The First Amendment of the United States of America is the envy of publishers and journalists around the world. As a specialist in international media law, I can say with certainty that no legal system anywhere else provides as much protection from crippling — even bankrupting — libel suits. Some may argue that this is the shining example of American Exceptionalism at its best.
As I’ve opined in this space before, the whining and whimpering of the American press in response to President Donald Trump’s overblown “mean tweets” and reflexively invoking the phrase “fake news” simply do not hold a candle in comparison to the limitations and retribution faced by journalists in other countries. In Mexico, government officials don’t say mean things about you: They have you killed. And try calling Turkey’s Erdogan a Nazi sometime. The police will shut you down and jail you before the ink is even dry on your paper.
I attended a conference last week of the International Association for Media and Communication Research (IAMCR) at the University of Oregon where media scholars and lawyers from around the world convened to discuss journalism’s state of affairs. After my lecture about the First Amendment being a “global touchstone” for press freedom I was approached by more than a few students and scholars who, in noting several recent and egregious errors by large U.S. media organizations, asked me point blank: “How do they get away with this?”
From the layman’s standpoint, I can see where people might think that the protections offered the press lead to terribly unfair results. The First Amendment has been consistently interpreted in a utilitarian manner: The price of erroneous news is justified by the continuing existence of the public interest served by a free press. Indeed, from a wider view that public service has been proven time and time again. The exposition of Teapot Dome, the Pentagon Papers, Watergate, faulty Space Shuttle O-rings and prisoner abuse in Guantánamo are all bright spots in journalism’s pantheon of public service.
At the same time, individuals — even some notorious ones — may be subjected to damaging and deeply unfair if not outright false reports. As most people know, once speech is “constitutionalized” by discussing public figures, public officials or matters of public concern, the aggrieved party must prove that the publication was issued with “actual malice”, defined as “knowing falsity or reckless disregard for the truth.” Understanding the “knowing falsity” prong is simple. If a publication invented a defamatory allegation out of thin air, they’re likely to be ruled against. Most media entities in that situation will argue in court that the statement isn’t really defamatory or isn’t really about the complainant. More often than not when the press loses attempts to have a case dismissed on those grounds they write a check to make the problem go away.
Reckless disregard: getting away with sloppy work
The “reckless disregard” prong is much more difficult to navigate. In this context, recklessness is not a form of negligence like reckless driving. The courts have consistently held that it requires more: turning a blind eye to repeated and clear warnings that the story is wrong. La-la-la, I’m not listening. To be charitable, the heart of the First Amendment as to media liability allows “wrong reporting for the right reason.” A few recent episodes show the difficulty in squaring how bad reporting can be justified.
The most well-known case of recent memory is Eramo v. Rolling Stone, where a reporter committed the sin of “writing to the headline” (newsroom-speak for deciding what a story should say before gathering facts). Also known as the “UVA Rape Hoax” story, a Virginia jury found that reporter Sabrina Erderly’s bias and agenda blinded her to fact after fact that were big red stoplights that her story was wrong. Her source lied to her about witnesses, there was no medical evidence that the rape and assault actually occurred, and worse yet, the person she accused of rape didn’t exist. In writing the story, Erderly’s theme was that Eramo, UVA’s Dean of Students was oblivious and uncaring about the well-being of students. Erderly, her editors and lawyers blew through every red light, and Rolling Stone paid the price. But plaintiffs are rarely presented with that kind huge stack of errors that indicate that the reporter purposely avoided the truth.
Failure to investigate
Two recent episodes explain why the public distrusts the media, namely, because they “get away” with publishing material “they should have known” was incorrect. Part of the problem is that most people don’t understand that “should have known” is not sufficient to show liability in actual malice cases. One of the central tenets in US media law under St. Amant v. Thompson is that “the failure to investigate is not proof of actual malice.” For example, last week Talia Lavin, a Harvard-educated “fact-checker” for The New Yorker accused a combat-wounded Marine veteran and ICE forensic analyst of being a Nazi sympathizer because she assumed a tattoo in a photograph of him was the “Iron Cross” used by Nazi Germany. She never investigated the tattoo’s meaning or origin.
No doubt, being called a Nazi is defamatory, and no doubt, the assumption that the man depicted bore a “Nazi” tattoo is wildly off base. (It also speaks to the inherent bias of those who produce The New Yorker and most major publications, but that’s a topic for another time). Under the Supreme Court precedent of St. Amant, the fact that Lavin did not research the tattoo (which turned out to be the symbol of his military unit in Afghanistan) is not enough to show “reckless disregard.” She would’ve had to run through the glaring red stoplights that the Rolling Stone reporter did.
