Is it acceptable for a website operator to make use of registration data not known to anyone else in order to expose the identity of an offensive commenter? That’s one of the main issues in a libel suit against Nieman Journalism Lab founder Joshua Benton. Bill Grueskin explains the case in detail at the Columbia Journalism Review. (Disclosure: I know and like Benton, and wrote for him from time to time when he was the Lab’s editor; he is still a staff writer. I continue to contribute to the Lab occasionally.)
Way back in 2008, when the internet was still powered by coal, The Eagle-Tribune of North Andover did something similar. I wrote about it at the time. A Haverhill city councilor was caught posting to the newspaper’s website under 38 different screen names. The Eagle-Tribune outed him using information no one else could have known, arguing:
The average citizen does not take an oath to serve the public. An elected official does. An attempt to deceive the public is clearly not serving it, and a public official who does so is not only undeserving of the protection of confidentiality, but deserves public criticism.
Two differences between the cases. First, the person suing Benton, former Temple University journalism professor Francesca Viola, is not a public official. Second, Viola claims that in addition to exposing her for comments she made at Nieman Lab, Benton also attributed to her anti-Muslim comments made on another site — and she contends she did not make those comments.
As Grueskin notes, these problems can easily be avoided by requiring commenters to register and post under their real names. But, he adds, “an administrator can’t have it both ways, promising anonymity and then using special access to expose someone’s identity.” I agree — and I remain troubled by the choice that The Eagle-Tribune made nearly 13 years ago as well.
Attorney General Merrick Garland. Photo (cc) 2016 by Senate Democrats.
Give President Joe Biden credit for having a keen understanding of what it takes to hold together his Democratic-liberal-progressive coalition.
When he said in May that it was “simply, simply wrong” for the government to spy on journalists, I was skeptical that he would follow up his sentiment with concrete action. After all, he was vice president under Barack Obama, whose harassment of reporters in his campaign against leaks was legendary. Other presidents also thought nothing about going after reporters, including Donald Trump, George W. Bush and, of course, Richard Nixon.
But press secretary Jen Psaki followed up by assuring reporters that Biden meant what he said. And, on Monday, it came to fruition with Attorney General Merrick Garland’s announcement that the administration would stop attempting to seize journalists’ records in nearly all circumstances. In a memo quoted by The New York Times, Garland wrote:
The Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of news-gathering activities.
Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, issued a statement of approval, saying:
The attorney general has taken a necessary and momentous step to protect press freedom at a critical time. This historic new policy will ensure that journalists can do their job of informing the public without fear of federal government intrusion into their relationships with confidential sources.
Technically, Garland was acting on his own. The attorney general is supposed to be independent of the president. But Garland could hardly continue with the anti-press policies of Biden’s predecessors after Biden himself had spoken out so strongly in favor of reform.
Garland’s actions come in response to some truly shocking actions undertaken by the Trump administration, some of which spilled over into the first few months of the Biden presidency. Acting on what appeared to be political motivations, the Trump Justice Department sought phone and email records from journalists at The Washington Post, The New York Times and CNN. Judging from the timeline, the Trumpsters seemed to be looking into those news organizations’ reporting on the 2016 Trump campaign’s ties to Russian interests.
There are some exceptions to Garland’s order in the case of life-or-death situations, or if a reporter is believed to be actively helping a source obtain classified information. But these exceptions strike me as reasonable rather than being easily exploited loopholes.
Garland’s memo also says that the Justice Department will support efforts to pass legislation making the guidelines permanent so that they don’t expire as soon as Biden leaves office. That’s really the key, since future presidents and attorneys general would otherwise not be bound by Biden and Garland’s good intentions.
The hatred being directed at Nikole Hannah-Jones is shocking — but not surprising. Right-wing media mount phony attacks on her and her ideas and then let their trollish minions do the rest. She tweets:
The coordinated media attacks orchestrated by the right-wing echo chamber are designed to elicit exactly these type of threats and harassment that are flooding my email and social media accounts. They want to make me afraid to speak and do the type of work I do. I will not stop.
Roxane Gay brilliantly captures my own love/hate relationship with Twitter. In a New York Times essay published on Sunday, she writes:
After a while, the lines blur, and it’s not at all clear what friend or foe look like, or how we as humans should interact in this place. After being on the receiving end of enough aggression, everything starts to feel like an attack. Your skin thins until you have no defenses left. It becomes harder and harder to distinguish good-faith criticism from pettiness or cruelty. It becomes harder to disinvest from pointless arguments that have nothing at all to do with you. An experience that was once charming and fun becomes stressful and largely unpleasant. I don’t think I’m alone in feeling this way. We have all become hammers in search of nails.
This is perfect. It’s not that people are terrible on Twitter, although they are. It’s that it’s nearly impossible to avoid becoming our own worst versions of ourselves.
