Tag: Slate

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.

Storm warning

First, point out to anyone who complains when all of the ballots in Tuesday’s elections have not been counted by their bedtime Tuesday night and says that is evidence of widespread voter fraud that that is pure bull.  All the votes have probably never been counted just a few hours after the polls are closed, certainly not in an era when we encourage everyone to vote and accommodate their exercise of their rights with early voting and voting by mail and voting from overseas and such modern developments.  And second, don’t listen to anyone who argues on election night that there is evidence of widespread voter fraud – especially if they do so on the Fox “News.”  First, it would take a thorough investigation to prove that accusation.  Second, no such investigation has ever proven that fraud pervasive enough to change the results of elections has ever happened.  (OK, retiring the italics now.)

I don’t know what the results of Tuesday’s elections will be, but I feel confident we won’t find that the poisonous political divide across our country has miraculously healed.  The fight for democracy, as some have cast it, won’t be over whenever this week’s votes are finally tallied, because the fight never ends.  “The price of liberty is eternal vigilance” said…someone, I guess, but apparently not Mr. Jefferson despite many citations, but it’s a great thought to keep in mind: any system designed to guarantee freedom will face threats from those who find your freedom and mine an impediment to their own power.  (You know who I mean.) So how do we keep our spirits up in the face of that on-going threat?  Dahlia Lithwick has a great prescription in Slate.

It is easy to feel despair. The folks who keep disparaging those who worry about the future of democracy seem uninterested in the fact that one party refuses to accept election results, inflames election violence, admits the entire plan is one-party rule, and brushes off and even jokes about vigilante violence. Those same people have been adept at pushing us into semantic arguments about whether we’re using the right words to describe what we see happening right before our eyes. The problem with wasting our time fighting about whether the best word to use in this particular situation is “authoritarianism,” or “fascism,” or “vigilantism,” or “lawlessness,” is that such things can often only ever be empirically established in retrospect. We can hold the I Told You So Olympics in 10 years. Let’s get that on the books.

Call it whatever you like, but this speedy descent into a world in which people who are fundamentally unethical and unserious hold too many levers of power is not normal and it’s not funny. Even for the people striving to find meaning and purpose in the ugliness, the temptation to cede ground, give up, and go small is alluring. That they want you to cede ground, give up, and go small is in fact the problem we can name right now.

My rabbi recently reminded me of a useful way to think through the fog. Citing another spiritual hero last weekend, Aurora Levins Morales, she reminded me that there is always a difference between the weather and the stars. Morales, teaching in 2017, warned that it is too easy to be buffeted by the changeable weather, and in so doing, to lose sight of the immutable stars. The stars, in this telling, are a “constant to steer by, sometimes hidden by storm clouds, but high above them, untouched by wind or rain.”

The weather is different. Weather, Morales conceded, can be “violent, drenching, harsh.” But it isn’t constant. If we do nothing but chase and feel the weather, she wrote, “we could spin forever from emergency to emergency, shouting no to each new crime—but that would be steering by chasing clouds.”

The weather, and the stars: I think that’s a great way to think about it.  There’s the weather, that which we see every day and which changes day to day and in some cases hour to hour—it seems big and important, but it’s transient within the span of our own observation.  The stars, although not permanent in that firmament, can give each of us something long-lasting to steer by.  Lithwick again:

I spent the week before midterm elections that could help determine the fate of democracy in the United States trying to pick my own way through a careening mess of the world into those buckets: Weather versus star. Elon Musk is weather; so is Marjorie Taylor Greene. Tucker Carlson is weather. Even losing tens and thousands of followers on Twitter is, respectfully, just weather. It all matters, sure, and it’s all painful. But it’s a series of transient states to distract you from what is real.

Stars are the things that don’t ebb and flow with the showy Twitter feuds, or the mutable hourly outrages, or public performances of ghastly daily mediocrity. For some of us, the stars are the upcoming elections and the extraordinary acts of voter registration, postcarding, election protection, and democratic engagement. For some of us the stars are the law, the rule of law, and the efforts to bring accountability for lawbreaking. For some of us the stars are efforts to build a tolerant, pluralist world in the face of rising racial and religious intolerance and xenophobia.

