Streetwise Professor

March 6, 2019

The Libel Catch 22: Making the Media Unaccountable

Filed under: Politics — cpirrong @ 7:47 pm

Covington High’s Nick Sandmann–you know, the alleged evil smirker–is suing the Washington Post for defamation. It should be a pretty open and shut case, given that pretty much everything that the WaPo wrote about him was false. But no! Like all media, the WaPo has an ace card: for a public figure to prove libel, s/he has to show that not just was the story factually incorrect, but that the publication acted in reckless disregard of the truth.

Still you are probably thinking: How does that help the WaPo? Nick Sandmann was just an anonymous kid from Kentucky waiting in front of the Lincoln Memorial with his classmates for the bus to pick him up when a fraud got in his face. How can he possibly be a public figure?

Well, obviously you are not in possession of a sharp legal mind. According to the Atlantic, and the legal sources it quotes, Sandmann may indeed be a public figure–in large part because the WaPo wrote an article about him.

Wrap your head around that pretzel logic for a minute. An anonymous 16 year old can’t sue the WaPo for libel because he went from being anonymous to a public figure . . . because the WaPo wrote about him and therefore made him into a public figure.

Catch-22 logic at its best! Paging Joseph Heller!

Perhaps I overstate, but only slightly. Maybe it wasn’t the WaPo who made it a public figure, but people who talked smack about Sandmann on Twitter, and posted grossly misleading videos about him on YouTube (without getting permission to use his image, I might add). So once Internet trolls talk about you, you are a public figure, which gives the Post and other media outlets carte blanche to talk ridiculous smack about you without consequence, because, voila!, you’re a public figure and you have to prove not just that the smack was untrue, but the WaPo published the smack in reckless disregard of the truth. Good luck with that!

This is really a distinction without a difference. By this standard, everyone is a public figure, or one Tweet away from being one, especially in the social media age. Meaning that the least among us has no real recourse against a lying reporter.

It’s interesting to read the original Supreme Court decision–NYT v. Sullivan–which gave the press the “public figure” defense–or at least is credited with doing so. In fact, that phrase does not appear once in the decision: “public official” or “public servant” appear 40 times, making it clear that the intent of the ruling was to prevent government officials from deterring press scrutiny of their misconduct by threat of libel suits. The idea of “public official” has morphed into “public figure,” including private individuals who “thrust themselves” into the public eye on matters of public controversy.

But Nick Sandmann didn’t thrust himself–he was unwillingly thrust into the public eye by utterly mendacious people, of whom the WaPo was at the top of the food chain. Who now claim that they cannot be touched because he is in the public eye (because they thrust him there!) and hence a public figure.

It’s worth noting that the Atlantic quotes “thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved,” but then says without quotes “Or Sandmann could be considered an involuntary public figure who has been thrust into the public spotlight against his will. This can apply to anyone at the center of a public controversy despite whether or not that person willed it.” This suggests that although the “thrust themselves” standard has been established in court (as is indeed the case, in one of the sordid Bill Cosby-related matters), the “involuntary public figure” standard is something the media would dearly like to assert is the law. Because if it is, then the Catch 22 pretzel logic applies universally: no matter how insignificant you are, if anyone publishes anything about you, even if it is totally false, you have little practical legal recourse because by virtue of their writing or speaking about you, you are a public figure. Which would make libel law a dead letter.

So why should the media be–what’s the phrase these days?–oh yes, privileged in this way? Well, they shouldn’t be, but they exert tremendous influence that they use to their benefit. The judiciary has been, for all intents and purposes, captured by the media.

I have personal experience in the way the media operates, based on my run-in with the New York Times a little over 5 years ago. The day after the story ran, a reporter who had won multiple Pulitzers with the Times emailed me and asked me to call. He told me that he was outraged by the story. He asked me a few questions, and after hearing my responses, told me that the Times had flagrantly violated its own written standards. He encouraged me to read them. So I did.

They said that because an adverse article in a prestigious publication like the NYT can have such devastating consequences for individuals (who knew?), reporters should strive to make sure their reporting is fair. Specifically, prior to publication, they should contact those mentioned in stories, read what will be said about them, and give opportunity for correction and comment.

Of course, David Kocieniewski never did this. Perhaps even worse, when I brought this to the attention of his editor, the response was . . . no response. Meaning that the “standards” are just so many high sounding words, that mean precisely diddly squat.

So I know how these motherfuckers roll.

