The 1964 Times v. Sullivan Supreme Court decision said if you’re a public figure defamed by a newspaper, you have to prove “actual malice” to win a lawsuit against it. That means proving “reckless disregard for the truth” — a high bar rarely achieved in court. D.C. Circuit Court of Appeals Senior Judge Judge Laurence Silberman now says it should be easier to sue the media. Silberman says the Supreme Court made up the “actual malice” standard out of whole cloth, overturning centuries of common law jurisprudence.
Background Resource:
Reconsidering Times v. Sullivan: An Influential Judge Says the ‘Actual Malice’ Standard Needs Revision
[The Wall Street Journal, March 22, 2021]
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69 replies on “Actual Malice: Federal Judge Silberman Says It Should Be Easier to Sue the Media?”
For a great movie on this subject, watch “Absence of Malice” with Paul Newnam and Sally Field.
I must admit that though I abhor the way modern Yellow-journalists abuse the protections set up for journalism, I don’t want to see laws, agencies, or bureaucracies “policing” journalism. Journalism needs to police Journalism. I hope you like my idea.
Equal Reporting and Airtime Act “ERAA”
All news shows are required to air story retractions to the exact extent that the original story aired. 85 total mins over 5 days: the retraction has to be 85 total mins over 5 days. This is every show for every network: each host with a show is now responsible for what is broadcast during their broadcast time-slot. Print media is not exempt: print media would no longer be able to bury a retraction on the back page: front page story equals front page retraction, and that includes magazines like Time: yellow cover story, than cover page retraction.
All too often the “news cycle” excuse allows retractions to be skipped entirely or barely spoken. I must admit that enforcement is a tricky road. I favor monetary fines for each individual show (seeing as each show/block has its own budget and producers, etc).
Thoughts?
I think journalists should be unable to exercise a single speech right I personally am not able to.
If you have said something false once, you can claim you did it out of ignorance.
If you have repeated it endlessly, you can’t. For my money, repetition is, in and of itself, proof of “actual malice.”
But even that is a problem if CNN, SeeBS, NBC, ABC, MSNBC, WaPo, NYT, LAT and HuffPo all say it once each.
When they can’t even come up with different words, it’s pretty obvious that it’s coordinated…. but you can’t find the coordinator to sue them.
I suspect true journalism will be re-discovered. The only thing keeping the left media afloat are leftist millionaires and history tells us that these men have few heirs. They never pass on their skills to family because they do not fully understand their own business practices or see some of their own actions as exploitations excused only by their compensating political activity. A new generation of self taught journalists are rising in the blog sphere and on Youtube & Rumble and other sites. It only takes one great story, a scandal the left can’t touch but the others will, to make the next big media star. The key is advertising. We need a conservative ad aggregator to compete with google ad words.
Scott nailed it with his observation. Smarmy ‘journalism’ has been happening since we the people passed the 1st Amendment. In the end it is up to the individual to weed out the truth from the lie. We the people can only hope the truth will set US free. Unfortunately the media, with the government’s blessing, has taken a dubious side.
The problem is that all of those who hear the anchors on CNN lie about Trump will never listen to Fox to hear the truth. Unless CNN issues the retraction, they never hear it.
You do have the opportunity to correct the record, but when 80% of broadcast news won’t run it… that has an effect on how many people hear it.
There should also be a standard for verification so that media of a certain level (the majors) cannot simply publish unsubstantiated stuff.
Who sets the standard?
Ideally the industry would set one itself, like Tech companies do for items like USB size. If the main stream media would agree not to publish a story unless they had at least two sources that would confirm it, then ABC could report what the AP is saying with confidence that it had been verified.
That doesn’t instill me with much confidence. Deciding to use industry standards for technology is one thing, but setting industry standards for what facts are…. that way lies madness.
