While the outrage over the Covington high school kids in MAGA hats may have blown over online, the story is far from over. On February 1, an attorney retained by the family of Nicholas Sandmann, the 16-year-old who allegedly “smirked” at the Native American activist banging a drum in his face, released a video that succinctly explained the broader context of what happened. Suffice to say, the video is a damning indictment of how many media outlets and personalities led a social media-fueled outrage mob and wrongly rushed to smear Sandmann and his fellow students.
On Monday, Sandmann’s legal team told the Cincinnati Enquirer that more than 50 letters had been sent to various organizations and people that are likely to precede defamation and libel lawsuits. A host of elite media outlets received some of these letters, including The New York Times, Washington Post, CNN, The Atlantic, TMZ, National Public Radio, The Guardian, and Conde Nast. A number of prominent reporters also received letters individually, such as Maggie Haberman, Chuck Todd, Savannah Guthrie, Erin Burnett, David Brooks, and Andrea Mitchell, among others.
Media organizations and reporters have traditionally been given extremely wide latitude by courts in the name of protecting free speech, so at first glance it may seem absurd to sue America’s biggest media organizations en masse for defamation and libel. But for those who have been paying attention, for decades now, courts have been trying to balance privacy concerns with rapidly evolving technology that allows for dissemination of information at a rate that far outpaces editorial judgment. Far from endorsing a maximalist vision of what journalists are allowed to get away with, relevant court decisions have trended toward winnowing the definition of what journalists are allowed to print.
Further, the people wronged by the media in the Covington case were not public figures who have to clear a high legal bar of proving actual malice. They were, in fact, children. Further, a majority of the public distrusts the media — and that distrust didn’t start in 2016, despite the media trying to define this distrust as a wholly Trump-related phenomenon.
To the extent that politicized charges of “fake news” do enter the picture, can anyone honestly say there isn’t good reason to suggest that elite media are overwhelmingly biased against certain political and religious viewpoints? The media response to public anger at the media thus far amounts to little more than a condescending chorus of complaints that half the country doesn’t know “the facts” and lacks the sophistication to appreciate the editorial worldview being foisted on them.
But that flippant dismissal could have painful consequences for the media, because media protections ultimately depend on a societal consensus that they are working in the public interest. Put another way, if you were a lawyer who had to represent CNN and The New York Times in the Covington case, how apprehensive would you be about defending the honor and integrity of the media before a Kentucky jury?
The incident with the Covington high school students could well prove to be a perfect storm that forever reshapes how we view media rights and responsibilities, as well as the consequences of social media mobs. At the bottom of the Covington case is a truth the media don’t want to confront: The greatest threat to First Amendment freedoms might be irresponsible journalists.
Eroding Consensus on Press Freedoms
You don’t have to take my word for it. In 2015, Tulane law professor Amy Gajda wrote “The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.” “In an age when news, entertainment, and new media outlets are constantly pushing the envelope of acceptable content, the consensus over press freedoms is eroding. The First Amendment Bubble examines how unbridled media are endangering the constitutional privileges journalists gained in the past century,” notes the book’s jacket copy.
For decades, judges have generally affirmed that individual privacy takes a back seat to the public’s right to know. But the growth of the Internet and the resulting market pressures on traditional journalism have made it ever harder to distinguish public from private, news from titillation, journalists from provocateurs. Is a television program that outs criminals or a website that posts salacious videos entitled to First Amendment protections based on newsworthiness? U.S. courts are increasingly inclined to answer no, demonstrating new resolve in protecting individuals from invasive media scrutiny and enforcing their own sense of the proper boundaries of news.
Indeed, journalists should be required to read Gajda’s book. If they did, they would probably be mortified to discover that skirting the fringes of libel and defamation has become standard operating procedure for their entire industry.
Ramping up in the 1990s, there was a litany of cases where courts ruled against media on privacy grounds. Some of these cases involve very sympathetic plaintiffs, and one might understand where, say, the distressed mother of a murder victim who did not want to be quoted might be shown deference over Chicago Tribune reporters, as happened in one case. On the other hand, courts also been more than willing to smack the press for violating the privacy rights of people whose behavior might court attention, such as swingers, psychics, women who flash their breasts in public, and men who appear on “To Catch a Predator.”
