A chilling decision about libel

In my latest for the Guardian, I analyze one of the most dangerous First Amendment decisions in many years — an opinion handed down by a three-judge federal appeals court panel in Boston last Friday holding that truth may no longer be an absolute defense against a libel suit.

The decision, written by Judge Juan Torruella of the U.S. Court of Appeals for the First Circuit, allows Alan Noonan, a sales director fired by Staples, to pursue his libel claim against the company. Staples’s executive vice president, Jay Baitler, had sent an e-mail to some 1,500 employees stating that Noonan had been terminated for violating the company’s travel and expense policies.

Torruella found that the contents of the e-mail were true, but added that, because Noonan is a private figure, the e-mail may have crossed the line into “actual malice.” In reaching that conclusion, Torruella relied on a 1902 Massachusetts law and said that “actual malice” should be defined as “ill will” or “malevolent intent.” Never mind that, in the 1964 case of Times v. Sullivan, the U.S. Supreme Court redefined “actual malice” so that it now pertains solely to statements made with deliberate falsity, or with “reckless disregard” for the truth.

Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, calls the ruling “the most dangerous libel decision in decades.” Longtime Massachusetts newspaper editor William Ketter, now a top executive with the CNHI chain, writes that the decision “could chill aggressive reporting of tough stories for fear that a private individual might end up suing the media even when the published facts are true.”

In an e-mail to Media Nation, Robert Bertsche, a prominent First Amendment lawyer with the Boston firm Prince Lobel Glovsky & Tye, says:

A panel of the First Circuit Court of Appeals has decreed that truth is no longer an absolute defense to a libel charge in Massachusetts. The ruling is troubling on so many levels that it beggars the imagination. Begin with the court’s ruling that one can be found liable in damages for making a statement that is indisputably true — that is a notion that flies in the face of everyone’s most basic understanding of what libel is.

With this decision, the First Amendment has been replaced by the maxim, “If you don’t have anything nice to say, don’t say it.” Consider the irony: The Supreme Court has said that there is constitutional protection for false statements on matters of public concern, but now the First Circuit says there is no constitutional protection for true statements on matters of private concern. What’s worse, the court offers no guidance about how to distinguish what is of “public concern” from what is of “private concern.” (You can be sure that among the 1,500 employees of Staples who received the company’s statement about Noonan’s firing, this was a matter of quite public concern.)

It is mind-boggling that the Court of Appeals offered so little analysis, and gave so little explanation, for a decision that arguably makes Massachusetts the least speech-protective state in the nation. Why didn’t this federal court (in a diversity case, no less) ask the Massachusetts SJC [the state’s Supreme Judicial Court] to opine on the validity and interpretation of this statute passed in the days of the buggy whip? It’s a bit like the state police descending on Fenway Park to handcuff Terry Francona for violating state law against public spitting.

Talk about a chilling effect on speech! Lawyers across the state should advise their clients simply not to say negative comments about people. Even if what you say is true, you will be made to pay damages if a judge decides that what you said is not of “public concern” and a jury decides you were motivated by ill will.

This is a bad decision for employers and employees, because it will reduce the flow of information in the workplace. It’s a disastrous decision for the media, and in particular for the new media: bloggers, people who post on Facebook, indeed anyone who has a website but lacks press credentials. That’s because the mainstream media may be protected, at least haphazardly, by an assumption that if The Boston Globe writes about a topic, then by definition the topic is one of public concern. But no such presumption is likely to protect an outspoken blogger’s critical remarks.

This is an aberrational ruling from a well-respected court. I remain hopeful that the three-judge panel will reconsider the ruling, or that the full Court of Appeals will agree to rehear it and correct this misjudgment. But until that happens, everyone who cares about free speech should lobby his or her legislator to remove this archaic statute from the law books.

As it stands, Torruella’s decision applies only to Massachusetts. But what if the federal courts were to discover similar laws on the books in other states?

You might have thought that the court would find the 1902 law to be unconstitutionally restrictive in light of Times v. Sullivan and its progeny. Instead, Torruella chose to drag freedom of speech back into the pre-1964 dark ages. Amazing. And frightening.

Back to NewsFire

Since last summer, I’ve been using Google Reader as my RSS aggregator. It’s attractive, and I like the community features that it offers. Last night, though, I decided to switch back to NewsFire. Why?

