Present editor and FOI advocate extraordinaire David Cuillier has moved into the leadership role at Florida's Brechner Center, so he needs someone new at the helm of the journal. The associate editorship is a three-year gig with a $2,500 annual stipend.
I serve on the Journal's Editorial Board. So you know it's a worthy cause.
The deadline for application is October 1, 2023.
Spencer Peltz, my brother, has published a co-authorship, "Athletes’ Displaced Dissent on Social Media: Triggering Agents, Message Strategies, and User-Generated Responses," in Communication Quarterly from Taylor & Francis.
Here is the abstract:
Organizational dissent is ubiquitous in task-oriented groups, including sports teams and leagues. Yet, how and to whom that dissent is voiced and the responses to dissent can vary extensively. This study investigates how professional athletes enact displaced dissent and how the public reacts via sentiment analysis of Trevor Bauer’s YouTube channel. Findings identified 53 triggering agents that were consistent with those of subordinates in traditional workplaces. A novel triggering agent of external stakeholder management was also identified, which addressed Major League Baseball’s focus and consideration for its public, their interest in baseball, and relationships with athletes. Bauer expressed his dissent via 94 messages, mainly featuring a combination of rhetorically effective strategies and emotional release. Sentiment analysis of commenters’ 1,612 replies revealed rhetorically competent messages were either unassociated with or enhanced negative sentiment, but positive sentiment was created through entertainment (i.e. humor and pressure), inclusion (i.e. coalition building), and shared ideals (i.e. inspiration).
Gregory A. Cranmer, Brandon Boatwright, Jimmy Sanderson, and Angeline Scheinbaum co-authored the article with Peltz, who was the only contributor without a Ph.D. (I know the feeling.) Cranmer is a professor at Clemson University, where he was generously supportive of Peltz, who completed his bachelor's there last year.
Peltz is a digital marketing specialist at Forefront Networks in Austin, Texas.
(UPDATE, April 18, at 5:17 p.m.: NBC News reported a half hour ago that Dominion and Fox News reached a $787.5m settlement.)
CBS Sunday Morning did a nice piece this week on Dominion v. Fox News and the long heralded, but ever more evidently problematic, "actual malice" standard.
The piece explains the N.Y. Times v. Sullivan (U.S. 1964) "actual malice" standard in public-figure-plaintiff defamation cases such as Dominion, and how the standard is exceptionally provable upon the extraordinary evidence Dominion uncovered about Fox personalities' duplicity in knowingly professing misinformation.
Many a media pundit has made the observation on the seeming provability of actual malice in the case. CBS's voice for the point is that of Lee Levine, a highly regarded, now retired attorney who represented mass media companies in famous cases before the federal courts. In the Sunday segment, Levine says something along the lines of rarely if ever having seen an actual malice case he could believe in before now.
With Stephen Wermiel, Levine wrote a book, Progeny, about the "fight to preserve the legacy of ... Sullivan." It's a good book on its merits. At the same time, its rhetoric and thesis well serve to bolster the social and economic power of the mass media business establishment.
As on CBS, Levine and lawyers like him often are held up as standard bearers for the First Amendment. But the corporations they represent are hardly freedom fighters in the romantic tradition of the lone pamphleteer.
I've long opposed Sullivan as a matter of constitutional fidelity or First Amendment imperative. It takes ill account of competing values, such as the right of personal reputation that has caused other western-democratic jurisdictions, such as Canada and Europe, to reject the standard as too stringent. As internet democratization has made it easier for ordinary people to be devastated by reputational harm, Sullivan has become ever more indefensible.
Dominion ought not be regarded as the rare exception that proves the rule. The plaintiff-company is able to make its case only because, to date, it has been sufficiently determined and well resourced to get over the many hurdles, such as anti-SLAPP statutes, that usually shield mass media from accountability. Most defamation plaintiffs, if they sue at all, see their cases dismissed without the benefit of discovery.
Dominion ought instead be taken as evidence in the mounting case that Sullivan has been a powerful cause of our misinformation crisis.
Each year, I become freshly enraged at the cost of seeing Premier League football in the United States, a ready example of antitrust non-enforcement in the communication sector.
