Showing posts with label libel. Show all posts
Showing posts with label libel. Show all posts

Monday, May 01, 2017

What Trump Needs to Know About Libel

[This commentary is not legal advice, and we do not have a lawyer-client relationship. If you are involved in, or contemplating, suing or being sued for defamation you should consult a lawyer, preferably one with experience in such matters. Lest you wonder, that cannot be me; I've long since turned my bar memberships in Iowa, Texas, and the District of Columbia to "inactive" status. -- N.J.]

I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. . . . So when The New York Times writes a hit piece which is a total disgrace . . . we can sue them and win money instead of having no chance of winning because they're totally protected. . . . we're going to have people sue you like you've never got sued before."

-- Presidential candidate Donald Trump, Rally, Ft. Worth Texas, Friday, February 26, 2016, Hadas Gold, “Donald Trump: We're going to 'open up' libel laws,” Politico, February 26, 2016.
President Donald Trump campaigned, and now governs, with ongoing attacks on the judiciary and the media – two institutions designed by the drafters of our Constitution to provide a check on presidential abuse of power. For those who look to the “original intent,” that was the original intent.

The president’s attack on the media has included the assertion that he is going to “open up our libel laws” so that he can sue newspapers like the New York Times.

Trump can already sue for libel. For starters, he already has the legal right to sue any newspaper or other media outlet for defamation (“libel” if written, “slander” if spoken). Anyone can sue for defamation. That includes the president.

Whether the plaintiff will win involves many elements of a defamation claim, but here’s a summary. There is a statement, about the plaintiff (not always obvious), the meaning of which must be ascertained (not always obvious), as understood by the individuals of relevance (such as customers of the plaintiff, neighbors, or members of the plaintiff’s profession), that was factual in nature (as distinguished from “opinion”), false, and which caused a measurable harm to the plaintiff’s reputation (among those individuals of relevance).

In short, it's simply not true, as Trump has asserted, that the reason he hasn't sued the media is he has "no chance of winning because they're totally protected."

(Many of the president’s tweets and other informal comments attacking and demeaning individuals and institutions would seem to fall within that definition of defamation. But the issues involved when a citizen wishes to sue the president for defamation would require another commentary.)

Different standards for plaintiffs who are public officials. If what Trump meant to say is that, as a public official, he must meet a slightly different standard than you or I to recover a judgment for defamation, he is right. That standard was set in a Supreme Court case.

What was new about Justice Brennan’s analysis for the Supreme Court in the landmark defamation decision, New York Times v. Sullivan, 376 U.S. 967 (1964), was that he approached the language involved from a First Amendment perspective rather than, or in addition to, solely a defamation analysis. [Supreme Court Justice William J. Brennan, Jr., photo credit unknown.]

He wrote,
“[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Sullivan, the plaintiff, was one of three elected commissioners in Montgomery, Alabama –- and therefore a “public official.” As such, the Court held, he had a right to sue for defamation, but to prevail on the elements just itemized he would need to show not just that the Times story had some factual errors.

He would need to show what the Court called “actual malice” – an unfortunate choice of words, since the everyday meaning of “malice” was no part of the standard. “Actual malice” meant that he would need to show “that the statement was made . . . with knowledge that it was false or with reckless disregard of whether it was false or not.”

The standard involving plaintiffs who are ordinary citizens focuses on, recognizes and protects the asset value of individuals’ reputations – with the byproduct of reducing remedies involving violence. Unlike the standard involving ordinary citizens, which only requires a false statement, public officials must show a measure of fault on the part of the media. This is because of the First Amendment value of speech involving public policy and public officials – speech that lies at the heart of what the First Amendment was designed to protect.

Balancing the desire to offer citizens a means for protecting their reputations against the value of First Amendment speech, this is where the Court came out.

Constitutional restraints on congressional and presidential law making. Article I of the Constitution lays out what in high school we call, “how a bill becomes law” (in Article I, Section 7). Clearly the president cannot create “law” all on his own; he cannot “open up our libel laws,” or any other laws for that matter.

