GARRY: If I was a writer and producer for NPR’s On The Media, I’d be delirious about the choices of content to fill 60 minutes of airtime for the weekly podcast. This has been a bizarre week in news ABOUT the news.
Justice Thomas authors sharp criticism of free-press law
Justice Clarence Thomas wrote that the Supreme Court should consider overturning a 55-year-old landmark ruling that protects freedom of the press. Thomas took dead aim at NY Times v. Sullivan, a Civil Rights Era decision that makes it difficult for public officials to win libel suits against the news media.
Thomas’ opinion, offered as an aside in a case involving Bill Cosby, seems more related to President Trump. The president this week blasted The Times as the enemy of the people and complained about “Saturday Night Live” lampooning him. DJT has repeatedly called for “opening up libel laws” to make it easier to sue the media for defamation.
The 1964 ruling was intended to protect the right of the press and American citizens to criticize government and public officials even when minor errors are made in that criticism. The unanimous ruling came in the midst of the Civil Rights Movement.
Montgomery, Alabama, police chief L.B. Sullivan successfully sued The Times over a 1960 fundraising advertisement — “Heed Their Rising Voices” — placed by Martin Luther King Jr. and supporters. Sullivan’s lawyers argued that the ad libeled him, and a local court awarded him $500,000.
The Times appealed to the nation’s highest court, and its nine justices struck down the award in the name of press freedom. Such an award would have choked the ability of the press to document the Civil Rights Movement if journalists would face repeated lawsuits from officials seeking to protect repressive laws that systematically deprived African Americans of their rights in the South.
Bottom line: I asked longtime journalist, mentor, and First Amendment attorney Jane Briggs Bunting for her reaction.
“Justice Thomas’s concurring opinion, it is not unexpected, but he totally ignores the historical context and facts of NY Times v. Sullivan … The libel in question was in a paid display ad, Sullivan was not mentioned by name in the ad, but he was a public official in Alabama. The inaccuracies were minor.
“In the Court’s 9-0 decision extending the actual malice rule to public figures gave protection to news media covering one of the most decisive issues of the 1960s, civil rights and racial integration.
“And it was a Yankee newspaper after all, liberal as they come — especially from the perspective of the plaintiff — obviously a newspaper that was printing fake news all the time!
“Actual malice is a misunderstood standard because of the word ‘malice’ — it means publishing with knowing falsity or reckless disregard of the truth. Minor errors will not destroy the defense.
“Giving news media breathing room to cover the important issues of the day was and is critical, arguably now more than ever. That Justice Thomas has this opinion is ironical in the context as the only African American member of the high court, but he has always held very conservative views. Fortunately, Gorsuch and Kavanagh have a track record more liberal. I also think Roberts would not join an effort to roll back the actual malice standard for public figures.”
Teen sues Washington Post for $250,000 million
A 16-year-old high school student from Covington, Kentucky, sued the Washington Post for defamation Tuesday, claiming the newspaper falsely accused him of racist acts. The suit seeks $250,000 million.
The lawsuit claims that the newspaper “wrongfully targeted and bullied” the teen to advance its bias against President Trump because the student, Nicholas Sandmann is a white Catholic who wore a Make America Great Again cap on a school field trip to the March for Life anti-abortion rally in Washington, D.C. on Jan. 18.
Bottom line, again, from Jane Briggs Bunting:
“Before this incident, he (Sandmann) was more than likely a private figure depending on Kentucky state law … However, in my opinion, he became a willing or unwilling public figure by standing there while the Native American guy was beating his drum. That said, he falls under the actual malice standard as extended under AP v Walker. That extended the NY Times rule beyond public officials to public figures.
“He was in a video that went viral, he certainly looked at the camera enough to know what was going on. Though the original video posted and broadcast did not necessarily reflect the whole event and give it context, it is very similar factually to the AP v Walker facts — fast moving event, breaking news, rolling deadline.
“Just like the AP back in the day, WaPo, like other online sites, published as news breaks. I do not know who was taking the video, who uploaded it, but that video went viral and was posted in many sites. In that breaking news scenario of social media and online publishing, every second is on deadline. Getting something uploaded quickly in a breaking news situation means mistakes can and do occur. And that is a critical factor on these facts. Had it been a ‘60 Minutes’ type piece, knowing falsity or reckless disregard of the truth, could be a better fact situation for this plaintiff.
“The damage claim at $250M is unprovable, and that becomes important, as well.”
Confirmation bias and the “attack” on Jussie Smollett
“Empire” actor Jussie Smollett was charged Wednesday with making a false police report when he said he was attacked in Chicago by two men wearing red MAGA hats made famous by President Trump. Smollett had claimed his attackers hurled racist and anti-gay slurs at him while looping a rope around his neck.
In the light of these new charges against Smollett, media critics are claiming that the mainstream news media were irresponsible in their initial coverage of Smollett’s case because his claim fed an anti-Trump narrative.
Interestingly, Fox News’ media critic Howard Kurtz has risen to the defenseof the legacy news media.
CNN’s Brian Stelter said this case points out the difference between Twitter reaction and MSM reporting. Who failed to make use of their bullshit detector in covering the initial complaints? “I think it was mostly the celebrity press and among activists and among Twitter people. I think it was really careful reporting by news organizations. But it all gets lumped in together at the end of the day.”
Bottom line: We all need to be more discerning consumers of news. We should avoid the inclination to retweet and repost stories simply because they confirm our biases.