The Sporting News had the audacity, or stupidity?, to describe NBC carriage of PL matches in the United States as a "luxury." I guess it is, a luxury only the rich can afford. To follow one's team, one must, at minimum, subscribe to NBC partner FuboTV for $70 per month. Access via FuboTV costs just US$20 per month in Canada.
The tangled cross-ownerships of what used to be broadcast TV are indicative of the dearth of consumer protection in the area. NBC "competitor" CBS (Viacom) owns a stake in FuboTV. The legacy broadcasters are using their weight in contracting power to lock down content in channel consolidators that emulate the old cable TV business model, by which consumers were compelled to overpay for a sliver of content in a library they didn't want. Hardly the free market promise of streaming.
But the FCC long ago left the helm unmanned on consumer protection when broadcasting gave way to cable. And the FTC and DOJ have had little interest in expanding their purview in times of corporate-captured governance. As usual, the United States purports to model free market capitalism in an oligopolized market that is anything but.
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| FuboTV in Canada at left, United States at right. The package in Canada has fewer channels, but if PL is all you want, that's not an option. |
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| From the Summit newsletter, with me at lower left |
I delivered remarks arising from my paper, "Communication Policy as a Factor in Post-Pandemic U.S.-India Business Development," available on SSRN. Here is the abstract.
For better and worse, we live in the age of the transnational corporation. That corporate landscape is dominated by a very few actors, namely the five-trillion-U.S.-dollar oligopoly of Amazon, Apple, Meta/Facebook, Alphabet/Google, and Microsoft. That market dominance has proven to be counterproductive to countless priorities, including social and economic development, civil rights, and environmental sustainability. And the problem of Big Tech’s market dominance was dramatically exacerbated by the pandemic. Now national governments are trying to figure out what to do. Today, in the context of a program about how the United States and India can move forward together to facilitate transnational business development after the pandemic, I offer observations in two dimensions. One dimension is the jurisdictional relationship of the United States and India. The other dimension is the nature of the legal challenges in the global post-pandemic business environment. These challenges range from the broad level of the competitive marketplace to the narrow level of the information ecosystem, and, en route, pass through the problem of communication regulation, which is my own area of research.
The hosts generously presented me with an "Amity Global Academic Excellence Award."
I was privileged to contribute updated articles on Copyright (previous edition draft) and the Freedom of Information Act (FOIA) (previous edition draft).
A lot has changed since the first edition more than a decade ago. I am grateful for the editorial leadership of Professor Gregory A. Borchard at the University of Nevada, Las Vegas, for his direction and feedback on redrafting the content for the new edition.
Here is the description of the project from Sage.
Journalism permeates our lives and shapes our thoughts in ways that we have long taken for granted. Whether it is National Public Radio in the morning or the lead story on the Today show, the morning newspaper headlines, up-to-the-minute Internet news, grocery store tabloids, Time magazine in our mailbox, or the nightly news on television, journalism pervades our lives. The Encyclopedia of Journalism covers all significant dimensions of journalism, such as print, broadcast, and Internet journalism; U.S. and international perspectives; and history, technology, legal issues and court cases, ownership, and economics. The encyclopedia will consist of approximately 500 signed entries from scholars, experts, and journalists, under the direction of lead editor Gregory Borchard of University of Nevada, Las Vegas.
Here is the first paragraph of Copyright.
Copyright is a legal protection of expressions that are fixed in tangible media. Copyright describes, for example, an author’s right to reproduce a book manuscript, an artist’s right to duplicate his painting, or a musician’s right to perform an original score. Copyright is part of a family of legal interests loosely termed intellectual property, which also includes trademarks, patents, and trade secrets. This entry examines the origins of copyright as well as related theory and criticism. The entry also discusses copyright law, the fair use doctrine, and legal issues connected to copyright law. The entry concludes with a discussion of copyright within the context of journalism.
And here is the first paragraph of the Freedom of Information Act (FOIA).
