Author: Dan Kennedy

Making sense of Judge Silberman’s diatribe against libel protections for the press

Judge Laurence Silberman. Painting by Peter Even Egeli.

We are probably a long way from having to worry about the libel protections the press has enjoyed for the past half-century. But Judge Laurence Silberman’s attack on the landmark decision New York Times v. Sullivan is the second by a prominent conservative in two years — the first coming from Supreme Court Justice Clarence Thomas.

Josh Gerstein reported in Politico on Friday that Silberman, a senior judge who sits on the U.S. Court of Appeals for the District of Columbia, wrote in a dissent that the “actual malice” standard set forth in the Times decision was a “policy-driven” result with no basis in the First Amendment.

“The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication,” Silberman wrote, praising Thomas’ dissent in a 2019 case in which urged his fellow justices to return libel law to state jurisdiction.

I wrote about Thomas’ dissent for GBH News, so I don’t want to repeat everything here. But the Supreme Court hit upon actual malice as a way to stop the racist white power structure in the South from weaponizing libel law — that is, filing bogus libel cases against the press based on inconsequential errors as a way of intimidating Northern media outlets during the civil-rights era.

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Thomas and Silberman both claim there is something perverse about actual malice, but in fact it is a logical evolution of how libel law developed over the centuries. Originally, the only element to libel was defamation. The truth of a published item was not only irrelevant, but it was thought that “the great the truth, the greater the libel,” since truthful defamatory statements can be more harmful to someone’s reputation.

That was the basis of “seditious libel,” which was nothing more than criticism of the government. That notion began to fade away following the 1735 trial of John Peter Zenger, a printer whose New York newspaper had defamed the royal governor, William Cosby. A jury acquitted Zenger after his lawyer, Andrew Hamilton, persuaded its members that truth should be a defense in a libel case. It was an early example of jury nullification, as Hamilton’s argument had no basis in the law of that day. Gradually, though, truth came to be seen as perhaps the ultimate defense in a libel case.

Before Times v. Sullivan, libel was based on a two-legged stool — defamation and falsity. The decision added a third leg — fault. From that point on, public officials filing a libel claim would have to prove that the defamatory falsehoods published about them had been made with actual malice — that is, with the knowledge that they were false, or with “reckless disregard for the truth,” which later came to be defined as strongly suspecting that the statements were false.

There’s no question that this presents a high barrier for public officials. But it also gave the press the protection it needed to engage in high-stakes investigative reporting. As the late Anthony Lewis pointed out in his book “Freedom for the Thought That We Hate,” reporting on the Pentagon Papers and Watergate would have been much more difficult without Times v. Sullivan.

In the years following Times v. Sullivan, the standard was refined so that public figures would also have to prove actual malice; even private figures would at least have to show that the press had acted negligently.

Silberman’s dissent, by the way, is really something, drenched with grievances against the so-called liberal media. He writes:

There can be no doubt that the New York Times case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. In light of today’s very different challenges, I doubt the Court would invent the same rule

As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon…. The increased power of the press is so dangerous today because we are very close to one-party control of these institutions.

He goes on to call The New York Times and The Washington Post “virtually Democratic broadsheets,” and lumps in most of the rest of the press as well. (The Boston Globe get a shoutout.) He cites Fox News, The Wall Street Journal’s editorial page and the New York Post as exceptions, but adds “there are serious efforts to muzzle Fox News.”

I do not know what he’s talking about, unless he regards the mutterings of a small handful of Democratic members of Congress and media activists as “serious.” He also lambastes social media for cracking down on the right, disregarding the reality that those efforts have been aimed at eliminating falsehoods, not conservative opinions.

And as Washington Post media critic Erik Wemple pointed out, the conservative outlets cited as exceptions by Silberman surely are in need of actual-malice protections as much as others. (Fox and the New York Post more than most, I’d imagine.)

Silberman ends with this broadside:

It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness — if not eagerness — to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.

