I’m not familiar with the fine points of Australian libel law. But a decision this week by the High Court of Australia that publishers are liable for third-party comments posted on their Facebook pages demonstrates the power of Section 230 in the United States.
Section 230, part of the Communications Decency Act of 1996, does two things. First, it carves out an exception to the principle that publishers are legally responsible for all content, including advertisements and letters to the editor. By contrast, publishers are not liable for online comments in any way.
Second, in what is sometimes called the “Good Samaritan” provision, publishers may remove some third-party content without taking on liability for other content. For example, a lawyer might argue that a news organization that removed a libelous comment has taken on an editing role and could therefore be sued for other libelous comments that weren’t removed. Under Section 230, you can’t do that.
The Australian court’s ruling strikes me as a straightforward application of libel law in the absence of Section 230. Mike Cherney of The Wall Street Journal puts it this way:
The High Court of Australia determined that media companies, by creating a public Facebook page and posting content on that page, facilitated and encouraged comments from other users on those posts. That means the media companies should be considered publishers of the comments and are therefore responsible for any defamatory content that appears in them, according to a summary of the judgment from the court.
Over at the Nieman Journalism Lab, Joshua Benton has a markedly different take, arguing that the court is holding publishers responsible for content they did not publish. Benton writes:
Pandora’s box isn’t big enough to hold all the potential implications of that idea. That a news publisher should be held accountable for the journalism it publishes is obvious. That it should be held accountable for reader comments left on its own website (which it fully controls) is, at a minimum, debatable.
But that it should be held legally liable for the comments of every rando who visits its Facebook page — in other words, the speech of people it doesn’t control, on a platform it doesn’t control — is a big, big step.
I disagree. As I said, publishers are traditionally liable for every piece of content that appears under their name. Section 230 was a deviation from that tradition — a special carve-out providing publishers with immunity they wouldn’t otherwise have. If Benton is right, then we never needed 230. But of course we did. There’s a reason that the Electronic Frontier Foundation calls 230 “the most important law protecting internet speech.”
I also don’t see much difference between comments posted on a publisher’s website or on its Facebook page. A Facebook page is something you set up, add content to and manage. It’s not yours in the same way as your website, but it is part of your brand and under your control. If you should be liable for third-party content on your website, then it’s hardly a stretch to say that you should also be liable for third-party content on your Facebook page.
As the role of social media in our political discourse has become increasingly fraught, there have been a number of calls to abolish or reform 230. Abolition would mean the end of Facebook — and, for that matter, the comments sections on websites. (There are days when I’m tempted…) Personally, I’d look into abolishing 230 protections for sites that use algorithms to drive engagement and, thus, divisiveness. Such a change would make Facebook less profitable, but I think we could live with that.
Australia, meanwhile, has a dilemma on its hands. Maybe Parliament will pass a law equivalent to Section 230, but (I hope) with less sweeping protections. In any case, Australia should serve as an interesting test case to see what happens when toxic, often libelous third-party comments no longer get a free pass.
In one sentence: Politico provides insider gossip at a time when democracy faces an existential threat. Washington Post columnist Perry Bacon Jr. explains:
The Politico approach is probably fine if you are covering parties and politicians who share some values and norms. And the election of Barack Obama looked like it could usher in a politics that was less divisive than George W. Bush’s presidency and a full break from the conflicts over race and identity that had in many ways defined U.S. politics since the 1960s.
But early in the Obama years, it became clear that the fights of the past weren’t over; they were, instead, perhaps becoming even more tense.
The latest findings from the Pew Research Center about trust in journalism are depressing but not surprising. Pew’s report, written by Jeffrey Gottfried and Jacob Liedke and published last week, shows that the gap between Democrats and Republicans continues to widen.
Over the past five years, the percentage of Republicans and Republican leaners who have some trust in national news has dropped from 70% to 35%. Meanwhile, 78% of Democrats and Democratic leaners say they have “a lot” or “some” trust in national news organizations.
