The Latest News About Lawsuits and Subpoenas

There’s an update in the Smartmatic and Dominion voting machine lawsuits against, um, a bunch of people. Here’s a list of who is being sued. And here’s the update, from the same source.

Voting company Smartmatic’s defamation lawsuit against Fox News and several of its anchors can move forward, a judge ruled Tuesday, also reinstating some claims against attorney Rudy Giuliani, as Smartmatic and rival company Dominion Voting Systems pursue a dozen defamation lawsuits over baseless election fraud claims about their voting machines.

This article at NPR will catch you up on a couple of the suits, which are being heard by Delaware Superior Court Judge Eric M. Davis. I found this bit especially interesting.

Like Dominion, Smartmatic was the subject of false claims that its software had switched Trump votes to Joe Biden. Those claims were broadcast on Newsmax, Fox News and elsewhere.

Davis earlier this month denied Newsmax’s request to toss out Smartmatic’s defamation claim. Davis ruled that the facts pleaded by Smartmatic lead him to “reasonably infer” that Newsmax’s airing of stolen-election claims was reckless enough to meet the high legal bar required for defamation.

“Newsmax either knew its statements regarding Smartmatic’s role in the election-fraud narrative were false, or at least it had a high degree of awareness that they were probably false,” the judge stated.

Awhile back I wrote about the “actual malice” and “reckless disregard for the truth” standards from the old New York Times v. Sullivan (1964) case. Sullivan basically protects news outlets from being sued into bankruptcy for reporting negative things about politicians and other people of public interest. Very briefly, even if, say, a newspaper made a mistake and reported something that is false about a public figure, the public figure cannot collect damages unless he can prove the reporting was done with “actual malice” or “reckless disregard for the truth.”

These are both high bars, but they shouldn’t be insurmountable. Fox and other right-wing news outlets that pushed the stories about voting machines “stealing” votes from Donald Trump are arguing that they were just covering both sides. Trump and his people were making the accusations against the voting machine companies, which is a newsworthy thing, and we’re just reporting what they are saying. It’s not our responsibility to fact check them. 

Just to be clear, here’s an example of the kind of thing being shown on Fox News after the 2020 election.

Fox showed Dominion’s disclaimers, but this was not really an equal presentation of “both sides.” And as I wrote in the earlier post, this “both sides” standard has done a huge disservice to the American public for years. “Covering both sides” has meant, 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. There’s been less of that in recent years than there was, say, during the George W. Bush years (remember Crossfire?). But it still happens way too much. And what Jeanine Pirro is doing in that video is not journalism, either. Allowing a partisan hack to present unsubstantiated nonsense without challenging it robustly needs to qualify as “reckless disregard for the truth.”

This suit is complicated, IMO, by the fact that the litigant voting machine companies are not public office holders but businesses, and the defamation on the part of right-wing news must certainly have hurt their ability to do business. Plus many of the claims being made about Dominion and Smartmatic, such as alleged ties to the government of Venezuela, could be debunked via a ten-minute Google search. It’s not that hard.

Anything calling itself “journalism” should be required a certain amount of due diligence to fact check or at least acknowledge that facts are not known. It’s never perfect. News reporting is a messy business, and even the best reporters will get facts wrong sometimes. But I don’t think the Sullivan standards mean that no effort need be made at all.

In other legal news, MSNBC reported last night,

The special counsel investigating Donald Trump’s handling of classified documents is seeking to compel a lawyer for the former president to testify before a grand jury, a source familiar with the matter said.

Prosecutors allege in a sealed filing that they have evidence that some of Trump’s conversations with the attorney were in furtherance of a crime, the source said.

In a sign of an aggressive new legal strategy, first reported by The New York Times, the source said special counsel Jack Smith has asked a judge to allow prosecutors to invoke what’s known as the crime-fraud exception, which would let them sidestep protections afforded to Trump lawyer Evan Corcoran through attorney-client privilege.

I like the furtherance of a crime part. Evan Corcoran, of course, is the lawyer who allegedly told Christina Bobb to sign a statement last June that all of Trump’s White House documents had been turned over to the proper authorities. Steve Benen provides background.