For example, Lester Holt argued that any “news” saying the sun does not set in the west can be ignored, but then said, when arguing more generally, that any fact not properly supported could be ignored, without defining what would satisfy him as support. Somehow I don’t think all “factual” disputes are as cut and dried as “the sun sets in the west”. I mean, the Clown News Network said, with as close to a straight face as a bunch of clowns can muster, that there is no way to ascertain gender identification at birth. That statement is as factually wrong as saying the sun sets on the North Pole. But not according to Newspeak.
The other problem is the David vs. Goliath nature of an individual (the Covington kid) versus CNN, MSNBC, ABC, CBS, etc. “Journalists” can slander an individual who is relatively powerless to fight back.
Hey, Scott. Being that you are a Christian, maybe you can tell us how your thoughts of media being left alone by authorities, how you can square that with Leviticus 19:16. Since the bible doesn’t think it is lawful to manufacture false things or to do anything that endangers the life of a neighbor, but you think it somehow permissible and shouldn’t have a consequence.. that sort of confuses some things. Says there that it is not okay to slander a neighbor.
And Bill. You said it’s impossible to prove actual malice, but project veritas has been doing it over and over again for the past 2 years. If a news organization can be proven to have had prior knowledge that disproves or contradicts a piece of information, but they stubbornly continue to report this falsehood, that is malicious. They knew and ignored evidence to the contrary and did not act to investigate the legitimacy of either to find the truth. That is reckless disregard for truth.
I’m not sure why, but this sounds very much like an attack.
There is definitely a confrontational response to what I felt was a blase and poor perspective on irresponsible reporting from Scott and Bill’s resigned and defeated attitude. It bothers me enough to call them out on it.
Just because news agencies have become a joke doesn’t mean they aren’t still pretending to play the role of social engineers. Doctor malpractice is a thing too, but that doesn’t mean you shrug your shoulders about it and accept that’s just the way health care is now.
If that’s where we are, I doubt any future projects will make much of an impact if you think you can skate through our problems like that.
I Donate to the Arizona audit. Support project veritas and judicial watch. And I’m here too, but this was a sad episode for me because I’m thinning my sources who become defeatist or sensationalist.
And I’ll admit that I’m still holding on to some sour anti Catholic remarks Scott has said in the past. Elitism in the religious leaves the absolute worse taste in my mouth, especially if you’re standing on justifications for your own stubborn imperfections and use that as an excuse to put off improvement rather than see it as a hurdle you must overcome in an effort to reach for and emulate the perfect we have been made to resemble. St. John of the Cross warns us of this bitter scourge.
It should be remembered that, when the Constitution and the Bill of Rights were written, there was another option other than the courts.
Duelling.
Calling out one who had called your honour into question was a thing. It made the repercussions a personal thing. The matter made the offender personally accountable, not in money terms (or though that might be acceptable) but at actual risk to life and limb.
Certainly, like so many things, it could be abused, but it existed.
I also like the idea of the licensed journalist professional “seal” or whatever credential can be earned via dedicated honest effort. Until it was consistently devalued, I would give more credence to “Journalist Smith” who had this seal and would avoid news sources where that was lacking. Eventually maybe the media would have to employ such people to retain a meaningful audience. But it would also have to be a private sector engineered thing, not something mandated via governmental (FCC?) regulation or law.
Earning such a credential would have to include an extensive exposure to US and world history and the formative ideas behind western civilization. No PC and CRT would be allowed except as a negative example of what to avoid and denigrate when appropriate. It probably should also include decent exposure to the principles of science as well as scientific content/ knowledge, and enough mathematics to critically judge statistical analyses and the best forms of graphical, video, and audio communication. A specific course in constitutional law and major case history might be included, too.
While Scott is probably correct that many of us also like infotainment and personality (e.g., I am watching more Tucker Carlson now than I ever did before), I would also want to have the higher confidence that “sealed” information was more credible and believable than just a rando opinion. Today we try to get that from looking at multiple sources that seem valid and consistent, but we still must keep our cynic and BS antennas moving at all times (which is easier for some than others, partially dependent on the topic under consideration.).
