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By Dan Kennedy • The press, politics, technology, culture and other passions

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A resounding double defeat for Sarah Palin may make it difficult to undo libel protections for the press

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On February 16, 2022

In First Amendment

Sarah Palin. Photo (cc) 2017 by Gage Skidmore.

Previously published at GBH News.

To the extent that fading right-wing icon Sarah Palin had any strategy in pursuing her deeply flawed libel suit against The New York Times, it was this: to force a reconsideration of protections for the press that had stood for nearly 60 years, thus exacting vengeance against her tormenters in what she once infamously labeled “the lamestream media.”

It’s at least theoretically possible that could still happen. But the devastating manner in which she lost has made it less likely, not more, that the U.S. Supreme Court will eventually take her up on her invitation to weaken or overturn its landmark New York Times v. Sullivan decision.

First came U.S. District Judge Jed Rakoff’s move on Monday to throw out the case and rule in the Times’ favor.

Rakoff was troubled by the 2017 Times editorial at the heart of the case, which claimed — falsely — that Jared Loughner, who shot then-U.S. Rep. Gabby Giffords and killed six others in 2011, had been incited by a map put together by Palin’s political action committee that depicted gunsights over Giffords’ district and those of 19 other Democrats.

“I don’t mean to be misunderstood,” Rakoff said. “I think this is an example of very unfortunate editorializing on the part of the Times.” But Palin’s lawyers did not present any evidence that the error was anything other than a sloppy mistake by then-editorial page editor James Bennet, who was contrite and apologetic during his testimony.

Rakoff did not inform the jurors of his ruling, instead allowing them to move ahead with their deliberations in order to assemble a more complete record for the inevitable appeals. That only added to Palin’s humiliation, as all nine jurors voted against her when they announced their verdict on Tuesday.

“Your job was to decide the facts, my job is to decide the law,” Rakoff said. “As it turns out, they were in agreement in this case.”

Press advocates had worried that the case could substantially weaken Times v. Sullivan, a 1964 court ruling that public officials cannot win a libel suit unless they are able to show that a false, defamatory story about them was published or broadcast with “actual malice” — that is, with the knowledge that it was false, or with reckless disregard for the truth. That protection was later extended to public figures.

Palin is all of the above — a former Alaska governor and Republican vice presidential candidate who transformed herself into an all-purpose celebrity. A ruling in her favor would have rendered the actual-malice standard meaningless.

There are, of course, those who have railed against Times v. Sullivan for years. As a presidential candidate in 2016, Donald Trump vowed he would “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”

And as I’ve written previously, two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have said they would like to revisit Times v. Sullivan. But though Thomas appears ready to overturn the decision in its entirety and return libel law to the states, Gorsuch has indicated he would take a more subtle approach. Because the Palin verdicts are so clear-cut, it may be difficult for the justices to use them as a reason to sink their fangs into the Sullivan decision.

Rakoff’s unusual two-part approach presents an additional obstacle to Palin’s hopes for winning on appeal. As David Folkenflik reported for NPR, if an appeals court were to set aside Rakoff’s verdict, the jury’s verdict would still be in effect.

Finally, the case helped demonstrate the importance of First Amendment protections even for bad journalism — which the Times’ editorial surely was. Bennet inserted language into an editorial — “the link to political incitement was clear” — that was patently false and defamatory. There was no connection between Palin’s map and the shooting of Gabby Giffords and others. (Although it would not be surprising to learn that the jury considered the fact that Palin really did publish that grossly irresponsible map.)

But the media must have the freedom to report on matters of public importance without being subjected to crippling lawsuits because of inadvertent mistakes. As Justice William Brennan wrote in the Sullivan decision, “erroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive.’”

So Times v. Sullivan lives — for now. Whether Palin’s lawyers will somehow be able to transform their resounding defeat into a winner on appeal remains to be seen. But a federal judge and a jury of Palin’s peers saw through her bogus complaint. For now, that’s enough.

Five ideas to reinvent CNN after Zucker’s departure

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On February 9, 2022

In Media

Jeff Zucker. Photo (cc) 2013 by Fortune Live Media.

Previously published at GBH News.

Cable news is a disgrace, especially during prime time. From 8 to 11 p.m. every Monday through Friday, the three outlets offer nothing but opinionated talk shows, CNN and MSNBC from the left, Fox News from the conspiratorial far right. It is a wasted opportunity.

But now CNN, the original cable news station — the one whose middle name is “news” — has a chance to reinvent itself. Last week CNN Worldwide president Jeff Zucker resigned after company officials learned he was involved romantically with his second-in-command, executive vice president Allison Gollust, who remains at CNN, at least for now.

It seems likely that there’s more to it. By the end of last week, Tatiana Siegel was reporting in Rolling Stone that Zucker and Gollust may have been advising Andrew Cuomo at the same time that the then-New York governor was appearing on Chris Cuomo’s CNN show. More to come, no doubt.

But whatever the reason, now is the perfect time for CNN to try something new. What Zucker was doing certainly wasn’t working. The man who foisted Donald Trump upon the media and political world, first with “The Apprentice” and later with hours upon hours of free air time during the 2016 presidential campaign, presided over a collapse in the ratings as soon as Trump left the White House. So what’s next?

Over the weekend, I asked my followers on social media and got some great responses. CNN employs boatloads of first-rate journalists. Why not let them shine? You’re probably not going to see CNN or its incoming owner, the Discovery network, actually try any of these ideas. And I’ll admit that there’s a retro quality to some of them. My defense is that they hark back to a time when CNN was good. And so it could be again.

Let’s get after it, as Chris Cuomo liked to say.

1. Launch a prime-time newscast. Did you ever realize that there isn’t a single newscast on any of the three cable “news” channels? It’s a pretty incredible omission. An insider once told me that it wouldn’t work because people are immersed in news all day on their phones and their laptops, and they want to watch people talk about it once evening comes along. Well, I don’t buy it.

As recently as 20 years ago, CNN offered a nightly prime-time newscast anchored by Aaron Brown, and MSNBC had one helmed by Brian Williams. Granted, that was before social media, but there’s no reason it can’t work again. The network’s three nightly newscasts all have higher ratings than cable news. Why not go with a solid hour of national and international news on CNN, serious but with more reporting, fewer talking heads and higher production values than the excellent but low-budget “PBS NewsHour”?