The Freedom of Information Act (FOIA) is an information disclosure statute that provides the principal means of access to records of the executive branch of the United States federal government. The FOIA, codified at 5 U.S.C. section 552, was enacted in 1966 and has been amended since, significantly by the Electronic FOIA Amendments of 1996 and the OPEN Government Act of 2007. This entry discusses the history of the FOIA, its use today by journalists and others, variations in its interpretation, its influence on other governments, and related laws in the United States.
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| A leaked Trump 1040 from 2005 |
Filed yesterday in Dutchess County, New York, this latest lawsuit (complaint at CNS; Times's own coverage) mainly alleges breach of contract in the earlier settlement of litigation by Mary against Donald over the handling of the estate of Donald's father, Fred, who died in 1999. I wrote on the course blog for my Trump Litigation Seminar in 2020 about another lawsuit, which is ongoing, by Mary against Donald over the estate of her father, Fred, Jr.; and about a suit by Donald's brother Robert, who died in 2020, which failed to enjoin publication of Mary's book.
The instant complaint alleges that Mary Trump was the source of Trump tax records published by The New York Times in its 2020 exposé. The bits that interest me are counts of tortious interference with contract and of "aiding and abetting" tortious interference—or the civil equivalent of aiding and abetting, more accurately described as "providing substantial assistance or encouragement"—against the Times. The complaint alleges that the Times "relentlessly" encouraged Mary to leak the tax records while knowing full well that doing so would breach her confidentiality agreement.
An intentional tort, tortious interference is not confined to business or media, though it's often classified as a "business tort," its usual injury being economic loss. And it's often included in mass comm law treatments as a "media tort," because it's sometimes deployed against news media.
The paradigmatic case of an interference tort leveled against news media is the threat of Brown & Williamson Tobacco to sue CBS for its 1995 60 Minutes interview with whistleblower-scientist Jeffrey Wigand in violation of Wigand's non-disclosure agreement. There is a classic scene in the feature film about the matter, The Insider, in which CBS producer Lowell Bergman (Al Pacino) loses his marbles upon admonition by CBS counsel Helen Caperelli (Gina Gershon) that truth is not a defense to interference, rather is an aggravating factor. "What is this, Alice in Wonderland?" Bergman wonders aloud. The instant Trump case is compelling for its similarity to the Insider facts.
Interference as a media tort in the public imagination, or at least the lawyer-public imagination, surfaces periodically. I wrote about the issue in 2011 when Wikileaks for a while threatened to spill the secrets of big banks. (That fizzled.) The high incidence of non-disclosure agreements in settlements of Me Too matters, and the former President's enthusiasm for NDAs combined to fuel another spurtive engagement with the issue in recent years.
The issue prompts sky-is-falling missives from media because the role of, or any role for, the First Amendment as a defense to tortious interference is fuzzy. In reality, the problem rarely gets that far. Without unpacking the nitty gritty, it suffices to say that tortious interference has public policy built into its rigorous heuristic. It is prohibitively difficult to press the tort against a publisher operating with at least a gloss of public interest.
The Trump complaint tries to circumnavigate that problem by accusing the Times of profit motive in its pursuit and publication of the tax records. But the history of tort litigation against mass media is littered with failed attempts to drive the stake of profit-making through the heart of the journalistic mission. Whatever degradations have afflicted mass media in our age of misinformation, no court is going to buy the argument against the Times on that score, at least not on these facts—cf. Palin v. N.Y. Times (N.Y. Times), in which the alleged editorial misconduct is substantially more egregious.
The case is Trump v. Trump, Index No. 2021-53963 (N.Y. Sup. Ct. filed Sept. 21, 2021).
[UPDATE: At 9:47 a.m. today, Thursday, Sept. 2, I received word that Locast is suspending operations, effective immediately.]
Locast, an online retransmitter of broadcast television, and the American public together suffered a major blow on August 31, as the federal district court in New York handed partial summary judgment to ABC, CBS, Fox, and NBC in the networks' copyright infringement lawsuit.
Locast has irritated me, but only for not expanding fast enough. Where I live, near Providence, R.I., the service is not available. It is available in New York to the south and Boston to the north, but access is strictly geo-fenced. As a result, my family cannot see free broadcast TV without springing for an expensive subscription to a cable service or streaming-channel consolidator.