Twitter may not be as harmful to the culture as Facebook, but for some reason I’ve found interactions on Facebook — as well as my own behavior — to be more congenial than on Twitter. Of course, on Facebook you have more control over whom you choose to interact with, and there’s a lot more sharing of family photos and other cheerful content. Twitter, by contrast, can feel like a never-ending exercise in hyper-aggression and performative defensiveness.
From time to time I’ve tried to cut back and use Twitter only for professional reasons — promoting my work and that of others, tweeting less and reading more of what others have to say. It works to an extent, but I always slide back. Twitter seems to reward snark, but what, really, is the reward? More likes and retweets? Who cares?
I can’t leave — Twitter is too important to my work. But Gay’s fine piece is a reminder that social media have fallen far short of what we were hoping for 12 to 15 years ago, and that we ourselves are largely to blame.
More downsizing at The Sun of Lowell, part of Alden Global Capital’s MediaNews Group chain. Kris arrived at The Sun 42 years ago as a Northeastern co-op student. People like him are the heart and backbone of local journalism.
Robert’s departure follows the layoff of @kplowellsun, the Sun’s managing editor/nights. Alden Global Capital continues with its destruction of a quirky, vital newspaper. Kris’ farewell column: https://t.co/pJgdxMLCuChttps://t.co/qpsH04CtoV
— Dan Kennedy is on Threads (@dankennedy_nu) July 17, 2021
Mark Ruffalo, who portrayed then-Boston Globe reporter Michael Rezendes in the movie “Spotlight,” has recorded a video supporting the Boston Newspaper Guild in its push for a new contract.
Update, July 17. As you can see, the video has been taken down. No idea why.
Two weekly papers in Boston’s exurbs are being shut down by Gannett, their corporate owner. The Hudson Sun and the Marlborough Enterprise have ceased publication, according to the Community Advocate.
The towns will continue to be covered by the MetroWest Daily News, which is also a Gannett publication. The Advocate appears to be a decent source of news for the two communities; its offerings include a Marlborough/Hudson newsletter.
Advocate managing editor Dakota Antelman includes an interesting historical overview of newspapers in Marlborough and Hudson, and notes that reporters for the two communities were moved to the MetroWest Daily News offices in Framingham back in 1995, long before GateHouse Media/Gannett came on the scene.
Paul Farhi of The Washington Post reports on a disturbing phenomenon: television journalists coming under attack. “In recent months, local TV news crews have faced verbal and physical abuse while on the job,” he writes. “A few reporters have been injured. Some have been robbed or had their equipment damaged.”
Some of it is no doubt related to the “enemies of the people” rhetoric of former President Donald Trump, who made hatred of the press part of his authoritarian brand. And as Farhi notes, TV reporters are far more conspicuous than those of us who walk around with notebooks and smartphones, making them more likely to be subjected to violence.
It’s not just MAGA. One of our GBH News Muzzle Award winners this year were Black Lives Matter protesters in Burlington, Vermont, who stole copies of the alt-weekly Seven Days and burned some of them. No, that’s not the same as assaulting reporters. But I wouldn’t imagine that was a safe place to be for someone visibly identified as a reporter.
And let’s not forget it was just three years ago that a gunman killed five employees at the Capital Gazette in Annapolis, Maryland. On Thursday a jury found that the shooter, Jarrod Ramos, was criminally responsible, rejecting his insanity defense.
Journalism is still safer than working as a lumberjack. Neither, though, is it entirely hazard-free. It’s something we’ve begun to talk about with our students. I don’t know what the answer is. Bearing witness is a vital part of what we do. If we have to start barricading ourselves in secure newsrooms, a lot of what we do will be lost.
I posted this at the bottom of my GBH News column for today, but I want to publish it here as well.
The GBH News 2021 New England Muzzle Awards, published on July 1, singled out former President Donald Trump for whipping up fears about race in the classroom. As I noted at the time, New Hampshire was one of several states considering a ban on the teaching of “divisive concepts” about race and gender in public schools and in the workplace.
Trump won. Last Friday, the Portsmouth Herald reported that the ban was inserted into the state budget by Republican legislators, and Gov. Chris Sununu, also a Republican, signed it into law. Oyster River Superintendent James Morse called the new law “a fundamental affront to academic freedom in teaching in terms of teachers making decisions on how they apply the curriculum set by the school board.”
This is a blow against local autonomy, coming from the “Live Free or Die” state.
In a related development, Boston Globe columnist Yvonne Abraham starts to connect the dots with Parents United, a group of wealthy white parents who are so, so concerned about antiracism education. Follow the money, as they say, and Abraham documents ties to the Club for Growth and the Federalist, two formerly conservative organizations that have moved to the Trumpist right in recent years.
If we’ve learned anything about right-wing politics in the Age of Trump, it’s that what once seemed impossible becomes plausible — and then morphs into a new reality. We’ve seen it with the refusal to accept the outcome of a democratic election. We’ve seen it with attacks on face masks and vaccines. And now we may be seeing it with libel law.