Who would anchor the CNN nightly newscast? My choice would be Audie Cornish, who recently left NPR to join CNN+, the digital streaming service that is scheduled to be unveiled this spring. CNN+ may be the future (or not), but the cable channel is the present. Let’s face it: Cable news appeals to older viewers who have no intention of cutting the cord and going with a streaming service. Why not leverage that with something they might actually watch? I’d slot the newscast for 8 p.m.

2. Bring back Larry King. Well, OK, the mainstay of 9 p.m. is no longer available, having died a year ago at the age of 87. And though King had his quirky charms, CNN could certainly find a host who’s better informed and more engaged. I’d suggest Anderson Cooper, one of the smartest and most versatile people at the network. Who better to talk with newsmakers, entertainers, authors and the like?

And by “talk with,” I mean “have a conversation.” When CNN put King out to pasture, they replaced him with Piers Morgan, a noxious Brit who held down the post for a few years in the early 2010s. It didn’t work, and eventually CNN put Chris Cuomo in that time slot as the host of a not-very-good political talk show. An interview program hosted by Cooper would be an ideal replacement.

3. Embrace the world. After a newscast at 8 and an interview show at 9, how about an international report at 10? CNN first earned the respect of viewers with its coverage of the Persian Gulf War in 1991. Even today, CNN International wins kudos for its quality and depth. Yet U.S. viewers rarely get to see any of that coverage.

Now, I realize that international news almost certainly would not be a ratings winner. But CNN’s numbers are already below water. Maybe Zucker’s replacements could figure out a way to slip past MSNBC, but are they really going to challenge Fox? Probably not. The alternative is to embrace quality in the hopes of attracting a prestige audience that will prove enticing to high-end advertisers. Capping the evening with an hour of well-reported international news is just the way to do that.

My first choice as anchor would be Christiane Amanpour, assuming her health would allow it. She’s got the history with CNN — she still holds the title of chief international anchor — and continues to be well liked by viewers.

4. Not so boldly into the future. Maybe I’ll be proven wrong, but CNN+ looks like a looming disaster. I simply can’t picture why anyone, even a cord-cutter, would pay for a streaming service so they can watch Chris Wallace.

Yet CNN is already sitting on a significant digital asset — CNN.com, the top-ranked news website. According to recent figures from Comscore, CNN.com and its apps attracted 143 million unique visitors a month in 2021, putting CNN Digital way ahead of The New York Times (89 million), FoxNews.com and NBCNews.com (about 87 million each) and The Washington Post (82 million).

The danger with CNN+ is that not only will it fail to sign up cable cord-cutters, but that it will harm CNN Digital as well.

CNN Digital isn’t just successful — it’s good, one of the best free national and international news sources available. I’d merge CNN+ into CNN Digital, offering all video programming free to users with a cable TV log-in (as is currently the case) while charging an extra fee to non-cable subscribers who want to watch video. The cable providers will go nuts, but they’re doomed in the long run anyway.

And keep the non-video news free for everyone.

5. Offer some specialized programming. This is a bit of a catch-all. My followers made a lot of good suggestions for shows that might appear weekly or occasionally. Several suggested a program rounding up local news from around the country — a tough sell, but possibly worth doing if it can be demonstrated how it’s broadly relevant. An investigative hour coproduced with the nonprofit news organization ProPublica. The return of “Crossfire” (sorry, but no).

I might want to turn the Friday edition of the Anderson Cooper interview show I’ve suggested into a political roundtable, edgier than PBS’s “Washington Week” but smarter than what’s currently on CNN. No shouting and no Trumpers allowed — although intelligent conservatives would certainly be welcome.

Several people weighed in with suggestions for changes in CNN’s tone and emphasis, which would also be welcome. For instance, Alex Howard, director of the Digital Democracy Project, called for the network to improve its culture, focus on hard news, original reporting and expert analysis, and examine ethics more closely when covering government and corporations.

Jeff Jarvis, a professor at the City University of New York’s Craig Newmark School of Journalism, concluded several ideas about how to improve CNN’s offering with this: “In short, throw the damned deck chairs overboard and ask: Why are we here? What value to we bring to society? Use it as an opportunity to start over.”

The opportunity to start over doesn’t come around very often. CNN’s executives now find themselves with a blank slate. Here’s hoping against hope that they make the best of it.

How Spotify’s greed sparked an uprising

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On February 2, 2022

In Culture

Neil Young in Oslo. Photo (cc) 2013 by Kim Erlandsen, NRK P3

Previously published at GBH News.

No sooner had Neil Young announced he was pulling his music off Spotify because of vaccine falsehoods on Joe Rogan’s podcast than we began to learn about other dicey content on the service.

Will Dunn had a list at The New Statesman. Among them: Steven Crowder, who’s been accused of racism and homophobia; Hearts of Oak, which has featured anti-Muslim interviews; and Taake, a Norwegian black metal band whose front man appeared on stage in Germany with a swastika on his chest.

“This is the great problem of the platform economy,” Dunn wrote. “In traditional broadcasting the platform publishes a small amount of material to a large audience, taking responsibility for its quality. In the platform economy, a vast amount of material is published — there are almost three million podcasts on Spotify — and the market for attention decides who wins.”

Well, no. In fact, Dunn’s article illustrates a significant misunderstanding that has permeated the furor over Spotify. And it underscores the sad reality that podcasting, like the open web in general, is being eclipsed by business interests focused on dollars rather than democratic discourse.

Most material on Spotify and competing services can be considered third-party content, no different from what’s posted on Facebook and Twitter. Podcasts are distributed to all the major platforms. You’ll find Crowder and Hearts of Oak at Apple Podcasts, for instance, and Taake is available on Apple Music. I may not like what they say, but they’re free to say it.

Starting last April, though, Spotify and Apple announced they were going to start signing celebrity podcasters to exclusive deals. Rogan reportedly got $100 million and is immensely popular — certainly more popular these days than Young and the other musicians who’ve joined him, including (so far) Joni Mitchell and Nils Lofgren.