That's not really Locast's fault. Broadcasters have reduced their power over the years, making free TV incrementally more difficult to access. I live just nine miles from the broadcast towers that serve the Rhode Island state capital, but I cannot receive any signal with an interior or window-mounted antenna.
Indeed, the networks seem to want out of the broadcast game altogether. Kickbacks from online consolidators such as Hulu Live and YouTube TV, and the networks' profits from their own services, such as Paramount+ (and Hulu Live, in part), are more lucrative than broadcasting and come with no FCC regulatory strings attached. Local affiliates, including vital broadcast news outlets, fall through the cracks, wreaking further havoc in our information market, but that's no matter to the bottom line. Locast threatened to breathe life back into the corpse of free TV, so the networks pursued the service with a vengeance.
Locast is a non-profit, and its "business" model is simple. It sets up a technology hub in a place such as Boston and converts local broadcast signals to online streams. Home cord-cutters thus have their access to free TV restored through the internet service they already have, no antenna needed.
On the face of it, of course, this business model would constitute copyright infringement for copying and redistributing the broadcast signals. But Congress, in a rare showing of commitment to the public interest rather than to the profit margins of our corporate overlords, built an exemption into the Copyright Act. Governmental or nonprofit organizations are permitted to retransmit "without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service."
Locast is freely available and supported only by voluntary donations. But streaming is interrupted at 15-minute intervals by 15-second pleas for donations. Like the ad-free versions of pay-TV services, Locast offers absolution from these interruptions in exchange for a minimum "donation" of $5 per month. The $5-donation model proved sufficiently successful that Locast was able to cover its operating costs and use the excess to expand to new markets.
And that, expansion, was Locast's sin, in the eyes of the district court. Judge Louis L. Stanton opined that Congress could have written "maintaining and operating and expanding" into the statutory exemption, but did not. So Locast's dedication of additional accounts received to expansion was fatal to its claim of copyright exemption.
I find the court's reading of the statute exceedingly cramped. Locast plainly is spending money to do precisely what Congress intended: making free TV available to people who cannot receive it without hiring a contractor to install an antenna tower. That the books must balance within each micro-market rather than across live markets, in the utter absence of evidence that a dime has been diverted to any other objective, absurdly splits hairs.
Locast lawyers, joined by the Electronic Frontier Foundation, say they are examining the ruling. Locast announced yesterday that it is for now ceasing streaming interruptions requesting donations.
There are ways that Locast can work around its current predicament, I reason. Locast has been supported by some major corporate donors who are not old-school TV insiders, such as AT&T, which contributed $500,000. Internet service providers such as AT&T benefit from Locast, because retransmissions are streamed into homes, rather than broadcast. With more careful balancing of the books, it should be possible, if cumbersome, to parse operations between discrete markets and to raise capital to support expansion directly.
It's a shame that such gamesmanship should be required for what is clearly a public service. And a bigger problem might remain for American information and entertainment consumers in the ongoing, if prolonged, death throes of free TV. We might hope that Congress would obviate the fray with bold measures that would reinvigorate the landscape of electronic expression by enhancing public-interest limitations on digital intellectual property and guaranteeing access to the internet for all Americans.
We also might hope to see pigs take flight.
The case is American Broadcasting Cos. v. Goodfriend, No. 1:19-cv-07136 (S.D.N.Y. Aug. 31, 2021). I bet Judge Stanton is one of those people who has both cable and Fubo and can't use either one unless someone helps him with the remote.
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| Peltz |
Spencer Peltz, my brother, is your next ambassador of quan. Look out when he is unleashed on the communication market. He will not rest until you're "holding a Coke, wearing your own shoe, playing a Sega game featuring you, while singing your own song in a new commercial, starring you, broadcast during the Super Bowl, in a game that you are winning."
According to the Clemson COMMunity Roar, "[t]his award is given annually to a student in recognition of ... outstanding performance in the classroom, academic achievement, involvement in the program, creative effort, and character." Congratulations, Spence!
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| Christian Dorn from Pixabay |
I've written about anti-SLAPP many times. I'm not a fan of the statutes. The OTM piece is good and important, but it tells only one side of the anti-SLAPP story. That's a common, and forgivable, shortcoming in mass media coverage of itself.
