Category: Media

The Trump campaign lost its libel suit because it really did collude with Russia

Michael Flynn. Photo (cc) 2016 by Gage Skidmore.

A New York state judge Tuesday tossed a libel suit filed by Donald Trump’s campaign against The New York Times. The suit claimed that a 2019 column by former executive editor Max Frankel was false and defamatory because Frankel wrote that the 2016 Trump campaign had colluded with Russian interests.

Two-thirds of Judge James d’Auguste’s ruling is not especially interesting. He ruled that the campaign lacked standing to bring such a suit, and that Trump would be unable to prove Frankel knew or strongly suspected that what he was writing was false — the “actual malice” standard that pertains to public officials and public figures.

So that leaves us with the third leg of d’Auguste’s decision — that Frankel was merely expressing his opinion, which is protected by the First Amendment. The standard was set in a U.S. Supreme Court case called Milkovich v. Lorain Journal Co., in which Chief Justice William Rehnquist ruled that labeling a piece of writing as “opinion” provides no protection if that piece contains assertions of fact that could be proven true or false.

The way Rehnquist explains it is that to say “In my opinion Mayor Jones is a liar” would be unprotected speech (that is, if Jones could prove he’s not a liar, he might be able to bring a successful libel suit) whereas “In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin” would be considered pure opinion and thus beyond the reach of a libel suit.

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So what did Max Frankel do? If you read his commentary, you’ll see he looked at a number of public actions and statements by Trump and people close to him to show that they were toadying to Russian interests, and that not only did the Russians expect something in return, but that Trump and his allies moved in that direction both during and after the 2016 election. We all know this. We all watched it unfold in real time. (It’s important to note in this context that “collusion” is not a legal term anymore than “toadying” is. In other words, labeling such behavior as “collusion” is protected opinion as long as the underlying facts are accurately stated.)

Among other things, Frankel cites the infamous Trump Tower meeting as well as incoming national security adviser Michael Flynn’s lying to the FBI about his discussion with the Russian ambassador before the 2017 inauguration about the possible lifting of sanctions. Those actions led to criminal charges against Flynn, to which he pleaded guilty twice before Trump, as president, pardoned him in the final days of his administration. Frankel writes:

Candidate Trump made no secret of his intention to forge a warm relationship with the Kremlin. But pledges of sanctions relief and other specific moves while not yet in office were unseemly at best and clearly offensive to the American convention that we have only one president at a time. Mr. Flynn especially had to lie because though already in transition to power he was directly undermining Mr. Obama’s still active and punitive diplomacy against Mr. Putin.

Frankel didn’t libel Trump, not just because of the technicalities of defamation law, but because he wrote the truth. Trump might as well sue Robert Mueller while he’s at it.

The David Brooks matter comes to an end (probably)

I just want to put a “-30-” on this. The New York Times reported earlier today that disclosures will be added to David Brooks’ past columns in which he had a conflict of interest (background here). He’s resigned from his paid position at the Aspen Institute. Most important, I think, is this:

Mr. Brooks had received approval to take the paid position at Aspen in 2018, according to Eileen Murphy, a Times spokeswoman, but the current editors of the opinion section did not know about the arrangement.

Presumably this means that Brooks’ outside work was approved by former editorial-page editor James Bennet, who apparently saw nothing wrong with Brooks’ writing about Facebook and other Aspen funders without disclosing that to readers. Bennet is truly the gift that keeps on giving.

Brooks should have been more forthcoming than he was in his modified limited hangout on the “PBS NewsHour” Friday night. But barring any further disclosures, this story feels like it’s over.

And kudos to Craig Silverman and Ryan Mac of BuzzFeed News for their dogged reporting.

David Brooks addresses the Weave controversy

Move ahead to 8:48

New York Times columnist David Brooks addressed the Weave matter Friday evening durng his regular appearance on the “PBS NewsHour” — which places Judy Woodruff and company several steps ahead of the Times when it comes to transparency.