In other words, Spotify now embraces two entirely different business models. On the one hand, it’s a neutral platform for most podcasters as well as independent musicians who upload their music to the service. On the other, it’s a broadcaster, as fully responsible for Rogan’s content as Fox News is for Tucker Carlson. That’s just as true for Spotify’s less controversial fare, such as “Renegades,” an exclusive podcast featuring Bruce Springsteen and Barack Obama.

The difference has significant implications for free speech. It would be absurd for Young to demand that Spotify remove every bit of third-party content he finds offensive as the price for keeping “Like a Hurricane” in rotation. But it’s perfectly reasonable for Young to decide he doesn’t want to be associated with a company that pays and actively promotes a host who’s indulging in dangerous vaccine nonsense.

Even so, Young et al. have been accused in some quarters of failing to respect Rogan’s free-speech rights. For instance, Zaid Jilani, writing at City Journal, sneered at “Young’s transformation from countercultural champion of freedom of speech to corporate censorship advocate and defender of the public-health bureaucracy.” That’s an absurd argument because it suggests that Young shouldn’t exercise his own free-speech rights. He’s free to stay on Spotify or leave, and he’s chosen to leave.

“I support free speech. I have never been in favor of censorship,” Young said in a statement on his website. “Private companies have the right to choose what they profit from, just as I can choose not to have my music support a platform that disseminates harmful information.”

That’s a refreshingly tolerant attitude toward free speech given the frightening wave of repression taking place in the broader culture — from the banning of LGBTQ books and “Maus,” a graphic novel about the Holocaust, to legislation being debated among New Hampshire lawmakers to prohibit the teaching of critical race theory, and to empower snitches who are eager to turn in teachers.

Then again, Young has also made it clear that he’d come back if Spotify got rid of Rogan’s program. Do Young and Mitchell, years past their heyday, really exercise that kind of clout? I think the answer to that is maybe. They’re still popular, especially with older listeners. Some other musicians with a profile higher than Lofgren’s may join them, though few own the rights to their recordings. (Bob Dylan and Springsteen are among the artists who’ve sold their catalogs recently.)

But the real economic challenge Young and his compatriots pose is to the idea of Spotify as the infinite jukebox. If you are a paying customer, you expect to be able to find anything you want, no matter how obscure. I wouldn’t pay for a service without Neil Young. (Yes, I am old.) And though I’m not a Joni Mitchell fan, I recently listened to five of her classic albums — on Spotify.

Besides, a sudden wave of negative publicity can bring a company under scrutiny in ways it had previously escaped. As I’ve been discussing the issue over the past few days on Twitter and Facebook, I’ve learned that Apple Music pays musicians double what Spotify pays. It’s still inadequate, and some smaller services like Tidal do better. But for a mainstream service with access to just about everything you’d ever want to listen to, Apple might be a superior choice. And that’s where I’m moving.

It remains to be seen how much harm the Rogan episode will do to Spotify. He and the company have both issued statements promising to improve their behavior, but there are no signs that they’re going to back down. And though there was some excitement last week over Spotify’s slide in the stock market, it was actually up 13.5% on Monday. (I’m finishing this early Tuesday afternoon, and the price is more or less flat.)

The original sin was Spotify and Apple’s move last year to try to turn podcasting into a walled garden for their economic benefit. Before that, podcasting was wide open. Whether a show was entirely a volunteer effort or supported by advertising, you could listen to it on any platform. Now, like the video-streaming services, you are forced to choose platforms based on which one has your favorite programs.

Spotify is now reaping what it has sown. Rogan has survived, at least for now. In the days ahead, we’ll learn what matters more to company executives — offering a one-stop platform for all the music and podcasts you want to listen to, or leaning on the drawing power of a few stars.

The answer, needless to say, will come down to which approach brings in more money.

How local news helped Callie Crossley with her research for ‘Eyes on the Prize’

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On February 1, 2022

In Local News

Callie Crossley. Photo via GBH News.

Callie Crossley of GBH News is a multitalented broadcast journalist and producer. She hosts “Under the Radar with Callie Crossley” and shares radio essays each Monday on GBH’s “Morning Edition.” She also hosts “Basic Black,” which covers news events that have an impact on communities of color. Crossley’s work on “Eyes on the Prize: America’s Civil Rights Years” won numerous awards.

In a wide-ranging conversation with Ellen and Dan, Crossley shares her views on the thinning out of local news outlets and offers sage advice for next-generation journalists. Callie and Dan were regulars on “Beat the Press,” the award-winning GBH-TV show that featured media commentary, which ended its 22-year run in 2021. In 2019, both of them received the Yankee Quill Award from the New England Society of Newspaper Editors.

In Quick Takes on developments in local news, Dan laments the rise of robot journalism, and Ellen reports on an effort by publisher Lee Enterprises to fight off a takeover bid by the hedge fund Alden Global Capital.

You can listen to our conversation here and subscribe through your favorite podcast app.

The latest bad idea for chain newspapers: Robot reporting on real estate

By

On January 27, 2022

In Local News

Tom Breen of the New Haven Independent covers real-estate transactions the old-fashioned way. Photos (cc) 2021 by Dan Kennedy.

At least two New England newspaper publishers have begun using artificial intelligence rather than carbon-based life forms to report on real-estate transactions.

The Republican of Springfield, online as MassLive, and Hearst Connecticut Media, comprising the New Haven Register and seven other daily newspapers, are running stories put together by an outfit called United Robots. MassLive’s stories are behind a hard paywall, but here’s a taste from the Register of what such articles look like.

United Robots, a Swedish company, touts itself as offering “news automation at massive scale using AI and data science.”

Last year I wrote about artificial intelligence and journalism for GBH News. I’m skeptical, but it depends on how you use it. In some ways AI has made our lives easier by, for instance, enhancing online search and powering the inexpensive transcription of audio interviews. But using it to write stories? Not good. As I wrote last year:

Such a system has been in use at The Washington Post for several years to produce reports about high school football. Input a box score and out comes a story that looks more or less like an actual person wrote it. Some news organizations are doing the same with financial data. It sounds innocuous enough given that much of this work would probably go undone if it couldn’t be automated. But let’s curb our enthusiasm.

Using AI to produce stories about real-estate transactions may seem fairly harmless. But let me give you an example of why it’s anything but.