Why I Care, and You Should Too
So when the media defense bar teamed up with state legislators to start piling on anti-SLAPP statutes as another death-blow weapon in the scorched-earth media defense arsenal in the late 1990s, I was skeptical from the get-go. Upon the siren song of free speech absolutism, now decades on, Americans have fallen into the lazy habit of denying access to our courts to would-be plaintiffs who are genuinely victimized. As a scholarly observer of tort law, I can tell you, bad things happen when people are systematically disenfranchised from justice. What's worse, as empirical research has consistently told us for decades, and I confirm from my own experience, the ordinary defamation plaintiff is not the money-grubbing opportunist that tort reformers (or distorters) wish us to imagine; rather, what a defamation plaintiff usually wants, first and foremost, is the truth. News media defendants might remember the truth from journalism school.
How did we get to a point that when a plaintiff and defendant want the same thing, it's still a zero-sum game? If with the best of intentions, the U.S. Supreme Court in the civil rights era so distorted the state landscape of defamation law that media defendants lost all interest in compromise, even if the simple compromise is to correct the record and speak the truth. Sullivan biographer Anthony Lewis recognized this problem in the penultimate chapter of his otherwise-paean to the case in 1992. And this is why the 1993 Uniform Correction or Clarification of Defamation Act proved a profound failure. The uniform law proposed using a First Amendment-compliant carrot rather than a constitutionally prohibited stick to coax media defendants to hear complainants out before facing off in court. But, media defendants implicitly pleaded in response, why should we listen when we always win?
Anti-SLAPP laws are perfect for the thing they're perfect for: To shut down an obvious attempt to abuse the legal process with a sham claim when the plaintiff's true motivation is to harass or silence a defendant engaged in constitutionally protected speech or petitioning, especially when it's whistle-blowing. "I know it when I see it" is why a South African judge recently allowed anti-SLAPP as an "abuse of process" defense even in the absence of a statute, shutting down a mining company's implausible suit against environmentalists. Meanwhile, the American anti-SLAPP statute, the darling offspring of mass media corporate conglomerates and financially beholden legislators, tears through court dockets with no regard for the balance of power between the parties.
As a result, sometimes, like the infinite monkey who stumbles onto Hamlet, anti-SLAPP works. Other times, David is summarily shut out of court at the behest of Goliath. The dirty secret of the media defense bar is that it's pulling for the latter scenario more often than the former, because Davids pose a much greater threat to the corporate bottom line than the occasional, over-hyped monkey.
Squirrel! SLAPPs Aren't the Problem
SLAPP suits only work because of a bigger dysfunction in tort law: Transaction costs are way too high. Lawyers and litigation cost too much. (Law school costs too much, but that's another rabbit hole.) Our civil dispute resolution system, in contrast with those of other countries, so prizes precision as to draw out civil proceedings to absurd expectations of time, energy, heartache, and money. Too often, at the end of a litigation, both exhausted parties are net losers, and only the lawyers, on both sides, come out ahead. The tort system is supposed to engender social norms and deter anti-social conduct through its compensation awards, not its overhead costs. We've so contorted torts, especially when accounting for suits that are never brought, that the norm-setting and deterrent effects of transaction costs dwarf the impact of outcomes.
Anti-SLAPP tries to solve the problem of runaway transaction costs by summarily dismissing claims on the merits when a plaintiff cannot prove the case at the time of filing, usually without the benefit of discovery. The game is rigged, because the evidence the plaintiff needs is in the possession of the defense. So plaintiff's unlikely path to proof, already mined with common law and constitutional obstacles to press the scale down on the defense side, is well obliterated by anti-SLAPP. We could use this "solution" of summary dismissal across the board to cut back on tort litigation. But people wouldn't stand for it in conventional personal injury, because then we'd be overrun with uncompensated and visibly afflicted plaintiffs, and the injustice would be undeniable.
If we dared have the creativity to experiment with more effective dispute resolution mechanisms as alternatives to tort litigation, we might best start with defamation cases, in which we know what plaintiffs want, and it's not money. Yet here we are, hamstrung by the Supreme Court, disenfranchised by defense lobbyists, and forced to swallow the dangerous myth that we can have free speech only if we stand aside and let mass media deliver misinformation with impunity.