Brooks was nervous through the segment, which began with his usual back-and-forth with Washington Post columnist Jonathan Capehart. At the end, in the clip that I’ve bookmarked above (start at 8:48 if it doesn’t happen automatically), Woodruff gave Brooks a chance to explain himself. I thought he seemed sincerely interested in trying to set things right, but that he wasn’t entirely forthcoming.

He began by saying, “First, we did totally disclose it,” referring to his salary at the Aspen Institute, where he runs Weave, a civic-engagement initiative. Later, he seemed to say that what he meant was he’d disclosed it to his superiors at the Times. Certainly his readers and viewers didn’t know it.

He also said he had “not meaningfully written” about any of Weave’s funders, including Facebook, even though BuzzFeed News — which broke the story — has presented evidence to the contrary. Nor did he mention a post he wrote for Facebook’s blog in which he sang the praises of Facebook Groups, also revealed by BuzzFeed.

“It has not affected my journalism,” he insisted. Nevertheless, he conceded that his critics have a point and said he’ll be making changes over the next week.

How will this end? I suspect the Times will announce a policy pertaining to all of their in-house opinion journalists, and that will be the end of it — especially if Brooks can prove that management knew about his Weave salary.

Earlier:

Update: BuzzFeed News reporter Craig Silverman rebuts Brooks point by point in this Twitter thread:

Update II: Brooks has resigned from his position at the Aspen Institute as more conflicts of interest surface. BuzzFeed News reports.

Louisiana reporter sued for filing a public records request wins her case

A Louisiana reporter who was sued for filing a public records request has won what appears to be a total vindication.

Andrea Gallo, a reporter for The Advocate and The Times-Picayune of New Orleans, will received the documents she was seeking under the ruling by Judge Tim Kelley. And the state attorney general, Jeff Landry, will have to pay $5,625 to cover Gallo’s court costs. But don’t gloat too much — the taxpayers will foot that bill.

The records Gallo sought are related to a sexual harassment investigation of one of Landry’s top aides.

Earlier:

Did David Brooks’ former superiors know about his conflicts of interest?

The New York Times posted David Brooks’ Friday column last night without any suggestion that something was amiss. Meanwhile, Paul Farhi’s report in The Washington Post raises the possibility that Brooks had let his superiors know he was drawing a salary from Weave, the civic-engagement project he’s affiliated with at the Aspen Institute, but that the new regime, led by opinion editor Kathleen Kingsbury, may have been unaware:

People at the Times said Brooks informed at least some of his previous bosses about the details of the Weave project. But last summer saw the departure of the Times’s top editorial-page editors, and Brooks’s current editors were unaware of the arrangement. Officially, the Times has declined to say whether it knew about Brooks’s outside employment.

Needless to say, it would be interesting to go back and see if he wrote any columns about Facebook and other organizations with which he had a financial relationship while James Bennet was the editorial-page editor. Bennet might have known, but those ties weren’t disclosed to readers. Which is, after all, what really matters.

Earlier:

The New York Times has a David Brooks problem

David Brooks. Photo (cc) 2011 by the Miller Center.

The New York Times’ David Brooks problem has ratcheted up from “uh, oh” to “holy cow.”

Craig Silverman and Ryan Mac of BuzzFeed News reported on Wednesday that Brooks, a prominent Times columnist, is getting paid for his work at Weave, a civic-engagement project that’s part of the Aspen Institute. Among Weave’s funders is Facebook.

A week earlier, BuzzFeed reported that Brooks had written a post on Facebook’s blog singing the praises of Facebook Groups without letting his editors at the Times know about it. That was bad enough. But now that there’s money involved, the Times is going to have to take action.

It’s unclear whether the Times knows he’s been getting a second salary. If they do, then perhaps Brooks can avoid being disciplined. But whether they know or not, what about the rest of us? Every time Brooks writes about an organization in which he has a financial stake, that needs to be appended to the bottom of his column. Needless to say, the problem with that is it would look ridiculous. I’m sure the Times doesn’t want to run a piece by one of its own staff columnists that reveals he’s in the tank to someone else.

As someone who has worked in opinion journalism for many years, and who teaches it, I feel like I have a stake in calling out Brooks’ misbehavior. I stress to my students repeatedly that we have the same ethical obligations as straight-news reporters. We don’t make political contributions. We don’t put signs on our lawns. And we maintain our independence.