Scott concludes by saying due to social media etc., the “context” is out there and all of us should both carry the burden to look for it and be wise enough to ensure that we have the total story. My only comment on that (and I’m surprised that it didn’t surface during the discussion) is “Sec. 230.” Not only does it negate some of our ability to gather “context,” it also may end up being the 21st century version of “actual malice” codified for Big Tech.
I am actually for a licensed journalist professional. Whom is required to be bonded, just like other professional. I also truly believe there is a market for this type of accountable information, and even a news source from these few, brave truth reporters. If the current news reporters had some invested skin in the game and could lose personally, it might make them think twice about just jumping onto any tidbit of excrement that gets flung their way.
In addition, why couldn’t we also apply this type of idea to the most prolific liars in our lives, politicians?…..
I suppose if the barrier to entry was low (fee of no more than $100?) then anyone could present info under their “personal seal” as true, factual news and anything not under their own seal is opinion. That way at least the NYT excuse of “this was just opinion, we don’t fact check that” wouldn’t fly, because it would be published as news… or anyone reading would know it was just bunk pulled form someplace warm and dark. Though as Scott closed, I don’t know how many people would shift their thinking from “NYT is the bastion of truth” to “NYT is a fish wrapper.”
When somebody, who isn’t you Scott, is injured by public media slander then they are owed recourse. And in a civil society civil offenses are handled by civil court. You can bear it if you like, but there should be the option for those who will not. Why do journalists deserve an escape from the accountability of their volitional lies? We don’t even excuse priests their crimes anymore, although churches mightily try to protect them.
One of the other limits on slander or libel is whether the injured party is a public figure or not. The Covington kid wasn’t, and that’s why he is getting money. The President is however, so they can lie about him with impunity because we don’t have an adversarial press, just “Democrat activists with bylines”.
A couple of executions , not many , just enough to encourage the others.
Scott, you and I have something in common: I, too, was a Journalism student years ago and I once (naively) thought that “journalism was the thing”. I wised up about the time I was set to graduate from college with a B.A. in that once-honorable field. Except for a mercifully brief stint with a small weekly paper, I’ve never worked in the news business. Now, I wish in the worst way that I could take my diploma back to my alma mater and get a refund of my tuition.
tom, why not get another ba in another discipline, then you should be able to bury the evil antagonist in your brain that is driving all this guilt. my mother-in-law got a degree in library science but ended up becoming an accomplished supermarket district manager who made three times what a library admin could ever dream of pulling down. just sayin’.
Oh, I went in a totally different direction….just not via academia. I collected a whole bunch of pilot and instructor certificates and spent almost 30 years rattling around in airplanes of various types. (Check my avatar). That’s about as far from journalism as you can get!
Bill did an excellent Afterburner years ago called Game Theory, in it he described the tactic of “tit for tat” and how “tit for tat” provides for the best outcome for both parties in an ongoing series of exachanges. Our system seemed to be built on tit for tat. Tell the truth, and deliver what you promise, and you are rewarded with customers. Lie, and deliver, let’s say, chalk to parents expecting baby formula, and you can be sued for fraud.
We have, as viewers tuning into news outlets and expecting news, a relationship or exchange with these outlets. We are led to believe it’s news, and the outlets call themselves Cable News Network, CBS Evening News, ABC News, NBC Nightly News….. but may times we do not get News, but narratives created through editing practices which I might call malicious. Is this not at the very least, fraud?
Scott, this is not a case of , well, the Trump speech can be found “somewhere” in it’s entirety, so it’s OK for news organizations to edit video and create a narrative which never happened. News organizations are telling us this was said as it was presented. That’s fraud, no?
Bill’s right but we still want a free press, we just want to herd the press back to reality and it’s a bit like herding cats.
Let’s take the Charlottesville case like Bill did. You, the offended party which in this case is Donald Trump and/or his representative(s), should be able to take that sort of thing to court. That’s clearly slanderous to take a quote out of context when the context is clear and broadly known and the out-of-context citation means exactly the opposite of what was actually said. I.E. it’s not like the press, any of the press, didn’t have access to the entire event for context.