(snip)

As we move through the frightening and destabilizing days to come, the weather will attempt to consume more and more of your time and attention and energy. Fascists will tweet more fascism to try to distract you from the impacts of their fascism. My entirely inadequate advice will remain unchanged: Sit in the foulness of the roiling storm and do your work, whatever that may be, and triangulate by the light of whatever star feels eternal to you. Take care of your family; they need you, and take care of your health. Take care of your community; it needs you, and take care of someone in your community who doesn’t know Twitter is even a thing. Vote. Help others vote. Register voters. Staff voter protection hotlines. Place your own body between someone unkind and someone vulnerable. Read a book. Help a kid. Give someone food and love and respect. Donate something you don’t use. Ask for help. Don’t give your time or attention to anything small enough to diminish you along with it.

We’re in the weather, and the temptation to do nothing but talk about the weather is fierce. But above and beyond there are still fixed and immutable values and principles and we must try as best we can to steer by those things instead.

(snip)

You won’t always be able to see them, but the stars are still there. And we will get through the storms ahead, even if we don’t yet believe it, because the storms are not the story. We are the story. Keep looking up.

Walking the talk

For starters, they did ask—many times, starting before his term was even over, so don’t give me that “all they had to do was ask” bull.

The federal government tried and failed repeatedly for more than a year and a half to retrieve classified and sensitive documents from former President Donald J. Trump before resorting to a search of his Mar-a-Lago property this month, according to government documents and statements by Mr. Trump’s lawyers. (emphasis added)

The documents, including an unsealed, redacted version of an affidavit from the Justice Department requesting a warrant to conduct the search, make clear the lengths to which the National Archives and the department went before officials pursued a law enforcement action to recover the material.

The FBI knew that Trump had documents at his home in Florida that he was not supposed to have: he had already given them 15 boxes of official material in January of this year, and the FBI and the National Archives suspected there were more documents in Florida that should be returned to the government and that Trump was obstructing their efforts to retrieve them.  Why they thought that is undoubtedly in the redacted parts of the affidavit, parts we haven’t seen but which the federal magistrate judge did read and consider before approving the search warrant.

the affidavit states that the National Archives spent six months in the latter half of 2021 trying to get more documents. And then the FBI got involved. The Post…reported that all this year, Trump resisted handing much of anything over, to the point where his allies feared he was “essentially daring” the FBI to come after them.

Trump was also warned before he even left the White House that taking any official documents with him, let alone national secrets, was illegal under the Presidential Records Act. And even Trump’s attorneys agreed that the former president needed to give the documents back…

(snip)

Included in the paperwork with the affidavit was a formal notice that the redacted memorandum was being released. In it, the Justice Department writes that the redactions are necessary to protect “a broad range of civilian witnesses.”

“This language suggests that people inside Trump’s former administration, or at Mar-a-Lago, are providing information to the FBI,” [former federal prosecutor Barbara] McQuade said.

The redacted affidavit itself suggests that the investigation includes detailed monitoring of Mar-a-Lago to find out how many boxes of official material were still there and where they were being stored.

To be clear: the classified status of some of these documents is only part of the issue.  The laws make clear that no former president is permitted to take control of these types of records—”mere possession of these documents is a crime under some of the statutes cited in the affidavit, whether or not they are classified.”

Trump filed a legal motion this week, arguing that, as president, he had the right to declassify any classified documents and that his continued possession of the material was based on “executive privilege.” A judge should have no problem dismissing both arguments. First, while a president can declassify documents, there is a process for doing so; at the conclusion of the process, the special classified tabs and markings would be removed. Yet the tabs and markings are still on the documents retrieved from Mar-a-Lago. Second, mere possession, much less declassification, of some documents, such as those marked OCORN, must first be approved by the originating agency. That doesn’t seem to have been done either. Third, a president—certainly an ex-president—has no executive privilege to hold documents that properly belong to the National Archives.

If you think about it, Trump’s argument that he had declassified the classified documents…doesn’t help.

On top of which, the whole “I raised my magic hand and the documents were declassified” argument has a distinctly “what excuse do they have today” air about it.

