Stick with malice and recklessness
The Supreme Court shouldn't mess around with libel standards that are working fine.
Reputable news organizations pay attention to libel standards, and that has protected press freedom. (Photo by Roman Kraft for Unsplash)
It’s not listed on my resume, nor mentioned in the biographical sketch on my alma mater’s web site, but I could tell you about the time the newspaper I was editing libeled a guy. A lawyer, no less. It’s not something journalists usually like to discuss.
So why bring it up now, more than 30 years later? Because several justices of the U.S. Supreme Court seem ready to make it easier for people to sue for libel, which is what the Republican party’s leading presidential contender for 2024, a guy named Trump, also wants. And while my story may lead you to think they have a point — because the article we published was wrong, for sure — I’m here to tell you that you shouldn’t want looser libel laws if you care about free speech, which is the cornerstone of democracy.
So here’s what happened back then, not long after I switched from reporting for a big newspaper to heading the newsroom at a small one.
In my little band of brave but mostly inexperienced reporters, one fellow got a tip that the just-elected District Attorney had hired a young lawyer with a criminal record to become a prosecutor. Interesting story, I said, then reminded the eager reporter that he needed to get documentation to back up the claim.
And the next day, just as I was leaving after a 14-hour day in the newsroom, the guy came to me and said, “I’ve got it.” His tipster had come up with the new assistant DA’s arrest record, he said. Great, I said. Go for it.
Unfortunately, the inexperienced reporter didn’t recognize that a police report is not the same thing as an arrest record, let alone a conviction, and his editor — that would be me — didn’t say, “Let’s see what you get and we’ll talk about it tomorrow,” rather than going home, exhausted, which allowed the event to play out badly. Turns out, if my memory serves, the young lawyer, as an apparently inebriated college student, had urinated on the wall of a service station. He was issued some sort of an appearance ticket, which is like a traffic offense; he was not, in fact, arrested for public lewdness, though that’s what my newspaper reported the next day.
There are more details to our ineptitude — including the reporter’s calculation that a single phone call to the story’s target was sufficient fairness in seeking comment (his dad said he wasn’t home). Luckily, it didn’t cost the young lawyer his new job, but it did give the DA a chance to bash the media, which is always good sport in politics. It’s hard for me to believe now that I had a hand in all this. It was inexcusably sloppy journalism.
I wish I could tell you what happened to the libel suit that resulted, but both the reporter and I had gone on to better jobs by the time the case was adjudicated, so we weren’t privy to the confidential conclusion. I’m pleased to report, however, that never again in my career did my newsroom come even close to falsely defaming someone. We made people angry with our reporting, and they threatened to sue us — as a few did, without their intended results. But our work was factual, and therefore defensible in any court of law.
Which suggests something about libel laws in this country: They mostly work. Any tinkering with them — especially by a Supreme Court that is quickly setting new standards for turning partisan dreams into real-life dilemmas — would be a travesty. Making it easier for politicians to sue the media would put a lot of news organizations at risk of financial ruin and discourage hard-charging reporting in even the most robust newsrooms. You have to wonder if that’s what is really behind the interest in changing the law.
The standards for libel were established in a 1964 Supreme Court decision, New York Times Co. v. Sullivan, and every journalist at every reputable newsroom understands its basic provisions: Public figures can win a libel claim by proving that they were defamed by someone — a journalist or anybody else — who presented false information about them with malicious intent or reckless disregard for the truth.
It's that standard — the material in question must be untrue and published with actual malice or recklessness — that Justices Clarence Thomas and Neil Gorsuch, at least, seem quite ready to dislodge, perhaps with the backing of other members of the Trump-packed Supreme Court supermajority.
That standard recognizes that even the best-intentioned humans make mistakes, which the high court for generations has held is a reasonable cost for the inestimable value of largely unfettered speech. In practice, the Sullivan standard protects journalists and others from libel judgment if they work hard to get it right, while setting a guardrail against reporting so inadequate as to be reckless. In a dissent last year, Gorsuch labeled the Sullivan standard “an ironclad subsidy for the publication of falsehoods.” 1
It’s not that at all. What put my newspaper’s work at risk of a judgment against us all those years ago, I’d say, was the credible notion that my failure to adequately supervise that young reporter constituted recklessness. My need for sleep wouldn’t have been a decent defense.