The problem, as always, is the asymmetric polarization that has come to define our politics and our media consumption. If you spend all your time engaging with media outlets that tell you Donald Trump won the 2020 election, the Jan. 6 insurrection was no big deal, vaccines are dangerous and critical race theory is poisoning your (white) children’s minds, then you are going to distrust any news to the contrary. Essentially it’s a small number of right-wing sources of propaganda, led by Fox News, versus everyone else. New York University journalism professor Jay Rosen put it this way:
Headline for me is that Republicans trust everything less, including social, often seen as a freewheeling alternative to The Media, icon of right wing resentment theatre. Flooding the zone with shit works. It lowers trust in the entire system, so the worst among us can profit. https://t.co/FzLwGDJ7yV
Trust is higher for local news organizations than it is for the national media, but even here there’s a partisan gap. Two weeks ago I wrote about ways that community journalists could connect with conservatives, and yes, they should try. If we are ever going to overcome the partisan divide, it’s going to have to start at the local level. At the same time, though, we can’t pander to false beliefs. So it’s a dilemma with no obvious solution.
Facebook has long had a tortured relationship with journalism. When I was reporting for “The Return of the Moguls” in 2015 and ’16, news publishers were embracing Instant Articles, news stories that would load quickly but that would also live on Facebook’s platform rather than the publisher’s.
The Washington Post was so committed to the project that it published every single piece of content as an Instant Article. Shailesh Prakash, the Post’s chief technologist, would talk about the “Facebook barbell,” a strategy that aimed to convert users at the Facebook end of the barbell into paying subscribers at the Post end.
Instant Articles never really went away, but enthusiasm waned — especially when, in 2018, Facebook began downgrading news in its algorithm in favor of posts from family and friends.
Nor was that the first time Facebook pulled a bait-and-switch. Earlier it had something called the Social Reader, inviting news organizations to develop apps that would live within that space. Then, in 2012, it made changes that resulted in a collapse in traffic. Former Post digital editor David Beard told me that’s when he began turning his attention to newsletters, which the Post could control directly rather than having to depend on Mark Zuckerberg’s whims.
Now they’re doing it again. Mathew Ingram of the Columbia Journalism Review reports that Facebook is experimenting with its news feed to see what the effect would be of showing users less political news as well as the way it measures how users interact with the site. The change, needless to say, comes after years of controversy over Facebook’s role in promoting misinformation and disinformation about politics, the Jan. 6 insurrection and the COVID-19 pandemic.
I’m sure Zuckerberg would be very happy if Facebook could serve solely as a platform for people to share uplifting personal news and cat photos. It would make his life a lot easier. But I’m also sure that he would be unwilling to see Facebook’s revenues drop even a little in order to make that happen. Remember that story about Facebook tweaking its algorithm to favor reliable news just before the 2020 election — and then changing it back afterwards because they found that users spent less time on the platform? So he keeps trying this and that, hoping to alight up on the magic formula that will make him and his company less hated, and less likely to be hauled before congressional committees, without hurting his bottom line.
One of the latest efforts is his foray into local news. If Facebook can be a solution to the local news crisis, well, what’s not to like? Earlier this year Facebook and Substack announced initiatives to bring local news projects to their platforms for some very, very short money.
Earlier today, Sarah Scire of the Nieman Journalism Lab profiled some of the 25 local journalists who are setting up shop on Bulletin, Facebook’s new newsletter platform. They seem like an idealistic lot, with about half the newsletters being produced by journalists of color. But there are warning signs. Scire writes:
Facebook says it’s providing “licensing fees” to the local journalists as part of a “multi-year commitment” but spokesperson Erin Miller would not specify how much the company is paying the writers or for how long. The company has said it won’t take a cut of subscription revenue “for the length of these partnerships.” But, again, it’s not saying how long those partnerships will last.
How long will Facebook’s commitment to local news last before it goes the way of the Social Reader and Instant Articles? I don’t like playing the cynic, especially about a program that could help community journalists and the audiences they serve. But cynicism about Facebook is the only stance that seems realistic after years of bad behavior and broken promises.