So what to do about it? Take them to court, prove that the statement was taken out of context to adversely affect its meaning and fine the shit out of them …. Or offer them the chance for publication, on the front page or with the same time slot and duration, a full retraction and clarification in lieu of fine/damages.
Either way we arrive at the truth, either through fines and damage awards or through blaring, obvious retractions and corrections. I’m thinking that to start out the various media outlets would go for the pecuniary option and pay cash to hide their perfidy. Eventually that’s going to have the same effect as if they had to publish/air a full retraction and correction. So the herd will be moved, hissing and meowing, back to reality either way.
Yup, I would not always require a front page retraction, but “same location, same prominence” language. Things that were repeated for several days and covered by other papers would need a more visible location to reach “same prominence” if a story from A12 was covered by 3 other papers over 5 days.
Yup, right in that ballpark somewhere. The idea being to not only set the record straight, but to make the lie so painfully obvious and deserving of ridicule to avoid lying altogether in the future.
Scott, your closing comments. So courts must keep out of “it” because journalism isn’t journalism anymore, it’s entertainment…and as such, “entertainment” is someone’s opinion and falls under free speech?
Are you also saying courts should stay out of “it” if the sources were straight news outlets claiming fact? Or is this fair game for courts to get in “it” and loosen the burder to file a suit?
legal precedents is not how we should decide court cases. I attached a screenshot of my YouTube comment so I didn’t have to retype all of it.
Dred Scott !
This analogy does not work. Law is not a house or a 2×4. If a contractor actually built a house by your method, that contractor would surely be sued for incompetence.
Exactly. That’s why legal precedents is not the way we should be conducting law, and not the way the constitution intended the courts to work. It was a product of the Wilson administration.
The analogy you are using to support your argument is invalid.
Your failure to understand the analogy is not measurement of its validity.
Legal precedents are exactly how we should decide court cases. If you want it entirely code driven, I give you France. And Louisiana. Common law is essential if you believe in the concept of equity and fairness. Because rules do not account for that.
But, for goodness sake, select your judges, do not elect them…. THAT is how you destroy a legal system
I’d say with some of the under cover investigations from sources like Project Veritas, it’s a lot easier to prove malice or perniciousness with the libel/slander coming from mainstream “news” outlets. These lawsuits for such and for defamation have to happen. This malicious and intentional lies spewed will not stop or slow until those doing such pay a REALLY BIG price.
The big price doesn’t have to be only money either.
What the msm/social media did to DJT definitely falls under the “willful intention to cause harm”. I wish he would sue every one of them into oblivion.
A “Free” press was intended for checks and balances to root out the tyranny that can happen hidden from site. Now, a “free” press means that they think they can print anything and they have an agenda to push.
But why is Malice hard to prove? Using the example here, it is clear that once there had been push back on the actual statement PDT made, then all outlets should have stopped using the “both sides” edited blurb. That it still continued in the face of the whole statement is Malicious. It is printing / airing of verifiably false information when the truth is known.
.. and in perpetuity for all posterity. It is literally bastardizing history peremptorily and proactively. If that’s not malice I can’t imagine what else would qualify.
I’m with Bill o this one. He got it right.
The problem with the media is that the morons spewing the lies, half-truths, and innuendo actually BELIEVE their bleating bullshit. THEY DO NOT KNOW THEY’RE LYING…because they’re stupid and as a consequence, easily brainwashed. This applies to at least 50% of the audience as well.
As stupid as they are, they know they are lying. They just believe they are entitled to do so.
… because they make a very weak and self-serving case they’re doing their lying “for the greater good”. The road to hell is paved with better intentions than that.
Both social media and the modern mainstream media are nothing more than euphemisms for the old, tried-and-true term, GOSSIP, which is a soul-destroying activity that my mother told me to never partake.
I partake of neither. Reading and hearing about it is bad enough.
Wow, Scott. I can barely remember Wolf Blitzer.
you didn’t miss anything…trust me.