Finally, we get to Mike Pence, who is fighting a Jack Smith subpoena by citing the “speech and debate” clause from the Constitution. Article I, Section 6, Clause 1:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Pence, of course, was neither a Senator nor a Representative. But Pence is so concerned about Separation of Powers that he refused to speak to the January 6 committee because they were legislative and he was executive. Now he’s flipping that around and saying that he was legislative while Jack Smith works for the executive. But given the corruption of our courts, few people are willing to come out and say Pence couldn’t get away with this.

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.

Are Our News Media Learning?

A righteously frustrated Colbert King writes,

The vaudeville show that’s running at 1600 Pennsylvania Avenue didn’t book itself into the White House. Nearly 63 million Americans sent that burlesque comedy with headliner Donald Trump to Washington. That  million other voters thought otherwise is beside the point. Trump didn’t anoint himself president. Millions put him in office.

What does that tell us about the country?

I would ask, what does that tell us about U.S. elections and how people make voting decisions? Many mistakes were made last election by both parties; little went according to plan. But I think a lot of the blame has to go to news media and how elections are covered.

The single biggest source of information most voters go by is cable and television news. The chart is from Pew Research Center, from February 2016.

Notice that only 2 percent of people get information from national newspapers; 1 percent actually check out the candidates’ websites.

If you check out the article, you see that older people in particular lean on cable and television news, whereas younger people lean more heavily on notoriously unreliable social media. Among millennials, 6 percent name “late night comedy” as a source, way ahead of any sort of newspaper, local or national.

But going back to cable and television news, what exactly did people learn about the candidates last year from those sources?

Recently Warren Olney wrote in the Los Angeles Times that Trump owed his election victory to the current head of CNN Worldwide, Jeff Zucker.

Zucker helped create “The Apprentice” as a vehicle for Trump when he was head of NBC Entertainment, Olney wrote. And “As president and chief executive of CNN 10 years later, Zucker became the giver who kept on giving.”

Washington Post media columnist Margaret Sullivan has described his contribution this way: “It was Zucker who gave Trump astonishing amounts of free exposure in the Republican presidential primary on the cable network, continually blasting out his speeches and rallies — often unfiltered and without critical fact-checking.”

During the election season, I saw entire Trump rallies carried live by CNN, interrupted only for mandatory commercials. Not only was there no critical fact-checking, there was no serious effort to provide context for viewers. Never raised, let alone answered, was the question: Why should a developer with a shaky reputation and no relevant experience be seriously considered for the most powerful job in the world?

It wasn’t just CNN, of course. I was never to frustrated with television news as I was on March 15, 2016, when three cable networks ignored a speech being given by Bernie Sanders in favor of covering Trump’s empty podium. Ryan Grim wrote at the time,

Fox News, CNN and MSNBC all declined to carry Sanders’ speech, instead offering punditry about the evening, with the chyrons promising, “WAITING TRUMP” and “STANDING BY FOR TRUMP.”

Hillary Clinton last week got similarly dissed by the networks in favor of Trump.

Earlier Tuesday, The Huffington Post”s Michael Calderone reported that the media have collectively given Trump some $2 billion worth of free air time. 

Thanks to Trump’s ability to drive ratings and generate controversy, as well as his unmatched accessibility — notably by phone — TV networks have covered the candidate nonstop since he entered the race last summer. Numerous rallies and press conferences have been aired live, while sexist and bigoted remarks typically result in a flurry of TV interviews. After canceling a rally Friday night, Trump dominated cable news by calling into CNN, MSNBC and Fox News for a total of 48 minutes in under an hour.

“Trump’s ability to drive ratings” is key here. He was entertaining. People tuned in to see what he was up to.

Colbert King is wondering why so many Americans couldn’t see his flaws:

Trump the candidate showed himself to be an ignorant, undisciplined, ranting bully who exaggerated and lied without shame. A man who wore a tough-guy masculinity but was actually a coward, who picked on women, demeaned minorities and was thoroughly lacking in human decency. …

… Trump’s ties and affinities to Russia were no secret, either.

Two months before Election Day, reports appeared in The Post, including in this column, that there was strong evidence that Trump’s businesses had received significant funding from Russian investors — thus adding to a growing sense that the Russians may have had their hooks in him and his associates.

Plus, there were the stories about how Trump stiffed his vendors, about how Trump apparently cheated on his taxes, about Trump’s old ties to the New York mob, about his “Trump University” being nothing but a scam, about his many business failures, etc.