The Boston Globe’s strategy of focusing on digital subscriptions is paying off, according to the latest figures from the Alliance for Audited Media. For the six-month period ending on March 31 of this year, the Globe’s paid weekday circulation was 331,482, up 81,201, or 32%, over the same period a year earlier. On Sundays, the Globe’s paid circulation was 387,312, up 73,347, or 23%.
The increase came despite the continued shrinkage of the print edition. Weekday print was 77,679, a decline of 16%. Sunday print is 135,696, down nearly 15%. Paid digital now accounts for nearly 77% of the Globe’s circulation on weekdays and 65% on Sundays — numbers that no doubt had a lot to do with the hunger for local and regional news during the COVID-19 pandemic.
The numbers were not nearly as rosy at the Boston Herald, which has been gutted by its hedge-fund owner, Alden Global Capital. Paid weekday circulation, print and digital, is now 56,791, a decline of 9,686, or more than 14%. Sunday circulation is 58,461, down 14%. Digital is essentially flat, with nearly all of the decrease coming from the Herald’s fading print product. The Herald today sells an average of 22,032 print papers every weekday and 25,892 on Sundays.
The new circulation figures at the Globe and the Herald come amid a massive decline in print circulation nationwide. According to the Press Gazette, a British website that covers the news business, print circulation of the top 25 U.S. dailies fell from 4.2 million to 3.4 million over the past year, a decline of 20%.
Especially harrowing was USA Today, which lost 303,000, or 62%. As we all know, the paper is highly dependent on hotel distribution, which took a massive hit during the pandemic. Gannett recently announced that some of USA Today’s content would move behind a paywall.
Correction: I botched one of the numbers and have updated this post.
The United States’ 20-year war in Afghanistan has finally come to its painful conclusion. “America’s Longest War Ends as Last Troops Leave Afghanistan” proclaimed The New York Times home page Monday evening.
There is, however, one dimension to the conflict that is still being fought — the role of the media in reporting on President Joe Biden’s management, or mismanagement, of the final chaotic and deadly weeks. Surely, many journalists said, Biden could have ensured a more dignified exit than a mad crush at Hamid Karzai International Airport, with desperate Afghans plunging to their deaths from transport planes, culminating in last week’s terrorist attack.
Increasingly, though, others have been making the case that, once Biden decided to end American involvement in Afghanistan once and for all, there was no alternative to the monumental ugliness that played out on our TV screens.
“Biden does not deserve the cheap shots that critics have taken at him when they postulate that his administration screwed up what would otherwise have been an orderly withdrawal,” writes Daniel McCarthy, a vociferous Biden critic and a conservative, in The Spectator World. “Even if the withdrawal had been much better executed, as indeed it should have been, it would still have been a disgusting spectacle, a ripe occasion for media posturing and partisan sniping.”
The end — or a least a temporary pause — of the liberal-leaning mainstream media’s honeymoon with Biden can be traced to systemic flaws in the way that the press covers Washington. Three of those flaws have been on vivid display in recent weeks.
• First, there is the media’s primordial need for balance — for treating Democrats and Republicans as if they are both legitimate actors even though the Democrats, for all their flaws, continue to act as a normal political party while the Republicans have descended into authoritarianism and lies. The media cling to both-sides-ism despite four years of a raging sociopath in the White House, an attempted insurrection by his supporters, and dangerous denialism about COVID-19.
Thus, after five years of harshly negative coverage of Donald Trump (negative coverage that he richly deserved), you can almost hear the press breathe a collective sigh of relief that it can finally go after Biden and even up the score.
Here’s a data point that shows how ingrained this is. Last Friday, Amna Nawaz, filling in as anchor of the “PBS NewsHour,” noted in a conversation with political analysts Jonathan Capehart and David Brooks that a number of Republicans have criticized Biden over his handling of the war.