Nor can Congress make any laws it pleases. Congress only has the power to legislate regarding what the Constitution grants in the 18 clauses within Article I, Section 8 – none of which come remotely close to libel laws. The “interstate commerce clause” (Article 1, Section 8, clause 3: “The Congress shall have power . . . To regulate Commerce . . . among the several States . . ..”) has been stretched pretty wide by the courts. But defamation? Originating in the English “common law” (judicial decisions) at least in the early 17th Century, if not before, has been considered a matter for the U.S. states.

Hopefully, Mr. President, you’ll find this analysis helpful in your quest to “open up our libel laws.”

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Saturday, July 05, 2014

Obama-Haters' Rhetoric and Media Responsibility

July 5, 2014, 6:00 a.m.

The Hatred That Blinds and the "Socialism" of "Alinsky-Trained Obama"
In summary, I believe there are many significant issues surrounding this incident in which an Obama-haters' email goes viral, is unacknowledged as the basis for a letter to the editor of a hard copy mainstream newspaper, and published by that paper. I do not believe that many of those most serious issues have even been recognized, let alone addressed satisfactorily, by either the Editor's note or the reply letter the paper chose to publish. -- Nicholas Johnson
In "Snopes, Popes and Presidents," Dec. 26, 2013, there's a discussion of the human quality sometimes called "believing is seeing." That is, "what we believe, or want to believe, can have a significant influence on what we perceive." It goes both ways. In that blog essay are examples of how fans of Pope Francis (including me) are as inclined to believe untrue flattering stories about the Pope, as President Obama haters are to believe untrue assertions about him.

Earlier this week The Gazette provided an illustration of the latter in the form of its leading letter to the Editor, prominently displayed above the fold with the headline, "Obama Has Created a Socialist State," July 1, 2014, p. A5. There is no link to provide you because The Gazette, understandably, given the quantity of letters it apparently received pointing out the letter writer's, and its, error, has removed it from its online collection of letters. (In the paper's email to me it noted, "We have received several letters in regard to that particular letter.") Going to the original link provides the message, "Couldn't find mapping for /subject/opinion/letters-to-the-editor/obama-has-created-a-socialist-state-20140630 and no default error page!" (exclamation point in error message).

To build his case against President Obama, the letter writer simply reproduced from an untrue Obama haters' email, viral since January, what the letter writer falsely asserted were Saul Alinsky's "eight steps required to create a socialist state." He concluded his letter, "Does any of the above sound remotely familiar? President Obama, who is a former community organizer and an Alinsky devotee, vowed to 'fundamentally change America.' Hillary Clinton wrote her master's thesis on this book. This is who they really are." [Support for Romney quote: Neil King, Jr., "Mitt Romney's Dad Was an Alinsky Follower," The Wall Street Journal, January 24, 2012 -- plus numerous other references from a Google search.]

Today, July 5, The Gazette has published one of those "several letters" responding to the anti-Obama letter, along with a statement from the Editor. Both the letter writer, and The Gazette have, in my opinion, missed many of the issues raised by this incident -- as well as their seriousness. Rather than further lengthen this introduction, however, I have posted my additional commentary of nine serious categories of unaddressed issues at the bottom of this blog essay.

Because the paper chose not to publish my letter, I also reproduce it, immediately below, followed by the original letter, the letter in response the paper published, and the Editor's statement, so that you can judge the matter for yourself.

Saul Alinsky and President Obama
Nicholas Johnson
July 2, 2014

In a 1988 vice presidential candidate debate, when Senator Dan Quayle compared himself to President Kennedy, Senator Lloyd Bentsen responded, “I knew Jack Kennedy. Jack Kennedy was a friend of mine. Senator, you’re no Jack Kennedy.”