Sandra Baron, a visiting clinical lecturer in law and senior research scholar in law at the Yale Law School has long been considered one of the leading lights of First Amendment analysis. (Disclosure: I worked for Baron at the Media Law Resource Center in the 1990’s while I was a law student and she was then the Executive Director). Baron explains the philosophy of the Supreme Court and why the fact checker’s “failure to investigate” does not rise to reckless disregard. “What St. Amant v Thompson did in 1968,” says Baron, “was give concrete terms to what “reckless disregard” meant in the Times v. Sullivan decision. The court meant to make it more difficult for defamation claims to succeed and for plaintiffs to deter speech about them with litigation.” Baron also pointed out that “these constitutional protections do not altogether deter the filing of lawsuits.” Indeed, the Rolling Stone case is proof of that.
So, what this means is that absent any pre-publication information that the tattoo was not a Nazi symbol, the fact that Lavin did not investigate her facts is not evidence in itself of “reckless disregard.” But if the reporter or publisher are immunized from a failure to investigate, where does that leave good journalism? Baron answers by reference to the public utility served by the law. “Sources may prove wrong. Some have agendas, to be sure. But to require journalists to investigate every statement by a source would be more than chilling. It would ice daily journalism and a good deal of investigative work. Having sources you have reason to believe have something of value to say is investigating the truth in many circumstances.” At the same time, Baron acknowledges the difficult balancing act:
“It is tempting to fear that the St. Amant standard allows the least skilled, the least ethical, and/or the most biased and opinionated, to communicate false or highly misleading and defamatory speech in an effort to derail public officials and figures with whom they disagree. In a society that is deeply divided […] it is also easier to understand questioning whether we want to hold discourse and journalism and commentary to a higher standard of accuracy.”
Libel is the price we pay for freedom
The ICE employee gets branded a Nazi. Then the “fact checker” resigns and The New Yorker apologizes. Well, that’s all well and good. Being charitable you can understand Lavin’s biased-but-reasonable good-faith error. But another recent episode raises far more serious questions.
Let us stipulate that Paul Manafort is a bad man. A terrible man. The worst kind of man. If you are an unhinged #resist lunatic like Rep. Adam Schiff, you believe that Manafort helped the Russians deprive Hillary Clinton of her rightful crown at the cost of our electoral process. Even if all that were true, why did ABC News run an on-air graphic last week that claimed “MANAFORT PLEADS GUILTY TO 5 CHARGES OF MANSLAUGHTER”? Where the hell did that come from? In Lavin’s case she can at least point to her own assumptions about a tattoo: wrong, but a good-faith error.
Not so with ABC News. Had a manslaughter story about Manafort been published elsewhere and relied upon, or even if ABC News had some kind of source, the failure to investigate any such claim would not by itself prove actual malice. But apparently this defamatory statement came out of thin air. Media critic Eric Wemple points out (in my opinion, quite rightly) that there are really no good explanations. (It remains to be seen whether ABC News steps up and publishes a genuine explanation at all). This episode underscores the tension between immunizing errors and allowing the media to publish stories that do serve the public interest. If Manafort were to sue ABC News, and theoretically put them out of business, what genuinely truthful and important stories might never be broadcast?
Sharing the blame
One thing that I think Wemple misses in his reporting on ABC News’ latest debacle (and one I must confess) is that media lawyers need to accept part of the responsibility. In a highly competitive business, many media lawyers are all too eager to approve stories based solely on their legal viability (and always saying “yes” to keep the client happy) instead of being honest with their clients and impressing upon them the reputational costs of getting it wrong or being unfair.
Perhaps the worst sin of many media lawyers is to distort the St. Amant holding as license to hide the ethical duty to investigate defamatory allegations behind the legal shield. (And the fig leaf used by many of these lawyers — “hey, I’m just a lawyer, I’m only obligated to provide legal advice” — ignores the role of counselor at law). That may be very good for the financial security of the journalism business, but the encouragement of sloppy, incomplete or unfair reporting cannot possibly be good for journalism.
Charles Glasser (@MediaEthicsGuy) was a journalist in the 1980s and later studied at New York University School of Law. After several years as a First Amendment litigator, he became Bloomberg News’ first global media counsel. He is the author of “The International Libel and Privacy Handbook”, teaches media ethics and law at New York University and also lectures globally and writes frequently about media and free speech issues for Instapundit and other outlets.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.