“It really does run the spectrum of Republicans,” she said. “You have everyone from Sen. Ben Sasse, to Sen. Ted Cruz, Congresswoman Liz Cheney, Rep. Marjorie Taylor Greene and, of course, President Trump.”
Marjorie Taylor Greene? The QAnon-adjacent conspiracy theorist from Georgia who continues to defend the insurrectionists? Well, she’s a duly elected member of Congress, and according to the both-sides formula, she needs to be normalized. It’s crazy, but that’s the way the game is played. Too bad it’s not a game.
• Second, maybe it really is a game. Because, in too many cases, the Washington press corps glides past the substance of an issue and wallows in the political implications. Partly it’s because politics is what they know and are most comfortable with. Partly it’s a way to avoid taking sides by focusing instead on who’s winning and who’s losing.
The caricature version of this type of pundit is political analyst Chris Cillizza of CNN. Last week, several days before the terrorist attack, Cillizza wrote a piece that dwelled entirely on the political ramifications of Biden’s decision to leave Afghanistan, reveling in polling numbers and in what New York University journalism professor Jay Rosen derides as the “savvy” style of political journalism.
“Biden’s bet,” Cillizza writes, “is that while Afghanistan is top-of-mind for most voters right now, it will fade as a priority — as foreign policy often does — when it is no longer the lead story in the news every day. That if Americans get out safely, that the public will lose interest in what’s happening in a faraway country and return to domestic issues like the state of the economy and our ongoing battle against COVID-19.”
Hey, it’s all politics, right?
• Third, too many establishment journalists, supposedly paid to cover the news rather than express their opinions, were in favor of the U.S. mission in Afghanistan and opposed to Biden’s decision to end it once and for all.
“Much of the problems with the press coverage lie in the coziness between foreign policy elites and reporters who rely on them for information,” writes Alex Shephard in a perceptive New Republic piece. “The biases of interventionists and hawks flow frictionlessly into news coverage, treating the exit from Afghanistan as a capitulation and outrage, rather than as one — and perhaps the best — of a number of bad options.”
A telling example is Peter Baker’s widely criticized “news analysis” for The New York Times in which he quotes George W. Bush alum Meghan O’Sullivan and Gen. David Petraeus to argue that Biden could have achieved a different outcome. Describing Biden’s own framing of the options he had before him as “either complete withdrawal or endless escalation,” Baker writes, “Critics consider that either disingenuous or at the very least unimaginative, arguing that there were viable alternatives, even if not especially satisfying ones, that may not have ever led to outright victory but could have avoided the disaster now unfolding in Kabul and the provinces.”
Another example plays out on television, where a variety of former officials from the George W. Bush administration and former generals have been given air time to criticize Biden, notwithstanding their direct role in sucking us into what was, until recently, an endless war.
There is one other factor that needs to be considered when analyzing media coverage, and that’s the asymmetric role played by the mainstream media and the right-wing propaganda machine headed by Fox News.
As Jonathan Chait points out in New York magazine, Democrats and liberals can’t always count on sympathy from the mainstream because journalists want to be seen as skeptical and even-handed. Fox, on the other hand, is going to espouse a mindless pro-Republican, pro-Trump line no matter what the issue, even if it is exactly the opposite of the line it took a week earlier. At moments like this, the entire weight of the media is coming down on Biden, whereas Republicans can count on Fox being in their corner even in the worst of times.
“Even the most dishonest, incompetent, and scandal-ridden Republican presidency imaginable — which more or less describes the one we just had — will still have a media environment divided almost equally between scorching criticism and obsequious fawning,” Chait writes, adding: “In recent days, CNN and MSNBC looked a lot like Fox News, all hyping chaos in Afghanistan 24/7. That is the kind of comprehensive media hostility Trump never had to worry about.”
Now, none of this means that critical coverage of Biden was entirely misplaced. Few presidents have ever come into office with his depth of foreign-policy experience and, seven months in, he’s no longer a new president. We’ve all seen reports that U.S. intelligence officials believed the Afghan government could hang on for a year or two before its inevitable collapse. Surely a more orderly withdrawal could have been planned if they had been right. Why was Biden so seemingly unaware that his own advisers didn’t know what they were talking about? What is he doing about it?
