First Amendment – Page 5

SCOTUS’ unsurprising decision on TikTok lays bare our hypocrisy about data privacy

Newsday account of Murdoch becoming a U.S. citizen, Sept. 5, 1985

We shouldn’t have been especially surprised that the Supreme Court voted unanimously to uphold the TikTok ban. After all, we have a long legal tradition when it comes to banning the foreign ownership of media companies.

Lest we forget, Rupert Murdoch was able to take his first steps in launching the Fox News Channel only by becoming an American citizen. The Australian media mogul took the oath in 1985 so he could purchase seven local television stations owned by Metromedia. FCC rules barred non-citizens from owning more than 20% of a U.S. broadcast entity.

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Murdoch’s acquisition of Metromedia meant that he briefly owned WCVB-TV (Channel 5). Since Murdoch also owned the Boston Herald and the FCC forbade cross-ownership of a TV station and newspaper in the same market, Murdoch flipped WCVB to Hearst, which has owned it ever since. (This is unrelated to Murdoch’s failed attempt a few years later to hold on to Boston’s WFXT-Channel 25 while keeping the Herald. In that case, he ended up selling Channel 25 and retaining the Herald, though he later sold that, too.)

FCC jurisdiction applies almost exclusively to the dying universe of broadcast television and radio. The TikTok ban was approved by an act of Congress, passed by overwhelming bipartisan majorities and signed into law by President Biden. Donald Trump has indicated that he wants to work out a deal so TikTok can remain up and running in the U.S., and perhaps he will. So this entire episode may turn out to be a footnote.

What’s notable about the Supreme Court decision is that the justices were not impressed with the government’s contention that TikTok could be used to distributed propaganda at the behest of the Chinese government. That’s as it should be. According to Amy Howe’s account of the decision, republished by SCOTUSblog, Justice Neil Gorsuch’s concurrence underscored that the issue was foreign ownership, not free speech.

Gorsuch, Howe notes, “emphasized that the court was correct in not ‘endorsing the government’s asserted interest in preventing “the covert manipulation of content”’ to justify the TikTok ban. ‘One man’s “covert content manipulation,”’ he observed, ‘is another’s “editorial discretion.”’”

The real problem with foreign ownership is that the Chinese government could demand that TikTok (I’m not going to get into the complex arrangement between TikTok and its parent company, ByteDance) turn over the massive amounts of user data that it hoovers up in order to fine-tune its algorithm and to sell you stuff. Of course, American-owned platforms do the same thing, and you might think there’s not a great deal of moral difference between Xi Jinping or Mark Zuckerberg (or Co-President-Elect Elon Musk) having access to your data. And you might even be right. But the legal distinction strikes me as fairly obvious.

Is there hypocrisy at work here? You bet, because the U.S. government has long claimed the right to access user data from American-based platforms in the name of national security. As Andrew K. Woods writes for Lawfare:

The Court noted: “TikTok Ltd. is subject to Chinese laws that require it to ‘assist or cooperate’ with the Chinese Government’s ‘intelligence work’ and to ensure that the Chinese Government has ‘the power to access and control private data’ the company holds.”

The Court could have written a nearly identical sentence about Meta or Google, vis-à-vis American law, like this: “Meta is subject to American law that requires it to assist or cooperate with the American government’s intelligence work and to ensure that the American government has the power to access and control private data the company holds.”

American firms are subject to American laws — like the Stored Communications Act, especially as modified by the CLOUD Act, and intelligence laws like the Foreign Intelligence Surveillance Act — that give the U.S. government legal means to access customer data, especially foreign customer data, for national security and intelligence purposes.

The ban takes effect Sunday, and the Biden White House has said it’s not going to make any efforts to enforce it with Trump taking office the next day. Trump was originally all in favor of the ban; then one of his billionaire donors urged him to change his mind. It didn’t hurt that Trump’s TikTok account turned out to be popular with his supporters.

So it seems like the most likely outcome is that Trump announces an extension while trying to work out some sort of settlement.

Accessibility, context, empathy: My students’ ideas to enhance the SPJ’s Code of Ethics; plus, media notes

Reporters taking notes — Photo (2017) by Portable Antiquities Scheme

This has become a perennial. Every semester, I ask students in my journalism ethics class to come up with a fifth principle that could be added to the Society of Professional Journalists’ Code of Ethics. The code identifies four broad principles: Seek Truth and Report It; Minimize Harm; Act Independently; and Be Accountable. Each of them is fleshed out in some detail.