But was any of that on cable or television news? The Washington Post and New York Times were both doing a dandy job of digging up the dirt on Trump’s past. But if you don’t read those newspapers — and clearly, most voters don’t — would you have known about those stories? Would you have even been dimly aware those stories were even out there somewhere? I don’t think so. The only dirt on Trump that gained any traction on cable or television news, as I remember, was the “grab ’em by the pussy” remark.

One of the things that must be done, before we go through another presidential election campaign, is to put pressure on television and cable news to present the candidates responsibly and honestly. We need massive media reform. We’ve needed massive media reform since the 1980s, at least. Some of us have been complaining about that for years. The Democrats, at least, ought to be pushing that agenda, because they’re the ones most hurt by the way politics is covered. But they don’t.

Social media, alas, is a cesspool of misinformation, and I’m not sure there’s much that can be done about that. Being able to ban or block fake news sites would help, but there’s a reluctance to do that for fear of shutting off legitimate news.

They Doth Not Protest Enough, Methinks

Last night after I was done writing I learned that someone had leaked documents to The Intercept showing that the NSA knew about a Russian attempt to hack election officials and an election software company before the November 2016 election.

I found a discussion of this on social media, and apparently knowledgeable people in it said that what The Intercept published didn’t indicate that the Russians had succeeded in changing election results. What I’ve said all along: Whatever the Russians might have done, even if they hadn’t done it Hillary Clinton probably would have lost, anyway.

But this morning I fully expected to find media erupting in news about What Did the NSA Know, and When Did They Know It? Instead, it’s mostly subdued news stories about the NSA leaker.

If I were a suspicious sort of person, I would find this odd.

First Ailes, Now O’Reilly? Maybe.

In his most recent column, Michael Gerson slams Fox News.

If the accusations of dozens of women over two decades are correct — and it is hard to dismiss the women, as the accused have done, as unbalanced, dishonest or disgruntled — then Fox News is the focus of hypocrisy in the modern world. While preaching traditional values, it has operated, according to former Fox anchor Andrea Tantaros, “like a sex-fueled, Playboy Mansion-like cult, steeped in intimidation, indecency and misogyny.”

A recent New York Times story detailing $13 million in payouts to women accusing O’Reilly of harassment depicts a corporate atmosphere of predation and enablement. Stories on Ailes present a similar (and even worse) picture of women treated as sex objects and employment benefits.

Gerson’s column could almost have been written by a leftie feminist, except for one slightly paternalistic line, “Can a news organization deal adequately with women’s issues when you would never allow your own daughter to work there?” But I forgive Gerson, because he recognizes the essential problem.

The ethos of a newspaper, cable network or website influences the final product. At The Post — reflecting its investigative self-image — the new motto is “Democracy Dies in Darkness.” At Fox, this ethos has involved, according to the New Yorker’s Margaret Talbot, “the fetishization of hot female news presenters.” And this, it seems, has doubled as a kind of conveyor belt for bright new faces. Can it really be a coincidence that feminism is often dismissed on Fox News as so much political correctness?

Of course it’s not a coincidence. Nor is it a coincidence that more than 30 advertisers recently withdrew their advertising dollars from O’Reilly’s show.

Erik Wemple of WaPo points out that O’Reilly is known for dismissing his detractors with insightful insults, such as “pinhead” and “far-left loon,” but he’s been mostly silent lately. Now that Ailes is out, will Fox News continue to shell out millions of dollars to keep its big star online?

False Flags About False Flags?

WaPo has a story up about evidence of a possible Russian attempt to hack the power grid.

A code associated with the Russian hacking operation dubbed Grizzly Steppe by the Obama administration has been detected within the system of a Vermont utility, according to U.S. officials.

While the Russians did not actively use the code to disrupt operations, according to officials who spoke on the condition of anonymity to discuss a security matter, the discovery underscores the vulnerabilities of the nation’s electrical grid. And it raises fears in the U.S. government that Russian government hackers are actively trying to penetrate the grid to carry out potential attacks. …

…Burlington Electric said in a statement that the company detected a malware code used in the Grizzly Steppe operation in a laptop that was not connected to the organization’s grid systems. The firm said it took immediate action to isolate the laptop and alert federal authorities.