In November, I accompanied Tom Breen, the managing editor of the New Haven Independent, as he knocked on the doors of houses that had been foreclosed on recently. The Independent is a digital nonprofit news site.

A note Breen left behind asking the resident to call him. (Phone number removed.)

Breen has spent a considerable amount of time and effort in housing court and poring through online real-estate transactions. From doing that, he could see patterns that had emerged. Like Boston and many other cities, New Haven has experienced an explosion in real-estate prices, and a lot of owners are flipping their properties to cash in. In too many cases there are victims — low-income renters whose new landlords, often absentee, jack up the rents. Breen takes the data he’s gathered and rides his bike into the neighborhoods, knocking on doors and talking with residents. It’s difficult, occasionally dangerous work. Once he was attacked by a pit bull.

We didn’t have much luck on our excursion. No one was home at either of the two houses we visited, so Breen left notes behind asking the residents to call him.

“If investors are swapping properties at $100,000, $200,000 above the appraised value and tens of thousands of dollars above what they bought it for two days prior,” Breen told me, “all that can do is drive up costs that are passed down to the renters — to the people actually living in the building.”

The result of Breen’s enterprise has been a series of stories like this one. The lead:

Tenants of a three-family ​“lemon” of a house on Liberty Street are wondering how two landlords managed to walk away with $180,000 by double-selling a property that they say remains a dump.

You’re not going to get that kind of reporting from artificial intelligence.

Now, of course, you might argue — and some have, as I noted in my GBH News piece — that AI saves journalists from drudge work, freeing them up to do exactly the kind of enterprise reporting that Breen does. But story ideas often arise from immersion in boring data and sitting through lengthy proceedings; outsource the data collection to a robot, and it’s likely that will be the end of it.

Bad sign: Here’s how Breen and I were greeted at one foreclosed-upon property. (Names removed.)

At the corporate chains that own so many of our newspapers, there’s little doubt that AI will be used as just another opportunity to cut. Hearst and Advance, the national chain that owns The Republican, are not the worst or most greedy newspapers chains by any means. But both of them have engaged in more than their share of cost-cutting over the years.

And it’s spreading. United Robots’ U.S. clients include the McClatchy newspaper chain and The Atlanta Journal-Constitution, part of the Cox chain. No doubt the Big Two — Gannett and the groups owned by Alden Global Capital — won’t be far behind.

Could Sarah Palin, of all people, be the catalyst who tears down libel protections for the press?

By

On January 26, 2022

In First Amendment, Media

Sarah Palin. Photo (cc) 2021 by Gage Skidmore.

Previously published at GBH News.

For the past several years, a few conservative judges have been saying they’re ready to do what was once unthinkable: reverse the libel protections that the press has enjoyed since the 1964 New York Times v. Sullivan decision.

The threat began with Supreme Court Justice Clarence Thomas, who wrote in 2019 that he believed it was time to return libel jurisdiction to the states. It accelerated in early 2021, when Laurence Silberman, an influential judge on the U.S. Court of Appeals for the District of Columbia, called Times v. Sullivan “a profound mistake.” And it reached a crescendo of sorts last fall, when Supreme Court Justice Neil Gorsuch said that he, too, thought the time had come to revisit what has been settled law for nearly 60 years.

Soon an opportunity may arrive for Thomas and Gorsuch to act on their words — and it comes in the unlikely person of Sarah Palin, the former Alaska governor and Republican vice presidential candidate whose caustic attacks on “the lamestream media” presaged the Age of Trump.

Palin is suing The New York Times for libel, claiming that a 2017 editorial tying her incendiary rhetoric to the 2011 shooting of then-congresswoman Gabrielle Giffords — a crime that also claimed the lives of six people — was false and defamatory. Jury selection in the long-delayed trial had been set to begin this past Monday in U.S. District Court. Then we learned that Palin had tested positive for COVID-19. “She is of course unvaccinated,” said Judge Jed Rakoff. Yes, of course. And the proceedings have been delayed until Feb. 3.

There is no question that there were mistakes in the Times editorial, published after a gunman shot and injured several members of Congress, including U.S. Rep. Stephen Scalise. The Times compared the event to the Giffords shootings and noted that Palin’s political action committee had published a map on Facebook with gunsights over the districts of several members of Congress it hoped to defeat — including Giffords.

After that, things went awry. First, the editorial originally stated that the map targeted “electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.” In fact, the map targeted only the districts, not the members themselves. More consequentially, the editorial tied the map to the shootings, stating: “In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear.” (You can read the original Times editorial here, at the Internet Archive; the revised and corrected version is here. You can see the map here.)

There’s an old saying that bad cases make bad law, and this may prove to be a bad case. Palin may be an unsympathetic figure, but the Times is the epitome of an arrogant, out-of-touch institution — the very symbol of the liberal establishment. Worse, its editorial really did falsely claim that the Palin map led directly to the Giffords shootings. In fact, there is no evidence that Loughner, the mentally ill gunman, ever even knew about Palin’s ad.

So why does this matter? Under the Times v. Sullivan standard, Palin, as a public figure, can’t win her suit unless she is able to show that the Times acted with “actual malice” — that is, that it knew what it had published was false or strongly suspected it was false, a standard known as “reckless disregard for the truth.”

In fact, as Bill Grueskin wrote in an in-depth overview of the case for the Columbia Journalism Review last fall, there is more than ample evidence that the Times acted out of sloppiness, not venality. The then-editorial page editor, James Bennet, added the errors while he was editing the piece, apparently oblivious to the actual facts. (Bennet’s tenure came to an end in 2020 after he ran an op-ed by U.S. Sen. Tom Cotton calling for military force against Black Lives Matter protesters. It turned out that Bennet hadn’t even stirred himself to read Cotton’s screed before publication.)

The whole point of the Times v. Sullivan decision is to protect the media from libel actions brought by public officials and public figures on the basis of inadvertent or careless mistakes, which is what seems to be at issue in the Palin case. But will a jury see it that way?

A couple more points about the Palin case.

First, I haven’t seen much emphasis in pretrial coverage on the Times’ original description of the gunsights on Palin’s map as being over the members of Congress (suggesting that photos of them were used) rather than over their districts. It will be interesting to see how much Palin’s lawyers make of that once the trial begins.

