The com­ing crash of the law­less me­dia

The Washington Times Daily - - COMMENTARY - BY WES­LEY PRUDEN Wes­ley Pruden is ed­i­tor in chief emer­i­tus of The Times.

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 rock-throw­ing 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.

CNN, once a fairly re­li­able source of news, with a weak­ness for trivia and given to ped­dling old news as the new thing, is now 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 was 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.

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 in­cited mur­der, be­cause her po­lit­i­cal-ac­tion com­mit­tee cir­cu­lated a map with crosshairs 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. 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 what when 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 at pain of death 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 cor­rec­tion, and what looks like “ac­tual mal­ice” lies ev­ery­where abun­dant.


Johnny Depp

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