The Case of the Charity Exposé
and the Lamentations of the Media Defense Bar
In the April segment, OTM host and media veteran Bob Garfield interviewed Victoria Baranetsky, general counsel for the 501(c)(3) nonprofit Center for Investigative Reporting (CIR), about a lawsuit by also-501(c)(3) nonprofit Planet Aid against CIR. The lawsuit arose from a 2016 series on the CIR Reveal platform, in which CIR alleged abuse of charitable status by the organization through, inter alia, improper diversion of donor funds. A California federal judge dismissed the 2018 complaint in March 2021, and Planet Aid, which is appealing, and CIR have very different takes on what that dismissal meant. Planet Aid emphasizes "46 statements" in the reporting that the court found false, notwithstanding anti-SLAPP dismissal, while CIR emphasizes "several million dollars" of legal costs, "vastly exceed[ing] ... insurance coverage" and impossible to pay without pro bono aid.
CIR is not an outfit that publishes without doing its homework. So without opining on the merits of the lawsuit, I admit, my gut allegiance in the case tends to CIR. And I think it's OK that OTM interviewed only Baranetsky. "Balance" as a journalistic value too often feeds the "talking heads" phenomenon we know from the disintegration of television broadcast journalism. OTM's report was about the toll of litigation on journalism, not the merits of the CIR stories. Looking, then, at the OTM story, I find that a side was missing, but it wasn't Planet Aid's. Missing is reasoned resistance to the anti-SLAPP craze. Here, then, are my reflections on five media lamentations in the OTM story about anti-SLAPP.
Lamentation Over Forum Shopping
(1) Baranetsky lamented that Planet Aid was permitted to sue in Maryland, where the law was advantageous to a plaintiff, and CIR was forced to incur major costs to move the case to California, where anti-SLAPP law is more protective. Federal anti-SLAPP would fix this problem.
Forum shopping is a problem, but not specially a media defense problem. Barring defamation victims from redress equally across the states isn't better than barring them one state at a time; i.e., 50 wrongs don't make a right. Rather, everything that's wrong with anti-SLAPP would be multiplied by a federal statute. Plaintiff's choice of forum does aggravate costs, and that allows forum shopping to be used improperly as a SLAPP tool. The answer is to change how we manage forum selection in federal civil procedure to stop the externalization of costs to defendants and to compel professionalism in the plaintiffs' bar—not to put a thumb on the scale of merits in lawsuits, even SLAPPs.
Moreover, in overriding state court discretion to hear defamation actions on the merits, a federal anti-SLAPP statute would double down on the entrenched Sullivan/Gertz paralysis of the tort system that's precluding the development of innovative alternatives. Our problem in defamation law is not lack of uniformity in the states, but precisely the opposite, lack of diversity that would generate new approaches.
Lamentation Over the Burdens of Discovery
(2) Baranetsky lamented that California federal courts have allowed limited discovery before dismissing cases under California anti-SLAPP law, thereby upping the costs of money and time for media defendants and mitigating the efficacy of anti-SLAPP.
Notwithstanding the present debate in the Courts of Appeal over whether state anti-SLAPP laws can displace federal court process, anti-SLAPP puts defamation plaintiffs in a no-win scenario, especially when the plaintiff is a public figure. Under Sullivan/Gertz, a public-figure plaintiff can prevail only by proving subjective knowledge or intent on the part of the defendant to publish falsity. Subjective culpability lies only in the mind of the defendant. Without precogs, we prove subjective culpability with circumstantial evidence. When the defendant is a mass media organization, that evidence is in the possession of the defendant. Even in a negligence case with a private-figure plaintiff, it is impossible to probe the culpability of the defendant when the plaintiff has no knowledge of the defendant's internal process, even the identity of a staff editorial writer, for example.
