Tag 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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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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Journalism informed by history

By Christopher B. Daly

After a summertime hiatus, I want to revive this site. As ever, there is much to say about journalism, history, and the assorted other topics that show up here from time to time (NCAA, fossil fuels, etc.)

Today, I want to praise the NYTimes business columnist Eduardo Porter for his smart and effective use of history to inform what was essentially a political column about Donald Trump.

Porter begins with the premise that we all have our own histories and that our individual histories are entwined with the broader histories of our times. In Trump’s case, that personal history involved a coming of age at a very unusual period in American history — when the fraction of the foreign-born population was at an all-time low.

When Donald Trump was reaching adulthood in the mid-1960s, the United States was a less diverse place. By 1970, the share of the population born overseas had shrunk to 4.7 percent, the slimmest on record. Only about 0.4 percent of the population had been born in Mexico.

For a person of Trump’s time, that experience helps define a norm, against which all change is experienced as a deviation. Thus, for Trump and the slice of the population that is about his age (69, about the oldest possible slice of the baby boom), the last few decades represent a disorienting change in the composition of American society. Incidentally, there is nothing inevitable about his perception that such change represents a decline. He might see it as a plus. The fact that he interprets the change as a harm tells us a lot about Donald Trump as an individual. The times in which we live do not dictate everything about us; they just give us material to work with.

My only gripe with Porter’s column has to do with an issue that pervades the Times. Why won’t the paper include more links to source material? Most of the links in the online version link to other Times stories or to backgrounders prepared by the Times. In the Porter piece, it would make sense to link to the works of some of the experts he cites or to link to the Pew study he relies on. I suppose the paper is worried that readers will depart from the Times‘ site via links and never return. But I think that’s wrong. I think more readers would value the Times more if it included external links.

Besides, if the Times is going to write using a historical perspective more often, the writers will have to meet the standards that historians have for evidence. Footnotes anyone?

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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 (the Tuesday edition)

By Christopher B. Daly 

Just wrapping up the spring semester, so I’ve been a little busier than usual. With apologies for the delay, here’s a rdp of recent developments and commentary about the news business:

–THE ECHO CHAMBER: Here’s an intelligent discussion of the recent Science article examining the “echo chamber” effect of social media — to wit, do people on Facebook arrange their feed such that they hear mostly (or exclusively) from people who agree F1.largewith them politically? The helpful folks at Harvard’s Journalist’s Resource have not only analyzed the Science article, they have also put in the context of other, similar studies.

–NYT NAILS THE SALON BIZ: The New York Times has struck again, this time with a major expose of a local industry that is much more widespread than Starbucks — the business of fingernails and toenails. The investigation by Sarah Maslin Nir has exploded, as it deserved to. She ripped the lid off a deeply corrupt industry. Reading her accounts of the women in the manicure business made me angry. It sounded like many of them had never left China: they have to buy their jobs with upfront money; they work for no wages at all until the boss decides they’re worth something; they make sub-minimum wages when they get paid; the chemicals they work around cause all kinds of harm; and on and on.

The Times has gotten a little of push-back for hyping the series (some of which is captured in this odd piece by the NYTimes‘ own public editor), but I disagree. What would Joseph Pulitzer have done? What would WR Hearst do with this kind of material? Of course, they’d shout it from the rooftops and demand reform.

One particularly impressive innovation: the Times published the articles in Chinese, Korean and Spanish as well as English.

The fallout so far: more than 1,300 comments; Gov. Cuomo is already submitting reform legislation; some of the owners are starting to cough up back pay; customers are finally beginning to wonder how their mani-pedis can be so cheap; and the journalist has been celebrated in print and on NPR.

For anyone in the news business not suffering from sour-grapes syndrome, there’s a lot to learn here. Start with the ancient wisdom: “Comfort the afflicted and afflict the comfortable.”

–ADVICE FOR JOURNALISTS: Speaking of the public editor, here is Margaret Sullivan’s wisdom about journalism, boiled down to 395 words. Way to go in being concise.

–BETTER LIVING THROUGH METRICS: Jeff Jarvis unloads on his latest Big Idea that Will Transform/Disrupt/Save Journalism. Here ya go. He says we need better metrics, which is probably true.

–RELIABLE SOURCES: Here’s the newly re-designed website for Brian Stelter’s program on CNN.

–NYT MEDIA COLUMNIST: Curious minds want to know — when will the Times name a successor to David Carr? Carr is irreplacable, of course, but there should be a successor. Since his death in February, all the air seems to have gone out of the Times’s Media vertical. They need to get their mojo back.

Muddy Waters mojo

–In separate posts, I am hoping to write soon about the NCAA, the new local evening news show on PBS in Boston, and what may have been the busiest news period in all human history. Stay tuned.

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Media mashup

By Christopher B. Daly

A couple of recent developments need noticing:

–The NYTimes’s redoubtable foreign correspondent John F. Burns is retiring. In an unusual note about personnel matters published in today’s paper, the Times gives Burns a fond salute.

Also not to be missed: Burns’ last story was a colorful account of the re-burial of English King Richard III. At the end of his final piece, Burns closes with a “kicker” in the form of a quote — “ashes to ashes, dust to dust.” Not original, of course, but a nice touch.

–The Times flooded the zone in the East Village yesterday to cover the gas explosion and building collapse. By my count, there were 18 reporters and photographers involved (judging by bylines and photo credit lines), not to mention all the nameless

Victor J. Blue/NYT

Victor J. Blue/NYT

editors. Among the team of metro reporters was Tatiana Schlossberg, whose role is featured in the Times’ “City Room” blog. Which is fitting, since she is the daughter of one prominent New Yorker (U.S. Ambassador to Japan Caroline Kennedy) and the granddaughter of another prominent New Yorker (Jackie O).

–The gang at Vice Media, the unshaven new news organization, has found a big new platform for distributing its news reports: HBO. Plans call for a daily newscast from Shane Smith and his band of disruptors.

Raising the question: who is NOT a journalist these days?

Shane Smith in a suit.

Shane Smith in a suit.

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