Fortunately, most conservative judges on the Supreme Court and elsewhere have taken at least as expansive a few of the First Amendment as their liberal colleagues. Thomas and Silberman would appear to be outliers. But freedom of the press is never guaranteed. This bears watching to see whether what is now a tiny flame somehow blows up into a conflagration.

A nonprofit in New Bedford seeks to fill the gap left by Gannett’s Standard-Times

Best wishes to New Bedford Light, a nonprofit startup that is aiming to provide in-depth journalism in a city whose legacy newspaper, The Standard-Times, has been gutted by Gannett. Bruce Mohl of CommonWealth magazine reports. (MassINC chair Greg Torres, which publishes CommonWealth, is involved.)

The Light hasn’t launched yet, but it’s had a Facebook page for several months. I hope the project succeeds, but I’m a little bit skeptical of the model. Mohl writes:

Barbara Roessner, the founding editor, lives in Westport and is a former managing editor of the Hartford Courant. Her initial plan calls for producing one major in-depth piece of journalism each week; the focus will be on providing context and insight, she said, not breaking news or high school sports.

I wonder if it might make more sense to make the Light essential to everyone right from the start by providing basic accountability journalism — city council, school committee, police, development and the like. Mohl does describe the once-a-week pace as the “initial” plan; maybe that will evolve into more comprehensive coverage as the project develops. My advice would be to cover the everyday details of city life and leave the suburbs to The Standard-Times. The logo, though, references “Greater New Bedford,” which suggests they’re looking beyond the city.

I was also interested to see that the group behind the Light approached Gannett about selling The Standard-Times and was turned down. Maybe the chain’s executives will come to regret their decision. More likely they’ve calculated that there are a few more dollars they can squeeze out.

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Union leaders, management at odds over legislation to protect Hartford Courant

Union leaders and management at the Hartford Courant spoke out Thursday about legislation that would allow Courant subscribers to sue the paper’s owners over cost-cutting measures. Mark Pazniokas of the nonprofit CT Mirror — himself a Courant alum — covers the story.

As expected, management and an association of newspaper publishers criticized the measure as an assault on the First Amendment, while proponents cited an 1887 charter that the legislature granted to the Courant. That charter was revised in 1951.

“So there is a history of the legislature passing special acts about the corporate structure of the parent company of the Hartford Courant,” said Sen. Matt Lesser, according to the Mirror’s report. “That is different from me going in and saying, ‘I’m looking to manage the news operations of the publication.’”

The legislation is aimed at blocking the Courant’s owner, Tribune Publishing, from selling to the hedge fund Alden Global Capital. Tribune has been cutting deeply at the Courant, but Alden has an unparalleled reputation for slashing its news coverage.

Also, fun fact: The Mirror’s story was picked up by the Courant.

Update: Here is the full text of the bill. The state attorney general would also have standing to sue.

Earlier:

 

 

Don’t let the door hit you on the way out, Curt

Curt Schilling, the bloody-sock hero of the 2004 Red Sox, says he’s leaving Massachusetts for Tennessee, where he expects that people won’t be so mean to him. I’ve never been to Tennessee, but I hope people there aren’t as racist, transphobic and full of hate as Schilling has become over the years.

In 2017, Travis Waldron wrote an excellent in-depth piece for HuffPost on Schilling’s descent from apparently normal conservative in his playing days and the immediate aftermath into an all-purpose terrible person.

Connecticut bill would allow Hartford Courant subscribers to sue over cost-cutting

The state capitol in Hartford, Connecticut. Photo (cc) 2009 by Dan Kennedy.

This is absolutely wild. This morning, a legislative committee in Connecticut will hold a hearing on a bill that would allow Hartford Courant subscribers to sue the paper’s owners if they take on debt or pay dividends that are not “for the good of the company.”

If the bill becomes law and is upheld as constitutional, it could pose a real threat to Tribune Publishing, which has been hacking away at the Courant and which is now on the verge of selling out to the hedge fund Alden Global Capital, notorious for pillaging its newspapers.