For more than half a century, protections enacted by the U.S. Supreme Court have shielded the press by enabling journalists to hold the powerful to account without having to worry about frivolous libel suits. The 1964 case of New York Times v. Sullivan established the principle that a public official would have to prove a news organization acted with “actual malice” — meaning that the offending material was known to be false or was published with “reckless disregard for the truth.” That standard was later extended to public figures as well. The decision provided journalism with the armor it needed to report fearlessly, enabling stories such as the Pentagon Papers and Watergate.
It seemed impossible that this bulwark would fall when, during the 2016 presidential campaign, then-candidate Donald Trump promised to “open up libel laws” in order to make it easier for people to sue media outlets. And it seemed only slightly less impossible in early 2019, when Supreme Court Justice Clarence Thomas wrote an intemperate dissent arguing that Times v. Sullivan should be overturned in its entirety, returning libel law to the tender mercies of the states.
After all, the actual malice standard was enacted because the racist white power structure in the South had weaponized libel during the civil rights era as a way to intimidate the press. Surely Thomas’ fellow justices had no desire to return to those blighted days. Besides, a strong First Amendment appeared to be one of the few areas on which liberal and conservative judges agreed.
But weakening those protections began to seem more plausible several months ago when Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia praised Thomas — and joined his call to overturn Times v. Sullivan. Silberman threw a judicial tantrum, blasting what he viewed as liberal media bias and writing that “when the media has proven its willingness — if not eagerness — to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.”
Impossible. Then plausible. And, now, a glimmer of a potential coming reality: Earlier this month, Supreme Court Justice Neil Gorsuch joined Thomas in dissenting from a decision not to hear a case brought by the son of a former Albanian president against the author of a book who’d accused him of illegal gunrunning. Thomas’ opinion bristles with indignation and approvingly cites Silberman. Gorsuch, in turn, cites Thomas. But unlike Silberman and Thomas, Gorsuch’s opinion is all sweet reasonableness, discussing how much the media have changed since 1964 and asking, gosh darn it, why we shouldn’t acknowledge that social media, cable news and clickbait websites require a different approach to libel.
Arguing — correctly, I should note — that the actual malice standard allows media outlets to escape a libel judgment if they can prove they believed the defamatory falsehoods they published were true, Gorsuch writes: “It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy…. Under the actual malice regime as it has evolved, ‘ignorance is bliss.’”
Gorsuch’s conclusion oozes good intentions. “I do not profess any sure answers,” he writes. “I am not even certain of all the questions we should be asking. But given the momentous changes in the Nation’s media landscape since 1964, I cannot help but think the Court would profit from returning its attention, whether in this case or another, to a field so vital to the ‘safe deposit’ of our liberties.”
Gorsuch’s opinion relies heavily on an academic paper titled “Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan,” by David A. Logan, a professor at the Roger Williams University School of Law. Logan writes that actual malice has provided the media with “what amounts to an absolute immunity from damages actions for false statements,” which in turn has “facilitated a torrent of false information entering our public square.”
Logan’s examination of the data shows that libel judgments have plunged in the years since Times v. Sullivan, suggesting that the decision has created a nearly insurmountable obstacle to public officials and public figures who’ve been wronged. He suggests several possible remedies, such as narrowing the definition of a public figure or devising a system that would allow plaintiffs to “secure a judgment of falsehood in return for giving up a claim for damages.”
And he closes with the big one: getting rid of the actual malice standard altogether and replacing it with something easier to prove, such as “highly unreasonable conduct.”
Changes that result in fewer protections for the press make me queasy. But if the Supreme Court is serious about revisiting actual malice, then adopting something like a juiced-up negligence standard, as Logan proposes, wouldn’t necessarily be the worst outcome. Negligence is already the standard for private figures in most states, as laid out in the 1974 case of Gertz v. Robert Welch. It would certainly be better than overturning Times v. Sullivan altogether.
But remember: What seems impossible today may become reality in the not-too-distant future. Changes to libel protections that we had long taken for granted are starting to look inevitable, especially in the hands of a Supreme Court built by Trump and Mitch McConnell. Let’s just hope the justices don’t do too much damage to the press’ ability to hold the powerful to account.
Muzzle follow-up
Well, it happened. The 2021 New England Muzzle Awards, published on July 1, singled out former President Donald Trump for whipping up fears about race in the classroom. As I noted, New Hampshire was one of several states considering a ban on the teaching of “divisive concepts” about race and gender in public schools and in the workplace.
Trump won. Last Friday, the Portsmouth Herald reported that the ban was inserted into the state budget by Republican legislators, and Gov. Chris Sununu, also a Republican, signed it into law. Oyster River Superintendent James Morse called the new law “a fundamental affront to academic freedom in teaching in terms of teachers making decisions on how they apply the curriculum set by the school board.”