The simultaneous rise of the internet has caused media to stretch arguments for newsworthiness until they break. In the book, Gajda delves into plenty of legalities involving specific cases, but notes that the cases where newsworthiness has been regularly disputed by courts “can be grouped into five main categories, included here as an overview before a closer look at specific causes of action: (1) those in which the disputed information shows, to this author’s mind, clear newsworthiness; (2) relatedly, those involving information concerning public wrongs; (3) those that seem a response to push-the-envelope media; (4) those involving celebrities in some way; and (5) those involving nudity.”
Now think about how much content online, especially on social media, falls into one or more of those categories where the “newsworthiness” is far from clear. And it’s not like there haven’t been warning signs that juries are more than willing to put entire media organizations on blast.
Gajda spends a fair amount of her book discussing various controversies involving the website Gawker—again, the publication was called “Gawker” as if announcing it specialized in exactly the kind of content that courts found increasingly hard to justify. At the time “The First Amendment Bubble” was published, the lawsuit over their decision to publish Hulk Hogan’s sex tape, which was filmed without his knowledge, had yet to be resolved.
As we now know, a jury slapped Gawker with a fine so large the publication was shuttered. This should have been a warning shot across the bow for the media writ large. Instead, we’ve seen even the prestige media outlets that purport to have higher standards than the tabloid-esque Gawker ramp up the sensationalism, increase partisanship, and willingly bully ordinary people.
Here some political context behind modern libel law is in order. While the First Amendment generally provides very wide latitude for the press, the more proximate reason why there are so few libel lawsuits in modern America, as opposed to, say, the United Kingdom, is New York Times Co. v. Sullivan. This is the 1964 Supreme Court case that established the “actual malice” standard, which raised the bar for public figures looking to sue the media.
The case arose because hundreds of millions of lawsuits had been filed in the South seeking to silence out-of-state media outlets that were aggressively covering the civil rights movement, and it’s fair to say that libel and defamation lawsuits were being used to prevent media from shining a critical light on institutional racism.
More specifically, the “Sullivan” in New York Times Co. v. Sullivan was a Montgomery, Alabama public official suing The New York Times for running an ad that sought to raise funds for Martin Luther King Jr.’s legal defense and the civil rights movement. The ad was wrong in some particulars—King had only been arrested four times, not seven times as the Times ad alleged—but the general sentiment that King was being harassed was obviously correct.
Still, you can see where lawsuits such as this could portend big problems for the media. Politicians and public officials with access to the public coffers could bankroll lawsuits indefinitely in ways that could break many journalism outlets, or at least those that have fewer resources than The New York Times. So the Supreme Court made it so that public figures would have to clear a high bar to justify libel and defamation lawsuits—they couldn’t just file suit because a paper got minor details wrong, they had to prove the publication was reckless or had a personal or institutional vendetta. This helped establish a balance of power between the public officials and other powerful public figures the media is obligated to cover and hold accountable.
That balance of power mostly held for decades. But what no one foresaw, and perhaps should have, is that the media would eventually abandon the pretense of “objective journalism” and their role as a conduit for the people. Instead, the press is using the legal deference and protections afforded them as a sword rather than a shield to drive their political agenda on a very broad cross-section of ideas, none of which approach the moral clarity of racial injustice in Alabama in 1964. Instead of politicians and powerful public figures abusing their power to go after the media, we now have media going after them, and often without provocation.
And the media writ large is so zealously invested in their self-righteousness that they are no longer able to restrain themselves when even the lowliest of private citizens is seen as an impediment to them forcing political and cultural consensus on the country. That’s how we got much of the media establishment punching down on a teenager whose only crime was wearing a baseball cap supportive of a duly elected president.
In point of fact, the media figures and publications who led this two minutes’ hate are supposed to be people among us who set an example of restraint. They are professionally obligated and trained on how to reserve judgment and wait for the facts to emerge, but time and again they are proving incapable of doing that.
Further, 16-year-old Sandmann doesn’t begin to meet any reasonable definition of a “public figure,” so the basic protection against libel and defamation that so many in the media bank on doesn’t apply here. There’s a real chance that some media entities get taken to the cleaners in his lawsuit, and it’s hard to imagine what their defense will be.
