With Actual Malice and Reckless Disregard

“Journalism’s ‘both sides’ doctrine, a guiding principle for news coverage by American media outlets, died on Tuesday after a prolonged illness.” That’s the first line of an opinion piece by Erik Wemple at WaPo, and it certainly drew me in. I fear the obituary was a tad premature, but we can hope. However, I think there could be bigger issues at play here.

Wemple’s column focuses on the lawsuits filed by voting system companies Dominion and Smartmatic against Fox News. Fox, of course, aired many unsubstantiated claims that the voting machines flipped the 2020 election from Trump to Biden. Part of Fox’s defense is that they felt an obligation to report on “both sides” of a controversy. So the likes of Sidney Powell and Rudy Giuliani were given many, many hours on Fox News to make utterly unsupported claims of vote manipulation in the 2020 elections. That’s just reporting “both sides.”

“Battling a well-drafted complaint such as Dominion’s is typically a see-what-sticks affair. So in a motion filed Tuesday, lawyers for Fox News argue that the network ‘went straight to the newsmakers’ in pursuing its obligation to report on the allegations; that there is no requirement under the First Amendment for news organization to expose the ‘underlying falsity’ of such allegations; that Fox News has ‘complete protection’ to report on government proceedings; that Dominion fails to document ‘actual malice,’ the sky-high evidentiary standard required to prove a public figure committed defamation.”

“Actual malice” is taken from the Supreme Court’s ruling in a landmark 1964 case, New York Times v. Sullivan. When I was a journalism major at U. of Missouri (class of ’73) this case was ground into my head. It was seen as a huge victory for journalism and a protection for news companies from being nibbled to death by litigation.

You can find the basic facts of the case here. In 1964, the New York Times ran an advertisement soliciting donations to pay for a legal defense for Dr. Martin Luther King, Jr. The ad criticized the Montgomery, Alabama, police department, and those criticisms contained some minor inaccuracies, including the number of times King had been arrested and what song protesters had sung. The Montgomery police commissioner, L.B. Sullivan, sued the Times in an Alabama county court, which ruled in favor of the commissioner. Under Alabama law, Sullivan only needed to prove that there were mistakes and that they likely harmed his reputation. The case then went to the Alabama Supreme Court and eventually SCOTUS.

Justice William Brennan wrote the opinion for a unanimous Supreme Court, and in that opinion he said that public officials “may not sue news media for slander or libel unless the injurious statement is made with actual malice or reckless disregard for the truth,” it says here. Public discussion of government officials and issues should be “uninhibited, robust and wide-open,” he said. The actual malice standard may protect falsehoods, but  “erroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive.”

Journalists certainly embraced this ruling, because there is no such thing as error-free news reporting. No matter how careful one is to get facts straight, there will always be sources that give inaccurate information — sometimes deliberately — and other just plain honest mistakes, especially when dealing with breaking news or very complex issues. New York Times v. Sullivan gave news companies some breathing room when reporting on public officials; they couldn’t be sued for inaccurate reporting or ads unless the official could prove actual malice, which requires proving that a statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Again, this applies to statements made about public officials, not to anybody. However, later cases extended the Sullivan rule to apply to other newsworthy public figures.

Actual malice and reckless disregard for the truth are notoriously difficult to prove, and many argue that the Sullivan standard gives news companies way too much leeway in presenting deceptive reporting. It also allows ads for political candidates to just plain lie like rugs. Further, I personally think the actual malice and reckless disregard in much of Fox News programming is palpably obvious. If that can’t be proved in court, then there are no rules at all.

Fox is arguing that “reporting both sides” relieves them of the reckless disregard rule. We’re just inviting these newsmakers on and letting them express their opinions, Fox is arguing. We are under no obligation to fact check what they say. I don’t know if that one’s been tried before, but it shouldn’t be allowed to fly.

Back to Erik Wemple:

“In advancing its ‘both side’ defense, the motion argues that “coverage of the election-fraud allegations was often quite skeptical,” and cites broadcasts from hosts Laura Ingraham and Tucker Carlson (who notably challenged Powell to furnish evidence of her claims), as well as an interview by anchor Eric Shawn with a Dominion representative. Other Fox News personnel — including ‘Fox & Friends’ co-host Steve Doocy — rebutted or expressed doubts about the election-related conspiracy theories. Dominion, for its part, contends that this awareness actually deepens the network’s culpability. “While these handfuls of statements from a handful of people at Fox do not absolve Fox for its onslaught of defamatory statements about Dominion, they do demonstrate that Fox at a mininum [sic] recklessly disregarded, and really knew, the falsity of the lies its most popular on-air talent were repeatedly promoting about Dominion,” reads the company’s complaint.”