According to Matt Szafranski, editor-in-chief of Western Mass Politics & Insight, who’s read the bill, the measure could be legal because the Courant operates under a legislative charter granted in 1887 that requires the paper to operate in the public interest. The Courant was founded in 1764 and is generally regarded as the oldest continuously published newspaper in America.

The Hartford Courant Guild, the union that represents the Courant’s journalists, launched a Save Our Courant campaign last year aimed at finding local ownership. That effort may have gotten a boost earlier this week when The New York Times reported the emergence of a new potential buyer for Tribune who may turn around and sell off the chain’s papers to local interests. The potential buyer, hotelier Stewart Bainum, plans to take Tribune’s Baltimore Sun nonprofit.

Szafranski passed along the Hartford Courant Guild’s press release, which I’m reproducing here in full:

Tomorrow (Thursday) the insurance and real estate committee of the Connecticut state legislature will hold a hearing on a bill that would allow Hartford Courant subscribers to sue the paper’s ownership if it takes on any debt or pays out dividends that are not “for the good of the company.” In other words, it would reassert The Courant as belonging to the community, not to faraway corporate owners.

Crucially, the bill would make life difficult for Alden Global Capital, the notorious hedge fund currently seeking to buy the paper.

The hearing will begin at 9 a.m. and will be streamed through CTN [the Connecticut Network, which carries legislative proceedings]. Among those planning to testify are Courant reporter Rebecca Lurye and Fraser Nelson, a national expert who helped guide the Salt Lake Tribune to nonprofit status in 2019. Already, dozens of supporters have submitted written testimony, including Lurye and Connecticut AFL-CIO president Sal Luciano.

“I’m writing because America’s longest continuously published newspaper is under attack, its survival threatened by far-off corporate leaders who are diminishing the vital journalism we produce in their pursuit of the next penny,” Lurye wrote. “If this hedge fund follows the playbook it has used at numerous other newspapers around the country, the Courant will soon be a shell of what it is now.”

“Quality journalism is just as is important as freedom of the press,” Luciano wrote. “Our state capital city and its residents deserve a newspaper that is committed to reporting the news created here.”

Since the start of 2020, The Courant has lost a third of its staff, had its printing outsourced to Springfield and been stripped of its newsroom, leaving employees without an office indefinitely. The employees of The Courant continue to advocate publicly for the paper to be sold to a local, civically minded owner.

If you have any questions at all, please don’t hesitate to reach out at this address.

An anonymous source steps forth and saves (most of) The Washington Post’s bacon

Photo (cc) 2005 by Shawn Zamechek

The danger in reporting a story based on anonymous sources — in this case, one anonymous source — is that if you later are proven wrong, you’re left twisting in the wind with no one to blame but yourself.

It is highly unusual for a source to emerge from hiding and deliver a semi-exoneration. So The Washington Post got lucky Tuesday when Jordan Fuchs, the deputy secretary of state in Georgia who was the anonymous source for a Post story that resulted in an embarrassing correction, went on the record and said the Post got the story more or less right after all.

In case you missed it, the Post had to correct a story by Amy Gardner reporting that Trump had called Georgia’s chief elections investigator, Frances Watson, and urged her to “find the fraud” and that she would be a “national hero” if she overturned the results of the presidential election in her state. A tape of the call emerged recently, and The Wall Street Journal reported that Trump’s quotes were somewhat less provocative than that. Wemple writes:

In an interview with the Erik Wemple Blog, Fuchs said, “I believe the story accurately reflected the investigator’s interpretation of the call. The only mistake here was in the direct quotes, and they should have been more of a summary.” Fuchs said that The Post disclosed her role in the story with her permission, and that she’d gotten the debriefing from the investigator — a direct report of hers — “shortly” after the call from Trump concluded.

“I think it’s pretty absurd for anybody to suggest that the president wasn’t urging the investigator to ‘find the fraud,’” Fuchs added, “These are quotes that [Watson] told me at the time.”