On Wednesday evening, I asked my current class, a small seminar comprising graduate students and advanced undergrads, to think of a fifth principle in three teams of three students apiece. Here’s what they came up with. I’ve done some minor editing in the interests of parallel construction, but otherwise this is entirely their work.

Ensure accessibility for your audience

Use plain language whenever possible.
Use multiple formats and multimedia as resources permit.
Reporters and sources should reflect the diversity of the community.
Neighborhoods and areas within the coverage area should be covered equitably.
A news organization’s website and social media should be ADA accessible.*️⃣

Place news coverage in context

Provide the full picture of all aspects of a story.
Give credit where it is due, especially to other news organizations.
Acknowledge relevant communities, perspectives and historical background.
Provide needed follow-up for the audience.

Balance empathy and professionalism

Show respect for sources and subjects of coverage.
Create a relationship that enables your source to trust your intentions.
Clarify to your source the scope of the article and how they might be affected after publication.
If you maintain relationships with sources, limit that to professional contacts rather than personal friendships.

*️⃣ There are, in fact, resources for ensuring that a website is compliant with the Americans with Disabilities Act. As for social media, users are often encouraged to add text to images so that people with visual impairments can understand what an image represents. Hashtags should use upper- and lower-case in instances where confusion might result — for instance, screen-readers might trip up on the hashtag #firstamendment, so use #FirstAmendment instead.

Media notes

• Post journos petition Bezos. Since Jeff Bezos has clearly lost interest in The Washington Post, you have to wonder if he might disentangle himself from a property that he has clumsily described as a “complexifier” for him. The latest, according to NPR media reporter David Folkenflik, is that some 400 Post journalists have signed a letter asking that Bezos meet with them. The letter says in part: “We are deeply alarmed by recent leadership decisions that have led readers to question the integrity of this institution, broken with a tradition of transparency, and prompted some of our most distinguished colleagues to leave.”

• Muzzle Award follow-up. An order to the police chief in Burlington, Vermont, that he route all communications through the mayor’s office came at the instigation of Chittenden County State’s Attorney Sarah George, reports Colin Flanders of Seven Days. I gave Mayor Emma Mulvaney-Stanak a New England Muzzle Award for silencing Police Chief Jon Murad and, more seriously, for following up by scheduling a press availability but failing to invite all of the city’s news organizations. George was concerned about Murad’s public statements disparaging a notorious repeat offender, calling one statement “unnecessary and performative” and saying that he “really needs to knock it off.”

• Judge gets access to BoMag notes. Superior Court Judge Beverly Cannone has received off-the-record notes from Boston magazine reporter Gretchen Voss’ July 2023 interview with murder suspect Karen Read, who will soon return to court following a mistrial last year, reports Travis Andersen in The Boston Globe. Judge Cannone will privately review the notes before ruling on whether to grant the prosecution’s request for access to Voss’ reporting materials. BoMag has fought that effort on freedom-of-the-press grounds; more background here.

In Vermont, a mayoral Muzzle for silencing the police and freezing out the press; plus, media notes

Church Street Marketplace in Burlington, Vt. Photo (cc) 2017 by Kenneth C. Zirkel.

It might be high-handed for a mayor to order her police chief to funnel all public statements through her office, but it isn’t necessarily such an outrage that it warrants a coveted New England Muzzle Award. But to compound that by announcing she would have a press availability to which not all local news organizations were invited — well, come on down and claim your prize, Emma Mulvaney-Stanak.

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Mulvaney-Stanak, the mayor of Burlington, Vermont, and a leader in that state’s Progressive Party, signed an executive order last Wednesday ordering the Burlington Police Department to route all press releases through her office before distributing them to the public. “People need the basic facts of situations for the sake of public safety and nothing more than that,” the mayor was quoted as saying.

According to Colin Flanders, a reporter for the Burlington-based newspaper Seven Days, Mulvaney-Stanak had “raised concerns” with Police Chief Jon Murad “about the content of his department’s public statements in the past. Murad has used press releases in recent years to criticize the court system and a perceived lack of accountability for repeat offenders.”

Murad was silenced after a defense lawyer asked a judge to impose a gag order on the Burlington police in response to statements by the chief concerning a local man who’d had nearly 2,000 encounters with police. Murad had accused the man of “violent, incorrigible, antisocial behavior” — and some of Murad’s comments were repeated on the public radio program “On Point,” produced by WBUR in Boston and distributed nationwide. It’s hard to imagine that the mayor was pleased by that.