  • NewsFire, installed on my desktop, is instantaneous. Sometimes that matters. All I have to do is hit “refresh.” With Google Reader, which is out there in the cloud, you have to wait.
  • Google Reader is superfically more attractive. But NewsFire is easier to set up with a nice, big, readable font.
  • Skimming is faster with NewsFire.

So what have I given up? Mainly the ability to access my feeds from any computer. Since I’m rarely without my MacBook, that’s generally not a problem. Still, my thinking continues to evolve.

The cooling of George Will’s brain

Syndicated columnist George Will presents only one piece of evidence in his Sunday piece denying global warming — and he gets it wrong. Will writes:

As global levels of sea ice declined last year, many experts said this was evidence of man-made global warming. Since September, however, the increase in sea ice has been the fastest change, either up or down, since 1979, when satellite record-keeping began. According to the University of Illinois’ Arctic Climate Research Center, global sea ice levels now equal those of 1979.

To which the research center replies:

We do not know where George Will is getting his information, but our data shows that on February 15, 1979, global sea ice area was 16.79 million sq. km and on February 15, 2009, global sea ice area was 15.45 million sq. km. Therefore, global sea ice levels are 1.34 million sq. km less in February 2009 than in February 1979. This decrease in sea ice area is roughly equal to the area of Texas, California, and Oklahoma combined.

It is disturbing that the Washington Post would publish such information without first checking the facts.

Much more from Climate Progress.

Final thought: What does it take for Will and/or the Washington Post to append a correction? As of 6:30 p.m., there was still nothing. Is it because his entire commentary looks ridiculous if he retracts the sole relevant factual nugget he included in his diatribe?

OK, not quite so final: David Bernstein stands at the intersection of Will and Jeff Jacoby.

Blowing the whistle on handicapped parking

Miss Media Nation and I visited Harvard Square yesterday. I dropped her off at a bookstore, then went look for a handicapped parking space. I found one not far from Brattle Square.

As I was backing in, it occurred to me that I might be causing myself some hassle. Our handicapped placard obviously wasn’t for me. My daughter was a couple of blocks away. If a police officer questioned me, I’d have to ask him to walk back to the bookstore with me so he could see that my daughter was, in fact, there.

I did it anyway — no problems. But it would have been a whole lot easier if I were one of the chosen few who use the handicapped parking spaces in front of Boston police headquarters, wouldn’t it? Another great job by students in Walter Robinson’s investigative-reporting class at Northeastern University.

Four months later, InstaPundit checks in

Last October, I wrote an item chastising the InstaPundit, Glenn Reynolds, for writing that opponents of a ballot measure to eliminate the Massachusetts state income tax were “pledging a campaign of ‘massive resistance.'”

The problem was that Reynolds had put massive resistance in quotation marks, yet appeared to be quoting no one other than himself.

On Saturday, believe it or not, Reynolds responded — and it appears that he still doesn’t understand how to use quotation marks. He points to a statement by then-House Speaker Sal DiMasi vowing not to implement Question One if it were to pass (it didn’t). But DiMasi never used the phrase “massive resistance.”

I would say that Reynolds concocted a quote, except that he doesn’t even seem to realize that’s what he did. For good measure, he tells me that the reason he appears to post constantly throughout the day is that he’s set up some sort timing mechanism that posts automatically. In other words, many of his time-stamps are faked. Ethical? I don’t know. I’ll have to get back to you on that.

By the way, if the Glenn (or “Glenn”) who posted a comment to Media Nation isn’t really Reynolds, my apologies. I’m making an assumption that it is, mainly because there’s nothing particularly weird or over-the-top about his comment.

And these people really know how to mangle quotation marks.

Not as retro as I had feared

Interesting to note that Joel Kramer, editor of the community Web site MinnPost, is also thinking about premium pricing for the print editions of newspapers. Here’s what he writes at the New York Times’ blog Room for Debate:

I do think there is a strategy that might keep a high-quality regional newspaper modestly profitable in the future: Rely much more on revenue from readers. Publish a newspaper worth $2 a day, the price of a cup of coffee, and $5 on Sunday. Raise the quality. Make it more in-depth, more analytical, to complement the immediacy of your free Web site, and do not make that deeper, more insightful coverage available for free on the web. Perhaps make the printed product a tailored mix of sections that appeal to different readers: For $2, you get to pick, say, four sections out of six.

Obviously, circulation would drop. A newspaper that sold 400,000 copies at 50 cents daily and $1.25 on Sunday might sell only 100,000 at four times the price. But there would be a business incentive to keep quality high, because each extra copy sold should increase profit, not subtract from it.