Oops. Wemple goes on to explain how media critics for decades have complained that “covering both sides” often means, for example, pitting a climate scientist and a climate change denier against each other in a studio while a moderator simply sits there and offers no editorial context. This may be entertaining — and it’s a lot cheaper than real investigative reporting — but it does the public a huge disservice by giving science and nonsense equal weight.

A lot of both siderism comes from media’s terror of being accused of bias. Way back in 2000, during the Bush v. Gore presidential election campaign, Paul Krugman famously wrote:

“One of the great jokes of American politics is the insistence by conservatives that the media have a liberal bias. The truth is that reporters have failed to call Mr. Bush to account on even the most outrageous misstatements, presumably for fear that they might be accused of partisanship. If a presidential candidate were to declare that the earth is flat, you would be sure to see a news analysis under the headline ”Shape of the Planet: Both Sides Have a Point.”’

Since Trump, at least part of the media is somewhat less constrained from calling out lies as lies. In 2000, it wasn’t yet allowed.

Erik Wemple again,

“Fox News is arguing that the Trump-Powell-Giuliani lies about the election constitute a ‘side.’ ‘There are two sides to every story,’ reads the network’s motion. ‘The press must remain free to cover both sides, or there will be a free press no more.'”

Are there really “two sides to every story”? I guestion that. Sometimes there might be multiple “sides” from the perspective of multiple factions. But sometimes there’s just one side, which is factuality. What really happened? What does the data tell us? The “two sides” argument tosses facts out the window and just measures two opposing perspectives, which could be entirely biased. That’s what journalism is supposed to root out and expose, not perpetrate.

But here’s what’s rich about the current state of the Sullivan case. Recently some conservative judges, including Justice Clarence Thomas, have been making noises about getting rid of the actual malice rule. W. Wat Hopkins writes at Washington Monthly about a D.C. Circuit panel judge who wrote a dissenting opinion calling for an end to the actual malice rule. Why? Because it protects liberals.

“Silberman’s disdain for the actual malice rule was directly tied to its protection of what he dubbed liberal media who, he wrote, ‘manufacture[] scandals involving political conservatives.’ Finding their bias against the Republican Party shocking, he wrote, ‘The ideological homogeneity in the media—or in the channels of information distribution—risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government.’ He specifically identified as culprits The Washington Post, The New York Times, and the news sections of The Wall Street Journal. (Silberman approves of the Journal’s editorial stance.) He declared that ‘a biased press can distort the marketplace. And when the media has proven its [sic] willingness – if not eagerness – to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.'”

To which I say, okay. Do we want to allow candidates for public office to sue a television news station when it runs their opponents’ political ads making false accusations about them? That would put pretty much all Republican Party campaign ads in 2020 off the air. Yes, it would cancel some Democrats’ ads too, but not all of them, and probably not most of them.

And do we want to shut down the ability of Fox News to put any wackjob in front of a camera to lie about Democrats with no fact checking whatsoever? Maybe it’s time.

Once again, righties, be careful what you wish for.

20 thoughts on “With Actual Malice and Reckless Disregard

  1. Conservatives really, really HATE being corrected about things, and/or getting caught in a lie. 

    And usually, when corrected, or caught in a lie, the accused immediately begins an endless stream of loud lies!  Which means further corrections, which lead to more and more lies!

    If the consequences werent so dire, it's really entertaining to find some local pol in "REEL (intentionally sic 😉 ) America," who's in politial trouble, and follow what happens as the lies mount into a 'tower of babble.". And in some cases, the liar even confuses the situation to the point where the guilty party goes free due to confusion – and exhaution.

    Conservatives have lied since our cave days.  And they need people to cover for them.  These people become  his/her followers. 

    Lucky for the the entire inbred brood, there was oh-so loyal Fox "news" to cover their asses for the past two-plus decades.  And now there's also NewsMax, and OAN.

    Oh, and by the way, it was a myth then, and it's still a myth now: That our MSM had/has a liberal bias.  That's especially NOT a possibility in today's America.

    Why?  Well, what we need to understand, is that there are only a handful or two of different individuals and companies (corporations) who/which control pretty much everything we see, read, hear, (and is some cases, touch) that's considered as news/information and/or entertainment.

    Mr./Mrs. Smith's don't go to Washington anymore.  Largely because there's no local editor or reporter to give the individual the space, time and coverage to grow and too build their following.

    For over 60 years, it's INSTANT coverage (to make more moolah for the media) for some politicians, largely because they're more telegenic than the other candidate(s).  