Meanwhile, Vermont First Amendment legend Michael Donoghue, writing in the Vermont Daily Chronicle for Vermont News First, reported on Friday that Mulvaney-Stanak would speak to the press at a media availability that afternoon — but that Vermont News First, which had been dogging the mayor over her acceptance of free donated meals, had not been invited. After Donoghue’s story was posted, he added an update reporting that Seven Days hadn’t been invited, either.

“She doesn’t answer her cellphone and actually has asked VNF to stop calling,” Donoghue wrote.

(Update: Donoghue later explained to me that VNF is his own journalism endeavor and that the Vermont Daily Chronicle is one of his clients.)

Well, if Seven Days and Vermont News First were left off the invitation list, who was invited? The city’s daily, the Burlington Free Press, didn’t report on the mayor’s muzzling of Chief Murad until today, and there are no quotes from her in the article. There’s nothing about any sort of press availability in the statewide news organization VTDigger, whose reporter Corey McDonald wrote about Mulvaney-Stanak’s silencing of Murad last Thursday, on the same day as Seven Days. Nor is there anything from Vermont Public Radio.

Chief Murad, who’s leaving his post this April, may or may not have been out of line in disparaging a notorious frequent flier in the criminal justice system. But holding law enforcement to account is difficult enough without the mayor stepping in and lowering the cone of silence.

For Mayor Mulvaney-Stanak to worsen that situation by creating the impression that she would exclude some news outlets from a media availability (it’s not clear whether that availability ever happened) goes beyond acceptable and pushes this story into the Muzzle Zone.

Media notes

• Donald Trump v. Nancy Barnes. Among the journalism organizations Donald Trump has targeted for libel suits is the Pulitzer Board, which awarded a Pulitzer Prize to The New York Times and The Washington Post in 2018 for their reporting on the 2016 Trump campaign’s entanglements with Russia. Trump is claiming the award was somehow libelous — and Ben Smith of Semafor reports that he’s is suing not just the board but individual members of that board, including, locally, Boston Globe executive editor Nancy Barnes.

• A liberal counterpart to The Free Press? Another star opinion journalist has fled the rapidly declining Washington Post. Jennifer Rubin, a conservative-turned-centrist-turned-liberal with a strong social media presence, is moving to Substack, where she’ll be the editor-in-chief of a new publication called The Contrarian — which, she tells CNN’s Brian Stelter, will “combat, with every fiber of our being, the authoritarian threat that we face.” Stelter’s report and Rubin’s introductory post suggest that The Contrarian could serve as a welcome liberal counterpart to the right-leaning Free Press, founded in 2021 by disgruntled New York Times opinion journalist Bari Weiss.

• New Jersey’s post-print future. This past fall I observed that Advance Local was closing its New Jersey print newspapers, the largest of which is The Star-Ledger of Newark, and doubling down on digital with its statewide NJ.com site. Now Marc Pfeiffer, a policy fellow at Rutgers University, has written a commentary for NJ Spotlight News arguing that print is not essential to maintaining a rich media ecosystem. “The future of New Jersey news is primarily digital — and that’s OK,” Pfeiffer writes. “What matters isn’t the delivery method but the quality and accessibility of local journalism. Our democracy depends on having informed citizens who know what’s happening in their State House, county seats, and town halls.”

• An update on that Colorado assault. A couple of weeks ago I noted that a television journalist in Grand Junction, Colorado, had allegedly been assaulted by a Trump supporter who followed his car to the journalist’s television station, tried to choke him, and shouted “This is Trump’s America now.” In his latest newsletter, Corey Hutchins writes that the 22-year-old journalist, Ja’Ronn Alex, is out on paid leave while Patrick Egan, the taxi driver who’s been charged, is out on bail, with his lawyer claiming that he suffers from mental health issues.

Plymouth’s town manager earns a Muzzle for giving a local news outlet the silent treatment

Plymouth, Mass. Photo (cc) 2008 by Raime.

When a community has been without a reliable source of local news for some time, government officials can become accustomed to operating without much scrutiny. And when a feisty startup arrives on the scene to report stories that had gone unreported, that can prove to be quite a shock to the powers that be.

Which is as good an explanation as any for what’s unfolding in Plymouth, Massachusetts. The venerable Old Colony Memorial had become virtually a ghost newspaper under the Gannett chain’s ownership, mainly publishing regional coverage from other Gannett papers. Then, in 2023, the Plymouth Independent, a nonprofit digital outlet, arrived on the scene.

The Independent is larger and more ambitious than many such projects; the editor and CEO is Mark Pothier, a former Globe journalist and, before that, editor of the Old Colony Memorial back when it was still covering local news. One of the Independent’s directors is Walter Robinson, a Plymouth resident who’s best known for leading the Globe’s Spotlight Team when it was exposing the clergy sexual abuse crisis in the Catholic Church.

