Category: Media

NHPR case illustrates the limits of actual malice

U.S. Supreme Court. Photo (cc) by Kjetil Ree

The harassment endured by Lauren Chooljian, a reporter for New Hampshire Public Radio, is frightening and horrifying. David Enrich of The New York Times reported last week (free link) that Chooljian, her parents and her editor have been subjected to vandalism and threats after she reported on sexual misconduct allegations against Eric Spofford, who founded the state’s largest network of addiction treatment centers.

Spofford denies having anything to do with the vandalism. But there’s an interesting wrinkle to the case that I want to discuss, and that’s Spofford’s libel suit against Chooljian and NHPR. Because of Spofford’s prominence, he has been designated as a public figure, which means that he must show actual malice (as well as falsity and defamation) in order to win his suit. Actual malice, as you probably know, requires that the plaintiff prove the defendant published the offending material despite knowing or strongly suspecting it was false.

NHPR has been ordered by Judge Daniel St. Hilaire to turn over transcripts of interviews, including with anonymous sources. “Legal experts,” Enrich wrote, “called the ruling unusual and alarming, saying such decisions could make it harder for journalists to investigate potential wrongdoing by public figures.” And Enrich quoted one of those experts, Chad Bowman, as saying it was “‘deeply troubling’ for a judge to force journalists to hand over unpublished materials when the plaintiff hadn’t yet made a viable legal claim.”

The last part of that statement is the key: Spofford has not yet presented the sort of evidence that would suggest he could win if allowed to proceed. St. Hilaire seems to be putting the cart before the horse. But if Spofford does have a viable case, then he’s entitled to gather the evidence he needs to pursue it. Remember, he needs to prove actual malice. That means it’s essential that he be allowed to probe the inner workings of Chooljian’s and NHPR’s reporting and editing processes to see whether they knew what they were broadcasting was false or if they harbored any serious doubts about it.

At one time libel had been regarded as what you might call a no-fault tort. That is, if you could show that you had been defamed with falsehoods, then you would win your case, regardless of the news organization’s motivation. In the 1974 case of Gertz v. Robert Welch, however, the Supreme Court ruled that even private individuals would have to prove negligence. With at least two members of the current Supreme Court, Justices Clarence Thomas and Neil Gorsuch, having suggested they’d like to revisit libel law, it’s worth thinking about whether negligence might be a better standard than actual malice, even for public officials and public figures.

The problem with actual malice has always been that though it makes it extremely difficult for a plaintiff to win a libel suit against the news media, it also gives the plaintiff entree into a news outlet’s private communications. Consider that, in 2005, The Boston Globe lost a libel suit brought by a doctor in the case of Betsy Lehman, a Globe reporter who died after receiving a massive overdose of a chemotherapy drug. In that case, the judge ruled that Dr. Lois Ayash won what turned out to be a $2 million judgment by default after the Globe refused to turn over its confidential sources, as the judge had ordered.

Ayash was entitled to that information, but there was no way the Globe was going to betray its confidential sources. If a negligence standard had been in effect rather than actual malice, then the jury could have determined whether the Globe had acted negligently without probing into its reporting processes.

So, too, with the NHPR case. The problem here, again, is that it’s not clear whether Chooljian reported anything that was false. Truth is almost always considered an absolute defense in a libel case, which is why Judge St. Hilaire seems to be acting prematurely. Nevertheless, the case is a good illustration of why actual malice — defined in the landmark Times v. Sullivan case in 1964 — may have been a mistake, and why negligence may be a more workable standard.

Chris Licht understood what was wrong with CNN but had no idea of how to fix it

Photo (cc) 2010 by CNN Center

I started out writing a much longer post about Tim Alberta’s astonishing 15,000-word takedown of CNN’s now officially embattled CEO, Chris Licht. But I decided there’s really no need. You can read Alberta’s story for yourself along with Jon Allsop’s analysis for the Columbia Journalism Review of what it all means, Brian Stelter’s article at New York magazine on the chaotic aftermath inside CNN, and Benjamin Mullin’s story in The New York Times on Jeff Zucker, Licht’s bitter and scheming predecessor.

Rather than add to that, I want to focus instead on one small point that shows Licht sort of/kind of had the right idea. While speaking to a student group, Alberta writes, “Licht sought to differentiate CNN from both networks — slamming Fox News for being a duplicitous propaganda outfit, and rebuking MSNBC for trafficking in hysteria.”

Licht has been talking this way from the moment he ascended to the top of CNN, and it’s why I was willing to cut him some slack despite misguided decisions such as firing Stelter, the network’s excellent media reporter. The problem, it seems, is that he understood CNN’s problems correctly but superficially and thus wasn’t really able to execute.

CNN didn’t need to move from the left back toward the center or to be more polite to authoritarian right-wingers, as Licht seems to think. Rather, it needed to readjust the balance between opinion and reporting.