Last Friday, on “Washington Week,” host Yamiche Alcindor replayed Biden’s embarrassing answer to her question earlier this summer that there would be no repeat of the rooftop evacuation that marked the end of the Vietnam War. Biden was right — what happened in Kabul was considerably worse.
But one of Alcindor’s panelists, Ayesha Rascoe of NPR, made an important point that has too often been overlooked by the media in its eagerness to pillory the president: “I do think this is an American tragedy, though. This is 20 years. This is four administrations. This is not just on the Biden administration.”
Indeed. The war in Afghanistan was a generation-long tragedy. Bush could have launched a targeted attack aimed at capturing or killing Osama bin Laden rather than a full-scale war to remake Afghan society. Barack Obama could have declared victory and pulled out after bin Laden was killed.
Instead, it was left to Trump to question our ongoing commitment and Biden to bring it to an end. That doesn’t mean Biden got everything right and shouldn’t be subjected to tough scrutiny. It does mean that our flawed media system was inadequate to the moment — and that we need to think about how we can do better.
Katharine Graham believed that Joseph Allbritton hoped to take advantage of the 1975-’76 strike against The Washington Post. Photo by Reading/Simpson, noncommercial use permitted.
Robert Allbritton last week sold Politico to the German media company Axel Springer for $1 billion. Ben Smith, who was part of the launch back in 2007, wrote about the sale earlier this week in The New York Times. I wrote about the two-generation rivalry between the Allbrittons and the Graham family, who controlled The Washington Post until 2013, in “The Return of the Moguls.” Below is an excerpt.
Katharine Graham’s other crucial move was to endure a strike in 1975 in order to get the Post’s printing costs under control. So arcane were the work rules that when an advertiser submitted a finished ad (known in the post-hot-lead, pre-computer age as “camera-ready”), a union compositor still put together an equivalent ad, even though it would be discarded as soon as he was finished with it. In deciding to put a stop to such practices, Graham was fortunate in the viciousness of her opposition. At one demonstration, a leader of the union, Charlie Davis, carried a sign that read “Phil Shot the Wrong Graham,” a reference to Phil Graham’s suicide. On the night that the pressmen went on strike, some of them beat the night foreman and started a fire in an attempt to sabotage the machinery. Because of those actions they earned the enmity of the Newspaper Guild, which represented the reporters. With the paper’s journalists crossing the picket line, the Post was able to resume publishing after just one missed day, enabling them to break the strike. The benefits of being able to modernize production were immediate, as income grew from about $13 million a year to $24.5 million in 1976 and to $35.5 million in 1977.
Not all observers were sympathetic to the Grahams. Ben Bagdikian, a former Post national editor who spent much of his long, distinguished career after leaving the paper as an academic and a harsh critic of corporate journalism, wrote an article in the Washington Monthly attributing the strike to Katharine Graham’s earlier decision to go public. “The idiosyncratic publishers, whose integrity led them to ignore narrow economic arguments in favor of quality, and who as a result created America’s great newspapers, are disappearing,” Bagdikian wrote. “They were being replaced by profit-maximizing conglomerate owners. It is a forecast of trouble for independent journalism in the country’s most important news companies.” Graham recorded her response in a note to Ben Bradlee: “I am really embarrassed to think this ignorant biased fool was ever national editor. Surely the worst asps in this world are the ones one has clasped to the bosom.”
The Post’s rivalry with The Washington Star played a small role in the strike as well, a tidbit of interest mainly because of who owned the Star at that time: Joe Allbritton, a Texan who had acquired the paper from the Kauffmann family in 1974. Katharine Graham wrote that Allbritton declined to help the Post during the strike because, in her view, the only way the Star could stay in business was for the Post to fail. Allbritton sold the Star to Time Inc. in 1978, which closed it in 1981 even though Katharine Graham, Donald Graham and Warren Buffett had made overtures to set up a joint operating agreement under which both papers would be published.
