Category Archives: New York Times

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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Is the New York Times building a digital ark?

By Christopher B. Daly

What’s going on at the most important institution in American journalism?

Hard to say, but let’s engage in a bit of speculation.

Recently, the New York Times announced two developments, which the paper reported in a single story, giving rise to the notion that they are somehow linked.

Item #1: An earnings report. As usual, the Times reports about itself in a glass-half-empty way.

Buoyed by strong digital growth and cost savings, The New York Times Company reported on Thursday an increase in quarterly profit but said revenue was flat as its print business continued to decline.

There is not all that much news there — just a continuation of two long-running trends. Digital revenues (the money that comes in from online advertising plus the money from digital subscriptions) continues to rise. Print revenues (the money that comes in from display ads in the printed newspaper, plus money from people who subscribe to the print edition) continues to fall. The digital revenue is rising pretty briskly, but from a small base. The print revenue is dropping relentlessly, but from a large initial base. Someday, those trend lines will cross, but not just yet.

Later, the story added this:

Digital revenue remained an area of growth. Digital advertising revenue increased 11 percent during the fourth quarter, to $70 million, a number representing about a third of the company’s total advertising revenue.

And this:

The company said it added 53,000 net digital subscribers in the quarter, the most added in a quarter in three years. The Times now has close to 1.1 million paid digital-only subscriptions.

So, that’s the good news. All those digital ads are starting to add up, and the blessed new digital subscribers are finally pitching in and paying a greater fraction of the cost of delivering all that journalism. All told, the digital revenue is approaching $400 million a year, or about a quarter of total current annual revenue. The paper has set a goal of $800 million in annual digital revenues by 2020.

The existential question for the Times is this:

NYT newsroom

Is that enough money to sustain the newsroom?

In other words, if the newspaper got out of the paper business altogether (as it one day must) and laid off all those printers, truck drivers, and others who are linked to the print edition, could it survive on a budget of digital-only revenues?

That’s an open question, which brings us to . . .

Item #2: Announcement of a team charged with conducting a “sweeping review” of the Times‘ own newsroom — staffing, procedures, everything. It will be led by David Leonhardt, the fair-haired boy who created The Upshot. Clearly, he’s a figure on the rise. The paper’s top editor, Dean Baquet, framed the undertaking this way:

He said The Times would always have a large newsroom, but it was “not going to get any bigger” and “we’re probably going to get a bit smaller.” He added that some areas of the newsroom, including those focused on multimedia and international coverage, could grow.

He did not rule out layoffs, but said he did not expect any in the immediate future.

So, my hunch is that Leonhardt is really charged with figuring out how the legacy newsroom could live within its digital means. Can the paper afford its traditional system of strong desks (especially if they slow the transmission of news onto the web)? Does the paper need to keep spending so much time and energy figuring out how to lay out Page 1 of the print edition? How many jobs could be pared out of sections like the Book Review, the Magazine, and T, if they were online-only?

Clearly, the Times cannot afford to haul the entire apparatus of printing a newspaper into the digital future. At some point, it will have to jettison some or all of its print operations and live entirely online. Any guesses as to when?

[Don’t take my word for it. Here is another take, by Michael Calderone at HuffPo Media.]

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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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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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Former NYT Editor Jill Abramson: Getting back into journalism?

By Christopher B. Daly 

Is former New York Times executive editor Jill Abramson getting back into journalism?

Yes, according to hints she dropped Monday night during a talk at Boston University. Abramson said she has been exploring the possibility of launching a new journalism start-up with veteran publisher and investigative reporter Steven Brill.

The proposed new operation would focus on a few large stories, and it would employ professional journalists at decent salaries, Abramson told a packed hall during a conversation with Times media columnist and B.U. professor David Carr.

After Carr teased her about making some news and challenged her to “show a little leg,” Abramson said, “Well. . .” Then she divulged that she and Brill have been conducting talks with investors who might back their proposed venture.

But she revealed little else, offering no details on how her journalism start-up would work financially or how it would stand out
professionally.

Since her departure from the Times, Abramson has given a series of i

Jill Abramson ( L) and David Carr (R) discuss what David Carr describes as the “present future”, when the production and distribution of media is in constant flux. Photo by Ann Wang

Jill Abramson ( L) and David Carr (R) discuss what David Carr describes as the “present future”, when the production and distribution of media is in constant flux.
Photo by Ann Wang

nterviews (mostly to female journalists), and she has been teaching a course in narrative non-fiction in the English Department at Harvard.

When Carr brought up the subject of her separation from the Times and seemed to be groping for a euphemism, Abramson abruptly corrected him, saying “I was fired.” She added that she has spent her career seeking the truth and telling it, so she saw no reason to sugar-coat her dismissal from the newspaper in May at the hands of the publisher, Arthur Sulzberger Jr.

Abramson, 60, began her career in journalism by reporting for and editing a student publication at Harvard, the Independent, then went on to jobs at the American Lawyer, Legal Times, the Wall Street Journal, and the Times.

Her conversation with Carr was sponsored by Boston University’s NPR affiliate, WBUR-FM. It was to be broadcast Tuesday evening at 8 p.m..