These actions by the FBI and the Department of Justice are reassuring: federal law enforcement is walking the talk about no one being above the law.  And to those who’ve been clutching their pearls for almost three weeks now at the audacity of the government for having the nerve to search the home of a former president, I think the best and easiest response is to say, we’ve never had any reason to believe that any other former president had ever committed acts that would call for government action like this.  But this guy has.  And if you’re straining to keep up with all the other investigations involving the former guy, here’s some help.

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.

“demonstrably false and misleading”

A New York appellate court suspended Rudolph W. Giuliani’s law license on Thursday after a disciplinary panel found that he made “demonstrably false and misleading” statements about the 2020 election as Donald J. Trump’s personal lawyer.

Thus does the New York Times kick off today’s top story, for those of us who have been patiently waiting for the true believers to open their eyes and see what has been right there all along.

“We conclude that there is uncontroverted evidence that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at re-election in 2020,” the decision read.

Not just a simple assertion—backed by evidence—that what Giuliani was saying was untrue.  “Demonstrably false and misleading” is the plain and simple description of what has been coming out of the pieholes of Donald Trump and every last henchman-and-woman of his since…well, since ever.  They lie.  About anything, even things that don’t matter.  About everything, even things that aren’t in dispute, things that the evidence of our own eyes and ears and common sense tell us are so.

Don’t believe me?  Believe these judges when they tell you that the once-trusted and respected mayor of New York has become a scoundrel who will say the most ridiculous things on behalf of Individual-1.  And while you’re at it, take note, as Jeremy Stahl has in Slate, that “the meticulous 33-page chronicling and refutation of just a handful of Giuliani’s most blatant and nefarious election lies is actually kind of hilarious. The filing reads as though the five-judge committee went out of its way to show how ludicrous Giuliani’s—and by extension Trump’s—claims of election fraud are.”

In cataloguing Giuliani’s transgressions, the filing reads as a bemused and indignant greatest hits of Trump 2020 election lies, along with point-by-point refutations and comically timed footnotes. With every other sentence, the judges are almost shouting at the reader “get a load of the nerve on this guy.”

(snip)

The judges also dismantled the absurd logic Giuliani’s defense in this proceeding put forth that because dead voters are sporadically removed from the rolls—and were in 2021—that means dead people voted in 2020:

“Respondent claims his statements were justified because the state of Pennsylvania subsequently agreed to purge 21,000 dead voters from its rolls in 2021. This fact, even if true, is beside the point. This statistic concerns the whole state. Purging voter rolls does not prove that the purged voters actually voted in 2020 and per force it does not prove they voted in Philadelphia. It does not even prove that they were dead in November 2020. Moreover, the number of statewide purged voters (21,000) bears no correlation to the numbers of dead voters respondent factually asserted voted in Philadelphia alone (either 8,000 or 30,000). Clearly any statewide purging of voters from the voting rolls in 2021 could not have provided a basis for statements made by respondent in 2020, because the information did not exist.”

(snip)

At various points, Giuliani said 10,000, 32,000, or 250,000 undocumented immigrants voted in Arizona in the 2020 election. From the ruling:

“On their face, these numerical claims are so wildly divergent and irreconcilable, that they all cannot be true at the same time. Some of the wild divergences were even stated by respondent in the very same sentence.”

(snip)

Giuliani’s lone defense is that he did not “knowingly” make all of these false statements, as knowledge that he was lying is a required element to prove misconduct. The judges were largely able to brush this aside by pointing out all of the evidence that contradicted Giuliani’s statements that was available at the time he made them and his own lack of proof. More pointedly, though, they repeatedly noted that Giuliani kept lying even after he had been charged with lying.

Why?  Why, in the wide wide world of sports, would Giuliani and his “friend” insist on telling these lies—to America, and to judges they do not and did not control, who in every court challenge to the 2020 vote told them to pound sand?  Because they are so contemptuous of the rest of us, and blindingly out of touch with the reality of Trump, and so greedy and corrupt.  Because they expected the weak-minded not to question them, to just fall in line.  They proved that nearly every damn day, for anyone willing to honestly listen to what they were saying.

Now, we have a court ruling willing to point out that the emperor’s lawyer has no clothes, and by extension that neither does the emperor himself.  A little crack in the dam maybe, the one that could lead to the final catastrophic failure of the myth of MAGA Nation?  Hope so…