Besides the fact that I’m beginning to think I should be worried about my Kaspersky (a Russian company) security software — this story is a bit ambiguous; this might or might not turn out to be a big deal. But hacking of the electrical grid is a major deal, so it is something to be taken seriously. There will be more investigations.

This story also is being reported by Reuters, the Associated Press and the Guardian, although they are attributing most of their information to the Washington Post. These are news outlets with some standards about sources. Again, maybe it’ll turn out to be nothing, but I wouldn’t dismiss it out of hand.

However, others do. Today there was much hooting in social media about false flags. Sample:

Latest False Flag scapegoating, Russia hacking Vermont says MSNBC and Faux News?? Lol Lol. After all Vermont is a high value target. Feel the Bern. Lol. SERIOUSLY?? Anyone Remember the Movie, The Russians are Coming (a cold war era comedy)

Well, yeah, and there really were Russians, although nice ones. Hey, did you ever see the trailer for that movie? It’s a hoot.

Classic. Anyway, at the bottom of the WaPo story is a disclaimer, saying:

Editor’s Note: An earlier version of this story incorrectly said that Russian hackers had penetrated the U.S. electric grid. Authorities say there is no indication of that so far. The computer at Burlington Electric that was hacked was not attached to the grid.

Someone associated with Alex Jones called the WaPo story a false report. The Daily Caller put out a story headlined “Washington Post Publishes False News Story About Russians Hacking Electrical Grid” by a reporter named Alex Pfeiffer, who looks like he might be almost old enough to shave.

A story published by The Washington Post Friday claims Russia hacked the electrical grid in Vermont. This caused hysteria on social media but has been denied by a spokesman for a Vermont utility company.

The “denial” was that the hacked computer was not attached to the grid, as WaPo corrected. The Vermont utility company did not deny that a hacking code was found on one of their computers. But apparent journalism school dropout Pfeiffer continued to ridicule the WaPo story, playing up “panic among journalists.”

The thing is, that any foreign government might be attempting to hack the electrical grid, even if they haven’t succeeded, really is a big, scary serious thing. Even Pfeiffer might appreciate that if he ever finds himself in the middle of a major, prolonged blackout.

My larger point is that there’s such a thing as being too skeptical for one’s own good. I really hate that it’s now “cool” to dismiss everything in the news as just more manipulation.

Trump Versus the Media

Trump seems to be trying to intimidate the press. While this New York Post story appears mostly to have been generated by Matt Drudge’s fantasies, the Politico version of what happened when Trump met with 25 media executives yesterday — to discuss a “media reset” — was weird enough.

Trump turned to NBC News President Deborah Turness at one point, the source said, and told her the network won’t run a nice picture of him, instead choosing “this picture of me,” as he made a face with a double chin. Turness replied that they had a “very nice” picture of him on their website at the moment. …

… Trump also singled out CNN, the source said, without elaborating on what the president-elect said about the network. A CNN spokeswoman wrote in an email that the network would not comment on an off-the-record meeting.

The Washington Post, which I understand was not represented at the meeting, was less kind.

But if the media elite attended in hopes of improving relations with the forthcoming Trump administration, that wasn’t quite in the cards. The president-elect specifically called out reporting by CNN and NBC that he deemed unfair, according to four people who attended the meeting, all of whom spoke on the condition of anonymity because the meeting was off the record.

Instead of striking a harmonious tone to build rapport following the election, Trump was combative, participants said. In a calm and deliberate voice, he told the group sitting around a conference table that they had failed to provide their viewers with fair and accurate coverage, and told them they failed to understand him or his appeal to millions of Americans.

But he made no mention of the enormous amount of airtime that the networks, especially on cable, devoted to his campaign. A number of analyses have noted that Trump’s presidential effort was boosted by the news media’s fascination with him.

In a sign of another battle with the media to come, Trump also shrugged off the need for a constant press pool covering him, the people said, though he did not delve into specifics. Trump has repeatedly shirked his pool, upending a long-standing tradition of the president and president-elect.

WaPo currently is featuring an article saying that the Trump Foundation confessed to the IRS it had violated rules on “self dealing.”

Trump had a meeting scheduled with the New York Times, then cancelled it in a series of whiny tweets, but apparently kept the appointment.

But the New York Times had already published a story about how Trump and other billionaires are laying the groundwork for “an unprecedented legal assault on the media.”

