Category Archives: media

Trump is dangerously wrong on libel: Why journalists need Constitutional protections

By Christopher B. Daly

In his recent remarks, Republican presidential candidate Donald Trump issued a thinly veiled threat to the news media: if he’s elected, he will (somehow) change the country’s libel laws to make it easier for him and others to sue the news media. It’s an issue with a history that is worth remembering.

Here’s Trump (from CNN):

“One of the things I’m going to do if I win… I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” Trump said during a rally in Fort Worth, Texas.

“We’re going to open up those libel laws so when The New York Times writes a hit piece, which is a total disgrace, or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected,” he said. “We’re going to open up libel laws and we’re going to have people sue you like you’ve never got sued before.”

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Trump in Fort Worth (Getty)

 

Trump, who has lost a libel suit in the past, took his usual menacing tone and framed the issue as a conflict between himself and the media. The party that is missing from that formulation is the American people, who are the real clients of the First Amendment. That is the amendment that says, in part: “Congress shall make no law abridging the freedom of the press.”

And that press freedom extends into the realm of libel, as I explained in my history of 51zTMdE6eDL._SX342_BO1,204,203,200_this country’s journalism, Covering America. Trump is not the first public figure to try to use the libel laws as a backdoor way to achieve the ultimate goal of intimidating and controlling the news media. Here’s an excerpt from Covering America:

 

One of the greatest potential threats to the national coverage of the South arose in 1960 in Montgomery, Alabama. The means of intimidation was not the usual one—violence or the threat of it—but the legal system itself. At risk was the ability of the news media even to cover the movement in an honest, independent way.

The threat first arose in April 1960 as an unintended consequence of a decision by a group of civil rights activists to place a full-page advertisement in the New York Times decrying the “unprecedented wave of terror” being imposed on the Reverend Dr. Martin Luther King Jr. and student activists. The ad stated: “Again and again, the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. . . . They have bombed his home almost killing his wife and child. They have assaulted his person.” For good measure, the ad charged “grave misconduct” on the part of Montgomery officials as a group.

The city’s police commissioner, L. B. Sullivan, was incensed and decided to sue the Times for libel. (It didn’t matter that the offending passages were in the form of an advertisement and not a news story produced by a Times journalist; under U.S. law, a publisher is equally responsible for all content. It also didn’t matter that Sullivan was not singled out by name in the ad; under U.S. law, if an individual can reasonably be identified, that is enough.) Sullivan sued for $500,000 in an Alabama state court, charging the Times with publishing damaging falsehoods about him. The threat was clear: if Sullivan won, no paper could afford to cover the civil rights movement. “Silence, not money, was the goal,” as one recent history puts it.

For the Times’ Southern correspondent, Claude Sitton, the suit meant that he had better hightail it out of Alabama to avoid being subpoenaed, so he headed straight for the Georgia line, leaving Alabama essentially uncovered for the next two and a half years. For the paper’s lawyers, however, fleeing to another state was not an option, though they tried. It was difficult even to find a lawyer in Alabama who would agree to represent the Times. When one was finally found, the lawyers decided that their only recourse was to argue that the suit did not belong in an Alabama court, since the paper did hardly any business in the state. The jurisdictional argument didn’t work. The paper lost in the circuit court in Montgomery (where the judge criticized “racial agitators” and praised “white man’s justice”), and Sullivan was awarded the full $500,000—the largest libel judgment in that state’s history. The Times appealed, only to lose again. Further appeals did not look promising, since the U.S. Supreme Court had held that journalists had no constitutional protections against libel claims. So far, the use of the courts to silence the press was working.

The passage through all those courts took years, but the Times did not give up. Whatever the publisher and editors thought about civil rights, they were professionally committed to upholding ournalistic principles and prerogatives. The final appeal was argued before the U.S. Supreme Court on January 6, 1964. The stakes were high. “The court would decide nothing less than how free the press really could be,” one observer has noted. “If the decision went against the Times,would reporters be vulnerable to every libel claim filed by a ticked-off sheriff?”