He adds: “I think it has a better chance than going Web-only and charging for the content.” I agree. On Thursday, I floated a similar idea.

Question: If the Boston Globe (or any major metro) raised its prices to $2 on weekdays and $5 on Sundays, what sorts of print-only content would induce you to pay for it rather than simply reading it online? What other services should it make available to paying subscribers?

Health journalist Tinker Ready launches blog

Longtime health journalist (and Northeastern colleague) Tinker Ready announces that she’s started a health-care blog, Boston Health News. She writes:

I hope to write and link on topics including research, personal health, business and international news. I’m especially looking forward to following the latest attempt at health reform. I’ve covered at least two runs at it — the Medicare reforms of the late 80s and the Clinton proposal. A lot needs to be explained and a million good stories wait to be told.

Ready will be a welcome addition to the local blogging scene.

The trouble with Brill’s not-so-secret memo

My apologies for not being right on top of this earlier in the week. I just had a chance to read Steven Brill’s no-longer-confidential memo, “Turning Around the Times — and Journalism,” posted on Romenesko, and I’ve got a few observations.

First, a bit of praise for Brill, who, near the beginning of his career, wrote one of the bravest books I’ve ever read — “The Teamsters,” about an organization that, at the time of publication (1979), was more a criminal enterprise than it was a union. I don’t know how Brill found the courage to start his car in the morning.

And though I’ve weighed in several times (here and here) on why it doesn’t make sense to think that newspapers will be able to charge a fee to their online customers, I understand the problem. Even though what you pay for a print edition doesn’t even cover the cost of manufacturing and distributing it, the fact — and the problem — is that print advertising is far more lucrative than online advertising. Never is a long time, but it’s beginning to look like Web advertising may never support the public-interest journalism on which a healthy, self-governing society depends.

So I’m sympathetic to, though not supportive of, Brill’s ideas for charging online customers. It’s possible that it might even work for the Times because of its unique appeal. There are probably quite a few people who’d pay for access to the Times, but not for anything else. And therein lies one of problems with his plan, though by no means the only one.

Here’s the biggest drawback I see in Brill’s proposal: it would end blogging, as valuable a journalistic form as has been developed since the inverted pyramid. A really good blog post might link to three, four or five news stories — maybe more. A really good blogger might skim through 10, 15 or 20 stories in the course of synthesizing them into that post. Finally, that blogger might look at many dozens of news sources on a regular or semi-regular basis.

Obviously, bloggers — most of whom are doing it for no money — cannot afford to subscribe to dozens of online newspapers and magazines. Even if they could, they want to know that when they link to particular stories, their readers will be able to follow the links and read those stories as well. How many online news sources is a typical blog reader supposed to subscribe to?

Micropayments, which Brill also mentions, get around this. Properly implemented, they’re deducted automatically. But though 10 cents an article might seem reasonable, do you really want to pay $1 to read a well-constructed blog post and follow all the links? Of course you don’t. No one is going to do such a thing.

Brill says that if the Times charges $1 per month to each of its 20 million unique monthly visitor, that would generate $240 million a year. I’ll withhold my sarcasm, because this is math, and experience tells me that I could be wrong. But it strikes me that Brill has convinced himself that the Times could get a buck out of every person who, at some point during the course of a month, clicks on a link to a Times story that he found via a search engine. Intuitively, it seems to me that they’re not going to do that, and I’m pretty sure Brill would concede the point if he’d think about it.

The only folks who are going to pay $1 a month are the journalism geeks like me, who actually prop open their laptops at breakfast and read a good chunk of the Times online. And I suspect the number of people who actually read the paper that way is far, far smaller than 20 million.

Case in point: Christian Science Monitor editor John Yemma told me last fall that 84 percent of visitors to the paper’s Web site come in via search engines, aggregators and blogs. Let’s say it’s the same for the Times. Let’s say you could get every one of the 16 percent who come in through the front door to pay $1 a month. That’s $38.4 million for the year, not $240 million.

I realize that my critique would appear to leave no way out of the dilemma in which the Times and other newspapers find themselves. I happen to think there may be more life left in the print edition than we all imagined a couple of years ago. I’d raise the price by quite a bit, maybe offer some premium, print-only features (heresy, I know, but worth thinking about) and perhaps offer those well-heeled customers access to some special services.

A solution? No. But it might work as a holding action until we can figure out what’s next.