Second, and more substantively, is that in order for a libel suit to succeed, the plaintiff must prove what was published about them was false and defamatory. And here’s where I find myself wondering how strong a case Palin actually has. The most significant falsehood in the Times editorial had nothing to do with anything that Palin or her PAC said or did; rather, it was the assertion that Loughner was incited to violence by the Palin map.

It remains an undeniable fact that Palin’s PAC published a map with gunsights over the districts of the 20 Democrats, accompanied by such belligerent rhetoric as: “We’ll aim for these races and many others. This is just the first salvo in a fight to elect people across the nation who will bring common sense to Washington. Please go to sarahpac.com and join me in the fight.”

Given that, how can Palin claim that the Times published anything false about her? What she did was mind-bogglingly irresponsible, and I’m not sure why it matters that her actions did not lead to any actual violence.

I put the question to a couple of First Amendment experts. One, Boston lawyer Harvey Silverglate, said that the Times’ (mostly) truthful description of Palin’s actions should cut against Palin’s libel claims. “Since the Times accurately described what Palin did,” Silverglate told me by email, “it would not matter whether it actually incited violence.

Taking a different view was Justin Silverman, a lawyer who is executive director of the New England First Amendment Coalition. “Just because Loughner didn’t use the map as motivation, [that] doesn’t mean that readers of the NYT weren’t told that he did — which arguably is the same as being told that Palin incited the violence and is responsible for that violence by publishing her map,” he said in an email. Silverman added: “By incorrectly saying that Loughner was motivated by the map, isn’t the NYT also incorrectly saying that Palin incited Loughner by publishing it?”

Nevertheless, Silverman said the Times should prevail if it is able to prove that its errors resulted from “sloppy journalism” rather than actual malice.

Which brings us back to where we started. Regardless of whether Palin wins her case, it seems likely that it will begin to wend its way through the appeals process — and perhaps to the Supreme Court.

Historically, conservative as well as liberal justices have supported strong First Amendment protections. But now we have two justices who appear ready to modify or overturn a vitally important precedent. And we are already seeing signs that the six conservative justices may be willing to overturn longstanding precedents such as Roe v. Wade, the 1972 case that guarantees the right to an abortion.

Powerful institutions are held to account by a powerful press. Without Times v. Sullivan, news organizations are likely to shy away from investigative reporting for fear of losing libel cases because of carelessness or unavoidable mistakes.

It would be a bitter irony if Sarah Palin, of all people, proves to be the vehicle through which the media are taken down.

The First Amendment and Mayor Wu: What press restrictions and vile demonstrations have in common

By

On January 19, 2022

In First Amendment

Photo of protesters by Saraya Wintersmith for GBH News

Previously published at GBH News.

Over the past week, Boston Mayor Michelle Wu has been caught up in two seemingly unrelated controversies. What they have in common is that they touch on important First Amendment issues.

In the first instance, her office sent out a poorly worded advisory asking that reporters keep their distance from homeless people while city workers removed their encampment at Massachusetts Avenue and Melnea Cass Boulevard. In the second, hate-spewing demonstrators have been gathering in front of Wu’s house in Roslindale to protest a requirement that city employees be vaccinated against COVID-19 and that restaurants and other businesses mandate vaccines.

The “media guidelines” were sent out on Jan. 11, the day before the city cleared the area around Mass. and Cass. Reporters and photographers were “advised” to stay 50 feet away from individuals; to refrain from capturing images of individuals’ faces; and to “allow enough space for outreach workers to engage with individuals in private.”

The 50-foot request was later amended to 10 feet — an improvement, but still not enough for reporters to walk up to people and ask if they’d like to be interviewed. “As soon as I saw the guidelines, I emailed the press office and said ‘You can’t tell us how to report,’” Boston Globe columnist and associate editor Adrian Walker wrote in a public Facebook comment.

Kelly McBride, senior vice president and chair of the Craig Newmark Center for Ethics and Leadership at the Poynter Institute, also took a dim view of the advisory.

“I’m always wary when government officials start telling the press how to behave ethically,” she said in an emailed comment. “This may sound shocking, but sometimes government folks are more interested in avoiding accountability for their actions and also making themselves look good than they are in nurturing a free press that serves the public interest.”

Despite liberal use of the word “please,” it’s unclear whether City Hall intended the guidelines to be mandatory; the mayor’s press office declined to comment. In any case, it doesn’t appear that there were any serious efforts at enforcement, as reporters were able to interview homeless people while outreach workers were moving through the area.

“City officials came over to me and asked me not to take pictures of people’s faces, which I wouldn’t have done anyway without permission but I appreciated — they also told me to back up and give space, but mostly I was fine interviewing people,” my GBH News colleague Tori Bedford told me by email. She added: “I think the intention was to prevent the callous treatment of people that occurred last time, but it neglected how the press acts as an accountability agent to witness any callous treatment by the city and it’s not the city’s place to tell us how to do our jobs on a public street.”

As Bedford said, there have been reports of journalists acting insensitively toward homeless people during previous operations at Mass. and Cass. But it’s crucial that the media be allowed access to make sure that city workers are treating people with respect as well. Besides, the encampment was on public property, and attempting to restrict where reporters could go and what they could do was a violation of the First Amendment’s guarantee of freedom of the press.

Paul Bass, the editor and founder of the New Haven Independent, made another important point in a public comment: the guidelines denied agency to the very people the city was attempting to protect. “I agree such rules are outrageous,” he wrote. “They are also patronizing and controlling: homeless people, like anyone else, have the right to decide if they want to tell their story!”

Veteran political analyst Jon Keller of WBZ-TV (Channel 4) said Mayor Wu’s advisory appeared to go beyond anything he had seen from Mayors Tom Menino or Marty Walsh.

“Without knowing for sure, I suspect that they didn’t want any embarrassing feedback from these interactions to be broadcast,” Keller said. “It had the whiff of something drawn up by a PR or a press aide with the mayor’s image and the image of her administration foremost in mind. Now, that may well be their job as they see it, but this is not the right time or situation.”