One of the four tenets of the Society of Professional Journalists’ Code of Ethics is to “act independently.” The code explains further: “Avoid conflicts of interest, real or perceived. Disclose unavoidable conflicts.” Brooks’ conflict seems avoidable enough, but at the very least he should have disclosed it.

A summary of Bill Kovach and Tom Rosenstiel’s “The Elements of Journalism” has this to say about independence and opinion journalism:

Journalistic independence, write Kovach and Rosenstiel, is not neutrality. While editorialists and commentators are not neutral, the source of their credibility is still their accuracy, intellectual fairness and ability to inform — not their devotion to a certain group or outcome. In our independence, however, journalists must avoid straying into arrogance, elitism, isolation or nihilism.

I assume the Times is going to take this seriously. It may be bad for Brooks that the Times’ opinion editor, Kathleen Kingsbury, is just a few weeks into her job and may want to send a message to the rest of her staff.

But I’m troubled by a statement BuzzFeed got from Times spokeswoman Eileen Murphy. Silverman and Mac write: “Murphy said other Times columnists have roles outside the paper. When asked for an example, she cited Paul Krugman, who was a professor of economics at Princeton and is currently a distinguished professor at the Graduate Center of the City University of New York.”

Seriously? Krugman is not a columnist who scored an academic gig. He’s a professor who was so highly regarded that the Times hired him as a columnist. The Times is his second job (or was; he seems to be semi-retired now), just as the Aspen Institute is Brooks’ second. And everyone knows about Krugman’s academic background. It was hardly a secret when he won the Nobel Prize in Economics.

I hope this can be resolved. Brooks is reviled in many circles, but I value his work. He often shows himself to be out of touch, and he can drive me crazy sometimes. But at his best he’s very good, and I’d hate to see him go, or set up a Substack.

It will be interesting to see what happens when Brooks and Washington Post columnist Jonathan Capehart kick the week’s news around on the “PBS NewsHour” tomorrow evening. Brooks should address it.

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A podcast that makes sense of Australia’s new social media law

Rasmus Kleis Nielsen. Photo (cc) 2017 by Tuija Aalto.

If you get a chance, you should listen to this Lawfare podcast featuring Rasmus Kleis Nielsen, director of the Reuters Institute and professor of political communication at the University of Oxford.

Nielsen covers a lot of ground, but the most interesting part comes toward the end, when he discusses Australia’s new law that (to way oversimplify) requires Facebook and Google to pay for news.

What makes this worthwhile is Nielsen’s calm rationality. For instance, he pronounces the Australian law a success if success is defined as extracting revenue from Big Tech and giving it to large incumbent news organizations. That’s not necessarily a bad thing, since those news orgs are where the social media giants have been getting a lot of their content.

But Nielsen says we should look at other definitions of success, too — such as finding ways for Google and Facebook to support local and nonprofit news organizations as well as those that serve undercovered communities.

And thanks to Heidi Legg for calling this to my attention.

Biden flinches after report ties Saudi leader to the murder of a journalist

Photo (cc) 2019 by POMED

On Friday, shortly after the Biden administration declassified documents tying the murder of Washington Post columnist Jamal Khashoggi to the crown prince of Saudi Arabia, the Committee to Protect Journalists and the Society of Professional Journalists released statements urging President Joe Biden to take action.

Sadly, Biden flinched, imposing a variety of lesser sanctions but leaving Crown Prince Mohammed bin Salman alone — even though Biden, during the 2020 campaign, had referred to Saudi Arabia as a “pariah” state with “no redeeming social value.” As the Post reported:

The Biden administration will impose no direct punishment on Saudi Arabia’s Crown Prince Mohammed bin Salman for the 2018 murder of Saudi journalist Jamal Khashoggi, despite the conclusion of a long-awaited intelligence report released Friday that he “approved” the operation, administration officials said.