A memory of that exchange prompted my reaction to Joe Gantner’s letter [July 1] -- Gantner’s attempt to link President Obama to community organizer Saul Alinsky and Alinsky “quotes” Gantner alleges reveal Obama’s socialist goals.

“I knew Saul Alinsky. Saul Alinsky was a friend of mine. And believe me, Sir, Saul Alinsky never wrote the words with which you have libeled him” -– along with President Obama and Hillary Clinton.

Nor could Obama have received much mentoring from Alinsky, since Obama was only 10 years old when Alinksy died. In fact, during a conversation I once had with candidate Obama about community organizing, neither of us even mentioned Alinsky’s name.

Some emotionally driven Obama haters are so convinced of their correctness they are willing to believe, and send on to others as true, any email they receive regarding our “Muslim, socialist, Kenyan, imperial” president.

As Snopes reveals, that’s apparently what Gantner has done – and now the Gazette has published. See, "How to Create a Social State; Claim: List reproduces Saul Alinsky's rules for 'How to Create a Social State.'/FALSE," January 2014, and “Snopes, Popes and Presidents,” http://fromdc2iowa.blogspot.com/2013/12/snopes-popes-and-presidents.html.

Finally, the Obama haters should be a little more cautious about their demonizing “community organizing.” It’s just another description of democracy, involving techniques millions have used since our nation’s birth, including both the Tea Party and Occupy movements during this century.

Nicholas Johnson
Iowa City
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Obama Has Created a Socialist State
Joe Gantner
The Gazette, July 1, 2014, p. A5

Saul Alinsky, considered the founder of community organizing, was the author of “Rules for Radicals.”

In that book he outlined the eight steps required to create a socialist state.

o Control health care and you control the populace.

o Increase the poverty level as high as possible as poor people are much easier to control and are unlikely to fight back when their basic necessities are provided for.

o Increase the national debt to an unsustainable level in order to increase taxes and create even more poverty.

o Control guns so the people cannot defend themselves from the government. This facilitates the creation of a police state.

o Create a welfare system to control every aspect of life — food, housing, income.

o Craft the educational system to indoctrinate the children with the state’s agenda.

o Remove belief in God from the government and schools.

o Divide the people into wealthy and poor classes to cause more discontent. Tax the wealthy with the support of the poor.

Does any of the above sound remotely familiar?

President Obama, who is a former community organizer and an Alinsky devotee, vowed to “fundamentally change America.” Hillary Clinton wrote her master’s thesis on this book.

This is who they really are.

Joe Gantner
Cedar Rapids
_______________

Guidelines Should Be Taken Seriously"
Terry Heller
The Gazette, July 5, 2014, p. A5

[Currently available online at http://thegazette.com/subject/opinion/letters-to-the-editor/guidelines-should-be-taken-seriously-20140704.]

I think authors should be embarrassed after they place their names under email circulated screeds presented as letters to the editor, as did the writer of “Obama has created a socialist state” (July 1 by Joe Gantner).

The letter supposedly reveals the secret truth about President Barack Obama and Hillary Clinton.

One can find a description and analysis of this letter at Snopes.com: http://www.snopes.com/politics/quotes/alinsky.asp, which rates its claims as false.

According to Snopes.com, it is false that Saul Alinsky wrote the eight “steps” to socialism in the letter.

Also, it is false that Hillary Clinton wrote her graduate master’s thesis on Alinsky’s “Rules for Radicals.” She did not pursue a master’s degree; but she did write an undergraduate “senior thesis” on Alinsky (without mentioning “Rules for Radicals”) at Wellesley College: see Wikipedia, http://en.wikipedia.org/wiki/Hillary_Rodham_senior_thesis.

While the Wikipedia story is not especially flattering to Clinton, it skewers the absurdity that the thesis shows she is a secret Marxist. A link to the text of her thesis appears in the Snopes.com story.

The Gazette letter guidelines say that the author vouches for the originality of the letter. Surely authors ought to be able to take this guideline seriously. Who wants to shout out that one is a plagiarist before one’s whole community? And who wants to be known for plagiarizing lies?

