Lauren Chooljian – Media Nation

Soon-Shiong tries (and fails) to bully Oliver Darcy; plus, Israel and the press, and prison for a harasser

Los Angeles Times owner Patrick Soon-Shiong. Photo (cc) 2014 by NHS Confederation.

Los Angeles Times owner Patrick Soon-Shiong, in an interview with Oliver Darcy on Tuesday, comes across as an entitled bully who wields disingenuous hyperliteralism as a weapon. The billionaire medical-device entrepreneur answered Darcy’s entirely reasonable questions with absurd variations on the theme of How do you know that?

Example: Soon-Shiong has asked Trump-friendly CNN talking head Scott Jennings to serve on the new editorial board he’s assembling after killing an endorsement of Kamala Harris just before the election. In response to Darcy’s asking about the wisdom of naming a truth-averse Trump defender to the board, Soon-Shiong replied:

Scott Jennings — you just said his job is to defend Donald Trump. Did you find that in his job description with CNN? I don’t know if you know that as a fact. I love to work with facts. So when you make that statement, just reflect on that. You just made that statement. Did you make that statement based on having Scott Jennings’ employment agreement with CNN?

Then there was this:

Dr. Patrick Soon-Shiong, the billionaire owner of the Los Angeles Times, believes it is an “opinion,” not a matter of fact, that Donald Trump lies at a higher rate than other politicians.

“A lot of politicians lie a lot,” Soon-Shiong declared to me on the phone Tuesday evening, pushing back against the assertion that Trump is an abnormality in American politics.

As the Pulitzer Prize-winning project PolitiFact put it earlier this year: “It’s not unusual for politicians of both parties to mislead, exaggerate or make stuff up. But American fact-checkers have never encountered a politician who shares Trump’s disregard for factual accuracy.”

Then again, Soon-Shiong’s assertions were not meant as genuine answers. They weren’t even meant to obfuscate. Rather, they were intended to establish dominance over Darcy, an independent media reporter. The pattern is clear: Darcy asks a legitimate question; Soon-Shiong responds in a way that’s intended to belittle Darcy; and then Darcy has to choose between pushing back or moving on.

Soon-Shiong has proved to be a mixed blessing for the LA Times since buying it in 2018. At various times he’s both expanded and cut the newsroom, although even the cuts haven’t been as devastating as a corporate chain owner might impose.

But his respected executive editor, Kevin Merida, quit earlier this year amid reports that Soon-Shiong was interfering in news coverage on behalf of a rich friend (or, if you will, a rich friend’s dog). Then he killed the editorial board’s Harris endorsement. That was within his rights as the owner — but he handled it so badly with his last-minute timing and conflicting statements about his reasoning that the decision was greeted with resignations and canceled subscriptions.

Of course, The Washington Post is also dealing with the consequences of a high-handed decision to cancel a Harris endorsement just before the election. But whereas it’s not clear where the Post under billionaire Jeff Bezos is headed, the fate of the LA Times seems depressingly obvious.

Bezos, at least, compiled a solid track record as the Post’s owner from the time he bought it in 2013 until maybe a couple of years ago, when he seemed to lose his way, his interest or both. Soon-Shiong has been erratic from the beginning, and it’s getting worse.

Netanyahu, Trump and the press

In a possible preview of coming attractions, Israel’s government, led by Prime Minister Benjamin Netanyahu, is cracking down on Haaretz, a liberal newspaper that has been highly critical of the way that Netanyahu has prosecuted the war against Hamas. As CNN reported earlier this week:

Israel’s cabinet unanimously voted to sanction the nation’s oldest newspaper, Haaretz, on Sunday citing its critical coverage of the war following the October 7 Hamas attacks and comments by the outlet’s publisher calling for sanctions on senior government officials.

Haaretz, which is widely respected internationally, has provided critical coverage of Israel’s war following the Hamas attacks on October 7, including investigations into abuses allegedly committed by the Israel Defense Forces (IDF) as military operations expanded across Gaza and into neighboring Lebanon.