And it wasn’t just the Times that was at risk. All told, Southern officials had filed some seventeen libel suits against various news media, seeking damages that could total more than $288 million. If they succeeded, the cost of covering race in the South would be so prohibitive that even the wealthiest national news media would have to pack up and go home.

On March 9, 1964, the Court issued its unanimous ruling in the Sullivan case—in favor of the Times. The ruling, a milestone in expanding press freedom, rewrote many of the rules under which journalism has been practiced ever since. The key finding was that the law of libel had to yield to the First Amendment. The Court held that if the award to Sullivan were allowed to stand, the result would amount to a form of government censorship of the press, tantamount to a de facto Sedition Act, forcing every journalist to prove the truth of every statement, which would in turn lead to self-censorship. Instead, the high court said 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.”

To make sure that journalists had the breathing room they need to report on and editorialize about the performance of public officials, the Court determined that libel should not be used to trump press freedom. Public figures like Sullivan, who voluntarily enter the public arena by seeking office, must expect to take some criticism. Henceforth it would not be enough for a public official who wanted to win a libel suit just to prove that the published material was false and defamatory. Plaintiffs would have to meet a higher burden of proof, which the Court defined as “actual malice,” a legal term meaning that the material in dispute was published with the knowledge that it was false or with “reckless disregard” for the truth.

Either way, public figures would have a much harder time winning such suits. The Times—and the rest of the media—were free to go back to Alabama and wherever else the civil rights story took them. . .

For more on these issues, see the classic work by NYT journalist Tony Lewis, Make No Law. There is also a very worthwhile discussion in The Race Beat, by Gene Roberts and Hank Klibanoff.

 

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Filed under Donald Trump, history, Journalism, journalism history, libel, media, New York Times, Uncategorized

Monday media roundup

By Christopher B. Daly

Here are some recent comments worth thinking about:

–After seeing “Spotlight,” NYT Public Editor Margaret Sullivan expresses concern over the state of investigative reporting by the nation’s regional newspapers. (I guess “regional newspapers” is Timesspeak for papers that the Times respects but does not consider in its league — i.e., Boston, Seattle, Milwaukee.)

–“On the Media” views with dismay the current state of political rhetoric. The show even uses the L-word. (To listen, click on the link, then hit “This Week’s Show.”)

–On CNN, “Reliable Sources” host Brian Stelter went a few bruising rounds with Trump campaign spokesperson Katrina Pierson  on this Screen Shot 2015-12-07 at 3.17.01 PMquestion: “Is Donald Trump the “post-truth” candidate?” Pierson is one tough cookie, and expect to see and hear a lot more from her.

–The battle over ad-blocking rages on. I don’t like most ads, and I happily use an ad-blocking app on my iPhone. My only complaint is that some ads still slip through. Now, I am the first to say that the news business needs to work as a business if it is to succeed and do all the other

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Illustration by Sam Manchester for NYT

things we want from it. My solution: allow customers like to pay more — even a lot more — to pay the full freight of news-gathering and eliminate the need for advertising altogether. This approach, which is reflexively pooh-poohed by certain people, has worked in the past: it was the basic model in the 18th century, and it has worked for I.F. Stone, for a lot of investment newsletters, and for a few others. Any takers?

–Finally, RIP to M. Roland Nachman, who was on the losing (and wrong) side of one of the landmark First Amendment cases in U.S. history — the Sullivan case of 1964. He seems to have been a decent fellow, but he was still wrong. Read more in my book, Covering America, at pages 312-13.

 

 

 

 

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Filed under CNN, Covering America, Journalism, media, NYTimes, political language, Politics, Uncategorized

A Grim Anniversary: The A-bomb 70 years later

By Christopher B. Daly

Seventy years ago this week, the United States used atomic bombs in war for the first (and so far only) time in history. It is an occasion to reflect on what that action meant and what it continues to mean for every person on the planet. Without getting into the debate over the morality or the military effectiveness of the bomb, here are some thoughts on the journalism of that fateful period.

Here is a recent piece by me that ran on The Conversation (a terrific website in which academics are invited to write for non-specialists). It is adapted from my book Covering America.

Here is the NYTimes own history of its role in the coverage.