But let’s be clear here: What Donald Trump and other politicians who routinely malign honest reporting claim as libelous is not, in fact, recklessness on the part of the press, nor actual malice; it’s truthfulness. So the notion of tighter libel restrictions might best be understood as a venting of conservative anger at media outlets that have gotten bold about labeling lies for what they are.
When Trump sued CNN in 2020 over its reporting on his campaign’s relationship with Russia, a federal judge Trump had appointed dismissed the case as meritless. A similar Trump lawsuit targeting The New York Times likewise was shot down before trial. That’s what happens to most libel cases. Few ever get before a jury. Trump had claimed that the author of the CNN piece held “actual malice” toward him, citing as evidence the writer’s tweet saying that Trump “cheats and lies.” Imagine that. 2
In fact, most libel claims are aimed more at harassing news organizations than winning. The cost of defending against a libel suit can push many newsrooms to financial ruin. The professional wrestler known as Hulk Hogan bankrupted Gawker Media with a lawsuit fueled by $10 million that billionaire Peter Thiel, a key financier of right-wing campaigns, put up for Hogan’s legal team, apparently to settle a grudge Thiel had with Gawker.3 Just assembling the material to defend against a libel suit is time-consuming to the point of crippling small newsroom staffs.
So even the threat of a libel suit can make news organization comptrollers quake. An aggressive newsroom that pursues tough stories creates risk, especially with a growing number of judges on the bench reflecting the ideological bent of Trump and his acolytes.
There’s an irony to the right-wing push to change libel laws: The newsrooms that should most fear current libel law are those that don’t follow the standards that are expected of honest journalism. Fox News and two smaller right-wing outfits, Newsmax and OAN, ought to be quite worried about lawsuits arising from their reporting on Trump’s baseless claims that the 2020 election was stolen. The three outfits are being sued by Dominion Voting Systems over stories claiming that Dominion, the maker of voting machines, participated in rigging the results to favor Joe Biden — stories they aired while knowing that the fraud claim was a lie that had been fully debunked. A software company, Smartmatic, is also suing on similar grounds. Damages could total billions of dollars.4
When a news report adds the word “baseless” or “disproven” to its description of Trump’s Big Lie about the election, it’s not disparaging Trump; it is telling the truth. News organizations that commit to honest reporting don’t fear the largely fair playing field that the Sullivan decision created.
Ultimately, though, what protects free speech is the support of citizens for its effects. That’s why the rising hostility of citizens to the mass media — fueled by Trump and those who claim the truth-telling of journalists is a reflection of intolerable bias — is so problematic. When asked last year about their trust in the media, almost two-thirds of Americans told Gallup that they had “not very much” or “none at all.”5 But the First Amendment freedom so essential to journalism is what protects every citizen, and underlies the democracy that is our country’s greatest asset.
The peril we now face was foreshadowed in the 1940s by the insightful Englishman George Orwell. “If large numbers of people are interested in freedom of speech,” he wrote, '“there will be freedom of speech, even if the law forbids it; if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them.”6
As one who remembers well a moment when he violated the trust that is invested in those who claim the First Amendment’s protection — and who was yet able to draw, gratefully, on the power of that promise for decades after — I fear losing even a bit of that freedom, and remain ever hopeful that citizens will stand for its preservation.
THE UPSTATE AMERICAN is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.
NEWSCLIPS FROM THE UPSTATES
Dispatches from our common ground *
Wherein each week we look around what we call the nation’s Upstates — those places just a bit removed from the center of things — to find illuminating news and intriguing viewpoints, which you might not otherwise see.
This week, we share reporting published here:
Fort Collins, Colo. (Fort Collins Coloradoan, coloradoan.com)
Fort Myers, Fla. (Fort Myers News-Press, news-press.com)
South Bend, Ind. (South Bend Tribune, southbendtribune.com)
Providence, R.I. (The Providence Journal, providence journal.com)
NOTE: The complete “Newsclips from the Upstates” section is available only to paid subscribers. Thanks for your support!