The sanctions include a ban on advertising in Haaretz and the cancellation of subscriptions for government employees and people who work for government-owned companies. Aluff Benn, Haaretz’s editor-in-chief, wrote a defiant piece for The Guardian that concludes:

[W]e will prevail over the recent Netanyahu assault, just as we prevailed over his predecessors’ anger and shunning. Haaretz will stand by its mission to report critically on the war and its dire consequences for all sides. The truth is sometimes hard to protect, but it should never be the casualty of war.

The sanctions represent a considerable ratcheting up of Netanyahu’s campaign against freedom of the press. Earlier this year, his government closed Al Jazeera’s operations in Israel, which was bad enough. Punishing a domestic news organization takes that one step beyond.

Don’t think Donald Trump, a Netanyahu ally, isn’t watching.

Meanwhile, the Committee to Protect Journalists reports that 137 journalists have been killed since the start of the Israel-Hamas war, which began with Hamas’ horrific terrorist attack against Israel on Oct. 7, 2023. Another 74 have been imprisoned. The CPJ says:

The Israel-Gaza war has killed more journalists over the course of a year than in any other conflict CPJ has documented. Since the beginning of the war, CPJ has stood in solidarity with the affected journalists and their families. Palestinian journalists have continued reporting despite killings, injuries, and arbitrary detention at the hands of Israeli forces, none of whom have been held accountable.

Prison for harassment ‘ringleader’

The long-running saga of a frightening harassment campaign directed at New Hampshire Public Radio journalist Lauren Chooljian and others appears to nearing its end. The U.S. attorney’s office in Boston issued a press release Monday reporting that 46-year-old Eric Labarge, described as the “ringleader,” has been sentenced to 46 months in prison, fined and ordered to pay restitution.

The release quotes U.S. Attorney Joshua Levy:

Mr. Labarge was the ringleader of a targeted, terror campaign that caused the victims — journalists exercising the First Amendment rights and the families — incredible fear and emotional harm. Mr. Labarge’s terror campaign sent ripples of fear throughout the journalism community and violated the bedrock principles enshrined in the Bill of Rights.

Although the release does not name Chooljian or the other victims, all the shocking details are otherwise included. Two other perpetrators were sentenced to prison earlier this year, and a fourth has pleaded guilty and is to be sentenced on Dec. 6.

You can learn more about the background of the case here.

The Committee to Protect Journalists warns that violence against the press is an ongoing crisis

A special report by the Committee to Protect Journalists warns that the anti-media animus that characterized the Trump presidency has continued unabated, and that it will continue to pose an ongoing threat to the safety of journalists regardless of who wins the presidential election.

Produced by CPJ journalist Katherine Jacobsen, the report, titled “On Edge: What the U.S. election could mean for journalists and global press freedom,” is chilling in its details and frightening in its broader implications. She writes:

Trump’s presidency has been widely seen as bad for press freedom. A 2020 CPJ report found that his administration escalated prosecution of news sources, interfered in the business of media owners, harassed journalists crossing U.S. borders, and used the Espionage Act — a law that has raised grave concerns about its potential to restrict reporting on national security issues — to indict WikiLeaks founder Julian Assange. At the same time, Trump undermined the credibility of news outlets by lashing out at reporters, often on the president’s social media feeds, as “corrupt,” “dishonest,” and “enemies of the people.”

On the 2024 campaign trail, Trump has threatened to further his anti-press agenda by strengthening libel laws; weakening First Amendment protections; prosecuting reporters for critical coverage; and investigating the parent company of NBC and MSNBC for the channels’ “vicious” news coverage. He has also called for National Public Radio (NPR) to be defunded. “They are a liberal disinformation machine,” he wrote of the public broadcasting organization on his Truth Social platform in an all-cap post. “Not one dollar!!!”

The denigration of U.S. media, coming at a time when shrinking newsroom budgets, the shuttering of local news publications, and record public mistrust of mainstream outlets have hampered their ability to counter the anti-press narrative, has continued to resonate in the years since Trump lost the 2020 election, helping to fuel extremist and fringe ideas on both the left and the right. The result is an increasingly precarious safety environment for reporters.