    The rest are, as a (thankfully) former presiDUNCE would say: "LOSERS!!!"

    And appearance is considered one of the most important attributes for conservatives.

    Substance?  Uhm… Not so much…

    Both sides DO do this on the issue of apperance – but Democrats are nowhere near as bad as RepubliKKKLANS!


  2. Whooops!

    I meant to write "REEL (intentionally sic 😉 ) 'MurKKKa!

    Sorry.  The NY Knicks playoff game started, and I wanted to watch, so I rushed.

    GO KNICKS!!!!!!!!!!!!


  3.  This is an interesting case, considering that Trump wanted the courts to let him sue the NY Times, Washington Post, and CNN into oblivion. Weaponizing lawsuits as a way of gagging the press is a tough issue. 

    The ruling that might deliver justice would make an individual or company liable for malicious lies, whether the outlet OR the guest had malice. There would be no such thing as malicious truth. In editorializing, the standard would be different but so must the phrasing and presentation. Make any 'opinion' show identify that they aren't doing news and they ARE required to tell the truth in any declaration of fact not identified as an opinion. (Madow wouldn't have to change a word of her script. She identifies her opinions/conclusions and they follow a presentation of documented facts.) You can't run an 'opinion' piece and be immune if the editorial contains lies, presented as facts. 

    This would be OK: "I don't like to wear a mask when shopping."

    In the red zone: "Everyone knows masks do nothing to prevent the spread of Covid."


    And bring back the Fairness Doctrine for the above example. There's no victim to bring suit re Covid lies, but it the Fairness Doctrine gave equal time to refute the second example, Fox would self-police to keep Jon Stewart from cutting them to pieces.


    • The Fairness Doctrine was totally unconstitutional.

      I do not understand why forcing someone to broadcast speech they do not agree with is just dandy under the First Amendment.


  4. So if a scientist falsifies data, it is ok to knowingly present his false data as one side of a debate? If a politician does not bear that level of scrutiny in what he presents as a response to other views, does he bear less responsibility than the scientist?  I don't think that matters much, as anymore the Supreme Court is just another political game, like the other two branches. Yes, I am disgusted. I wish facts mattered. 

  5. Yes, as Bill Bush says, science has different rules.  It only takes a couple of scams to wreck reputations, and for things like room temperature fusion to get exposed as bunk.  As I recall science created the Utah effect to explain why experiments from Utah could not be replicated in other labs around the world.  For a while, at least, Utah appeared to be exempt from the laws of nature.  I blame it on too many ice cream parlors but this could be a coincidence not a cause. 

    At one point Americans were told rain follows the plow.  We ended up with the dust bowl and the great depression.  As Becky Quick said this morning to rampant market speculators of late, "I hope you enjoy your poverty".  To those attached to the big lie, I say consider that cheap farm in death valley.  

    There are so many big lies out there, and as Charles Pierce covered in his book Idiot America, these are not new.  Real and severe damages occurred to both  voting machine companies and their harassed and threatened employees due to the recent big lie.  I question if the both sides argument should be even allowed in the courts with lack of evidence as to support the big lie in general or voting machine flaws in specific.  

    Research has supported the conclusion that giving an outlying view equal status to a more established view does not result in having  the truth prevail.  The data supports more the idea that it increases the veracity of the more suspect view.  It seems that the great masses do not have a special power to ferret out weak arguments or misinformation when presented with "both sides".   Yes their are those who still contend that clean coal exists as more than an oxymoron.  

    * Somewhere I have a hard copy of the research I referenced.  I do apologize for not  having it handy enough to provide proper credit.  

  6. jrstheta,

    It was dandy, because, first radio, and then TV, were new, and electronic – not print – mediums.

    There had never been anything like them before. 

    Like right after Gutenberg, who bought printed books? 

    The Catholic Church.  Some of the hierarchy could read. 

    And the rich.  They were the only ones with the money, and any chance of reading them – or learning how.  Wasn't no peasants who could read!  And none would, or even could, for centuries.

    Radio's frequencies had to be assigned by the government, which then had to protect each fequency from "Radio Pirates." So they were regulated by the government.

    And while the government was doing that, we evil liberals wanted equal access to the peep's; while, naturally, conservatives only wanted it for themselves, and for their political purposes.

    Ditto, TV.

    The liberals won that battle for a change.

    But Reagan fulfilled the long-term dream of killing "The Equal Time Rule/Fairness Doctrine."

    Say hello to Rush on radio, and Fox on TV!!!

    Also say hello to divisions and bigotries in all their many, ugly forms.

    And say goodbye to dreams of equality for all.