To be clear, what we’re talking about here is a secondary story — a follow-up to a more explosive report by Gardner about Trump’s call to Georgia Secretary of State Georgia Brad Raffensperger in which he demanded that Raffensperger find enough votes to reverse the results. There was audio of that call, published on the Post’s website.

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So, a close call for the Post — but lessons to be learned that really shouldn’t have to be stated. You don’t use quotes from a single anonymous source, especially when that source may have been second-hand. If you’re absolutely confident of your reporting, treat those quotes as a “summary,” as Fuchs suggested, rather than using quotation marks.

And understand that in this hypercharged political environment, you will be accused of making up fake news about Trump if you don’t get it 100% right. In this case, 95% isn’t good enough.

Facebook could have made itself less toxic. It chose profit and Trump instead.

Locked down following the Jan. 6 insurrection. Photo (cc) 2021 by Geoff Livingston.

Previously published at GBH News.

Working for Facebook can be pretty lucrative. According to PayScale, the average salary of a Facebook employee is $123,000, with senior software engineers earning more than $200,000. Even better, the job is pandemic-proof. Traffic soared during the early months of COVID (though advertising was down), and the service attracted nearly 2.8 billion active monthly users worldwide during the fourth quarter of 2020.

So employees are understandably reluctant to demand change from their maximum leader, the now-36-year-old Mark Zuckerberg, the man-child who has led them to their promised land.

For instance, last fall Facebook tweaked its algorithm so that users were more likely to see reliable news rather than hyperpartisan propaganda in advance of the election — a very small step in the right direction. Afterwards, some employees thought Facebook ought to do the civic-minded thing and make the change permanent. Management’s answer: Well, no, the change cost us money, so it’s time to resume business as usual. And thus it was.

Joaquin Quiñonero Candela is what you might call an extreme example of this go-along mentality. Quiñonero is the principal subject of a remarkable 6,700-word story in the current issue of Technology Review, published by MIT. As depicted by reporter Karen Hao, Quiñonero is extreme not in the sense that he’s a true believer or a bad actor or anything like that. Quite the contrary; he seems like a pretty nice guy, and the story is festooned with pictures of him outside his home in the San Francisco area, where he lives with his wife and three children, engaged in homey activities like feeding his chickens and, well, checking his phone. (It’s Zuck!)

What’s extreme, rather, is the amount of damage Quiñonero can do. He is the director of artificial intelligence for Facebook, a leading AI scientist who is universally respected for his brilliance, and the keeper of Facebook’s algorithm. He is also the head of an internal initiative called Responsible AI.

Now, you might think that the job of Responsible AI would be to find ways to make Facebook’s algorithm less harmful without chipping away too much at Zuckerberg’s net worth, estimated recently at $97 billion. But no. The way Hao tells it, Quiñonero’s shop was diverted almost from the beginning from its mission of tamping down extremist and false information so that it could take on a more politically important task: making sure that right-wing content kept popping up in users’ news feeds in order to placate Donald Trump, who falsely claimed that Facebook was biased against conservatives.

How pernicious was this? According to Hao, Facebook developed a model called the “Fairness Flow,” among whose principles was that liberal and conservative content should not be treated equally if liberal content was more factual and conservative content promoted falsehoods — which is in fact the case much of the time. But Facebook executives were having none of it, deciding for purely political reasons that the algorithm should result in equal outcomes for liberal and conservative content regardless of truthfulness. Hao writes:

“They took ‘fairness’ to mean that these models should not affect conservatives more than liberals. When a model did so, they would stop its deployment and demand a change. Once, they blocked a medical-misinformation detector that had noticeably reduced the reach of anti-vaccine campaigns, the former researcher told me. They told the researchers that the model could not be deployed until the team fixed this discrepancy. But that effectively made the model meaningless. ‘There’s no point, then,’ the researcher says. A model modified in that way ‘would have literally no impact on the actual problem’ of misinformation.”

