THINK LIKE A LIBEL LAWYER
It’s the best way to keep an open mind in this era of ‘pick your side and stay on it,’ explains libel lawyer
My job, when I am doing it right, is to please no one. I’m a press lawyer. I’m paid by The New York Times to vet stories before publication.
Think of me as a story’s first and worst reader: doubtful, questioning, blind to subtlety, skeptical of the facts, regularly prodding editors and reporters to do something more or different. And if I have done my job well, many of the subjects of those same stories will be unhappy as well, but for all the reasons we want them to be: We got it right.
The basic idea of libel law is simple. A publisher can get sued for making a factual statement that proves to be false and hurts a person’s reputation. For those of us charged with helping news organizations avoid libel suits, that means we learn to look at the world through the eyes of the person at the center of any tough story, often the bad guy in the tale.
I am all about the villains in many pieces — the doctor who botched the surgery, the insurance company that shafted its customers, the professor who hit on the student, the greedy industrialist who ground up workers to make a fortune. I try to look for the counternarrative that they could (and their lawyers will) build from the same set of facts. It’s a counterintuitive form of reading. It’s looking for the innocent explanation or the possibility that what appears to all the rest of the world to be nefarious may in fact just be a mistake made in good faith.
It’s a tricky skill to take into the real world. When the guy at the grocery story with 17 items cuts in front of you in the express line, maybe you don’t want to wonder whether he just honestly miscounted (17 can look a lot like 10). Or ponder the possibility that he sincerely thinks he is supposed to be counting food groups, not boxes. Or earnestly gauge the likelihood that he is a devoted father in a rush to get home to a sick and hungry child. Maybe you just want to go with irate and level a “I hope you die, sir” stare.
But for a libel lawyer, a little sympathy for the villain is almost an occupational requirement. And maybe it wouldn’t be a bad idea for all of us in the tribalized “pick your side and stay on it” era we are living in.
Most Times stories don’t take much of a legal lift, or any at all. But my approach was never more tested than in the 2016 campaign. I had been a Times lawyer for a decade and a half by then. Week after week, I was alternatively in the tank for Hillary Clinton or Donald Trump, whoever happened to be the piñata on any given day, doing my part to make certain that our coverage was sound.
I have an old-school vision of the First Amendment: that journalists should tell stories straight, that readers can be trusted and that out of that process we as a country will get it right more often than not.
Libel lawyers don’t serve as the fairness police. If anything, they are more like fact cops. Coverage can be wildly unfair and still be true. And that is what matters to the law. Still, as the campaign ended and the Trump administration took hold, and as much as I continued to cling to a blind faith in the power of facts, it was impossible not to get drawn into the white-hot debate over coverage in a politicized America.
It was a debate rippling across our democracy at a time when news operations were facing extraordinary financial challenges. Over the past half-decade, The Times and others had reoriented themselves to reader-centered journalism. The shift in attitude has been like opening a window after a long winter. Journalism should be done as if the readers mattered.
But in a divided America there was a risk, too — the risk that we would set our compass by what people wanted rather than giving them the journalism they needed. Among our readers, the appetite for stories that were unflattering to Mr. Trump and the people around him seemed insatiable. There were times, though, when we needed to tell other kinds of stories if we hoped to reflect the world as it was.
In late November 2016, Scott Shane of The Times’ Washington bureau did a profile of Steve Bannon, at that time Mr. Trump’s goto aide. It was a well-reported piece of journalism done by the book, a profile of a
newsmaker that had no ambition beyond letting readers know who this Bannon character was.
It set readers’ hair on fire. Part of it was the digital headline that described Mr. Bannon as “combative” and a “populist” when many readers thought “racist,” “white supremacist” or “xenophobe” might have done the trick.
If people wanted to see Mr. Bannon as a menace to America, the facts for getting there were to be found in the profile. But if readers preferred to see Mr. Bannon as an enigmatic figure with a most unlikely résumé for someone who ended up where he ended up, the article gave that narrative, too. It was discouraging that so many people apparently believed that the time-honored journalistic act of telling a story straight had become a problem and that The Times needed instead to take sides and coach readers on what to think.
Journalism is hard when people feel the failure to take sides is in and of itself a surrender. It is not an easy time to be speaking up for a journalism that follows the facts wherever they lead, even if our readers (or our president) don’t want to be taken there.
By the time the profile of Mr. Bannon ran, the altright and its enablers had become the masters of trying to silence all the voices they found disagreeable. It was not a model I thought we should emulate. The great risk we face comes not in giving them voice but in taking their worst instincts and making them our own.
At least that is the freepress vision I tried to bring to my legal work, even as the president continued his toxic attacks on the press. But it wasn’t always possible to hear the “fake news” drumbeat and shrug. In April 2017, the PR person for a gun-control group wrote to us with a strange cheeriness: “Just wanted to let you know that the NRA has released another unhinged video, this time targeting N.Y.T. Apparently, they’re ‘coming for you.’ Happy Friday!”
The video was another release from the National Rifle Association’s media outlet, NRATV, featuring its favorite over-the-top talking head, Dana Loesch, the go-to ringmaster for the group’s propaganda circus. Wearing a white top offset by the allblack background of the NRATV studio, Ms. Loesch spewed out her not-quite-controlled rage about fake news, directly addressing The New York Times. “Consider this the shot across your proverbial bow,” she announced. “We’re going to laser-focus on your so-called honest pursuit of truth. In short, we’re coming for you.”
Many people at The Times found it chilling and pressed us to respond in some way. All of that was understandable. We have lived through many death threats to our people. But I questioned whether we really wanted to give the NRA and its fans the satisfaction of an official response from the company. The First Amendment gives a lot of protection even to nasty speakers. We stood down as a company. We were willing to let the hit piece fade into obscurity.
I was more than a little surprised, then, to pick up The Times a few months later and find spread across the Sunday Styles section a fairly glowing profile of none other than Dana Loesch. Online, the headline described her as “the National Rifle Association’s telegenic warrior.” The reporter and Ms. Loesch took what seemed like a lovely trip to the neighborhood shooting range.
I think, upon reflection, it spoke well of The Times. Ms. Loesch was a person in the news, and we write about people in the news, not just the people we agree with.
I never heard whether Ms. Loesch considered the profile fake news, but four weeks later she was once again lighting up the screen at NRATV — literally. A new video showed Ms. Loesch holding up a lighter to a copy of The New York Times. “You know, I don’t even have to do this,” she said. “You guys are doing a good enough job burning down your reputations all by yourselves.”
Lovely.
But that is how the First Amendment works — thanks to our “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open,” as Justice William Brennan said in the landmark Times v. Sullivan case, which raised the bar for libel suits against publications. Speakers are allowed to be provocative, colorful, contradictory and wrong.
It is a beautiful thing. Bizarre some days, but still beautiful.