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One Plymouth official who is taking particular umbrage at the increased scrutiny being brought by the Independent is the town manager, Derek Brindisi. According to a message to readers that Pothier published today, Brindisi has ordered “all appointed town officials to cease all communication with the PI.” The only exception is that town officials will be permitted to respond to public-records requests from the Independent, which, after all, they are required to do under state law.

For his unwarranted attempts to prevent the Independent from holding local government accountable, Brindisi is receiving a New England Muzzle Award. “In my decades as a journalist, Brindisi’s blanket edict is like nothing I have ever encountered,” writes Pothier, who also says:

Our job as journalists is to hold government officials accountable and to provide readers with the reliable information they need to foster a functioning democracy. In that respect, the relationship between governments and journalists is necessarily adversarial. We’re supposed to be skeptical of people in power.

Officials, paid public professionals, and Town Meeting members make decisions involving policies and spending that inevitably spark debate. They serve in the public’s interest. The Independent reports on them in the public’s interest.

Before the PI arrived, most Plymouth residents — including myself — had a hard time finding out what was going on in town. Perhaps naively, I figured officials would welcome the chance to present the town’s perspective on important issues. Some have — or did until this latest order to stop talking to us. Brindisi, however, has only reached out to express displeasure with our coverage.

Pothier goes into some detail about a couple of routine stories that upset Brindisi. One was written by Andrea Estes, a former investigative reporter for the Globe. (Estes’ career at the Globe came to a bad end for reasons that have never been adequately explained, but there is no question that she’s an experienced and accomplished journalist.) The other was written by Fred Thys, a former reporter for WBUR Radio in Boston and VTDigger, a leading investigative news outlet in Vermont.

Brindisi, for his part, childishly refers to the Independent as the “Plymouth Enquirer” and has complained about the Independent’s “distasteful reporting” and efforts to “humiliate town officials.”

This isn’t the first Muzzle to be awarded to Plymouth officials in recent months. Back in July, I gave one to select board member Kevin Canty for suggesting that an unnamed person was risking prison for recording the audio of a board meeting without informing those present. Canty was referring to Thys, who had made no effort to hide the fact that he was recording the meeting, which was also being live-streamed on YouTube.

Thys may have been in technical violation of the law, but seriously? “Canty and I later spoke about the incident,” Pothier writes. “We both agreed it could have been handled better, perhaps with a simple request that Thys announce he was recording.”

Pothier also credits Canty with working to mend the rift between Brindisi and the Independent, but that those efforts have come to naught.

CNN’s risky decision to defend a libel claim; plus, billionaires bad and good, and media notes

Photo (cc) 2010 by red, white, and black eyes forever

Ordinarily when I write about libel suits, it’s to call your attention to some bad actor whose ridiculous claims threaten to damage freedom of the press. Today, though, I want to tell you about a case involving CNN that has me wondering what on earth executives at the news channel could be thinking.

Media reporter David Folkenflik of NPR explains the case in some detail. In November 2021, CNN’s Alex Marquardt reported that Zachary Young, who runs an outfit called Nemex Enterprises, was taking advantage of desperate Afghans by charging them “exorbitant fees” to extract them from Afghanistan after the U.S. pulled out and the government fell into the hands of the Taliban.

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CNN said there was no evidence that Young had been successful in evacuating anyone. Young claims otherwise. Folkenflik writes:

Young has sued CNN for defamation. In his complaint, his attorneys say CNN gave him just hours to respond to its questions before it first aired that story on “The Lead with Jake Tapper.” They say Young had, in fact, successfully evacuated dozens of people from Afghanistan.

In rebutting those allegations in court, CNN has since cast doubt on Young’s claim of the successful evacuations. Behind the scenes, however, some editors expressed qualms about the reporting, court filings show.

You should read Folkenflik’s full story. What you’ll learn is that:

CNN may or may not have gotten it right, but it is basing its defense, in part, on what it describes as Young’s refusal “to cooperate with CNN’s reporting efforts,” as if he was under any legal obligation to do so. Also, keep in mind that Young argues he was given “just hours to respond.”
Tom Lumley, CNN’s senior national security editor, privately called the story “a mess.” Megan Trimble, a top editor, agreed that “it’s messy.”
There was some sentiment within CNN that it was all right to go ahead with a fleeting television version of the story that wouldn’t attract much notice but that posting a written article was risky.
Marquardt, in an internal message, had written, “We gonna nail this Zachary Young mf*****,” and at least two other CNN journalists had disparaged Young besides, with one saying Young had “a punchable face.”