Terry Heller
Cedar Rapids
_______________

Editor's Note
The Gazette
July 5, 2014, p. A5

Our letters policies have been to rely on authors to vouch for the originality of their work and agree to give us the right to edit for length, redundancy, clarity, civility and accuracy.

We'll be reviewing those policies and our fact-checking procedures over the next week to make sure we are offering the broadest possible forum for diverse viewpoints without facilitating the spread of inaccuracies and rumor. We welcome your ideas: editorial@thegazette.com; (319) 398-8262.

_______________

Nicholas Johnson's Additional Commentary on the Issues Raised by This Incident

Plagiarism. The Gazette's choice of a letter of response suggests the paper agrees with the writer that the primary problem here is one of plagiarism ("I think authors should be embarrassed after they place their names under email circulated screeds presented as letters to the editor . . .. Who wants to shout out that one is a plagiarist before one’s whole community?"). The Gazette's "Editor's note" begins, "Our letters policies have been to rely on authors to vouch for the originality of their work . . .."

Yes, I suppose there are potential copyright and plagiarism issues involved whenever one passes on as one's original work the hate speech, pornography, defamation, national security secrets, private facts, or false and misleading advertising actually created by another. But isn't it a bit duplicitous and disingenuous to focus on the whisper of plagiarism when the bellow of the elephant in the room involves the content of the speech?

When believing is seeing. There is a phenomenon here, well worth analysis and commentary in its own right, that both the responding letter and Editor's note totally ignore. One of the consequences of the divisiveness in our culture and current political climate -- that clearly seems to be present in this instance -- is that the more emotionally attached we are to a given ideological, political, or religious position, the more likely it is that we will fall victim to accepting as true anything that supports our predispositions. As I pointed out in "Snopes, Popes and Presidents," Dec. 26, 2013, this affliction is not limited to the Obama-haters of the radical right -- nor haters generally. Lovers -- whether of ideologies, individuals, or geographical places -- suffer from it as well.

Digital media's audience. During an FCC commissioner term, I titled a book How to Talk Back to Your Television Set. The title was arresting because in the late 1960s it was impossible to talk back to your television set in any sense (beyond sending postal letters to the networks and FCC that were almost always ignored). Today the combination of the Internet and digitization not only permit talking back to the media, but creating one's own media (as with this blog), along with an economic body blow to the 20th Century media industries: book, magazine and newspaper; movie, television and radio; and recording. The Gazette, like many other newspapers still, used to see the value of reader interaction in the form of online public comments connected to its news and opinion pieces. The Gazette appears to have changed its mind about that some time ago -- along with abandoning its Sunday feature, "Blogspot," reproducing in hard copy excerpts from the writing of some local bloggers. While these seem self-defeating decisions, when newspapers need more readers as well as advertisers, I acknowledge that the Gazette, as a business, is run by folks with a lot more experience and knowledge of the newspaper industry than I'll ever have.

Volume of haters' false and unverified emails.
From time to time our normally responsible Republican friends (yes, we do have Republican friends) will send us emails analogous to the one involved here -- wild charges about President Obama that, on their face, raise suspicions as to their possible accuracy. We routinely check them on Snopes. Because such emails are distributed widely, and hang around for a long time, almost always they have been investigated by Snopes and found to be false. Sometimes we send the Snopes' report to our friends, other times we just let it slide. This is one of the downsides of digitization and "everyone their own publisher" -- along with the damage from easily spread defamation, online bullying that sometimes leads to teens' suicides, a variety of offensive speech, and misinformation. With over 1000 blog essays, have I sometimes been guilty? I'd hope not; but I wouldn't be surprised if someone could find factual errors somewhere in there. On balance, I'd rather have such open media than not. But there is a downside, and we all need to make greater effort to check our facts and those of others, and help clean up the Internet in general.