Here’s what the Committee to Protect Journalists had to say before it became clear that Biden was not going to do anything to punish MBS, as the crown prince is known:

“By releasing this intelligence report, President Joe Biden’s administration has reinforced what we have long believed: Crown Prince Mohammed bin Salman approved the murder and dismemberment of Washington Post journalist Jamal Khashoggi,” said CPJ Senior Middle East and North Africa Researcher Justin Shilad. “Now, the U.S. and its allies should sanction the crown prince and other royal court members to show the world that there are tangible consequences for assassinating journalists, no matter who you are.”

And here’s the Society of Professional Journalists:

“Many Americans have now read — and all should read — the four-page declassified intelligence report on the killing of Jamal Khashoggi,” said Matthew T. Hall, SPJ national president. “Seeing its conclusions in print under government letterhead make me angry all over again. This reprehensible action needs a strong response from the Biden administration. We appreciate Biden Press Secretary Jen Psaki’s recent assurances that ‘a range of actions’ are ‘on the table.’ But we hope the president chooses one quickly and decisively to send the message to Saudi Arabian leaders and people everywhere that the killing of a journalist is unacceptable anywhere on this planet.”

(My emphasis above.)

Sadly, Biden’s actions parallel those of his predecessor, Donald Trump, although for different reasons. Trump didn’t care; Biden is too tied up in outmoded considerations about alliances and interests, such the supposed need to placate Saudis so they’ll help us in our confrontation with Iran.

As New York Times columnist Nicholas Kristof puts it:

It’s precisely because Saudi Arabia is so important that Biden should stand strong and send signals — now, while there is a window for change — that the kingdom is better off with a new crown prince who doesn’t dismember journalists.

Friday was the worst day so far for President Biden — and for anyone who cares about the U.S. commitment to human rights and to the fate of journalists at the hands of repressive governments.

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Don’t censor right-wing disinformation. Just stop making us pay for it.

Photo (cc) 2007 by Jason Eppink

Two Democratic members of Congress are asking giant cable providers like Verizon and Comcast some uncomfortable questions about their business dealings with three right-wing purveyors of toxic misinformation and disinformation — Fox News, Newsmax and OANN.

Among other things, according to Erik Wemple of The Washington Post, Reps. Anna Eshoo and Jerry McNerney want to know what “moral and ethical principles” are involved in carrying the channels and whether they intend to keep carrying them after their current contracts expire. This is not a good road to take. As Wemple writes:

The insertion of Congress into the contractual relationships of video providers with particular news/propaganda outlets, however, is frightening. Asking questions is a protected activity, of course — one that lawmakers use all the time. Yet these questions feel a lot like coercion by government officials, an incursion into the cultural promise of the First Amendment. Eshoo and McNerney’s letter hints that, unless the carriers proactively justify keeping OAN, Newsmax, Fox News and the like, the signatories would like to see them de-platformed right away.

The very real problem is that Fox News and its smaller competitors are unique in the extent to which they spout falsehoods and outright lies about everything from the COVID-19 pandemic to the outcome of the 2020 election. But what can we do about it without posing a threat to the First Amendment?

Liberal activists have pressured advertisers from time to time, which is well within their own free-speech rights. But Fox, in particular, is all but immune from such pressure because most of its money comes from cable carriage fees. As Angelo Carusone, president and CEO of the liberal media-watch organization Media Matters for America, recently told the public radio program “On the Media”:

They can have zero commercials and still have a 90% profit margin because they are the second most expensive channel on everybody’s cable box, and Fox is in the process right now of renegotiating 40 to 50% of all of their contracts.

A far more promising avenue is one suggested by the media-reform organization Free Press. Contained within its daily missives demanding that Congress take action against Fox, Newsmax and OANN for spewing “hate and disinformation into homes and businesses across the country” is a proposed solution that we all ought to support: mandating  à la carte cable so that consumers would only have to pay for the channels they want. (Bye bye, ESPN!)

The problem with these right-wing purveyors of lies isn’t that they exist. It’s that, unless we’re willing to cut the cable cord, we’re forced to pay for them whether we watch them or not, whether we’re appalled by them or not. It’s time to bring that to an end.

So yes, there’s a way to do something about cable hate without raising constitutional issues. Reps. Eshoo and McNerney should take note.

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