Yet along comes anti-SLAPP to demand (in the usual formulation) that a plaintiff prove likelihood of success on the merits with evidence that the plaintiff could not possibly possess. Win-win for the media defense, lose-lose for access to justice. Baranetsky bemoaned the costs, tangible and intangible, of discovery, especially on a nonprofit media outlet. With that complaint, I am sympathetic. Again, though, the answer is to change the process to control transaction costs. The long reach of American discovery is globally infamous and socially problematic in ways well beyond the woes of media defendants.
Baranetsky raised the further point that the permitted discovery was one-sided, so CIR was not able to use discovery to bolster what might be a winning affirmative defense, such as truth. I take this point, too. I have some concern about the potential for a media organization—imagine not CIR, but a more partisan and unscrupulous outfit—to misuse discovery to further ill intentions. But courts can and should control the scope of discovery with appropriate protective orders.
Lamentation Over Interment by Paper
(3) Baranetsky lamented that the Planet Aid "complaint was about 66 pages, almost 70 pages long.... [B]ecause our reporters did such extensive reporting, published on the radio, published online, there were a lot of remarks to pull in from a really substantive investigation. The complaint here was padded with all of those bells and whistles." That again upped media defense costs and slowed down the anti-SLAPP process.
I don't doubt that the complaint was longer than it needed to be. Plaintiffs anticipating high-profile litigation—by the way, including agenda-seeking litigators from both left and right, as well as state attorneys general—routinely plead "to the media" and to "the court of public opinion," rather than to the court of law. Excessive pleading runs up defense costs, as well as court time, which is not fair to litigants or taxpayers. Again, the answer lies in bar and bench control of process and professionalism, not in summary dismissal on the merits.
More importantly, to some extent, a defamation plaintiff's claim in a case over a series of reports must be lengthy, for a very reason Baranetsky said, and not because the plaintiff wants it that way. It's not "padding," "bells," or "whistles." Defamation plaintiffs are compelled by rules of pleading to commit a perverse self-injury by republishing the defamation of which they complain. Thereafter, mass media entities are permitted to restate the defamation as a fair report of a public record, almost with impunity. As a result, often, the defamation is amplified, and the plaintiff's suffering is vastly compounded. Even if the plaintiff wins the case, compensation for this added injury is disallowed, and no media entity can ever be compelled to correct or update the record by reporting that the plaintiff later prevailed upon proof of falsity.
In my own plaintiff's case, precisely this happened. Among countless national outlets, The New York Times reported the defamatory allegations I republished in the complaint, but never covered the case again, despite my entreaties to the reporter and ombudsperson. To this day, I overhear innuendo based on the Times story with no reference to my later exoneration, which was reported in only one excellent-but-niche publication. In my experience with would-be defamation plaintiffs, I have seen that this risk alone prevents a victim from seeking redress as often as not. Once again, we could answer this problem by reforming pleading in defamation, rethinking what "fair report" means in the digital age, and experimenting with dispute resolution, if only Sullivan/Gertz left the defense bar with the slightest incentive to participate.
Lamentation Over Litigiousness
(4) In his introduction to the case, Garfield said, "Without offering evidence to rebut the allegations, the charity promptly sued the news organization for libel."
OTM itself walked back this characterization of Planet Aid's lawsuit as a blindside attack. An OTM editor's note to the story posted online added that, according to a PR firm representing Planet Aid, the organization "reached out to [CIR] prior to filing its lawsuit asking for a retraction and correction."
I don't know whether Planet Aid's version is right, or OTM's, or maybe the demand letter got lost in the mail. As I've indicated, I'm not rushing to sign up Planet Aid as my poster child for the Anti-SLAPP Resistance. But OTM's post hoc characterization of events is, to my experience, typical of media-defense-bar spin. In reality, rare in the extreme is the case that there is not at least a demand letter and response.
In my own plaintiff's case, I filed suit as late as possible, on the eve of the expiration of the statute of limitations. I sought to diffuse the disagreement through every possible avenue, both vis-Ã -vis my defendants and through negotiation with a third party. Yet when my case turned up years later in a book by an academic colleague, Amy Gajda, she used my case to support the book's thesis that alternative dispute resolution mechanisms on university campuses would help to avert lawsuits by litigious academic plaintiffs like me. I don't dispute (or support) that thesis in the abstract, but my case did not support it. Gajda suggested that I rushed to sue, without probing alternatives, which was utterly false. In fact, it was the refusal of my potential defendants to come to the table—the very problem of Sullivan/Gertz inhibition of dispute resolution—that forced me into a lawsuit as an undesired last resort.