Socialism. Our political economy is a blend of models -- part capitalist, part socialist, and part fascist (in the sense of an interweaving of government and for-profit enterprise, one that takes the form of individual-corporation-benefiting tax breaks and earmarks at the federal level, and the transfer of taxpayers' money to the bottom line of for-profit enterprises by way of TIFs at the local level). Schools, parks, libraries, the Interstate highway system and other roads, bridges and many communities' water systems are "socialist" -- and happily supported by most Americans. So it's both inaccurate and a little silly to rail against "socialism," and label as "socialist," any program or proposal you don't like. The "universal single-payer" healthcare available to all citizens in most of the largest industrialized nations -- and that takes the form of Medicare and Veterans' healthcare in this country -- can be characterized as "socialist." The Affordable Healthcare Act ("Obamacare") cannot; it is a health insurance system, not a health care system, with ever-increasing profits and administrative costs (not present in Medicare) as a result of for-profit insurance companies, hospitals, and doctors. That doesn't mean you have to like it, but it does mean it's not very accurate to describe it as "socialism."

Community organizing. As noted in my submitted but unpublished letter to the editor of The Gazette, "community organizing" is "just another description of democracy, involving techniques millions have used since our nation’s birth, including both the Tea Party and Occupy movements during this century." It makes no more sense to demonize community organizing and community organizers than it makes to demonize socialism. It simply involves the study, design, and utilization of strategies by which neighborhoods, or other groups of individual citizens, can more effectively present their grievances and proposals to governments (or other institutions) disproportionately representative of powerful economic or other special interest forces.

Saul Alinsky. That George Romney spent time with Saul Alinsky, and would say of him (as quoted in the photo near the top of this blog essay), "I think you ought to listen to Alinsky. It seems to me that we are always talking to the same people. Maybe the time has come to hear new voices," should provide some indication that his work is more well regarded by reasonable people than the Alinsky-haters would have you believe.

"Actual malice" and media responsibility. This is neither the time or place for a lengthy explanation of defamation. To say to others, something about someone, that is false, and detrimental to their reputation, in their community, is defamation ("libel" if written, "slander" if spoken). It is a "tort" for which damages may be awarded. Saul Alinsky (now deceased), President Obama, and Hillary Clinton could have made a preliminary case of having been libeled by this email, and now published "letter." The one complication is that, as "public officials" and "public figures" the Supreme Court decided in the New York Times v. Sullivan case that they would not have the rights of ordinary citizens. They would have to meet the higher standard of "actual malice" against those who wrote and distributed the email, the letter writer, and The Gazette. So what is "actual malice"? It is legal shorthand for the defendant speaker or publisher either (a) knowing that what they were saying was false, or (b) with "reckless disregard" of whether or not it might be false. The mere fact one is merely repeating something that someone else has said is no defense; as the saying has it, "the repetition of a libel is a libel."

All of this discussion is not to suggest there is any significant chance that the letter writer or The Gazette is likely to be sued by President Obama or Hillary Clinton. That's not the point. My point is simply that what has happened here is a serious breach of (I believe) legal, and certainly cultural, standards. It's "not nice" to say untrue things about another that will harm their reputation and thereby have an adverse impact on their business, profession, or political prospects.

When obstruction and false accusations become treason. In "When Obstruction Becomes Treason; There Are Many Ways to Bring Down a Government," I explore the question of whether there should be limits to the extent to which the citizens of a democracy can legally and appropriately try to prevent their government from functioning, otherwise disparage and bring it and its leaders down. I won't repeat that discussion here, but it is another issue involved in this incident -- which you can read about there if you are interested.

In summary, I believe there are many significant issues surrounding this incident in which an Obama-haters' email goes viral, is used as a basis for a letter to the editor of a hard copy mainstream newspaper, and published by that paper. I do not believe that many of those most serious issues have even been recognized, let alone addressed satisfactorily, by either the Editor's note or the reply letter the paper chose to publish.
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