The Allbritton family’s ambitions remained entangled with the Post for many decades to come. Years later, two Post journalists, John Harris and Jim VandeHei, were rebuffed when they proposed setting up a separate political website under the paper’s umbrella. They took their idea to Joe Allbritton’s son, Robert, who helped them launch Politico in 2007. With its hyperkinetic insider’s approach to covering politics, the site quickly established itself as a serious rival to the Post on one of its signature beats, although Politico was often criticized for emphasizing the superficial horse race aspects of politics.
Robert Allbritton also backed a site cheekily named TBD.com (for “to be determined”), edited by the former washingtonpost.com editor Jim Brady and the future Post media blogger Erik Wemple, which covered local news in the Washington area in conjunction with a television station the Allbrittons had owned since acquiring the Star. Fortunately for the Grahams, Allbritton lost patience with it within months of its 2010 launch, and in 2012 the site was shut down. Another Allbritton connection: About a year after Jeff Bezos bought the Post, he hired Frederick Ryan, a former Reagan administration official, to replace Katharine Weymouth as publisher. At the time that the move was made, Ryan was president and chief operating officer of Allbritton Communications and had served as Politico’s first chief executive.
The Post and Politico make for a fascinating contrast. Both companies are ensconced in brand-new headquarters on either side of the Potomac; Politico occupies part of an office tower in the Rosslyn section of Arlington, Virginia. The missions of the two organizations are very different. The Post is a general-interest newspaper with a substantial print presence. Politico is aimed at people in the professional political community, and though it publishes a small print product (daily when Congress is in session; weekly otherwise), it’s mainly digital. Yet if the ancient rivalry between the Post and The New York Times is mostly journalistic and symbolic, the Post’s rivalry with the Allbritton family has involved serious competition over whose news organization will prove to be more financially successful in the long run.
Correction: I have learned that the elder Albritton’s legal name was Joe, not Joseph. Unfortunately, it remains wrong in the book.
Last night, on the “PBS NewsHour,” anchor Amna Nawaz noted in a conversation with political analysts Jonathan Capehart and David Brooks that a number of Republicans have criticized President Biden over the way he’s handled the evacuation from Kabul. Fair enough. But let’s listen in:
You have a number of Republicans coming out recently speaking very critically about the president’s leadership, or lack thereof, as they say, but it really does run the spectrum of Republicans. You have everyone from Senator Ben Sasse, to Senator Ted Cruz, Congresswoman Liz Cheney, Representative Marjorie Taylor Greene, and, of course, former President Trump.
Wait, what was that? Marjorie Taylor Greene is, of course, the QAnon-adjacent conspiracy theorist from Georgia who continues to defend the Jan. 6 insurrectionists. Are we normalizing her now? Why, yes, of course we are. The “NewsHour” even threw up a helpful graphic to underscore the point. Good Lord. I wish Capehart or Brooks had said something, but they both let it slide.
Then, in today’s New York Times, former Wisconsin Gov. Scott Walker, who was defeated for re-election in 2018, claims a sizable chunk of op-ed space in order to bash teachers unions, whom he targeted repeatedly during his benighted eight years as his state’s chief executive, and to tell us how awesome he was during his time in office. He writes:
Overall, our reforms did more than just help schools and local governments. During my time in office, unemployment in Wisconsin dropped below the previous record low of 3 percent as more people were working than ever before. Median household income was up, as were wages. We balanced the budget every year with a surplus, fully funded our retirement system and had a rainy-day fund 190 times as large as when we started.
You know, we have low unemployment, high income and budget surpluses in Massachusetts, too, and we somehow manage to do it with strong teachers unions. But that’s not my point. My point is: Why? Why Walker? Why now? What is the context? I can’t think of anything taking place in the news right now that would lead an editor either to track down Scott Walker and ask him to write an op-ed or to run something he sent in over the transom.