Of course, it’s fair to ask who is really calling the shots at CNN — Licht or his overlords, David Zaslav, the head of Warner Bros Discovery, and right-wing billionaire John Malone, who owns a significant chunk of the company. It all fell apart when CNN’s town hall event with Donald Trump turned into a disaster in exactly the ways in which everyone had predicted — with Trump simply yelling lies in the face of his well-prepared but overwhelmed host, Kaitlan Collins, while the Trumper crowd hooted and hollered off stage.

You may have heard that another media executive, David Leavy, has been brought in as CNN’s chief operating officer, a significant wing-clipping for Licht, who has presided over a steep decline in ratings, revenue and morale. It seems hard to believe that Licht can survive the humiliation, much of it self-inflicted, that he endured in Alberta’s piece.

It’s equally hard to know where CNN should go from here. A return to Zucker’s clown show (Chris and Andrew Cuomo, anyone?) would hardly restore the reputation of a still-great news organization whose on-air product often fails to match the excellence of its journalists.

CNN is just as much in need of a reset today as it was when Licht took over.

Earlier:

Tara Reade, who accused Biden of sexual assault, pops up in Russia

Tara Reade’s new home: The Kremlin. Photo (cc) 2015 by Larry Koester.

On Tuesday came the bizarre news that Tara Reade, who accused Joe Biden of past instances of sexual assault during the 2020 presidential campaign, had popped up in Russia, claiming she feared being imprisoned or killed. The Guardian reported that she had “defected”; The New York Times went with the less charged “moved.”

Women rarely lie about sexual assault, but there were reasons right from the start not to believe Reade’s claims. Among other things, the PBS NewsHour reported that the details Reade offered were almost certainly false, and Politico found that she had spent much of her adult life as a grifter. Below is a blog post that links to those stories.

Follow the money

Media Nation | May 16, 2020

Two in-depth reports Friday rendered what was left of Tara Reade’s credibility in tatters.

The more important was a story by the PBS NewsHour. Lisa Desjardins and Daniel Bush interviewed 74 former Joe Biden staff members, 62 of them women. And though they said Biden sometimes had trouble keeping his hands to himself (something Biden acknowledged and apologized for last year), they emphatically denied that they’d ever heard of him engaging in sexual assault.

“The people who spoke to the NewsHour,” they wrote, “described largely positive and gratifying experiences working for Biden, painting a portrait of someone who was ahead of his time in empowering women in the workplace.”

Crucially, an on-the-record source told them that there were problems with Reade’s job performance that may have led to her termination. And the place where the alleged assault took place was entirely out in the open, making it nearly impossible for Biden to have done what she claims without being seen.

Also Friday, Natasha Korecki reported for Politico that Reade has spent much of her adult life as a grifter, lying and cheating people out of money — but never, in the recollection of the people she interviewed, saying anything negative about Biden.

“Over the past decade,” Korecki wrote, “Reade has left a trail of aggrieved acquaintances in California’s Central Coast region who say they remember two things about her — she spoke favorably about her time working for Biden, and she left them feeling duped.”

In the weeks after I wrote about the Reade case for WGBH News, I’ve gone from thinking there was a reasonable chance that she was telling the truth to now believing it’s highly likely that she made the whole thing up.

But why? Could it have something to do with her weird praise for Russian President Vladimir Putin? What should we make of the fact that her lawyer, who’s representing her for free, is a Trump donor? Or the fact that another lawyer who’s acted on her behalf has ties to Russian propaganda operations?

Ultimately Reade’s story can’t be definitively proven or disproven, but the media have done a good job of laying out the facts and showing how far-fetched it is. Now we need to know who, if anyone, was behind what appears to be a classic political dirty trick. Keep digging.

A quick guide to the debt ceiling crisis. Or, why it’s all the Republicans’ fault.

There must be a $1 trillion platinum coin in there somewhere. Photo (cc) 2016 by cweyant.

I imagine most readers of this blog understand the ins and outs of the debt ceiling fiasco, but in case you don’t, a brief explanation.

The debt ceiling is an extra, and entirely unnecessary, appendage to the work of passing budgets and appropriating money. Congress gets to debate what should go into the budget, and that’s an opportunity for those who want hold down spending to make their case and put it to a vote. But once the budget is passed, that’s the end (or at least it should be), and if the executive needs to borrow money to fulfill that budget, then so be it.

For the past century, though, congressional action has been needed to approve more borrowing, even though that borrowing is to cover spending that has already been approved, and in many cases has already taken place. No one thought much about it until recently, but in 2011 congressional Republicans refused to raise the debt ceiling unless President Obama made concessions, and now House Republicans are attempting to do the same with President Biden.

The only other Western democracy that countenances this foolishness is Denmark. Try buying a car with a loan and then telling the finance company that your family has voted not to approve the monthly payments. Bye bye car.

You’ll note that this only happens when there’s a Democratic president and one or both branches of Congress is controlled by Republicans. President Trump ran up enormous deficits, and the debt ceiling was routinely increased on a bipartisan basis to accommodate those deficits. Other than a few rogue individual votes here and there, Democrats have never sought to exploit the debt ceiling, because — whatever their faults — they belong to a party that believes in basic governance.