Continue reading “CNN’s risky decision to defend a libel claim; plus, billionaires bad and good, and media notes”

Fighting back against official harassment; plus, Biden’s fitness, and more on that Everett libel case

An idyllic scene in Lancaster, Penn. Photo (cc) 2018 by the U.S. Department of Agriculture.

Reliable and comprehensive local news can help ease the polarization that has infected our national discourse. But it’s not a guarantee — and when MAGA-drenched politics pervades community life, the result can be that the press is attacked in a manner that’s similar to the cries of “fake news” from Trump supporters.

Which is exactly what is happening right now in Lancaster, Pennsylvania. In a lengthy article for The Washington Post, Erik Wemple tells the story of Tom Lisi, a reporter for the newspaper LNP who’s become the focus of relentless attacks (gift link) from the Republican chairman of the county commission.

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That chairman, Joshua Parsons, has his eye on a state senate seat, and he is evidently using his crusade against Lisi in order to build support for his campaign. Among other things, Parsons has accused Lisi of lying about harassment he’s been subjected to, making up stories “out of whole cloth,” and of having “skulked around waiting to ambush County staff.” As Wemple wryly observes: “‘Reporter’ is an appropriate term for someone who skulks around ‘waiting to ambush County staff.’” Wemple adds:

[T]he events in Lancaster County bear … on a question that has vexed leaders in journalism in recent decades: Just how should they respond to the frequent, strident and often flimsy attacks from Republican politicians? Should they stick to the industry’s default mode of turning the other cheek? Or should they speak up to challenge the gripes?

LNP and its associated website, Lancaster Online, are not part of a corporate chain or owned by a hedge fund. Rather, the media outlet was saved in 2023 by public radio station WITF and has a newsroom of 70 journalists — impressive for a medium-size daily. That transaction, though, has resulted in an enormously complex ownership structure involving three separate nonprofit boards along with all the potential conflicts of interest that entails.

As for Lisi, Wemple writes that he has started to push back publicly on Parson’s falsehoods and exaggerations about his reporting, and that on one occasion he left his tormenter momentarily speechless. The lesson, according to Wemple: “Confront the media bashers wherever they practice their profession.”

Biden’s fitness

The Wall Street Journal today published an investigative report (gift link) on attempts by President Biden’s inner circle to control access not just throughout the past four years but during the campaign that preceded it as well.

There are some harrowing details but also some problems with the reporting, including this, in which an anonymous aide quotes an anonymous official:

If the president was having an off day, meetings could be scrapped altogether. On one such occasion, in the spring of 2021, a national security official explained to another aide why a meeting needed to be rescheduled. “He has good days and bad days, and today was a bad day so we’re going to address this tomorrow,” the former aide recalled the official saying.

Despite such hazy sourcing, the Journal’s story is a valuable addition to what we are learning about Biden’s age-related problems during the past half-dozen years. In retrospect, a Journal story (gift link) in early June of this year was the big breakthrough, although it was marred by its overreliance on Republican sources. A few weeks later, Biden met Donald Trump on the debate stage, and that was the beginning of the end of his re-election campaign.

A few points are now obvious: First, Biden’s inner circle covered up the president’s fading mental acuity for years — which makes you wonder why they went along with the June debate, which led directly to Kamala Harris’ candidacy and at least gave Democrats a fighting chance of holding on to the White House. Second, Biden should have pledged to serve just one term when he ran in 2020; at the very least, he should have declared victory and pulled out after Democrats did unexpectedly well in the 2022 midterms.

That we still don’t know exactly how impaired Biden was and is speaks to how difficult it is for reporters to pierce the veil. As the Journal’s story makes clear, members of Congress and even Cabinet secretaries were kept in the dark. This was not a failure of journalism so much as it was a failure of the president and the people around him to level with the public.

Everett update

Earlier this week, I noted that neither of Everett’s two remaining weekly newspapers had published anything about the demise of the Everett Leader Herald, which shut down and agree to pay Mayor Carlo DeMaria $1.1 million in order to settle a libel suit. Publisher and editor Joshua Resnek had previously admitted he fabricated stories and quotes aimed at making DeMaria appear to be corrupt.

Well, now both papers, which are owned by small independent chains, have been heard from. The Everett Advocate has an especially tough headline, “A Victory Over Journalistic Dishonesty,” with reporter Mark E. Vogler detailing the Advocate’s own role in exposing the Leader Herald’s fictions about DeMaria.