 

Whatever Trump’s feelings about the media, New York Times v. Sullivan will surely survive his presidency. The case is revered, and in the last several years, the Supreme Court has moved to expand, not contract, the reach of the First Amendment. And states have taken steps, too: To prevent people from using the courts, and the discovery process, to silence or retaliate against their critics, 28 states and the District of Columbia have enacted anti-Slapp laws — the acronym stands for “strategic lawsuit against public participation.” It’s possible, however, that Trump could appoint judges who would find a way around the usual press protections. More immediately, he could ask his Justice Department to prosecute journalists who report leaks from his administration. (President Obama’s Justice Department investigated reporters, but didn’t charge them.) It’s also possible that the press will be a meeker watchdog because of subtler changes that are harder to track. As the head of the executive branch, the president exerts a great deal of control over access to information. Federal agencies have power to shape the state of the union; they also describe it for us by producing reams of facts and statistics, which in turn shape our assessment of our elected leaders. Trump could hire people who cancel funding for government reports or research that doesn’t serve his interests, or who suppress findings the administration doesn’t like.

The new president will be a man who constantly accuses the media of getting things wrong but routinely misrepresents and twists facts himself. “Their single goal will be to burnish their reputation,” Tim O’Brien predicts of the Trump administration. There are signs, too, of new efforts to harness the law to the cause of cowing the press. Trump’s choice for chief adviser, Stephen Bannon, ran the alt-right Breitbart News Network before joining Trump’s campaign last summer. Breitbart announced last week that it was “preparing a multimillion-dollar lawsuit against a major media company” for calling Breitbart a “ ‘white nationalist’ website.” Even if Breitbart is bluffing, the threat will discourage other news outlets from using that term to describe it, and that will in turn help Breitbart and Bannon seem more acceptable to the mainstream. Trump was right about one thing: You don’t have to win every case to advance in the larger legal war.

Because of the proliferation of alternative news sources, the mainstream press doesn’t have the power to make or break a president as in the old days (think Lyndon Johnson, if you’re old enough to remember the news coverage he got). But they could surely pile a world of hurt on an administration if they were pissed off enough, and not cowed into compliance. We’ll see what happens.

The New Iron Curtain

Joan Walsh complains that it isn’t true Clinton didn’t have policy ideas that would have helped working women. “Clinton proposed steep tax hikes for the rich, to pay for things like paid family leave and tuition-free college, a precisely redistributionist approach,” Walsh wrote.

I know she did. But I’m the sort of politics nerd who actually goes to candidates’ websites and reads them. I can assure you that hardly any voters in Missouri heard anything about Clinton’s paid family leave and other proposals.

Clinton could have run television ads here talking about what she wanted to do for working people. Instead, she ran ads letting us know that Donald Trump ties are made in China. I saw that one multiple times.

It might have helped if the debates had been a little more focused on issues instead of gotchas, but as I wrote a couple of days ago, Clinton doesn’t know how to frame arguments in language that a red stater could understand. The kind of shorthand or boilerplate language Democrats in blue states use with each other is alien in these here parts. So when Clinton in the debates talked about investing in the middle class, I knew what she meant. But that’s a meaningless phrase to red state folks. They have no grounding in what that might actually mean, because such things are never talked about here.

I don’t know how much more I can emphasize that if you live in a red state, and you are not the sort of person who enjoys reading newspapers from around the world through the Internet, you don’t hear liberal/progressive perspectives on anything. You will not have heard them since the Lyndon Johnson Administration, frankly, meaning that if you haven’t yet achieved Geezerhood you may not know there ever were liberal/progressive arguments for anything. All you know is that “libtards” like raising taxes, just because, and like big government programs, just because.

And, again, if you were watching this election from a red state or district, and all you knew about Hillary Clinton was what you saw on the television and in social media, you wouldn’t have liked her, either, regardless of how racist or sexist you might or might not have been.

I don’t know that all the small-town newspapers and red state television and radio stations are owned by wingnuts, but I suspect most of them learned a long time ago to be cautious about how they handle political news. As their marketing areas got redder and redder, too anti-conservative a message, or even coverage that too vigorously questioned the Right’s hegemony, could have cost them their business.