Hao ranges across the hellscape of Facebook’s wreckage, from the Cambridge Analytica scandal to amplifying a genocidal campaign against Muslims in Myanmar to boosting content that could worsen depression and thus lead to suicide. What she shows over and over again is not that Facebook is oblivious to these problems; in fact, it recently banned a number of QAnon, anti-vaccine and Holocaust-denial groups. But, in every case, it is slow to act, placing growth, engagement and, thus, revenue ahead of social responsibility.

It is fair to ask what Facebook’s role is in our current civic crisis, with a sizable minority of the public in thrall to Trump, disdaining vaccines and obsessing over trivia like Dr. Seuss and so-called cancel culture. Isn’t Fox News more to blame than Facebook? Aren’t the falsehoods spouted every night by Tucker Carlson, Sean Hannity and Laura Ingraham ultimately more dangerous than a social network that merely reflects what we’re already interested in?

The obvious answer, I think, is that there’s a synergistic effect between the two. The propaganda comes from Fox and its ilk and moves to Facebook, where it gets distributed and amplified. That, in turn, creates more demand for outrageous content from Fox and, occasionally, fuels the growth of even more extreme outlets like Newsmax and OAN. Dangerous as the Fox effect may be, Facebook makes it worse.

Hao’s final interview with Quiñonero came after the deadly insurrection of Jan. 6. I’m not going to spoil it for you, because it’s a really fine piece of writing, and quoting a few bits wouldn’t do it justice. But Quiñonero comes across as someone who knows, deep in his heart, that he could have played a role in preventing what happened but chose not to act.

It’s devastating — and something for him to think about as he ponders life in his nice home, with his family and his chickens, which are now coming home to roost.

The MBTA is driving people away — which means they will drive when this is over

How to destroy the MBTA bit by bit: The last “rush hour” (remember that?) train leaving North Station on the Lowell line is at 6 p.m. The next one is at 8. There used to be several in between.

Although I’ve thought about not taking the train in the morning until I’m vaccinated, the fact is that both the commuter rail and the subway are nearly empty, and everyone is good about wearing a mask. So I take it. But then my wife has to pick me up after work.

Boston Globe columnist Yvonne Abraham explains what the T’s policy of not spending the federal aid it’s receiving is doing to public transportation in Greater Boston. If you don’t maintain the system now, it won’t be there when we need it.

More on The Emancipator

Here’s The Boston Globe’s announcement of The Emancipator, including a video and a list of the advisory board members.

There are a lot of heavy hitters here, but the three who stand out to me are New Yorker journalist Jelani Cobb, who teaches at the Columbia School of Journalism; Nikole Hannah-Jones, who won Pulitzer Prize for The 1619 Project; and Heather McGhee, author of the widely acclaimed “The Sum of Us: What Racism Costs Everyone and How We Can Prosper Together.”

Also of note: Globe columnist Kimberly Atkins will write for The Emancipator and oversee its newsletter, to be called Unbound.

The Globe and BU will collaborate on an anti-racist digital publication

The Boston Globe’s opinion section and Boston University are launching an anti-racist initiative called The Emancipator, and they’re looking for an editor-in-chief. Here’s how the job listing begins:

The Boston Globe and Boston University’s Center for Antiracist Research are collaborating to resurrect the tradition of abolitionist-era journals such as William Lloyd Garrison’s The Liberator and Frederick Douglass’s The North Star via a new multimedia platform for opinion journalism. In the decades leading up to the Civil War, antislavery publications, many of which were founded in Boston, were the nation’s most influential megaphones for antislavery commentary and helped to bring about Emancipation. Today, we envision The Emancipator as a leading megaphone for antiracist commentary and ideas that are grounded in both scholarly research and journalistic reporting.

The editor will work out of the Globe’s newsroom (once it reopens, of course) with a co-editor based at BU. The project will be under the guidance of the Globe’s editorial-page editor, Bina Venkataraman, and the director of BU’s Center for Antiracist Research, Ibram X. Kendi.