual conflict of parties — Democrats who fear that gun control will lose them rural congressional districts; Republicans who exaggerate for partisan gain exactly what gun control would mean.

Gun control should no more mean the abolition of guns than Mothers Against Drunk Driving abolished the car.

(snip)

Responsible gun owners have a right to their guns. The challenge for the grass-roots gun-safety movement of the future is to focus on the danger posed by irresponsible owners. The goal should be less to ban particular classes of weapons — such a goal puts the law in a race against technology, a race the law will likely lose — and more to change the rules defining who may keep a gun.

Impossible, you say—there’s no way we could change the culture on guns. Well, we’ve done things like this before…

To modern sensibilities, the injustice [of lynching] once again seems obvious, as do the solutions: Prosecute lynchers, fight for racial justice, strengthen the rule of law, and mobilize public opinion to condemn rather than excuse outbursts of brutality. And yet it took more than 100 years for lynching to begin to disappear as a feature of American life, and even longer for Americans to fully acknowledge the depth of its horror. In the meantime, thousands of influential people, including many esteemed congressmen and senators, argued that lynching was simply a fact of life, a random act of violence about which nothing could be done. It was not until 2005 that the U.S. Senate, spearheaded by Mary Landrieu, apologized for failing to pass federal anti-lynching legislation, and for leaving hundreds of innocent people to be sacrificed to official inaction.

But just changing gun laws isn’t the answer; we should look at changing not only laws but our attitudes toward mental illness, and be better at seeing the warning signs that disturbed people give before they commit such an extreme act of attention-grabbing.

One reason shooters tip their hands is that they are trying to solve a problem. Though they are often intelligent, high-performing boys, their peers tend to see them as unattractive losers, weak and unmanly. In a school culture that values sports prowess over academic accomplishment, they face rejection. The shooters are rarely loners, but tend instead to be failed joiners, and their daily social experience is full of friction. Since they are almost always mentally or emotionally ill, those rejections — so common in adolescence — take on greater importance and become a fixation. Rebuffed after trying to join friendship groups, they look for ways to gain attention, to reverse their damaged identities.

The shooting is the last act in a long drama: a search for acceptance and recognition. The earlier acts fail miserably. But once a shooter starts to talk about killing people, ostracism can turn to inclusion. Suddenly, he is getting the attention he has been craving.

Help for mentally ill. A change to the culture of guns. David Gergen makes the case that we must take action to honor these dead and do it now or next time the blood will be on our hands.

Some years ago, no one thought that we could change our tobacco culture. We did. No one thought that we could reduce drunk driving by teenagers. We did — thanks in large part to Mothers Against Drunk Driving.

Years from now, no one will note what we say after this latest massacre. But they will hold us morally accountable for what we do. To honor all of those who have been slain in recent years — starting with the first-graders in Connecticut — we should highly resolve to change our culture of guns.

Meanwhile, to some measure of surprise, the National Rifle Association is laying low. Out of respect? Don’t know; they’re not talking.

On Dec. 13, the National Rifle Association’s Twitter account announced a giveaway promotion, thanked its followers for getting its Facebook page up to 1.7 million “likes,” and related a story from Wyoming in which a gunman apparently retreated from a nail salon after realizing one of its customers was “packing heat.” It tweeted the Wyoming case using the hashtag #ArmedCitizen.

On Dec. 14, the day an armed citizen killed 26 unarmed women and children at a Connecticut elementary school, the NRA’s Twitter account went silent. It has not tweeted since. Meanwhile, its Facebook page has disappeared, along with those 1.7 million “likes.” Navigating to www.facebook.com/nationalrifleassociation now redirects to the Facebook homepage.

 

UPDATE Dec. 18: The NRA ends its silence with this statement.

After that first step it’s pretty much all downhill the rest of the way

It seems I could not have been any more wrong about change being slow: here are more positive developments resulting from last week’s “quote approval” story from the New York Times (thanks to Jim Romenesko for the tips this morning).

After the Associated Press stood up for itself, and on the heels of McClatchy and the National Journal announcing they would not permit their reporters to give interview subjects the right to approve direct quotations for publication, the editor of the American Journalism Review has stepped up to say what most good journalists have been thinking: everyone must agree to just say no.  The sure way to stop government and campaign officials from, in essence, writing the stories about themselves that you and I read is for journalists to stop agreeing to this “pernicious practice.”