I stopped watching CNN sometime during the Gulf War.
Scored what I believe is a record Minus $4600 on Jeopardy. A real Ted Baxter, looked the part but a total moron.
Find an episode of celebrity Jeopardy with Wolf. You’ll remember him henceforth as one of the stupidest people to ever play the game.
I will never forget him, God help me, but I think he knows more than Joe Biden…
If you want to see dumb, try watching Chris “tingles” Matthews on there
As was Sean Connery (perfectly portrayed by Darrell Hammond)..
Sorry, I didn’t read further down before I commented.
Anybody remember Walter Cronkite? He was the most trusted name in TV broadcasting until he slowly changed to biased reporting. People didn’t catch the change until it was too late. Sort of what happened to Fox News.
Forced out by pressure from Rather at the ripe old age of 65, Rather then stayed to 103 or something until he disgraced himself or he’d still be there.
cronkite never changed, he just found it harder to lie.
Priorities matter so respect how scott seems to occasionally refer to his notes. In my previous life I was a retail store director with 250 or so employees on any given day and it was essential to have my abc list set and ready ‘every’ morning before the doors were unlocked. Just guessing but i think he has carried that successful business plan into other areas of his life. I know i still make a todo abc list, albeit weekly rather than daily now at the age of 73.
Great video this morning. I’m ok with a free press but i would love to see some checks and balances in our k12 public schools, that are ruining our once great constitutional republic. Ritalin, soy, estrogen, title IX, teachers unions, unfunded public sector liabilities, revisionist history, silencing of parental rights….talk about carte blanche with no accountability! That would make a great panel discussion in my humble estimation.
tally ho boys.
The agenda in our public schools (and far too many private ones) is exactly what the communist plan has been going back 100 years or longer. A long, slow take-over of the minds of Americans. And from the response to the Covid tyranny, it has worked all too well.
so true lynda. covid was a chimeric that emboldened these bastardos.
“Give me four years to teach the children and the seed I have sown will never be uprooted.”
Vladimir Lenin
But it was uprooted, 70 or so years later, in a different generation.
It probably wasn’t the children that Lenin taught but rather their grand children, after being mugged by reality, IE saw too much of the west via news and smuggled movies.
I hope some of the same thing will happen here as the Gen Z and such saw how things have been handled over the last decade (Trump finding Obama’s lost “Economy Go” button for example) and shake off the lies of their boomer parents. (Other boomers and their kids are wise enough already, not having been brain washed by the free love and stuff parties that degenerated via helicopter parents into universal trophies and the current snowflakes).
The fact that the communist-style ideology plays for the “long con” over generational time periods and evolves as it goes — from economic class conflict, to social and intersectional identity, to racial tribalism — tells us there is more to this adversary than just the quest for personal power on the part of some sick-minded despot or other. Or even a group of despots working together.
Comparing our America system of open enterprise and meritocracy against the evolved/devolved communist ideologies it is clear which system is the greater lift to the human condition overall. Just look at something as basic as the food supply where, in all communist regimes starvation has been a factor whereas in the industrialized West led by America starvation is a very rare occurrence.
When taken as a whole with as much information in view as possible the picture becomes clear. We’re not dealing with an ideology alone, we’re dealing with evil. An evil that not only strips people of their personal liberties and degrades the very quality of life for all but the elitist leadership, it also eats people with a tremendous gusto.
How ironic and pathetic then that the perpetrators and minions of this grave and great evil claim to hold the moral high ground. That any moral high ground is even capable of being claimed by evil tells us where our efforts need to be concentrated. We need to knock evil off its pedestal, again.
This is nothing new or uncommon to human history. The problem is that evil gets better and better at being evil. A trait of good is to try to get along with people and follow the Golden Rule but the character of evil is to use that trait against good as much as possible.
Good against evil – forever in play, never ceasing. Your last paragraph brilliantly says it all,
I just ran out of all the right words because you used them all! “Evil gets better and better at being evil”. Best thing I’ve read in years. Thank you.