Student mental health survey shows mixed results
Across Colorado, 70,000 high school students and 40,000 middle schoolers were surveyed last year on their mental health, reports Molly Bohannon in the Fort Collins Coloradoan, with results that revealed some of the impact of Covid-19 on youth. The news wasn’t all bad: While almost 4 in 10 reported feeling depression (defined as “feeling so sad or hopeless for two weeks or more in a row that they stopped doing some usual activities”), there was no increase in interest in suicide, and there was a reduction in the use of drugs, alcohol and cigarettes.
Landlords profit by unbundling fees
Across Florida, reports Kate Cimini for the Gannett newspapers of the state, tenants are increasingly finding themselves on the hook for extra fees beyond rent and utilities. It’s a trend that housing advocates say especially hurts low-income tenants. Among the extra fees: application and hold fees, background checks and an added charge for running the check, key fees, garbage and recycling fees, parking fees, and more. “The unbundling of services is a way of cashing in,” one lawyer advocate said.
Good news for fruit farms, but a question mark remains
Weather has mostly met the hopes of Midwestern fruit farmers — producers of strawberries, blueberries, cherries, peaches and plums — according to a survey by Ed Semmler in the South Bend Tribune. The farmers had a banner year in 2020, as people took advantage of U-pick options to stay safe from the perils of more distant travel in the pandemic. But good crops aren’t the only point that farmers think may help them: They’re hoping this summer’s high gasoline prices will prompt people to again stick close to home and use U-pick weekends as opportunities for recreation.
States likely to battle over abortion laws after Roe
In the wake of the Supreme Court’s ruling overturning the right to an abortion, legal experts tell Kyle Stucker of The Providence Journal that a state-by-state battle is looming over efforts in some states to protect the right: Anti-abortion states will fight the “sanctuary” laws that are being enacted in Democrat-led states, and try to criminalize travel for abortions by their states’ citizens. Stucker reports that New England clinics are seeing patients traveling thousands of miles for services, in addition to phone calls from Texas, Utah and Indiana residents seeking reassurance. Court battles over abortion rights are sure to stretch on for years to come.
On the pox of Fox News
If you’re not a regular Fox News viewer, dipping into some of the right-wing network’s programming can be shocking — because it presents a view of the world that upends what we think matters most. And it suggests a troubling prospect: Will the current Fox News talking points become the major focus of the U.S. Congress if Republicans take control after the November election, as most election analysts are predicting?
For example: Only Fox addicts are focused on Hunter Biden, whose business dealings a decade and more ago take up an extraordinary part of the news report almost daily on Fox. Hosts on Fox characterize the news judgment of every other major news outlet as a “blackout” on coverage of the president’s son. Perhaps it’s just not legitimately newsworthy, you know? Rep. Elise Stefanik, the shamelessly ambitious Upstate New York Republican who is the third-ranking member of her party in the House — a potential running mate for Donald Trump if he wins renomination in 2024, we’re told — has advised Fox that there will be congressional hearings on “the Biden crime family.” Fox hosts suggest the media ought to give those hearings, if they happen, coverage equal to what’s now devoted to the Jan. 6 insurrection, in which the sitting president tried to overturn the election with the support of a violent mob that attacked the Capitol. Fox hosts routinely suggest that the Biden administration has intentionally created inflation and higher gas prices — also likely subjects of congressional investigations if Republicans take control. This is crazy stuff, but it is perceived by millions of Americans as quite real.
It’s hard to overstate the damage that Fox News does every day to America by its distortion of priorities and intentional manipulation of facts to create a narrative of supposed misdeeds by Democrats. No reputable journalists work for Fox News, folks, and you shouldn’t trust what you view there. But it is instructive to check out the programming, because it offers a sense of what may lie ahead for us all if the politicians who take their cues from the programmers of Fox translate those priorities into congressional action.
Since I find such thoughts too depressing, I’m heading out to the beautiful Adirondack mountains. I hope you can fully enjoy the summer of 2022 in whatever way you choose — and perhaps take comfort from knowing that currents ebb and flow, and that the troubles of one day typically yield the opportunities of the next. Keep hope alive.
Thank you for reading The Upstate American, and for joining me on *our common ground, this great America.