Much of the report comprises an overview of threats and violence directed against journalists starting with the attempted insurrection of Jan. 6, 2021, and continuing to the present. At least 18 journalists were assaulted during the rioting at the Capitol, and nine people have been charged.

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Amanda Andrade-Rhoades, a freelance photographer who was on assignment for The Washington Post that day, was injured in the melee and rioters threatened to shoot her.

“Generally speaking, I’m pretty good at compartmentalizing,” she told CPJ. “But hearing the audio of January 6th while covering the committee meetings, that’s still frankly very difficult for me. There was a moment during the hearings where they played a piece of footage where you can see a very close friend of mine running down the hallway … having to hide for her life.”

Other incidents covered by the report include:

The murder of Las Vegas Review-Journal reporter Jeff German by a public official who was angered by his reporting and the frightening online abuse directed at another Review-Journal reporter, Sabrina Schnur, after Twitter’s sociopath-in-chief, Elon Musk, unleashed his mob against her.
The harassment and vandalism experienced by New Hampshire Public Radio reporter Lauren Chooljian, her parents and her editor following her reporting on allegations of sexual misconduct against a local business owner. Four men have been charged under federal law and one has been sentenced to prison.
A dramatic increase in lawsuits against journalists and news organizations, including Anna Wolfe of Mississippi Today, whose Pulitzer Prize-winning reporting is the subject of a libel suit by the state’s former governor, Phil Bryant. The news organization is fighting an effort by Bryant to force it to turn over internal notes and other records.
Unprovoked attacks by police officers against journalists, including three photographers in Detroit who were injured by rubber bullets shot by an officer at a Black Lives Matter protest.

What happens in the U.S. affects press freedom globally, the CPJ report argues: “Over the past three decades, CPJ has documented how major policy shifts and the curtailment of civil liberties in the U.S. have been used to justify similar measures curbing press freedoms for journalists in other countries.” Examples cited include Morocco, Russia, Haiti, Palestinian journalists caught up in the Israel-Gaza war, and Brazil under former president (and Donald Trump ally) Jair Bolsonaro.

The report concludes with a letter sent to the two presidential candidates, Kamala Harris and Donald Trump, asking that they sign a pledge to adopt a “respectful” tone with journalists, to take action when journalists are threatened with or subjected to violence, to support a federal shield law known as the PRESS Act that would protect reporters from the prying eyes of the government, and to promote press freedom around the world.

“The Harris campaign acknowledged receipt of CPJ’s letter,” CPJ says, “but neither candidate had signed the pledge by CPJ’s requested deadline of September 16.”

A predictably uneventful interview; plus, media links and observations for your weekend

Dana Bash interviews Vice President Kamala Harris and Minnesota Gov. Tim Walz

Labor Day weekend is upon us, and we’re getting away for a few days. Before we do, though, here are a few links and observations.

• In Thursday night’s CNN interview, Dana Bash’s questions were predictable, Vice President Kamala Harris’ and Gov. Tim Walz’s answers were fine, and that was that. I don’t know why anyone thought two experienced politicians were going to have any trouble in such a setting. Here’s a theory I haven’t heard from anyone else: Donald Trump invariably runs off the rails, and President Biden has an increasingly difficult time expressing himself. We’d forgotten what these things normally look like.

• A New Hampshire man named Taylor Cockerline has been sentenced to 27 months in prison and three years of supervised probation for his role in harassing and intimidating New Hampshire Public Radio journalist Lauren Chooljian, her parents and her editor, according to the U.S. attorney’s office in Boston. Co-defendants Eric Labarage and Michael Waselchuck have pleaded guilty and are awaiting sentencing, while a fourth defendant, Keenan Saniatan (identified only as “Saniatan” in the news release), will reportedly plead guilty on Sept. 5. Earlier, more in-depth coverage of this bizarre case is here.