Not to make too much of this — despite the admonition to keep 10 feet away, the media were not prevented from doing their jobs. But if city officials had problems with the way individual journalists had behaved on previous occasions, they should have dealt with them directly rather than send out a blanket set of rules.

***

How much abuse should elected officials have to put up with when they’re at home with their families? In recent days, a small group of bullhorn-wielding protesters has been gathering in front of Mayor Wu’s house in Roslindale to denounce her vaccination mandate. Wu lives in a two-family home with her husband, her two children and her mother.

As Wu tweeted over the weekend, the rhetoric has become increasingly ugly. “They’ve shouted on megaphones that my kids will grow up without a mom bc [because] I’ll be in prison,” she said. “Yesterday at dinner my son asked who else’s bday [birthday] it was bc the AM chant was ‘Happy birthday, Hitler.’”

In an ideal world, protesters would restrict their activities to public venues and events and leave political figures alone when they’re home. But social mores are breaking down and incivility is on the rise. And it’s not just Wu. Gov. Charlie Baker’s home in Swampscott has been the site of multiple protests. There has even been speculation that the protests were among the reasons Baker decided not to seek a third term. Certainly Wu’s and Baker’s neighbors didn’t sign up for such abuse.

The challenge is that any action against such demonstrations would clash with First Amendment guarantees of freedom of speech, assembly and petitioning for the redress of grievances. The protesters are, after all, on public streets.

State Rep. Steven Howitt, a Seekonk Republican, has filed legislation to ban demonstrations within 100 yards of an elected official’s home. If such a bill were to become law, there’s little doubt that it would face a constitutional challenge. But it’s also possible that a narrowly drawn statute focusing on noise and intrusiveness would pass muster as a content-neutral time-place-and-manner restriction, according to the noted civil-liberties lawyer Harvey Silverglate.

The alternative would be to move high-profile politicians into official residences away from residential neighborhoods. That would be a shame. It strikes me as a good thing that our leaders live among us, even if the benefit is mainly symbolic. Sadly, that may no longer be possible.

Why The New York Times’ acquisition of The Athletic could create an existential crisis for local news

By

On January 12, 2022

In Local News, Media

Previously published at GBH News.

Imagine that you’re the editor of a big-city daily newspaper whose reporting staff has been slashed by its corporate owner. You struggle to cover the basics — local politics, business, the arts. But you’ve managed to preserve a fairly robust sports section. After all, a lot of your readers are avid fans. If they no longer needed to come to you for coverage of their favorite teams, then your circulation, already sliding, would fall off a cliff.

Well, your worst nightmare just came true. The New York Times Co.’s announcement last Thursday that it was buying The Athletic represents nothing less than an existential crisis for regional newspapers.

The Athletic is a five-year-old website that covers sports — not just national sports, but local sports as well. If sports is the only reason you haven’t stopped subscribing to your local newspaper, that’s about to change. You’ll soon be able to buy a digital subscription to The New York Times that includes The Athletic’s coverage.

“This acquisition should make mid-market metro newspaper publishers shudder,” wrote David Skok, a former top editor at The Boston Globe who’s now the editor of a Canadian business website he founded called The Logic. “The Times can now offer a unique bundle of international, national and local news that offers readers a value proposition better than that of many local newspapers with eroding sports coverage and whose news sections largely consist of wire copy from The Associated Press, Reuters and even The New York Times’ syndication service.”

The Times Co.’s acquisition of The Athletic was a certified big deal. The company paid $550 million in cash, making it the Times’ largest takeover since it purchased The Boston Globe for $1.1 billion in 1993, according to Alex Webb of Bloomberg Businessweek. (The Times Co. sold the Globe to Red Sox principal owner John Henry in 2013 for $70 million — among the more devastating markdowns in media history.)

The Athletic, with 1.2 million subscribers, will help push the Times’ paid circulation for all of its projects from about 8 million closer to its goal of 10 million. The Athletic is currently a money-loser, but, as Webb writes, the Times Co. will seek to close the gap by selling more advertising and by “cross-selling the products: persuading existing Times subscribers to pay for the Athletic and vice versa.”

That strategy has already proven successful with other Times products such as its Cooking app and Wirecutter, a consumer recommendation site that it acquired several years ago. Although the Times Co. hasn’t announced exactly how The Athletic will be priced, it seems likely that it will be included with its All Access digital subscription and sold separately to those who have a cheaper Basic subscription, or no Times subscription at all.

It’s the attractiveness of getting The Athletic bundled with an All Access subscription to the Times that has got to be causing local newspaper executives to break into a cold sweat. You might think that the best way for local newspapers to fight back is by offering quality. And, of course, there’s something to that. But cultural changes, not just newsroom reductions, put local news at an enormous disadvantage.

We are living at a moment when national trends trump anything taking place at the local level. We follow national news avidly — if not quite as obsessively as we did during Donald Trump’s presidency — while paying less and less attention to what is going on in our communities. Even local school committee races are dominated by national issues such as critical race theory rather than math scores and who can most effectively negotiate a new contract with the teachers union.

Given those trends, a high-quality regional paper like the Globe may not be safe from the Times-Athletic juggernaut. The economies of scale being what they are, an All Access subscription to the Times is actually a little bit cheaper than a digital subscription to the Globe. In addition, surely there is a contingent of Globe readers who come for the sports and don’t care all that much about the paper’s comprehensive regional coverage. It’s a good thing that the Globe’s sports reporting continues to be as strong as it is.

Aron Pilhofer of Temple University puts it this way: “The Times has placed itself in direct competition with every local news site for the same pool of subscribers. And since the average number of news sites people will pay for is one, that is very bad news indeed for local legacy news organizations.”

What’s especially disconcerting is that the Times is pulling away from the journalistic pack to an extent that couldn’t have been imagined a few years ago. Since the late aughts, the paper has avoided a close call with bankruptcy, moved far ahead in its competition with the resurgent Washington Post and now is threatening to overwhelm large swaths of the regional media ecosystem.

At a time when local news is in crisis, with newsrooms downsizing and papers closing, the Times’ dominance is starting to look like a threat to our ability to inform ourselves about what’s taking place in our communities and neighborhoods.

The acquisition of The Athletic may be good for the Times. It remains to be seen whether it’s good for democracy.

