Tuesday, September 24, 2019

Media’s legal defeats trouble First Amendment advocates




They Brought It On 
With Their Fake News

By JOSH GERSTEIN

09/23/2019 08:20 PM EDT


A string of recent court setbacks for news organizations is prompting jitters among First Amendment advocates who fear that it could signal an erosion of the deference press outlets have enjoyed for decades in cases challenging their reporting.

Some legal experts view the rulings as signs that the courts’ view of the media is beginning to change, with more judges embracing the notion that major news outlets are partisan combatants rather than engaged in a dispassionate search for the truth.

“It does seem to me there is a seismic shift,” said Jane Kirtley, a University of Minnesota law professor and former executive director of the Reporters Committee for Freedom of the Press. “Judges are being very skeptical about the news media’s motives. … I think it’s fair to raise the point of whether this is part of a general disquiet with what the media are doing and whether they’re now being seen increasingly as having a partisan agenda.”

Another seasoned media lawyer said he thought a generational shift was underway, with newer judges more suspect of journalists’ motives.

“Some of this reflects the reality that just in general, the diminished standing of the media has had an impact on the judiciary, particularly among judges who are 50-ish and younger, of all partisan stripes,” said the attorney, who spoke on the condition of anonymity and was not involved in the cases producing the recent defeats.

The recent rulings involved well-known, national media outlets: National Public Radio, The New York Times and Fox News. All the decisions evinced serious doubts about the media’s actions.

Last month, the 2nd U.S. Circuit Court of Appeals revived a lawsuit against the Times by Sarah Palin, the 2008 Republican vice presidential nominee and former governor of Alaska. Palin complained that a Times editorial published in 2017 inaccurately linked her to the 2011 shooting rampage in Arizona that gravely wounded then-Rep. Gabby Giffords and killed six others.

After ordering an unusual hearing, a U.S. District Court judge in New York accepted testimony by the Times’ editorial page editor, James Bennet, that the reference was a mistake, but the three-judge appeals court panel faulted that ruling and unanimously reinstated the suit. The appeals judges said Palin should have the right to issue subpoenas for records and demand testimony to prove her case.

2nd Circuit Judge John Walker said the district judge was wrong to reject “a permissible inference” that Bennet — and, by extension, the Times — intentionally lied by asserting Palin’s connection to the shooting.

The following day, a federal District Court judge in Texas dealt a blow to NPR by rejecting the network’s motion to throw out a $57 million lawsuit challenging its reporting about efforts by a conservative investor, Ed Butowsky, to stir up interest in the death of Seth Rich, a Democratic National Committee staffer, and the unsubstantiated possibility that he leaked Democratic emails to WikiLeaks.

In ordering that Butowsky’s suit proceed to the fact-finding process, Judge Amos Mazzant said the NPR reports implied “wrongdoing” by the investor and were not protected by privileges for reporting on public legal filings.

And earlier this month, the 2nd Circuit struck again, with a different panel of the same court breathing new life into a suit that Rich’s parents brought against Fox News alleging that the network conspired with Butowsky to concoct and publish false reports that their son had dealings with WikiLeaks. In another unanimous ruling, the three judges said the case easily met the standard for plausibility — even though it also claims that a major news outlet deliberately published lies.

“We have no trouble concluding that — taking their allegations as true — the Riches plausibly alleged what amounted to a campaign of emotional torture,” Judge Guido Calabresi wrote.

Some First Amendment advocates and scholars have downplayed the decisions. They note that news organizations have also posted some notable wins in the past year or so, with two different judges ruling against the Trump White House’s efforts to strip credentials from CNN reporter Jim Acosta and Playboy correspondent Brian Karem.

BuzzFeed also scored a victory last December in a libel suit brought by a Russian internet entrepreneur who claimed that he was defamed by the online news outlet’s publication of the so-called Trump dossier about purported ties between Trump and Russia. And in July, the Cincinnati-based 6th U.S. Circuit Court of Appeals issued a strongly pro-press ruling, dismissing a libel case against The New York Times filed by an Ohio State University cancer researcher.

Legal experts also stressed that none of the trio of rulings that went against news outlets in the past two months definitively resolved any of the suits or held that the media had done anything wrong. But opening the cases to what could be protracted document production and depositions could cost the news organizations hundreds of thousands of dollars or more in legal bills, even if they ultimately prevail.