The editors at Bloomberg have made it as clear as can be—it’s one thing to negotiate to move an off-the-record quote on the record, but

What isn’t fine is sending quotes to the source or a press office for their revision or rewriting. In such a case, you would no longer know who is actually uttering/writing the words, and it is no longer a negotiation but a surrender of editorial control.

OK then, any other journalists out there still good with surrendering their editorial control?  Let’s see a show of hands…

A journey of a thousand miles begins with…

“Change is sure slow” I wrote last week; I was wrong, and couldn’t be more pleased about it.

I wrote that in a post based on a New York Times story about the growing practice of government and campaign officials demanding pre-publication approval of any direct quotes attributed to them in published news stories.  The big news media outlets that sheepishly admitted to giving “quote approval” to the subjects of their stories reacted as though they were helpless infants: if they refused they would lose access to the sources and not have the story at all…there was nothing they could do.

Nothing, except stand up to the bullies.  And prove the value of reporting a story, of shining the light of publicity on a corrupt practice.

The day after the Times story ran the Associated Press raised its hand to say it did not permit quote approval.  Soon after that Dan Rather and others weighed in; today it’s McClatchy and the National Journal stepping up to reclaim some of journalism’s tarnished heritage.  I feel confident this growing cascade of recognition of who journalists really work for isn’t going to dry up with the testimony of these disciples.  (Well done, Jeremy Peters and the Times.)

The point was true last week and remains true today: “No news publication can cede the responsibility to write its own story as its writers and editors see fit; to give up that authority to the people who are the subjects of the story is to erase any reason for you or me to believe anything they print.”  If more of them are coming around to the point of view that there is something they can do, that they can stand up to the bully, it’s just sad that they had to be embarrassed into doing the right thing.

The powers that be control the message—even more than you know

Here is another depressing argument that the reality you and I inhabit, and feel comfortable most days saying we have some control over, has been sanitized for our protection.

The New York Times reports that “quote approval” is a common practice with the Obama and Romney campaigns, but also among most of the government bureaucracy.  Campaign or government officials agree to an interview with the proviso that they get pre-publication approval as to “what statements can be quoted and attributed by name.”

The chutzpah is galling, yes?  But here’s the worst part: the reporters agree to the condition!

It’s nothing new for politicians to go to extraordinary lengths to manage the impressions we get of them, and that’s not all bad: I’d rather have leaders who take time to consider what they’re doing and how their actions will be perceived than leaders who don’t take a moment to think about alternative courses of action and their potential outcomes.  And remember, there is no requirement anywhere that any politician or candidate for office need ever consent to be interviewed; that’s just the way, historically, that they have communicated with the people who put them in power.  They’re free to ask for any condition at all in return for an interview.

But, the role of the journalist in our system is to report—to dig, to uncover, to reason, to relate, to provide context—so the rest of us can hold leaders to account for the actions that they do take.  It’s not the job of the journalist to help the leaders fabricate a version of reality that puts them in a more positive light, and letting them clean up their quotes is doing just that.  (This system doesn’t work for an interview that is broadcast live on television or radio or the Web…yea, TV and radio.)

The politicians themselves betray a little self-consciousness on the issue—“The Obama campaign declined to make Mr. Plouffe or Mr. Messina available to explain their media practices. ‘We are not putting anyone on the record for this story,’ said Katie Hogan, an Obama spokeswoman, without a hint of irony.”—and the Times story says reporters “grudgingly agree” to this restriction.

I would argue that they should not agree at all.  Giving in to the bully is not the way to get him to stop stealing your lunch money.

Politicians should have the fortitude to stand by whatever they say when they agree to an on-the-record interview, whether it’s broadcast on television or reported in a printed publication, and I’m disappointed to learn about some of those who demand the final rewrite as if they were negotiating a movie deal.  But journalists mustuphold a higher standard, and that means no more cooperating with the cover-up.  Today’s story in the Times is a good start, because now the rest of us have a better idea of what’s going on.  Shining a light on this stupid practice is the first step toward bringing it to an end.

I’d love to see a story that informed me “candidate so-and-so would only agree to an interview if The Daily Disappointment gave him authority to decide which quotes would be included in the story.”  No news publication can cede the responsibility to write its own story as its writers and editors see fit; to give up that authority to the people who are the subjects of the story is to erase any reason for you or me to believe anything they print.

The author and critic Louis Kronenberger wrote that “The trouble with us in America isn’t that the poetry of life has been turned to prose, but that it has been turned to advertising copy.”  He wrote that in 1954…change is sure slow.

→UPDATE 7/17:  Turns out that not all the reporters give “quote approval”–congratulations, Associated Press!