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July 26th, 2017

Insight

The coming crash of the lawless media

Wesley Pruden

By Wesley Pruden

Published June 30, 2017

The coming crash of the lawless media

 
Johnny Depp as Captain Jack Sparrow.

The so-called Sullivan rule, which largely freed the media from pursuit by libel lawyers, is the gold standard in American newsrooms. Gold doesn't collect tarnish.

Nevertheless, thoughtful publishers, editors and libel lawyers warn that when anything goes and irresponsibility is regarded as a virtue, the media will eventually see its checks returned marked "insufficient funds." It takes a clever man or institution to overdraw an unlimited checking account.

Sniping and throwing rocks at Donald Trump, a game that any number can play and nearly everybody does, has become a game with no rules and no referees, and worse, no editors to restrain obstreperous children breaking up the furniture. (The Donald brings a lot of it on himself with his obstreperous childish tweets.)

CNN, long ago fairly reliable source of news, with a weakness for trivia and given to peddling old news as the new thing, now may be an inviting target for imaginative libel lawyers.

Three of its most prominent editors and "producers" were sacked this week after the network was forced to retract and apologize for a story it made up about a confidant of President Trump, that he and his hedge fund were being investigated by the U.S. Senate for colluding with the Russians for nefarious purpose. Mr. Trump predictably crowed "Fake news!" in his usual capital letters. This time he had a point. Fake news may be the "actual malice" the Sullivan case talked about.

Sarah Palin, once upon a time the Republican candidate for vice president, sued The New York Times this week for accusing her in an editorial of "inciting" the attack on Gabby Giffords, an Arizona congresswoman, that left her gravely wounded and six others dead.

The New York Times said in an editorial that Mrs. Palin had incited murder, that her political-action committee circulated a map with cross-hairs imprinted over the districts of 20 Democratic congressmen targeted for defeat - not death - in the congressional elections of 2012. The newspaper retracted the editorial, without apology, the next day.

The editorial was published June 14, the very day a gunman opened fire on a Republican baseball practice, wounding Rep. Steve Scalise, the Republican whip in the House, and several others. The Times tweeted a "sorry" to its readers, but not to Mrs. Palin, and her lawyers noted that the newspaper "violated the law and its own policies" when it accused her of inciting the Giffords shooting.

Inciting a crime is serious business, and in the atmosphere of mayhem created by the left and the liberals in the wake of the election of Donald Trump, anything goes in pursuit of the man whose only proved "crime" so far is having defeated Hillary Clinton.

(His vulgar tweets are offenses against taste and good manners.)

Kathie Griffin's bloody severed "head" of the president, and Johnny Depp's call for an assassin to relieve the nation of its duly elected president was an inevitable consequence of seeding the land with toxin and deadly venom.

But winning libel suits against television networks and famous newspapers that have clearly contributed to this atmosphere of lawlessness will not be easy, the result of the U.S. Supreme Court's shield protecting the media from the consequences of even shoddy work.

The high court held, in the 1964 case titled New York Times Co. v. Sullivan, that "the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with the knowledge that they are false or in reckless disregard of their truth or falsity)."

A public official suing for defamation must prove that the statement in question was made with "actual malice." In the legal context the phrase refers to knowledge or reckless lack of investigation, rather the common understanding of "malicious intent."

In a concurring opinion in the case, the late Justice Hugo Black wrote that "malice, as defined by the court, is an elusive, abstract concept, hard to prove and hard to disprove.

The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment."

This was a valuable and needed shield, not just for the press, but for everyone but corrupt public officials. But was in a very different time, when the press was far more responsible than now. Editors were armed with blue pencils the size of clubs to whack irresponsible reporters.

One and all were warned to keep themselves and their opinions to themselves. Opinion belonged only on the editorial page, where rant was the unpardonable sin. Not so much now. Too many layers of editing, as one famous editor said, can obstruct the story.

Indeed it can. But some stories, as we have seen at CNN and at The New York Times, should be obstructed. "Anything goes" eventually invites harsh correction, and what looks like "actual malice" lies everywhere abundant.

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JWR contributor Wesley Pruden is editor emeritus of The Washington Times.

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