And here is the text of John Hersey’s masterful account of Hiroshima.

 

William Laurence (left) on Tinian Island before departing for Nagasaki.  Military photo.

William Laurence (left) on Tinian Island before departing for Nagasaki.
Military photo.

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Media Roundup

By Christopher B. Daly

–I am so proud of my old newspaper, The Washington Post. The paper has recently been rendering a major public service: a reckoning of all the shootings of civilians by police that take place in the United States. You might think that information would be routinely collected by Justice, the FBI, or at least every state police agency. You’d be wrong.

Turns out, there is no central governmental accounting. So, the Post stepped into the vacuum and built a database from the ground up.

Turns out, American cops shoot about two civilians a day, every day.

Is that too many? Too few? Just about right? I don’t know, but at least now we can begin to have a debate about it and come to terms with the police. As Juvenal put it 2,000 years ago: Qui custodiet ipsos custodes? Or, Who will police the police? Who will guard the guardians? Who will watch over those who watch over?

In my view, this is exactly why we need a free and independent news media.

–Here we go again with the NSA.

Don’t get me wrong: I am all for a robust, state-of-the-art intelligence service. To my mind, that means spying on other countries in ways that advance our national interests without them even finding out about it. That’s my standard for U.S. intelligence-gathering. Anything else has to yield to the Constitution. When it comes to spying on Americans, there is no reason for the executive branch to take it upon itself to routinely spy on Americans who are not even suspected of having broken any laws.

According to the Times, the secret agency has justified its secret program to a secret court, so we are all supposed to just shut up and submit our data. Absolutely not.

Ssshhh!!

Ssshhh!!

–So, I see that tourists will now be allowed to take photos while touring the White House. Yay.

If only the professional news photographers who cover the White House had the same liberty!

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Why is it so hard to talk about Charleston?

By Christopher B. Daly

What happened in Charleston this week meets the literal definition of terrorism.

Here’s a dictionary definition (from Dictionary.com):

noun

1.

the use of violence and threats to intimidate or coerce, especially for political purposes.

Here’s the FBI’s definition:

“Domestic terrorism” means activities with the following three characteristics:

  • Involve acts dangerous to human life that violate federal or state law;
  • Appear intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination. or kidnapping; and
  • Occur primarily within the territorial jurisdiction of the U.S.

So, why do the media find it so difficult to call it an act of domestic terrorism?

The NYTimes was willing to discuss the issue but not to use the term in its main coverage.

The most extreme case (as so often happens) involved Fox News. The Thursday morning episode of the show “Fox and Friends” hit a new low — in which the hosts and guests strained to frame the violent assault by a white man seeking to take his country back as an assault on religion and an attack on Christians. Wha?

Here’s a brilliant analysis by Larry Wilmore, who is getting better by the week. (courtesy of Comedy Central and TPM).gctqv5mtkz5pr8y6j2bi

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Monday Media Roundup

By Christopher B. Daly

What has become of the New York Times‘ media beat? A year ago, the Times had a strong claim to be the single most important source of original reporting about journalism and other media issues. Today, in the Monday Business section of the print edition, not a single story. The obvious reason is the death six months ago of David Carr, the paper’s pre-eminent media reporter/columnist. But that was a long ago in media terms, and the paper shows no sign of recovering its mojo. I have heard that there is a search underway with a small number of finalists. There has been some speculation in other venues, but little indication from the Times that the paper has a commitment to regaining the leadership in covering its own industry. It will take more than a single high-profile hire, too. To make it work, the paper needs a full-fledged “desk” with an editor, a team of reporters (to compensate for the loss of Brian Stelter in late 2013), and a high-impact columnist.

–One thing you never want to hear on the other end of your telephone line: “Hi, this is Mark Fainaru-Wada, and I have a couple of questions for you . . .” Here is his investigation into Hope Solo, the 33-year-old goalkeeper of the U.S. women’s World Cup soccer team. It sounds like she was one hot mess that night. (Among other things, ESPN‘s Fainaru-Wada was one of the reporters at the SF Chronicle who broke the BALCO steroids scandal.)