One aspect of the settlement that I was wondering about is clarified in Vogler’s story. He quotes a lawyer for DeMaria, Jeffrey Robbins, as saying that the demise of the Leader Herald was in fact a stipulation of the settlement rather than simply a side effect of suddenly having to come up with $1.1 million. “All a jury would have decided to do in this case would be to decide whether to award damages and how much in damages,” Robbins told Vogler. “But a jury could not have ordered a newspaper to close down. That was one of the things that made the settlement unusual.”

The Everett Independent has a shorter article, written by reporter Cary Shuman, headlined simply “DeMaria Vindicated.”

Finally, the Leader Herald’s former website now consists of a WordPress page that says, “You need to be logged in as a user who has permission to view this site.”

Social media and its discontents; plus, Trump’s war against the press, and the Globe’s latest Steward stunner

Almost from the beginning of the social-media age, I’ve been too deeply immersed for my own good. So I appreciated this recent essay (gift link) in The New York Times Magazine by J Worthen, who tells us that Bluesky might look like the better, kinder place at the moment but that it’s probably destined to turn into a vortex of sociopathy like all the rest. Here’s the nut:

We have officially arrived in late-stage social media. The services and platforms that delighted us and reshaped our lives when they began appearing a few decades ago have now reached total saturation and maturation. Call it malaise. Call it Stockholm syndrome. Call it whatever. But each time a new platform debuts, promising something better — to help us connect better, share photos better, manage our lives better — many of us enthusiastically trek on over, only to be disappointed in the end.

As someone who used to get into fights on Usenet back in the 1990s (look it up), long before anyone had ever thought of using algorithms to drive content that engages and enrages, I agree that it’s hopeless. Bluesky might prove to be the exception. Among other things, you get to choose your own algorithm, or none at all. But it really doesn’t matter. The real problem is that, no, you can’t have meaningful conversations with strangers, and social media is inimical to the way we’ve evolved.

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The post-Musk social-media landscape has also been defined by the incredibly annoying practice of platform-shaming — a hopeless chase after the least-evil alternative, accompanied by bitter criticism of anyone who would dare keep using those platforms that are deemed insufficiently free of harmful entanglements.

Continue reading “Social media and its discontents; plus, Trump’s war against the press, and the Globe’s latest Steward stunner”

Did ABC News settle with Trump to avoid pre-trial discovery?

E. Jean Carroll in 2006. Photo (cc) 2006 by julieannesmo.

Like most observers, I figured that ABC News’ decision to settle a libel suit with Donald Trump for a total of $16 million had more to do with the network’s desire to make a public relations problem disappear than it did with any chance that the network would actually lose the case.

After all, when anchor George Stephanopoulos said on the air that Trump had been found “liable for rape” in a lawsuit brought by the writer E. Jean Carroll, he was merely quoting a federal judge, who said a civil-court jury had indeed found that Trump “raped her” [Carroll] using the everyday meaning of the word rather than the strict legal definition.

But CNN media reporter Brian Stelter raises another intriguing possibility: that ABC’s lawyers wanted to avoid pre-trial discovery. As Stelter reports, ABC didn’t even wait for the judge to rule on whether to grant summary judgment in the case — a routine proceeding in which the defendant asks the judge to find that the plaintiff’s case is so lacking in substance that it ought to be immediately dismissed. Stelter quotes Ken Turkel, a trial lawyer who is representing Sarah Palin in her revived libel case against The New York Times:

“In my experience, when media defendants are unsuccessful at the dismissal stage,” which was in July, “they focus on preparing for summary judgment to challenge the legal sufficiency of a plaintiff’s claim,” he said. “It begs the question as to why ABC settled before the summary judgment stage.”

Turkel also said “you would have to consider” whether the discovery process unearthed emails or other internal ABC data that damaged the network’s case.

Stelter also observes that right-wing media figure Erick Erickson, who’s a lawyer, wrote on Twitter: “No, a $15 million settlement is not the cost of doing business. It is avoiding discovery.”

This makes a great deal of sense. Based on what Stephanopoulos said on the air, his comments were clearly not delivered with actual malice (that is, they were not knowingly false nor reckless), and they were arguably not even false given the judge’s comments. The judge, Lewis Kaplan, went so far as to say that the verdict “establishes against him [Trump] the substantial truth of Ms. Carroll’s ‘rape’ accusations.”