Sadly, though, the debt ceiling negotiations have occasioned an outpouring of terrible both-sides media coverage. Gosh, why can’t Democrats and Republicans come together for the good of the country?

Click on image of post to follow link to the NPR story

The hypocrisy and phoniness surrounding this issue are why a lot of observers are calling on Biden to invoke the 14th Amendment, which states in part, “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” Or to mint the coin.

In any case, if and when Democrats are fully in power again, they ought to repeal the debt ceiling so we can go about our business like a normal country.

John Widdison, a former top editor at the Telegram & Gazette, dies at 84

John Widdison

John Widdison, a former executive managing editor of the Telegram & Gazette in Worcester, died Tuesday at the age of 84. Mr. Widdison oversaw the merger of the morning Worcester Telegram and the Evening Gazette, later serving as director of public affairs for the Massachusetts Department of Mental Health, where he worked until retiring in 2001.

In 2019, Mr. Widdison was inducted into the New England Newspaper Hall of Fame, administered by the New England Newspaper and Press Association. According to the citation he received, “He led with compassion and intelligence thereby engendering a teamwork, we’re-all-in-this-together work atmosphere. John’s impact was felt not only in the newsroom but also in the community where he welcomed feedback from readers on everything from missed deliveries to spelling errors.”

Here is Mr. Widdison’s obituary, as published by the T&G.

Globe columnist Tom Farragher to retire

Boston Globe metro columnist Tom Farragher is retiring after more than 25 years at the paper, according to an email to the staff sent by managing editor Jennifer Peter. Farragher, who was part of the Globe’s Pulitzer Prize-winning reporting of the pedophile-priest scandal, later went on to serve as editor of the investigative Spotlight Team.

“I have loved my work here alongside dedicated professionals who come to work each day to produce the best newspaper in New England,” Farragher told his colleagues.

The Globe agrees to a $5m settlement for sending user video data to Facebook

Illustration (cc) 2018 by Book Catalog

Web publishers are notorious for violating our privacy, and news organizations are no exception. Now, though, one of those organizations, The Boston Globe, is being held to account. The paper has agreed to a $5 million settlement of a lawsuit brought by a California man named David Ambrose over the Globe’s practice of hoovering up the identifying information of users who watch videos on its website and sending it to Facebook.

The proposed settlement, now pending in U.S. District Court, would encompass $4 million to compensate subscribers, who could receive $22 to $44 apiece, and another $1 million to extend the subscriptions of affected users for one week. News of the proposed settlement was first reported Friday evening by Adam Gaffin of Universal Hub. The Globe has denied any wrongdoing.

Before paid digital subscriptions overtook free news, it was understood that the only way news organizations could make money online was to barrage readers with popups, pop-unders, autoplay digital ads and other forms of obnoxious, intrusive commercial messages. That set up a downward spiral, with users fleeing and news orgs ratcheting up the ads even more. You’d think those days would be in the past — but they’re not.

Now that the Globe has agreed to end one of those privacy-violating practices, I hope the paper’s business-side executives will think about how much inconvenience and privacy violations they want to inflict on their digital subscribers, who pay an industry-high $30 a month. I hope other news outlets take heed as well.

A top Globe editor moves on

Scott Allen, a top editor at The Boston Globe (his title is assistant managing editor for projects), is leaving the paper, according to an email sent to the staff Thursday afternoon by editor Nancy Barnes. Here’s the email, sent to me by several trusted sources.

Dear all,

Scott Allen is leaving the Globe after 30 years to work with his son, John Allen, better known as MrBallen, whose hit podcast on Amazon Prime and his videos on YouTube reach millions each week.

It’s nearly impossible to sum up 30 years of Boston Globe journalism in a few paragraphs, but here goes:  At the Globe, Scott has helped edit four Pulitzer Prize finalists and one Pulitzer winner, the Quick Strike Team’s “Blind Spot” series, which won for investigative reporting. Most recently, he worked closely with Janelle Nanos on her heart wrenching Pulitzer finalist “Kate Price remembers something terrible.”

Scott has also served as Spotlight Team leader and editor of the Globe’s medical, science and environmental coverage. He joined the Globe as a cub environmental reporter back in 1992.

And in recent years, Scott has led the newsroom’s effort to make the most of our intellectual property, pursuing creative ways to repurpose the Globe content in podcasts, on TV and in other media.

“My colleagues at the Globe have been like family to me and I’m proud of what we’ve accomplished together,” he said. “It’s bittersweet to say goodbye, but the opportunity to work with my son was just too good to pass up. I wish my friends here nothing but continued success.”

Scott has agreed to stay on for a few weeks to help me with transition issues. I want to personally thank Scott for welcoming me to the Globe long before I arrived, and for being such a supportive partner as I made my way around the organization.

Nancy