Testing the Norms of Objectivity
Even with Sandmann’s lawsuit preceding, there might be a temptation for the media to dismiss this all as a bout of unfortunate hysteria. They will still feel secure going after Donald Trump and the other disagreeable public figures, content that they’re still protected by New York Times Co. v. Sullivan. This is probably also a big mistake, seeing as the broader standards of what constitutes “actual malice” are still significantly defined by cultural and political consensus. And that consensus is fraying, big time.
For one thing, the “actual malice” standard isn’t only defined by proving someone deliberately published falsehoods. It can also be a result of exhibiting a “reckless disregard for the truth.” The actual malice standard can also be established by circumstantial evidence. You don’t need a smoking gun where an editor or reporter admits he lied to hurt someone. With that in mind, let’s look at the reporting standards the media have embraced in recent years, as embodied by a couple of notable media screw-ups.
In December 2017, CNN reported that Donald Trump Jr. received an email giving him the hacked Democratic National Committee emails released by WikiLeaks before they were public. MSNBC and CBS “independently” confirmed the story. It was later revealed that the date on the email was wrong, and Donald Trump Jr. didn’t get the emails before they were public.
CNN eventually revealed they never saw the original email, and based on the very lawyerly and suspect denials issued, it appears that the anonymous sources who gave CNN the story, as well as confirming it to MSNBC and CBS, were Democratic partisans from the House intel committee. CNN did not discipline the reporters who botched the story. There was no formal retraction. Instead, CNN rewrote the story so it was an inane recounting of how Donald Trump Jr. got an email about a big news event.
Last month, BuzzFeed issued a bombshell report about the president suborning perjury from his lawyer, who is cooperating with the special counsel investigation into the president. After the report the special counsel’s office took the unusual step of denying the report. Of the two reporters on the story, only one claims to have seen documents supporting the report — and he has an extensive history of fabulism.
Now I went to journalism school, albeit over 20 years ago, and I was under the impression that it was highly unethical to publish anonymously sourced stories based entirely on the word of sources with obvious political axes to grind without seeing any corroborating evidence. I was also taught that the idea that you could accuse anyone of a felony, much less the president of the United States, without producing any supporting documentation to back your claims up was likely grounds to have an editor fire you on the spot. Now major media do these things almost on reflex.
These are just two of many, many examples of media malpractice since Trump took office where the “bombshell” report blows up in the journalists’ faces. Instead of reflecting on how they’re abandoning basic standards and making an unprecedented number of astonishing errors, there has been a raft of navel-gazing from media types about how Trump’s hyperbolic style and falsehoods essentially justify throwing caution to the wind and covering him as aggressively as possible.
Journalists haven’t been shy about acknowledging what’s happening. “If you’re a working journalist and you believe that Donald J. Trump is a demagogue playing to the nation’s worst racist and nationalistic tendencies, that he cozies up to anti-American dictators and that he would be dangerous with control of the United States nuclear codes, how the heck are you supposed to cover him?” wrote New York Times media columnist Jim Rutenberg, a few months prior to Trump’s election. “Because if you believe all of those things, you have to throw out the textbook American journalism has been using for the better part of the past half-century.” At this point, however, there’s a strong case to be made that the decision, in the words of The New York Times, to test “the norms of objectivity” has ultimately hurt their ability to hold Trump accountable.
Aside from further intensifying public distrust, the media’s defensiveness is shortsighted for a couple of important reasons. One is that when an industry is widely perceived not to be living up to its own ethical guidelines, it’s not hard to imagine courts and juries will start deciding that this behavior is, at a minimum, reckless.
There’s no guarantee the courts won’t look at all journalists’ egregious behavior and decide to readjust libel law in such a way that shifts the balance of power away from journalists and provides more deference to the government and public figures. Notably, such a shift was being hinted at long before the phrase “President Donald J. Trump” roiled newsrooms.
In 2014, Sullivan was already starting to look like little more than an “interesting cultural artifact,” observed Columbia law professor David Pozen:
‘There is still a tendency among members of the media to view the courts in somewhat romantic terms as natural allies and guardians against overreaching by the political branches,’ he says. ‘I’m not confident that remains a descriptively accurate view of the courts.’