But pre-trial discovery may have revealed internal animus toward Trump from Stephanopoulos and/or others, which Trump’s lawyers might have been able to conflate into actual malice. Combined with Stephanopoulos’ failure to describe the verdict against Trump with 100% precision, ABC’s lawyers may have genuinely feared that Trump had a case he could win in front of sympathetic jury that loathes the media.

Did Stephanopoulos libel Trump? Based on facts that are on the record, the answer is “no.” And I still wish ABC had fought back. But the settlement may have been for a more complicated reason than ABC’s and parent company Disney’s desire to toady to the once and future president.

A tale of two libel suits: ABC News’ shocking abdication, and the end of the line in Everett, Mass.

George Stephanopoulos earlier this year. Official White House photo by Carlos Fyfe.

For this morning, a tale of two libel suits, one national, one local. The national case threatens to undermine protections for journalism that have been in place since 1964. The local case will result in the closure of a weekly newspaper that started publishing 139 years ago.

First, the national lawsuit. On Saturday, ABC News agreed to pay $15 million to Donald Trump in order to settle a libel claim over repeated on-air assertions by anchor George Stephanopolous that a jury had found Trump “liable for rape” against the writer E. Jean Carroll. The money will be paid to Trump’s presidential library and foundation, Paula Reid and Katelyn Polantz report for CNN. ABC will also pay $1 million for Trump’s legal fees and issue an apology.

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The problem is that what Stephanopoulos said was substantially true. The CNN story put it this way: “In 2023, a jury found that Trump sexually abused Carroll, sufficient to hold him liable for battery, though it did not find that Carroll proved he raped her.” And here’s the big “but”: In August 2023, U.S. District Judge Lewis Kaplan found that Trump had, in fact, raped Carroll under the everyday meaning of the word if not under the legal definition. Here’s what Lewis said at the time in the course of ruling on one of Carroll’s defamation proceedings against Trump:

Indeed, the jury’s verdict in Carroll II establishes, as against Mr. Trump, the fact that Mr. Trump “raped her,” albeit digitally rather than with his penis. Thus, it establishes against him the substantial truth of Ms. Carroll’s “rape” accusations.

I’ll give you a moment to throw up. Now, then, let’s parse this, shall we? A jury found Trump liable for “sexual abuse,” which Judge Lewis ruled was tantamount to being found liable for rape. What Stephanopoulos said was inaccurate only under the most hypertechnical interpretation of what actually happened — and, as I said, Stephanopoulos’ assertions were substantially true, which is supposed to be the standard in libel law. But ABC and its parent company, Disney, decided to appease Trump rather than continue to fight.

And what’s with Stephanopoulos? At 63, he has made many millions of dollars. If he had resigned and continued to fight rather than go along with his corporate overlords, he could have been a hero. Who knows what opportunities would have opened up for him? Instead, he’s content to continue as a highly compensated apparatchik. It’s sad.

By settling with Trump, ABC is following in the path of other corporate titans, a number of whom have donated $1 million apiece to Trump’s inauguration festivities. The donors include Facebook CEO Mark Zuckerberg, OpenAI CEO Sam Altman and Amazon founder Jeff Bezos, who owns The Washington Post.

Under the 1964 Supreme Court ruling of Times v. Sullivan and subsequent refinements, public officials and public figures like Trump need to show that statements they find harmful are false, defamatory and made with actual malice — that is, with knowing falsehood or with reckless disregard for the truth — in order to win a libel suit.

What Stephanopoulos said arguably wasn’t even false, and surely it didn’t amount to actual malice. A deep-pockets defendant like Disney ought to stand up for the First Amendment lest its cowardly capitulation to Trump harm other media outlets without the wherewithal to fight back.

Coming at a time when two of the Supreme Court’s justices, Clarence Thomas and Neil Gorsuch, have publicly signaled that they would like to weaken Times v. Sullivan, ABC’s behavior is shockingly irresponsible.

Local paper to close

Now for the local case. On several occasions I’ve written about an explosive libel suit brought against the weekly Everett Leader Herald by that city’s mayor, Carlo DeMaria.

Unlike the matter of Trump and ABC, you will not find a clearer example of actual malice, as Leader Herald publisher and editor Joshua Resnek testified in a deposition that he’d made up facts and quotes in a campaign aimed at impugning DeMaria’s integrity. That news was broken in January 2023 by Boston magazine’s Gretchen Voss. Indeed, eight months later, Middlesex Superior Court Judge William Bloomer froze assets belonging to Resnek and one of the paper’s owners, Matthew Philbin, because he believed DeMaria was likely to win his case.