• In other New Hampshire media news, The News and Sentinel, a weekly paper in Colebrook, is shutting down after the Harrigan family, which owns the 154-year-old paper, was unable to find a buyer. The InDepthNH story on the closure contains a lot of fascinating details about the paper, especially a 1997 incident when a gunman killed four people, including the editor. The late publisher, John Harrigan, was nominated for a Pulitzer Prize for his coverage of the shooting. The News and Sentinel’s slogan, by the way, should be a model for other news outlets: “Independent but Not Neutral.”

• Barnes & Noble is opening 58 new stores in 2024, and media newsletter writer Bo Sacks says that’s good news for the ailing magazine business: “B&N has a terrific well curated newsstand for magazines. 54 [sic] new newsstands may not sound like much, but it will be a big national help in magazine sales.” By the way, Barnes & Noble founder Leonard Riggio died earlier this week at 83.

• Veteran tech writer Mathew Ingram is leaving the staff of the Columbia Journalism Review, where he’s been working since 2017 after earlier stints at the late, lamented Gigaom and, before that, The Globe and Mail of Toronto. Ingram is a calm, sometimes contrarian voice at moments when everyone else’s hair is on fire, and he is well worth paying attention to. No word on what’s next, though he says he’ll continue to write for CJR from time to time. Best wishes to him.

Pulitzer congrats to Lookout Santa Cruz, featured in our book and podcast

Congratulations to Lookout Santa Cruz, a digital local-news startup that on Monday won the Pulitzer Prize for Breaking News Reporting. The site was recognized for its reporting on a January 2023 flood and its aftermath. In the words of the Pulitzer board, Lookout Santa Cruz published “detailed and nimble community-focused coverage, over a holiday weekend, of catastrophic flooding and mudslides that displaced thousands of residents and destroyed more than 1,000 homes and businesses.” Here’s what Lookout Santa Cruz had to say about winning the award:

We reported quickly and carefully, vetting often scattered and confusing facts, making sure we got out the accurate news and information essential to individual and community decision-making. We documented in words, images and videos what people from the reaches of San Lorenzo Valley to Pajaro to Capitola were experiencing. We called on President Joe Biden to visit beleaguered South County as well as jaw-dropping coastal damage. We did what we always do, but at warp speed and still made sure that our deep reporting work got its usual double edits by our experienced, diligent editors.

Ellen Clegg and I looked at the Santa Cruz news ecosystem in our book, “What Works in Community News.” The region is served by two digital startups — Santa Cruz Local, originally a for-profit that launched in 2019 and that converted to nonprofit status after our book was finished, and Lookout Santa Cruz, a for-profit public benefit corporation right from the start. (A public benefit corporation is a for-profit that is legally required to operate with a public service mission.) We’ve also offered more depth on the two news organizations through our podcast, interviewing Santa Cruz Local co-founder Kara Meyberg Guzman and Lookout Santa Cruz founder Ken Doctor.

Lookout Santa Cruz is a high-profile, well-funded project that received $2.5 million in startup money from the likes of the Knight Foundation, the Google News Innovation Challenge and the Lenfest Institute for Journalism. Doctor, a former executive for a former newspaper chain, Knight Ridder, spent years writing about the business of news for publications such as Nieman Lab and his own blog, Newsonomics, which is now on ice.

Doctor’s entry into the Santa Cruz media scene was not without controversy. As we wrote in our book, “Another competing media outlet, the alternative weekly Good Times, greeted Lookout with a blast, claiming that Doctor was benefiting from the ‘false narrative’ that Santa Cruz was a news desert. Doctor responded by calling that ‘the greatest free publicity that we could ever get.'”

Guzman, too, expressed a bit of pique over Doctor’s arrival, telling us that she and her business partner, Stephen Baxter — unlike Doctor — had struggled to raise the money they needed to start Santa Cruz Local after leaving Alden Global Capital’s Santa Cruz Sentinel, though over time they were able to attract some money from Google and Facebook and build a viable business. Guzman described Santa Cruz Local’s mission as providing deep accountability journalism of local government and other institutions, while Doctor said Lookout Santa Cruz was aiming to become the “new primary news source” at a time when the Santa Cruz Sentinel was fading away.