Then again, the perceived need by liberal-oriented news organizations to bend over backwards to show that they’re fair — even to people who don’t deserve it, like Marjorie Taylor Greene and Scott Walker — is primordial.
The Pittsburgh Post-Gazette will get another bite at the apple in claiming that its decision to remove its former reporter Alexis Johnson from covering Black Lives Matter stories is protected by the First Amendment.
“The judge did not laugh the First Amendment argument out of court nor is it correct to say he’s ‘having none of it,’” Post-Gazette representative Mark Fefer told me by email in disputing a post I wrote earlier this week. Fefer is senior communications strategist for the paper’s law firm, Davis Wright Tremaine.
In fact, as I wrote earlier, U.S. District Judge J. Nicholas Ranjan threw out the Post-Gazette’s claim that Johnson’s lawsuit should be dismissed on First Amendment grounds, writing, “While the First Amendment provides a publisher absolute discretion to refrain from publishing content, this discretion does not extend to allow a publisher to make any and all discriminatory personnel decisions.” (I did not write that the judge “laughed the First Amendment argument out of court,” though that was a fair inference given the context.)
But Ranjan also wrote that the factual record at this early stage of the case is too “undeveloped” to reach a final ruling, and that the Post-Gazette should have an opportunity to prove that its First Amendment argument has merit.
“Because discovery is likely to refine both the claims and defenses in this case,” Judge Ranjan concluded, “the Court denies the motion without prejudice to PG Publishing raising its arguments, including its First Amendment argument, on a more factually developed record at summary judgment or trial.”
Johnson, who is Black, was barred from covering Black Lives Matter protests after she posted a humorous tweet that her editors claimed compromised her ability to be objective. She is now a reporter with Vice News.
Clarification: The Post-Gazette will get another chance to make its First Amendment argument.
The story may be apocryphal, but it’s a good one. Some years ago a few independent weekly newspapers in the Boston area sued a daily paper, charging that the daily — which also owned a small chain of weeklies — was illegally selling ads in its weeklies at a loss in order to drive the independents out of business. The owner of the daily claimed his actions were protected by the First Amendment. As you might imagine, the judge in the case laughed him out of court.
Something similar just happened to the Pittsburgh Post-Gazette. Former reporter Alexis Johnson, who was banned from covering Black Lives Matter protests after her editors claimed that her innocuous Twitter joke about a Kenny Chesney concert compromised her objectivity, sued the paper in June 2020, claiming racial discrimination (Johnson is Black) and illegal retaliation. The Post-Gazette argued that its actions were protected by the First Amendment.
U.S. District Judge J. Nicholas Ranjan is having none of it. According to Ryan Deto of the Pittsburgh City Paper, Ranjan rejected the Post-Gazette’s bid to dismiss the case, ruling, “While the First Amendment provides a publisher absolute discretion to refrain from publishing content, this discretion does not extend to allow a publisher to make any and all discriminatory personnel decisions.” University of Pittsburgh law professor Jerry Dickinson told the City Paper that the ruling could help other journalists of color who are dealing with workplace discrimination:
It means the P-G can’t short-circuit accountability by hiding behind the First Amendment for protection from its discriminatory actions. There are clearly enough facts in dispute that affords the case to move forward. The backdrop to this case was the Black Lives Matter movement and racial justice protests after the murder of George Floyd. We don’t want the First Amendment weaponized against racial progress. That’s dangerous.
The Post-Gazette’s actions against Johnson sparked national coverage, leading to outrage in the newsroom and a decision by a supermarket chain to stop carrying the paper. Johnson herself left and is now a high-profile reporter for Vice News.
As I wrote at the time for GBH News, the story also shone a spotlight on the decline of the Post-Gazette under publisher John Block, whose family had owned the paper for many years but who was personally a Trumper who seemed peculiarly ill-suited to the job.
Just as the owner of that Boston-area newspaper learned many years ago, the First Amendment may be a powerful tool for guaranteeing freedom of the press — but it doesn’t magically protect business practices that would be illegal for anyone else.