The denouement came Sunday when The Boston Globe reported that the suit would be settled for $1.1 million and that the Leader Herald would be shut down as part of the settlement. Globe reporter Maddie Khaw writes:

Resnek, who writes and edits most of the Leader Herald’s articles, has frequently used the nickname “Kickback Carlo” to refer to DeMaria, a moniker representing Resnek’s claims that DeMaria had received illegal payments in real estate deals.

Records show that Resnek has admitted to knowingly reporting falsehoods and fabricating quotes.

“Mr. Resnek wrote what he wrote because he believed Mr. DeMaria was bad for the City of Everett and he was motivated by the fanciful notion that he could bring about Mr. DeMaria’s defeat in the [2021] election for Mayor,” the defendants’ lawyers wrote in court documents.

In fact, DeMaria was re-elected in 2021.

DeMaria and his lawyers will hold a news conference later today. Meanwhile, there is nothing up at the Leader Herald’s website about the settlement, which features several stories that were posted as recently as this month.

Incredibly, Everett is also the home of two other weekly newspapers, the Everett Independent and the Everett Advocate, both of which are part of small, locally owned chains; neither of them has anything on the settlement, either.

A proposed federal shield law dies; plus, The Onion v. Alex Jones, and Krugman’s awkward farewell

Sen. Tom Cotton. Photo (cc) 2016 by Michael Vadon.

The PRESS Act, which would protect reporters from being forced to identify their anonymous sources or turn over confidential documents, appears to be dead despite passing the House on a unanimous vote earlier this year.

Clare Foran and Brian Stelter report for CNN that the bill died Tuesday after Republican Sen. Tom Cotton of Arkansas objected to an attempt to pass it by unanimous consent. Cotton said that passage would turn senators “into the active accomplice of deep-state leakers, traitors and criminals, along with the America-hating and fame-hungry journalists who help them out.” President-elect Donald Trump has demanded that Republicans defeat the measure, so that would appear to be the end of the road.

Meanwhile, the Reporters Committee for Freedom of the Press, a staunch supporter of the bill, noted that the U.S. Justice Department’s Inspector General’s office released a report Tuesday finding that journalists’ records had been sought during Trump’s first term in violation of internal guidelines. CNN, The New York Times and The Washington Post were targeted along with members of Congress and congressional staffers.

In a statement, RCFP executive director Bruce Brown said:

The government seizure of reporters’ records hurts the public and raises serious First Amendment concerns. This investigation highlights the need for a reasonable, common-sense law to protect reporters and their sources. It’s time for Congress to pass the PRESS Act, which has overwhelming bipartisan support, to prevent government interference with the free flow of information to the public.

The PRESS Act, which stands for Protect Reporters from Exploitative State Spying, would add the federal government to the 49 states that already have some form of shield protection for journalism. The sole exception is Wyoming.

Trump is hardly alone in his contempt for the importance of journalistic anonymity in holding government accountable. Former President Barack Obama was so aggressive in demanding that reporters identify leakers that I once wrote a commentary for The Huffington Post headlined “Obama’s War on Journalism.”

Under President Biden, though, Attorney General Merrick Garland issued guidance prohibiting federal prosecutors from seizing journalists’ records except in a few narrow cases involving terrorist investigations or emergencies — the same exceptions that are spelled out in the PRESS Act. Now it seems virtual certain that Trump will return to his previous repressive practices, with Tom Cotton cheering him on.

Media notes

• Peeling back The Onion. The internet exploded in celebration recently when The Onion won a bid to purchase Infowars from right-wing conspiracy-monger Alex Jones, who was sued into bankruptcy by the families of children who were killed in the Sandy Hook school massacre of 2012. Jones had spread false stories that the shootings were somehow faked. Now, though, a bankruptcy judge has ruled the Infowars auction was improperly conducted in secret and may have resulted in less money for the families than an open process, David Ingram reports for NBC News.

• Krugman’s awkward farewell. Longtime New York Times columnist Paul Krugman, surely the only opinion journalist to have won a Nobel Prize, wrote a heartfelt farewell column (gift link) on Monday. But though all was sweetness and light publicly, independent media reporter Oliver Darcy writes that Krugman may have left earlier than he would have liked because he regarded opinion editor Katie Kingsbury as heavy-handed, demanding a “far more thorough edit” (including the vetting of pitches) of all Times columnists than had previously been the case.

I’m looking forward to seeing what Krugman does next. I thought his column had become somewhat repetitive in recent years, but I’d welcome longer pieces from him published less frequently. He remains one of our most vital public intellectuals.

Update: Well, that didn’t take long. Krugman started a Substack newsletter in 2021, let it wither, and has now revived it.