Lookout Santa Cruz is also intended as the first in a series of Lookout Local sites. Maybe the Pulitzer will give Doctor’s project the prominence it needs to start building out his idea.

Two finalists of note

Lookout Santa Cruz was one of three projects profiled in “What Works in Community News” to receive Pulitzer recognition on Monday, though it was the only one to make it into the winner’s circle. Here are the organizations we followed that earned finalist recogition:

Mississippi Today, in Local Reporting, for a collaboration with The New York Times that offered a “detailed examination of corruption and abuse, including the torturing of suspects, by Mississippi sheriffs and their officers over two decades.” We interviewed Mississippi Today CEO Mary Margaret White on our podcast in November 2022. (Mississippi Today’s Anna Wolfe won a 2023 Pulitzer for her coverage of official corruption.)
The Texas Tribune, in Explanatory Reporting, for a collaboration with ProPublic and “Frontline” that reports on “law enforcement’s catastrophic response to the mass shooting at a Uvalde, Texas elementary school and also for documenting the political and policy shortcomings that have led to similar deadly police failures across the country.” The Tribune is the subject of a chapter in our book.

Courage recognized

When we think about courageous journalists, what usually comes to mind are war correspondents. But courage can be found closer to home, too — as in the case of Lauren Chooljian and her colleagues at New Hampshire Public Radio, who were subjected to frightening harassment and daunting legal challenges while they were reporting on “corruption and sexual abuse within the lucrative recovery industry.” For their efforts they were recognized as a finalist in the Audio Reporting category. And here is a New York Times story (free link) on their ordeal.

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Four indicted on federal harassment charges targeting NHPR journalists

A federal grand jury has indicted four men from New Hampshire in connection with what authorities allege was “a conspiracy to harass and intimidate two journalists employed by New Hampshire Public Radio (NHPR).” The case involves vandalism against the homes of NHPR reporter Lauren Chooljian, her parents, and her editor, Dan Barrick. The story has attracted national attention, including a rather harrowing account last June in The New York Times (free link).

There’s an interesting angle to the latest news. In June, the U.S. Attorney’s Office in Boston announced that three men had been charged: Tucker Cockerline, 32, of Salem, Eric Labarge, 46, of Nashua; and Michael Waselchuck, 35, of Seabrook. Now a fourth suspect has been added to the list: Keenan Saniatan, 36, of Nashua. Each could face up to five years in prison and a $250,000 fine.

All of this is related to reporting by NHPR that Eric Spofford, the politically connected founder New Hampshire’s largest network of addiction treatment centers, had engaged in sexual harassment. The suspects are allegedly associates of Spofford, who has not been charged. In fact, Spofford is claiming libel in a lawsuit against Chooljian and NHPR. The state judge in the case, Daniel St. Hilaire, raised First Amendment concerns by ordering NHPR to turn over documents so that he could determine whether they supported Spofford’s libel claim. The libel suit, however, is now on hold, according to Nancy West of the investigative website InDepthNH, because St. Hilaire has gone on leave for an unspecified reason.

The vandalism that was allegedly committed by the four suspects was frightening and vile; if you want to read the gory details, it’s all in the press release.

Update: West of InDepthNH tells me that Judge St. Hilaire has been back from leave for a while and that she’ll soon be writing about the latest developments in Spofford’s libel case.

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Three face federal charges in vandalism and harassment targeting NHPR journalists

Federal authorities have charged three men in the vandalism and harassment case involving two journalists at New Hampshire Public Radio. In the press release below, issued Friday by the U.S. attorney’s office for Massachusetts, “Victim 1” is NHPR reporter Lauren Chooljian; “Victim 2” is her editor, Dan Barrick; and “Subject 1” is Eric Spofford, the founder New Hampshire’s largest network of addiction treatment centers.