The adverse rulings for the media outlets were particularly troubling to some press advocates who were already seeing legal storm clouds gathering on the horizon.

One such ominous sign came in February as Justice Clarence Thomas argued that the Supreme Court should revisit the bedrock of American libel law: the court’s 1964 ruling in New York Times v. Sullivan. The ruling established the “actual malice“ standard, making it very difficult for public figures to prevail in defamation cases.

Thomas, a conservative appointee of President George H.W. Bush, devoted a 14-page concurrence to denouncing the landmark decision as a disturbing example of “policy-driven decisions masquerading as constitutional law.”

“The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas wrote.

Thomas’ opinion echoed calls that Donald Trump has issued for years for major changes to libel law.

“We’re going to open up libel laws, and we’re going to have people sue you like you’ve never got sued before,” Trump said to reporters on the campaign trail in February 2016 as he railed against coverage of his presidential bid.

Last year, the president promised a “strong look” at overhauling libel laws, but there has been little sign of traction on that front. One challenge is that states set defamation law, within the constitutional framework the Supreme Court has laid out.

However, Trump has kept up the public drumbeat in favor of more suits against the media. Just in the past few days, he has repeatedly urged Supreme Court Justice Brett Kavanaugh to sue the Times over an article that contained a new allegation against him of inappropriate sexual conduct at Yale decades ago, but initially failed to note that friends of the woman said to be involved have said she does not recall it. The Times later added that detail, and appended an editor‘s note pointing out the revision.

“Brett Kavanaugh should start suing people for libel, or the Justice Department should come to his rescue,” Trump tweeted last week. “The lies being told about him are unbelievable. False Accusations without recrimination.”

Despite Trump’s open hostility toward journalists and what he calls “fake news,” most of his judicial appointees are viewed as staunch First Amendment defenders. The decision reinstating the press pass the Trump White House seized from CNN’s Acosta last year was issued by Judge Timothy Kelly, a Trump appointee.

Whether partisan or ideological biases may be at work in the recent media setbacks is hard to discern.

Mazzant, the judge who ruled against NPR, is an Obama appointee. However, he’s a Republican who got his nomination as part of a deal the Obama White House brokered in 2014 with GOP Texas Sens. John Cornyn and Ted Cruz. In recent years, Mazzant has been sought out by conservatives seeking to challenge Obama-era policies.

Walker, who wrote the opinion reinstating Palin’s suit, is an appointee — and first cousin — of the first President Bush. The other judges on that panel were Denny Chin, an Obama appointee, and John Keenan, an appointee of President Ronald Reagan.

Calabresi, who authored the ruling reviving the suit against Fox, is an appointee of President Bill Clinton. He’s a well-respected jurist who once served as dean of Yale Law School, but he landed in hot water in 2004 for public remarks he made advocating President George W. Bush’s defeat and comparing him to Mussolini. Calabresi apologized and was reprimanded by his colleagues.

The judges joining Calabresi in the Fox decision two weeks ago were Christopher Droney, an Obama appointee, and Stefan Underhill, a Clinton appointee.

“This is not a good thing,” Kirtley, the Minnesota law professor, said of the new appeals court decisions. “The 2nd Circuit has generally been pretty favorable to the media.”

The recent setbacks are notable because the upper hand the media gained in libel litigation as a result of the Sullivan decision a half-century ago grew even more pronounced in the past couple of decades as nearly 30 states passed statutes to discourage the filing of weak or meritless defamation cases related to debates on public issues.

The so-called anti-SLAPP laws — aimed at cracking down on what critics billed as “strategic lawsuits against public participation” — gave news outlets new options to shut down suits quickly and to discourage plaintiffs from filing in the first place because of the threat of having to pay the opposing side’s legal fees.

Some prominent First Amendment lawyers say that while aspects of the recent rulings are troubling, it is too soon to declare that the courts are becoming decidedly more hostile to the press.

“The days of the journalist as romantic hero are long over,” Floyd Abrams, the veteran press defender, told POLITICO.

“It’s true that there was a time in the 1970s and for some years thereafter … when we did seem to win all our cases and journalists were atop all sorts of prestige lists,” added Abrams, who filed an amicus brief backing the Times in the Palin appeal. “We might have won then some of the motions that we’ve recently lost. But the law remains, at its core, favorable and it’s not — certainly not yet — a time for concern.”


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