Axios Local is coming to Boston. Will it find a place on your smartphone?

By

On January 5, 2022

In Media

Axios CEO Jim VandeHei on “Morning Joe.” Photo (cc) 2018 by MSNBC.

Previously published at GBH News.

Axios is building out its network of local newsletters. Here’s what it means to you:

  • Axios Local, as the initiative is called, will grow from 14 to 25 cities in the coming months, according to CEO Jim VandeHei — and could eventually reach as many as 100.
  • Why it matters: Boston will have its own Axios Local newsletter by mid-2022.
  • What you can expect: Axios says that “local reporters will deliver scoops, offer sharp insights and curate the best local reporting in our proven ‘Smart Brevity’ style.”
The big picture: Go deeper (1,038 words, 5 min. read).

All right, all right. You get the idea. Axios, the jittery, made-for-mobile news site that battles short attention spans with quick takes, boldface type and bullet points, has been expanding over the past year from national to regional news by unveiling a number of local daily newsletters.

Shades of its archrival, Politico? Well, not really. Because while Politico has gone deep with insider information for political junkies with newsletters like its Massachusetts Playbook, Axios is pursuing something different: general-interest news, heavy on business, lifestyle and entertainment, designed mainly to appeal to the young urban tech crowd.

In a “manifesto” released over the weekend, Axios put itself forth as nothing less than the savior that will solve the local news crisis. “Everyone needs — and deserves — high-quality reporting to understand the changes fast unfolding where they live,” the statement says in part. “Axios Local is the solution, synched elegantly to your smartphone.”

The trouble is, Axios Local is setting up shop in places that could hardly be considered news deserts. Instead of, say, Axios Worcester, Axios Newark or Axios Small City without a Newspaper, we’re getting newsletters targeted at affluent urban audiences in places that are already reasonably well served. And the Axios sites are so thinly staffed that it’s going to be difficult for them to make a real difference.

Let’s take Denver as an example. Thanks to the hollowing-out of The Denver Post at the hands of its hedge-fund owner, Alden Global Capital, Denver is often cited as a place that no longer has reliable regional journalism. But is that actually the case?

Not really. Consider that, even in its diminished state, the Post has a newsroom of about 60 full-timers. Colorado Public Radio has more than 60, including its Denverite website. The Colorado Sun, a highly regarded digital start-up, has 23 and continues to grow. About 90 full-time journalists work for a combined newsroom operated by The Gazette of Colorado Springs, Colorado Politics and the start-up Denver Gazette. Denver’s venerable alt-weekly, Westword, has about a half-dozen.

And Axios Denver? Two. As staff reporters John Frank and Alayna Alvarez put it in the introductory message you get when you subscribe, their aim is to provide some original journalism, curation from other news sources and “a little fun at the same time with everything from local beer picks to new outdoor adventures.”

Tuesday’s newsletter, for instance, ranged from an update on Denver’s homeless crisis to the latest on the Colorado wildfires, as well as how to take part in “Dry January.” (No, thank you.) The past week or so has consisted almost entirely of fire updates along with changes to the trash pickup schedule, things to do during the holidays and Colorado’s best beer and breweries.

Now, I can imagine that this would appeal to younger, well-educated professionals who don’t have much time for news and who are looking to connect with those of similar interests. But it’s certainly no competition for other news organizations in the Denver area.

And if that’s the case in Denver, it’s hard to imagine what sort of mindshare Axios is going to be able to command in a place like Boston, which has a healthy and growing daily newspaper, two thriving news-oriented public radio stations, a second daily, a multitude of television news operations and a number other niche and hyperlocal media. Even Politico’s aforementioned Massachusetts Playbook has competition in the form of State House News Service’s Masster List and CommonWealth Magazine’s Daily Download.

Nor will Axios Boston have the quick-hit general-interest-newsletter field to itself — although it is likely to be more robust than BosToday, a newsletter that launched recently under the auspices of a national network called 6AM City. BosToday promises “the inside scoop into what’s happening in your city in 5 minutes or less,” which I guess means that you’ll be a well-informed citizen by 6:05.

It will be interesting to see whether these advertising-backed new ventures can make enough money to justify their investment. In September, Sara Guaglione of Digiday reported that Axios Local was claiming it would pull in ad revenues of $4 million to $5 million in 2021, which isn’t bad for an estimated 30 to 40 full-time journalists; the eventual goal is to triple its staff. Rick Edmonds of Poynter reported around the same time that 6AM City has similar ambitions — a staff of about 30 that its executives hoped to build to around 100. The operation is being funded by venture capital, so look out below.

Axios Local is just the latest act in a drama that goes back to 2007, when Washington Post journalists VandeHei and John Harris left to found Politico after being turned down in their bid to launch a political website under their control inside the Post. They were joined by another Post journalist, Mike Allen, who wrote a widely read morning newsletter.

Politico is often accused by media observers (including me) of covering politics as a sporting event for insiders, and Allen’s newsletter was sometimes accused of crossing an ethical line by providing favorable coverage of advertisers, as the Post’s Erik Wemple has pointed out. But the project has certainly been successful.

Then, in 2017, VandeHei and Allen left to found Axios, setting up an intense rivalry with their former colleagues. Last year Politico was sold to a controversial German company called Axel Springer. According to Ben Smith, soon to be formerly of The New York Times, Axel Springer wanted to buy Axios, too, but VandeHei ended up nixing the deal. You have to imagine that there’s still some chance of that happening.

Axios Local began with Axios’ acquisition of the Charlotte Agenda in late 2020. The site, renamed Axios Charlotte, now has a staff of seven journalists, including an investigative reporter, according to its masthead. If the rest of Axios Local can grow into something equally robust, then VandeHei will genuinely have something to brag about.

For the moment, though, Axios Local is little more than an interesting project to watch as it tries to compete in a local news landscape that isn’t quite as barren as VandeHei and company seem to think it is.

It would have been nice if they’d genuinely tried to address the dearth of local journalism in places that have little or no coverage. Instead, they’re going where the money is. It’s an old story, and you don’t need boldface or bullet points to tell it.

A New York state judge’s ruling against the Times imperils First Amendment rights

By

On December 29, 2021

In First Amendment, Media

2009 photo by Dan Kennedy

Previously published at GBH News.