That leaves us with the national television news, which is mostly worthless. I know a lot of people blame the loss of the Fairness Doctrine for this, but IMO what really killed it were decisions made, many years ago, to consolidate news and entertainment programming. News departments used to be entirely separate from entertainment and were run by senior news people who were serious about, you know, news. Now news departments are considered part of entertainment and are managed by the same people who thought spinning the Geico Cavemen into a sitcom was a great idea.

See also Allan Chernoff, Blame the Rise of Trump on the Failure of Network News.

So if there’s one thing I wish I could get across to the Democrats in the Beltway, it’s that they’re going to have to make an extraordinary effort to break through the iron curtain of disinformation in red states. A couple of rallies and some meh campaign ads won’t cut it. They need to begin a barrage of progressive policy arguments in these states. They should drop pamphlets from airplanes, if that’s what it takes. And they need to begin it now, before the next election campaigns begin.

Walsh ends by issuing some snarky “apologies,” ending with “I apologize for thinking that the country was ready to elect a woman president.” Well, they might be ready to elect a woman president; they just weren’t ready to elect Hillary Clinton.

Facepalm Time for Fox News

This is High Derp, even by Fox standards. Remember this part of last night’s debate?

HOLT: Mr. Trump, a lot of these are judgment questions. You had supported the war in Iraq before the invasion. What makes your…

TRUMP: I did not support the war in Iraq.

HOLT: In 2002…

TRUMP: That is a mainstream media nonsense put out by her, because she — frankly, I think the best person in her campaign is mainstream media.

HOLT: My question is, since you supported it…

TRUMP: Just — would you like to hear…

HOLT: … why is your — why is your judgment…

TRUMP: Wait a minute. I was against the war in Iraq. Just so you put it out.

HOLT: The record shows otherwise, but why — why was…

TRUMP: The record does not show that.

HOLT: Why was — is your judgment any…

TRUMP: The record shows that I’m right. When I did an interview with Howard Stern, very lightly, first time anyone’s asked me that, I said, very lightly, I don’t know, maybe, who knows? Essentially. I then did an interview with Neil Cavuto. We talked about the economy is more important. I then spoke to Sean Hannity, which everybody refuses to call Sean Hannity. I had numerous conversations with Sean Hannity at Fox. And Sean Hannity said — and he called me the other day — and I spoke to him about it — he said you were totally against the war, because he was for the war.

HOLT: Why is your judgment better than…

TRUMP: And when he — excuse me. And that was before the war started. Sean Hannity said very strongly to me and other people — he’s willing to say it, but nobody wants to call him. I was against the war. He said, you used to have fights with me, because Sean was in favor of the war.

And I understand that side, also, not very much, because we should have never been there. But nobody called Sean Hannity. And then they did an article in a major magazine, shortly after the war started. I think in ’04. But they did an article which had me totally against the war in Iraq.

And one of your compatriots said, you know, whether it was before or right after, Trump was definitely — because if you read this article, there’s no doubt. But if somebody — and I’ll ask the press — if somebody would call up Sean Hannity, this was before the war started. He and I used to have arguments about the war. I said, it’s a terrible and a stupid thing. It’s going to destabilize the Middle East. And that’s exactly what it’s done. It’s been a disaster.

HOLT: My reference was to what you had said in 2002, and my question was…

TRUMP: No, no. You didn’t hear what I said.

HOLT: Why is your judgment — why is your judgment any different than Mrs. Clinton’s judgment?

TRUMP: Well, I have much better judgment than she does. There’s no question about that. I also have a much better temperament than she has, you know?

(LAUGHTER)

I have a much better — she spent — let me tell you — she spent hundreds of millions of dollars on an advertising — you know, they get Madison Avenue into a room, they put names — oh, temperament, let’s go after — I think my strongest asset, maybe by far, is my temperament. I have a winning temperament. I know how to win. She does not have a…

HOLT: Secretary Clinton?

TRUMP: Wait. The AFL-CIO the other day, behind the blue screen, I don’t know who you were talking to, Secretary Clinton, but you were totally out of control. I said, there’s a person with a temperament that’s got a problem.

HOLT: Secretary Clinton?

CLINTON: Whew, OK.

(LAUGHTER)

Good times. Anyway, are we all clear that Lester Holt said that Trump supported the invasion in 2002? So now Fox News is all GOTCHA LESTER HOLT because it found a news clip in which Trump expressed opposition to the war.

But the clip is from 2003.