[Full disclosure: Jill and I were classmates in college, and I have seen her sporadically since then. I enjoyed her book about her dog.]

Update: You can listen to the full conversation here on WBUR’s superb midday program “Here and Now.”

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Plagiarism is back (Did it ever really go away?)

By Christopher B. Daly 

Jeez, I hope that headline’s original. (I have this haunting feeling that it seems familiar — I better google myself to make sure. Phew. No direct hits. Now, where was I?)

Amidst this recent outbreak of plagiarism charges (the Montana senator, the Times arts writer, some guy at BuzzFeed, and others), it’s worth reviewing what plagiarism is and why it plagues us.

Plagiarism is at once easier to do and easier to catch. Thanks to computers and the internet, it’s very easy to copy things — even things that a journalist, a speechwriter, or any other sincere person intends to use as source material or as quoted matter. On the other hand, thanks to those same computers and the internet, it’s also very easy to catch someone who plagiarizes — whether deliberately or inadvertently.

That’s why I welcome today’s comment by Margaret Sullivan, the NYTimes‘ public editor. Here’s the nub of her (presumably original) comment:

Write your own stuff; when you can’t or won’t, make sure you attribute and link.

Use multiple sources; compare, contrast, verify.

 

That could go up on the walls of every classroom at Boston University, where I teach basic reporting classes in our Journalism program. In fact, I may do just that this fall — with proper attribution, of course.

Personally, I think the heart of the matter is in those first four words: WRITE YOUR OWN STUFF. If you are any kind of a writer who cares about words, you will know instantly whether a phrase or sentence or paragraph in some chunk of prose that has your name at the top was written by you or by somebody else. If you didn’t write it, give credit where it’s due. Any questions?

Class dismissed.

 

 

 

 

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News comes from far away. . .

By Christopher B. Daly

Do we get too much information about distant conflicts, or too little?

The New York Times offers two very different answers.

One comes from Anjan Sundaram, a former stringer for The Associated Press in Congo. So, he should know. He laments the withdrawal of American correspondents from many countries, the shuttering of overseas bureaus, and a general decline in the coverage of wars, violence, and the politics of many nations.

News organizations need to work more closely with stringers. Make no mistake: Life as a stringer, even for those eager to report from abroad, is daunting. It’s dangerous, the pay is low and there is little support. For years after I left Congo, my position with The A.P. remained — as it is now — vacant. The news from Congo suffers as a result, as does our understanding of that country, and ultimately ourselves.

The other view comes from my Boston University colleague David Carr, the Times‘ media columnist. In his Media Equation piece today, Carr describes the sensation of information-overload that he has been experiencing lately as social media bring him a flood of data about a rocket war in Gaza, plane crashes, and the other disasters.

Geopolitics and the ubiquity of social media have made the world a smaller, seemingly gorier place. If Vietnam brought war into the living room, the last few weeks have put it at our fingertips. On our phones, news alerts full of body counts bubble into our inbox, Facebook feeds are populated by appeals for help or action on behalf of victims, while Twitter boils with up-to-the-second reporting, some by professionals and some by citizens, from scenes of disaster and chaos.

In my view, they are both right, at least to a degree. Sundaram is correct that many U.S. news organizations have retreated (usually for economic reasons) from their commitment to covering international news. In particular, they have lost the budgets to pay for keeping full-time staffers in locations around the world that are not boiling over. I’m talking here about trained journalists who have the time to become multi-lingual, to learn about other cultures and societies, to develop good sources, and to roam about developing a good first-hand sense of the place they are covering. These are the kind of people you want to be able to in a crisis, to explain a self-immolation in Tibet, or a riot in Indonesia, or a drug war in Central America. And, yes, there are too few of those.

But that’s not the same issue David Carr was identifying. He is describing the flood of images, information, and opinions that come streaming at Americans from the hotspot of the week. And yes, he’s right about. In a country or region that America is paying attention to, the flow of news is usually pretty abundant. That doesn’t mean that it’s always very useful, only that there is a lot of it.

This general problem was identified almost a century ago by Walter Lippmann — journalist, author, and media theorist — in his landmark book about journalism, propaganda, and politics, Public Opinion.

News comes from a distance; it comes helter-skelter, in inconceivable imgresconfusion; it deals with matters that are not easily understood; it arrives and is assimilated by busy and tired people who must take what is given to them.

That is, for passive news consumers, the picture of the rest of the world is fragmentary, random, and often blurred or blacked out. I dare say that I am not the only avid consumer of U.S. news reporting who could not tell you a single meaningful thing about Indonesia (the fourth most populous country on Earth and the largest Muslim-majority nation). I don’t know anything about it, because no U.S. news organization has a single full-time correspondent there. I cannot say I am bombarded by social media (or any other kind) about Indonesia. But if something should happen there that draws the attention of the United States, we can be sure the firehose will be turned on, and we will start to absorb a torrent of images, facts, and opinions. Until our attention shifts.

Thurber-Lippmann screenshot

by James Thurber

 

 

 

 

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