Spofford has denied any involvement in or knowledge of the vandalism. He has filed a libel suit against Chooljian and NHPR, which drew the attention of The New York Times (free link) after a judge ordered that NHPR let him examine the transcripts of interviews so that he can determine if they are relevant to Spofford’s claim. The full press release is as follows:

BOSTON — Three New Hampshire men have been charged in connection with a conspiracy to harass and intimidate two New Hampshire journalists employed by New Hampshire Public Radio (NHPR). The alleged harassment and intimidation of the victims included the vandalism — on five separate occasions — of the victims’ homes, as well as the vandalism of the home of one of the victim’s immediate family members with bricks, large rocks and red spray paint.

Tucker Cockerline, 32, of Salem, N.H., Michael Waselchuck, 35, of Seabrook, N.H. and Keenan Saniatan, 36, of Nashua, N.H. were each charged by criminal complaint with conspiring to commit stalking through interstate travel. Cockerline and Waselchuck were arrested this morning and, following an initial appearance in federal court in Boston this afternoon, were detained pending a hearing scheduled for June 20, 2023 at 2 p.m. Saniatan remains at large.

“The critical role that the press plays in our society goes back to the founding of our nation. Today’s charges should send a clear message that the Department of Justice will not tolerate harassment or intimidation of journalists. If you engage in this type of vicious and vindictive behavior you will be held accountable,” said Acting United States Attorney Joshua S. Levy.

“Freedom of the press is a cornerstone of any healthy democracy and these three men are now accused of infringing on that freedom by conspiring to harass and intimidate two New Hampshire journalists who were simply doing their jobs,” said Christopher DiMenna, Acting Special Agent in Charge of the Federal Bureau of Investigation, Boston Field Division. “Everyone has a right to express their opinion, but taking it over the line and committing vandalism will not be tolerated.”

According to the charging document, after a year-long investigation, an NHPR journalist (Victim 1) published an article in March 2022 detailing allegations of sexual and other misconduct by a former New Hampshire businessperson, identified in the charging document as Subject 1. Another NHPR journalist (Victim 2) also contributed to the article, which appeared on NHPR’s website during and after March 2022. Thereafter, it is alleged that Cockerline, Waselchuck and Saniatan conspired with each other and with at least one other individual – allegedly identified as a close personal associate of Subject 1 — to retaliate against NHPR and Victims 1 and 2 by vandalizing the victims’ homes with bricks and large rocks, as well as spray-painting lewd and threatening language on the homes’ exteriors. It is alleged that the following acts of vandalisms occurred in April and May 2022:

At approximately 11:00 p.m. on April 24, 2022, a brick was thrown through a front exterior window of Victim’s 1’s former residence in Hanover, N.H. The word “C*NT” was spray-painted in large red letters on the front door;
On the evening of April 24, 2022 or during the early morning hours of April 25, 2022, the word “C*NT” was spray-painted in large red letters on the front door of Victim 2’s home in Concord, N.H. The exterior of the home was also damaged by a large rock, which appeared to have been thrown at the house;
Shortly before midnight on April 24, 2022 or during the early morning hours of April 25, 2022, a softball-sized rock was thrown through a front exterior window of Victim 1’s parents’ home in Hampstead, N.H. The word “C*NT” was spray-painted in large red letters on one of the garage doors;
At approximately 12:54 a.m. on May 21, 2022, Victim 1’s parents’ home in Hampstead was vandalized a second time. The word “C*NT” was spray-painted in large red letters on one of the garage doors. Although no windows were broken, a brick was discovered on the ground near the house’s foundation as if it had been thrown at the house; and
At approximately 5:54 a.m. on May 21, 2022, a brick was thrown through an exterior window of Victim 1’s house in Melrose, Mass. The phrase “JUST THE BEGINNING” was spray-painted in large red letters on the front of the home.

The charging documents allege that Cockerline, Saniatan and Waselchuck are responsible for committing all five of these vandalisms.

The charge of conspiracy to commit interstate stalking carries a sentence of up to five years in prison, three years of supervised release, a fine of up to $250,000 and restitution. Sentences are imposed by a federal district court judge based upon the U.S. Sentencing Guidelines and statutes which govern the determination of a sentence in a criminal case.