‘Courts have pulled back on the reporter’s privilege, generally in the national security concept,’ adds Pozen. ‘It’s not at all clear that judges will be protective of journalists’ interests in light of the way judges have handled recent national-security-versus-open-government issues.’
The second is that the press won’t have Trump to kick around forever. When you look at the media problems of the Trump era—the errors all uniformly cut in one political direction, the over-reliance on compromised sources, the refusal to make basic corrections and retractions, the eagerness to grant anonymity to anyone airing damaging and wholly speculative claims, and so on—these are all existing problems that Trump merely accelerated. It appears that the entire journalism industry is establishing norms that could soon be defined as running afoul of libel law.
When CNN fired three journalists in 2017 for their handling of a story on Trump confidant Anthony Scaramucci—one of very few times where a major journalistic error covering the Trump administration met actual newsroom punishment—CNN doesn’t appear to have been motivated to action in order to protect their integrity. The network was staring down the barrel of a $100 million lawsuit as the result of the story.
The message the media should be receiving right now couldn’t be clearer: Check yourself before you wreck yourself.
The final ingredient cooking up this hellbroth is social media. The cultural toxicity of social media is coming to be generally acknowledged, and why media remain somewhat uniquely oblivious to how Twitter in particular is destroying their credibility is a mystery. Media bias is hardly a new phenomenon, but once upon a time, griping about it required carefully reading between the lines of news reports.
These days journalists treat Twitter like their private clubhouse and routinely say things that leave little doubt about their skewed political perspective, sense of entitlement, and total ignorance. (On that last point, in her rush to criticize Trump’s State of the Union speech this week, a New York Times White House correspondent tried to correct the president to explain that Jews don’t believe in heaven.)
Of course, no reporter—or anyone else for that matter—can expect to be wholly impartial, even-tempered all the time, or not have gaps in their knowledge. The question is why people in a profession that depends on personal credibility would be so eager to participate in an daily Battle Royale that seems designed to test everyone’s emotional and intellectual limits, aside from imposing finite restrictions on how much you’re allowed to say about complicated topics to maximize contention, er, “engagement with the platform.”
So what do journalists really get out of Twitter? As a promotional tool for the work of journalists, its utility is comparatively limited—only about 7 percent of Americans have Twitter accounts, compared to the more than 40 percent who use Facebook. However, I suspect the percentage of journalists who are on Twitter is near universal. If you’re a journalist, Twitter provides ample opportunities for networking, and allows you to get a sense of what your colleagues are up to.
At the same time, Twitter seems to cater to journalists because getting access to insider-y thoughts of America’s top reporters is a big selling point for attracting new users. It’s probably not a coincidence that Twitter was quick to suspend accounts tweeting “learn to code” at laid off journalists in recent weeks even though the sentiment is pretty benign compared to other supposed examples of “targeted harassment” that they routinely tolerate.
From a reporter standpoint, keeping up with your colleagues isn’t necessarily a bad thing, but when you’re constantly siloed into meta-discussions started and led by journalists, it has the unfortunate side effect of reinforcing reporters’ biases and catalyzing groupthink. (Indeed, my own admittedly questionable rationale for being on Twitter is that if you are interested in media criticism, firing up Tweetdeck is like plugging straight into the Matrix and watching narratives assemble in real time.)
By now, there are a million examples of reporters all arriving at the same conclusions or seizing on and actually publishing inaccurate information because it was disseminated on Twitter or some other form of social media. The assault on the Covington high school boys might be the ne plus ultra of this unfortunate trend.
If you’re a publisher, it’s probably worth asking what you get out of letting swaggering reporters on your payroll go permanently unchecked on social media. A reporter on Twitter derives credibility and influence from their employer, yet on social media there are no editors and fact checkers that might curb their worst instincts and otherwise prevent the reporter from saying things that hurt their publication’s credibility. Further, we haven’t really tested the extent to which social media use by reporters exposes a publication to legal liability. In the Covington case, it certainly reveals the mindset and motivations of reporters in a way that helps explain why so many erroneous stories were published.