    • It's not a "win" when the government dictates speech to a private entity. Much less a "liberal" win.

      And regulatory authority does not trump a constitutional right.


  7. jrstheta,

    I understand your point.  And I too don't think it's win – at least not in all cases.

    And radio was an example of why regulatory agencies sometimes need to trump the free speech guaranteed in the First Amendment.

    In the history of communications in this country, after radio proved to be valuable/profitable as a vehicle for entertainment, and not just a  news/communications medium – like the telegraph, or ship-to-shore – there had to be strict rules.

    Furst, there had to be frequencies assigned, and areas mapped, so there wouldn't be harsh static coming out of every radio in an area.

    To make a long story short, the lower a station is on a particular section of the RF (Radio Frequency – which besides AM & FM,  includes TV, cell phones, and a lot of other communucations "stuff") spectrum, the less likely a station is to interference, and the further the signal will carry.

    So, EVERYONE wanted a low channel in order to make the most money.

    But if, say, I set-up my station at 660 on the AM dial, and 10 miles away, you set-up your station at 660, too, the people in between us, and around us, will hear nothing but god-awful static and squawking.  

    No good!  We can't be in the same frequency within X-number of miles.

    So to eliminate that possibility, (initially, the FRC) the FCC had to regulate all of the frequencies, which they did by selling licenses to entities to broadcast over a particular frequency, over a fixed geographic area, for a designated period of time.  Licenses had to be reviewed, and reauthorized.

    Doing that also eliminated the chance that AM and FM would be used like shortwave – which carries a signal a LOOOOONG way!!!  AM, less so; and FM, dramatically less so.

    And these acts insured that when people turned to a particular station, it could be heard without interference.  And also, that's why in the Eastern part of America, the stations start with a "W," like WABC, or WCBS.  And in the Western part, a "K," so there, it's KPBS, or KNBC

    And that's just an overview!  The history of radio and TV are fascinating.  At least to me. 🙂





    • I well understand the rationale for the Fairness Doctrine and regulation of the airwaves. It's taught in Property 1, or at it least was when I studied it some 40 years ago.

      What I don't understand is the reasoning that claims an executive branch regulation, not arrived at by any democratic process involving actual voters, is all it takes to circumvent the First Amendment of the Bill of Rights, which was ratified in 1791 and hasn't been repealed.

      And if you believe the authority of the government to command private entities to publish speech which it didn't write and doesn't agree with is not a violation of the First Amendment, then you lost the plot somewhere.


  8. The Fairness Doctrine and equal time rule worked on the principle that in America lies and untruths and misinformation and deceptions and deceits and Mitch Mconnels were simply impossible in politics. The people were also assumed to be able to distinguish truth from lies.

    We were so innocent then.

    We thought news media would never be dedicated to posing lies as truth, except in fascist regimes.

    Wait. That is still an axiom.

    But once we were naive. 


    • The press at the time of the Constitution was pretty awful. Ask Thomas Jefferson what he thought of James Callender.

      The idea that the press should be neutral in its factual reporting is pretty new, though.


      • Yellow journalism did a lot of damage in earlier times, but professional standards in journalism began to emerge early in the 20th century. Some of that may have been driven by a desire to avoid lawsuits, of course. In my experience most news people take the “reckless disregard” standard seriously and don’t publish information that doesn’t come from a presumably reliable source, which unfortunately is no guarantee that it’s true.

        The “covering both sides” thing isn’t reporting, though. Most of the time, “covering both sides” is just cheap programming. You take a right-wing hack and a left-wing hack and put them in a studio and let them argue in front of a camera. It’s entertaining and production costs are rock bottom. The problem is that it’s a terrible way to inform the public about what’s really going on, especially if a moderator isn’t breaking in and challenging facts, which of course hardly anyone ever does. That was something all the cable news networks used to do, but in recent years they’ve backed away from it a bit. Some of them, anyway.

        In the case of Fox News, hours and hours of prime programming were given to people promoting the “stop the steal” lie, and while occasionally the moderator expressed skepticism there were no serious fact checks going on. I’m not aware they gave anywhere close to equal time to people presenting factual information about the election results and how the votes were counted. That’s not journalism. It’s just propaganda. There is no serious attempt to ascertain whether what was being claimed is true or false, which to me is an open and shut case of “reckless disregard.” If the network wants to run disclaimers that it is taking no responsibility for the veracity of claims, maybe that would cover its ass. But I think most of their audience trusts that what they are being told must be true.

  9. "They can't lie if it's on TV.

    Especially not in prime time!"

    I wish I got a buck every time someone told me that… Bullshit.

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