Acting U.S. Attorney Levy and FBI Acting SAC DiMenna made the announcement today. Valuable assistance was provided by the Concord, Hampstead and Hanover, New Hampshire Police Departments and the Melrose, Massachusetts Police Department. The U.S. Attorney’s Office for the District of New Hampshire provided valuable assistance. Assistant U.S. Attorneys Jason A. Casey and Torey B. Cummings of Levy’s Criminal Division are prosecuting the case.

The details contained in the charging documents are allegations. The defendants are presumed innocent unless and until proven guilty beyond a reasonable doubt in a court of law.

Earlier

NHPR case illustrates the limits of actual malice (June 12)

NHPR case illustrates the limits of actual malice

The harassment endured by Lauren Chooljian, a reporter for New Hampshire Public Radio, is frightening and horrifying. David Enrich of The New York Times reported last week (free link) that Chooljian, her parents and her editor have been subjected to vandalism and threats after she reported on sexual misconduct allegations against Eric Spofford, who founded the state’s largest network of addiction treatment centers.

Spofford denies having anything to do with the vandalism. But there’s an interesting wrinkle to the case that I want to discuss, and that’s Spofford’s libel suit against Chooljian and NHPR. Because of Spofford’s prominence, he has been designated as a public figure, which means that he must show actual malice (as well as falsity and defamation) in order to win his suit. Actual malice, as you probably know, requires that the plaintiff prove the defendant published the offending material despite knowing or strongly suspecting it was false.

NHPR has been ordered by Judge Daniel St. Hilaire to turn over transcripts of interviews, including with anonymous sources. “Legal experts,” Enrich wrote, “called the ruling unusual and alarming, saying such decisions could make it harder for journalists to investigate potential wrongdoing by public figures.” And Enrich quoted one of those experts, Chad Bowman, as saying it was “‘deeply troubling’ for a judge to force journalists to hand over unpublished materials when the plaintiff hadn’t yet made a viable legal claim.”

The last part of that statement is the key: Spofford has not yet presented the sort of evidence that would suggest he could win if allowed to proceed. St. Hilaire seems to be putting the cart before the horse. But if Spofford does have a viable case, then he’s entitled to gather the evidence he needs to pursue it. Remember, he needs to prove actual malice. That means it’s essential that he be allowed to probe the inner workings of Chooljian’s and NHPR’s reporting and editing processes to see whether they knew what they were broadcasting was false or if they harbored any serious doubts about it.

At one time libel had been regarded as what you might call a no-fault tort. That is, if you could show that you had been defamed with falsehoods, then you would win your case, regardless of the news organization’s motivation. In the 1974 case of Gertz v. Robert Welch, however, the Supreme Court ruled that even private individuals would have to prove negligence. With at least two members of the current Supreme Court, Justices Clarence Thomas and Neil Gorsuch, having suggested they’d like to revisit libel law, it’s worth thinking about whether negligence might be a better standard than actual malice, even for public officials and public figures.

The problem with actual malice has always been that though it makes it extremely difficult for a plaintiff to win a libel suit against the news media, it also gives the plaintiff entree into a news outlet’s private communications. Consider that, in 2005, The Boston Globe lost a libel suit brought by a doctor in the case of Betsy Lehman, a Globe reporter who died after receiving a massive overdose of a chemotherapy drug. In that case, the judge ruled that Dr. Lois Ayash won what turned out to be a $2 million judgment by default after the Globe refused to turn over its confidential sources, as the judge had ordered.

Ayash was entitled to that information, but there was no way the Globe was going to betray its confidential sources. If a negligence standard had been in effect rather than actual malice, then the jury could have determined whether the Globe had acted negligently without probing into its reporting processes.

So, too, with the NHPR case. The problem here, again, is that it’s not clear whether Chooljian reported anything that was false. Truth is almost always considered an absolute defense in a libel case, which is why Judge St. Hilaire seems to be acting prematurely. Nevertheless, the case is a good illustration of why actual malice — defined in the landmark Times v. Sullivan case in 1964 — may have been a mistake, and why negligence may be a more workable standard.