And how do they roll, you ask? Like Ted Kennedy behind the wheel of an Oldsmobile, and for exactly the same reason: they know they are totally unaccountable, and can get away with murder. They can leave wrecked lives in their wake, and face no consequences for their behavior.

Clarence Thomas has called for a revisiting of the libel laws in the US. It is long past time. The laws are out of balance and reasonable exceptions for public figures have metastasized into a system in which journalists are a protected, privileged caste. Perhaps the Sandmann case can restore some sanity, but given the direction the courts are going, I am deeply skeptical.

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7 Comments »

  1. While reform / update sounds like a good idea, the UK libel laws probably err too far the other way. AIUI there are only two defences to a libel charge, namely that it is true (which the party being sued must prove), or that a reasonable person would have said the same given the available information. The facts are likely to be hard to disinter in the first case, and in the second, it’s probably quite easy to line up a few reasonable people to say whatever your side needs.

    If a libel is established, the prominence or otherwise of the figure influences only the award, not the verdict.

    In theory a private figure would not qualify for much, not having a public good nam. But I suspect that making a private person public exactly by your libel of them would generate a punitive damages figure – certainly against a newspaper.

    There have been instances of this. 10 years or so ago, a British child was abducted in Portugal and a local British expat came forward to offer the family and police help with translation. It wasn’t long before the newspapers decided he must be the abductor, and he duly won IIRC half a million GBP in damages. He was a private person too, until they wrote about him.

    Mr. Sandmann may want to explore whether he has any case against the WaPo in the UK….

    Comment by Green as Grass — March 7, 2019 @ 6:00 am

  2. @GaG: not UK – the Law of England and Wales. As usual Scots Law is more sensible. (And as usual, no outsider has a clue what the Law of Northern Ireland has to say on the topic.)

    “Like Ted Kennedy behind the wheel of an Oldsmobile … they know they are totally unaccountable, and can get away with murder”: I am relieved to find that I am not the only person to assume that Kennedy murdered the girl.

    Comment by dearieme — March 7, 2019 @ 7:47 am

  3. The Atlantic is hardly a disinterested observer in this situation. They too are a defendant. Perhaps they also have motivation to find Sandmann to be a “Public Figure” as it would also make their situation more comfortable. I am quite sure they are glad they have Caitlin Flanagan on their staff/site; problem is she wrote five days later what was quite obvious within a few hours.

    This brings up another interesting question in my mind. Negligence liability. Say Sandmann is even a public figure, what are the obligations of the media to do an investigation of claims that it is repeating? Claims that it is initiating. Does labeling it analysis or opinion lighten the burden?

    Wrongfulness and negligence don’t exonerate the press. Rolling Stone & Jan Wener found out this the hard way with the University of Virginia case. Known individuals got millions in settlements and an on campus organization (a fraternity) got $1.65 million. Although it looks like in terms of a jury verdict a larger portion want against the writer (who likely has no money).

    Comment by JavelinaTex — March 7, 2019 @ 10:21 am

  4. @dearieme–Not the only person, by a long shot. It’s long been a belief on the right in the US. My grandmother, for example, never referred to him by name: just “that murderer.”

    Comment by cpirrong — March 7, 2019 @ 8:57 pm

  5. @Green–I was debating whether to contrast US law with UK–excuse me, @dearieme, English and Welsh!–law. Yes, I believe it’s a Goldilocks situation: this one is too lax, that one is too strict. Something in the middle makes sense.

    Your point about damages is a good one. Making a nobody notorious by printing/broadcasting lies about them is exactly what is at issue with Sandmann. The bigger–and arguably, the more reputable the media outlet–the greater the harm. Indeed, in this day and age, where a story from the Back of Buggery Bugle is accessible worldwide via the Internet, the reputation of the media outlet should have a great weight in determining damages.

    Comment by cpirrong — March 7, 2019 @ 9:04 pm

  6. @ dearieme

    The other theory about Chappaquiddick I thought intriguing was that MJK was driving the car alone, Teddy having vacated it for some reason. She drove into the water through unfamiliarity and he did nothing for 10 hours because he didn’t know.

    Comment by Green as Grass — March 8, 2019 @ 3:00 am

  7. see, DM – you operate under a belief system, not one of fact and fairness.
    some believe TKennedy knowingly murdered the girl. some believe believe she did it herself, by accident. the proofs are inconclusive.
    in case of Reichstag Fire the proofs are very conclusive, but you don’t want to believe that people who opposed nazis might be right, because these people happen to communists.

    Comment by ETat — March 9, 2019 @ 7:20 am

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