Then there’s a secondary issue about determining who exactly is the “publisher” that should be held accountable on social media when a journalist tweets something? For years now, social media companies have been trying to have their cake and eat it, too. Disseminating the news is a huge part of their business model, and they routinely make highly selective editorial decisions about what stories and statements are acceptable on their platforms, such as the aforementioned “learn to code” foofaraw, and kicking off controversial figures such as Alex Jones.
At the same time social media companies are in most practical respects in the news business, when asked about it they are adamant that they are not publishers because that would make them legally responsible for the content they disseminate. There’s a reason Mark Zuckerberg was in full flopsweat mode testifying before Congress following the “fake news” controversy in the 2016 election, even though the actual effect of fake news has been greatly exaggerated.
Zuckerberg knew that if lawmakers started to think of Facebook as a media organization rather than an internet company, and regulated it and held it responsible the way our law would a news organization, it would threaten Facebook’s business model and potentially open them to huge liabilities. Ironically, Facebook moved to appease its political critics by further clamping down on what content Facebook allows. To name one noticeable example, Facebook has launched a partnership with media “fact checkers” and boasts that once their media fact-checking partners declare a story false, Facebook kills 85 percent of the traffic to that story. (Such partnership is only compounding a known media problem, as media fact checkers are routinely biased and incompetent.)
Aside from trying to have it both ways, Silicon Valley is one of the most outspokenly liberal industries in the country. Accordingly, there have been a number of major scandals relating to whether these huge tech titans are putting their thumb on the scale of political discourse. In 2016, former Facebook employees told Gizmodo they routinely censored news beneficial to conservatives, and there is lots of damning evidence to suggest that Google can’t be trusted to be a neutral information arbiter.
While no tech companies have been sent letters by the Covington attorneys yet, there’s a real chance that at some point in the future, after someone’s been libeled, defamed, or somehow hurt by social media, some enterprising lawyer is going to crack this legal nut and try and hold social media companies liable. And if you think an elitist press makes for an unsympathetic defendant when placed in front of a heartland jury, just wait until they get to pass judgment on uber-rich Silicon Valley tech CEOs who exist in a cloud of their own esotericism and arrogance, far removed from the consequences of their philosophy of “move fast and break things.”
Sounding the Alarm
To be clear, if I sound alarmist here that’s only because I want free speech to be as robust and unfettered as possible, and I would rather live in a country where the media is too aggressive toward the powerful, rather than not enough. Even if the Covington case goes to trial and ends up deservedly holding the media to account for turning an innocent teenager into a national object of hatred, I worry such an outcome could set an alarming precedent.
The idea of routinely suing media companies is horrifying and could end up doing much more harm than good. However, I also happen to think the easiest and simplest way to avoid such catastrophic outcomes is for the media to show a modicum of restraint. Rather than testing the “norms of objectivity,” media should make a good faith effort to embrace them.
However, it’s been weeks since the Covington debacle, and there’s been very little in the way of a public accounting for what happened, which amounts to deafening silence in an industry where solipsism is something of a pastime. (Perhaps a number of major media organizations that may end up named in the case have legal reasons for their silence.)
For their part, conservative critics have been griping about media bias for decades and I don’t imagine that they’re about to stop now that screaming “fake news” is a winning electoral strategy. I can only hope that if the media had a good faith discussion about professional ethics and the uses of social media that is loud enough for the public to hear, it might buy them some breathing room at a critical juncture, rather than allow public criticism of the media to intensify.
In the meantime, publishers and editors need to deal with the reality that Americans are increasingly inclined to rescind the legal deference given to media over the last 50 years. They need to take a hard look at the way newsrooms operate and at long-term solutions for recovering the public trust, starting with enforcing more rigid standards for privacy and sourcing, as well as stricter social media policies. Just because a hotshot reporter has a couple hundred thousand Twitter followers and breaks a lot of stories, that doesn’t mean he doesn’t need an editor looking over his shoulder and telling him that he should, say, refrain from tweeting about assassinating the president.
Of course, I’ve come this far and I’m not about to stop being cynical about my profession’s inability to reform itself. It’s hard not to look at the Covington incident and fear that I have seen the future of journalism, and it involves writing lots of checks for libel damages with many zeroes attached.