–Speaking of ESPN, does anyone doubt that there’s more to come on the Friday afternoon sacking of Jason Whitlock as founding editor of The Undefeated? I’d like to hear it straight from Whitlock himself. Hmmm. . .

Gawker, a pioneer in digital journalism, is making news itself. First, there was the startling vote by the hamsters who churn out all that clickbait to form a labor union. As a former union member (The Wire Service Guild) and a sometime labor historian (Like A Family) myself, I say welcome to the movement that brought us all the weekend.

Then, the Times weighed in last Friday (in a piece under the standing head MEDIA) about Gawker founder and editor in chief Nick Denton. After a fairly labored lead about Denton smoking a joint on a fire escape with his husband, the Times piece (by Jonathan Mahler — a possible candidate for for taking over the Media Equation column?) observes the phenomenal growth of Gawker:

Mr. Denton started Gawker Media 12 years ago in his living room. It was initially just two blogs, the snarky — though the term was not yet in popular usage — media gossip site Gawker, and a technology blog,Gizmodo. The company had two freelance bloggers who were paid $12 per post.

Today, Gawker Media encompasses seven sites with 260 full-time employees. There’s the sports blog Deadspin — noteworthy journalistic coups include an investigative article revealing that the football star Manti Te’o had an imaginary girlfriend and the publication of photos said to show Brett Favre’s penis — and the feminist site Jezebel. For technology, there’s Gizmodo. For video gamers, there’s Kotaku. Mr. Denton’s personal favorite is Lifehacker, Gawker’s take on self-help.

By most measures, the company is doing fine. Gawker Media says it generated about $45 million in advertising revenue last year, and was profitable, earning about $7 million.

What could go wrong? Well, for one thing: a $100 million invasion-of-privacy lawsuit pending against Gawker by former wrestler Hulk Hogan. No surprise: Hogan was not happy when Gawker posted a sex tape of Hogan.

The whole piece is worth reading, for its exploration of whether Gawker is capable of maturing as a news source and how it plans to relate to social media.

–A hat tip to the Times‘ public editor, Margaret Sullivan for calling bullshit on the paper over its recent mania over a silly book by Wednesday Martin about the folkways of the wealthy residents of the UES.

It all began, reasonably enough, with a Sunday Review cover story last month by Ms. Martin, in which she told of her experience moving to Manhattan’s Upper East Side and the strange beings she found there — women who were (gasp) blonde, wealthy and fit.

But then, The Times’s overkill machine geared up and began to churn out one article after another: a review of the book, another review of the book, a column about the book, and an inside look at the column about the book, a blog post about the book, and a review of a similar television series with a prominent mention of the book. Then, to finish up (well, one can always hope), there was a news article about the book’s departures from reality and its publisher’s plans to add a disclaimer for future editions.

‘Nuf said.

–The ever-helpful “On the Media” NPR program has a really helpful guide to filming the police in public places. Don’t miss: the ACLU app that makes sure your video of the cops survives even if they confiscate your phone.

–This just in: from today’s Washington Post, here is media reporter Paul Farhi’s latest offering — a tour d’horizon of the digital journalism world. Not a very pretty picture.

 

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Filed under David Carr, Gawker, Journalism, media, New York Times

Monday journalism roundup

By Christopher B. Daly

It’s been a busy week for thinking about the news business.

Here’s Steve Coll, dean of the Columbia Journalism School, sharing his reactions to one day’s New York Times with the paper’s “Insider” feature.

–NPR recently did a devastating investigation of the Red Cross’ spending in Haiti. Here is the story behind the story.

Here is Part II of Michael Massing’s survey of the digital news landscape for the NYRB. (Spoiler alert: he’s more impressed by the legacy media than  by most digital natives.)

Here is this week’s offering from NPR’s “On the Media,” which is a consistently worthwhile show. Particularly good: this segment on the nation’s librarians, who have shown an impressive toughness in defense of the public’s right to read without being spied on. Go, librarians!

Here is an original episode of public radio’s “This American LIfe,” which focuses on what might be called “journalism by other means” — opera, drama, etc. Great idea.

As the saying goes: More later!

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