What is New York Supreme Court Judge Charles D. Wood thinking?

On Christmas Eve, Wood issued an order forbidding The New York Times from publishing confidential documents it had obtained detailing legal advice given to Project Veritas, a right-wing organization that specializes in hidden cameras and infiltration. Moreover, Wood ruled that the Times would have to return the documents to Project Veritas and destroy any electronic copies that it held.

“In defiance of law settled in the Pentagon Papers case,” said Times publisher A.G. Sulzberger in a statement, “this judge has barred The Times from publishing information about a prominent and influential organization that was obtained legally in the ordinary course of reporting.”

The decision follows a temporary ruling Wood issued more than a month ago to stop the Times from making further use of the documents. The Times appealed that ruling, but an appellate court declined to act. (On late Tuesday, a state appeals court ruled that the Times does not have to turn over or destroy the documents in its possession, at least for now.)

Here’s some background. Last spring, Project Veritas, headed by the notorious James O’Keefe, sued the Times for libel, claiming that the Times’ reference to two Veritas videos about voter fraud as “deceptive” was false and defamatory.

Then, in an unrelated matter, the Times in November published a story following up news that federal officials were investigating Veritas’ possible involvement in stealing a diary kept by Ashley Biden, President Joe Biden’s daughter. In that story, the Times quoted from confidential documents that Veritas had received from its lawyers on how to carry out its dubious stunts while avoiding legal trouble. Those documents predated Veritas’ lawsuit against the Times by several years. The Times contends they were obtained through its reporting, not through pretrial discovery in the libel case.

And by the way, don’t be fooled by Wood’s lofty title — there are 62 supreme courts in New York State. He is, in fact, a trial-court judge, elected to that position in 2009 after serving as an aide to former state senator Nicholas Spano, a Republican who pleaded guilty to federal tax-evasion charges in 2012.

But you don’t have to have a sterling judicial pedigree to know that if the First Amendment stands for anything, it stands for the proposition that the government may not ban anyone from publishing or broadcasting. Yes, there are certain narrowly drawn exceptions; serious breaches of national security, incitement to violence and obscenity may all be censored.

Still, the rule against prior restraint is robust enough to have led the Supreme Court to allow the Times and The Washington Post to publish the Pentagon Papers, the government’s own secret history of the Vietnam War. It also led a federal judge in 1979 to agonize over a decision to prohibit The Progressive, a small left-wing publication, from publishing an article on how to build an atomic bomb.

“A mistake in ruling against The Progressive will seriously infringe cherished First Amendment rights,” U.S. District Court Judge Robert Warren wrote. But, he added portentously, “A mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot.” (Warren imposed a temporary restraining order and told The Progressive and the government to work out a compromise. That order was rendered moot when a different publication ran a similar article.)

No such agonizing over the prospect of muzzling the press is evident in Wood’s opinion. Take, for instance, his ruling that the information contained in the confidential documents the Times reported on are not a matter of “public concern.” A finding to the contrary might have opened the door to the Times’ publishing the documents despite Wood’s erroneous assertion that the attorney-client privilege is at stake.

“Undoubtedly, every media outlet believes that anything that it publishes is a matter of public concern,” Wood wrote. “The state of our nation is that roughly half the nation prioritizes interests that are vastly different than the other half.”

This is Wood setting himself up as editor, deciding what’s newsworthy and what isn’t. The documents concerned advice from Project Veritas’ lawyers on how to avoid legal trouble when carrying out its undercover operations. Surely that’s of public concern, especially since the courts have set the threshold for newsworthiness at a very low level precisely so that they can avoid playing editor.

But the larger issue here is Wood’s breathtakingly expansive definition of what’s covered by the attorney-client privilege. It’s true, of course, that if the Times had simply reported on the contents of documents Project Veritas had turned over to the Times’ lawyers during pretrial discovery in the libel case, the judge would be justified in his outrage. But there is no evidence to contradict Sulzberger’s assertion that the documents were obtained in the normal course of reporting — as Wood concedes.

“There is nothing in the record to show how the Times obtained the privileged memoranda that belong to Project Veritas,” Wood wrote. “That information is solely within the Times’ knowledge and possession, and it has not offered any explanation beyond vaguely stating that the memoranda were obtained through its ‘newsgathering effort.’”

Wood follows that up with a weird, gratuitous suggestion that perhaps the Times obtained the documents through bribery. And then, in ruling against the Times, Wood wrote:

“The Times is perfectly free to investigate, uncover, research, interview, photograph, record, publish, opine, expose or ignore whatever aspects of Project Veritas its editors in their sole discretion deem newsworthy, without utilizing Project Veritas’ attorney-client privileged memoranda.”

In other words, the Times is not free to publish or report on the documents in question even though it claims to have obtained them in the normal course of reporting, and even though Wood admits there is no evidence to the contrary.

This is an outrage against the First Amendment. “The opinion is jaw-dropping in its constitutional illiteracy,” wrote Ruth Marcus in The Washington Post.

Added Stephen J. Adler and Bruce D. Brown of the Reporters Committee for Freedom of the Press: “The First Amendment does not tolerate the idea that speech can be censored in advance, even if it might be punished after the fact. This is because prior restraints do not just ‘chill’ speech on public affairs, they ‘freeze’ it, which can give the government and private litigants a powerful tool to hide information and to skew public debate.”

What’s worse is that Wood’s ruling provides an incentive for the target of investigative reporting to sue the news organization and then use that suit to shut down any further reporting by claiming attorney-client privilege. Theodore J. Boutrous Jr., a media lawyer whose clients include CNN, put it this way in an interview with the Times:

“It’s an egregious, unprecedented intrusion on news gathering and the news gathering process. The special danger is it allows a party suing a news organization for defamation to then get a gag order against the news organization banning any additional reporting. It’s the ultimate chilling effect.”

The Times says it plans to appeal Wood’s decision. Good luck with that. Although it presumably would take a few years, eventually the case might make its way before the U.S. Supreme Court. With a right-wing majority, the court could, if it chose, inflict incalculable damage.

We should all hope that Wood’s assault on freedom of the press is halted at the state level — and that this threat to the First Amendment fades to the obscurity it deserves.

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