Gajda, by the way, is herself an award-winning journalist and scholar of media law. Yet she readily contorted the procedural facts of my case to fit her expectations without ever asking me what happened. We know each other, and I'm not hard to find. If a top-flight journalist can be so sloppy with the facts in a case about a professional colleague, and I have to lump it, what chance does a lay soul in private life have to correct the record on something that really matters, as against a professional media outlet with a partisan agenda and lawyers on retainer?
How simple it is to make assumptions and feed the tort reformer's myth that greedy plaintiffs eagerly sue at the drop of a hat. Yet no one properly counseled by an experienced attorney chooses a lawsuit as a first course of redress. To the contrary, defamation victims, especially in matters as difficult to win as media torts, typically cannot find an attorney willing to take the case at the opportunity cost of sure-thing personal-injury money, and certainly not on contingency. Plaintiffs wind up not suing for that or many other reasons unrelated to their real losses. Other reasons include the risk, under anti-SLAPP fee-shifting, of having to pay attorneys' fees to a corporate media defendant's high-priced lawyers—not because the plaintiff wasn't defamed, but because the plaintiff could not meet the enhanced burdens to overcome a First Amendment defense. Other reasons also include the stigma associated with being a plaintiff in America, a stigma perpetrated by corporate advocates of tort reform and conveniently perpetuated by would-rather-not-be defendants in the media business.
Lamentation Over the Price of Free Speech
(5) Baranetsky opined, "We have to be wary of defamation law being used by public figures and politicians and wielded in ways that can be used retributively. At the same time, make sure that lies aren't being spread. The hope is that anti-SLAPP laws are really, they're the precise scalpel that's supposed to sharply and acutely figure out which falls on which side of the line."
That's a profound misapprehension of anti-SLAPP laws. There is nothing about anti-SLAPP that is precise or acute. Very much to the contrary, anti-SLAPP is designed to be a blunt instrument that stomps out litigation before it can get started, looking scarcely at the quantum of evidence on the merits and rounding down in favor of the defense. Anti-SLAPP operates upon the very theory of Sullivan/Gertz, which is that the price of free speech is the prophylactic annulment of meritorious claims and the tolerance of misinformation. The theory of anti-SLAPP is that we don't want to know the truth, and would rather abide falsity, when the cost of disentangling truth and falsity is inconveniently excessive.
Baranetsky's take on anti-SLAPP is ironic in the extreme. The Sullivan/Gertz constitutionalization of state tort law is based on the age-old argumentative hypothesis of moral philosophy that "the truth will out" in the marketplace of ideas, so the courts ought not intervene to abate falsity. That proposition has been vigorously refuted by scholars as demonstrably erroneous. And CIR's very motto, splashed on a home page banner, is: "The truth will not reveal itself."
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I've identified areas of tort law that need reform—abuse of forum selection, excessively broad discovery, permissiveness of fact pleading—and areas of defamation law in particular that need reform, procedural and substantive—pleading requirements, fair report protection, culpability and proof standards, plaintiff access to representation, and availability of alternative dispute resolution—but are paralyzed by federal capture of common law and media defense intransigence.
Let me not understate my appreciation for OTM, WNYC, CIR, and all kinds of nonprofit journalistic enterprises. I am grateful that CIR did the reporting that it did on Planet Aid, and for the reporting that OTM does all the time on threats to public interest journalism. I am fearful of a world in which that reporting does not happen.
Nevertheless, I object to a legal standard that presumes news media have the corner market on truth. If our system of civil dispute resolution is broken, and I think it is, then we need to fix it. Anti-SLAPP is at best a patch to paper over unsightly symptoms of our dysfunction, and, too often, it does so at the expense of genuine victims. Our willingness to ignore injury says more about the sorry state of our democratic character than does our blind fealty to an unbridled press.
At the annual meeting earlier this year of the Communications Law Forum of the American Bar Association, a famously media defense-identifying conference, I heard whispered for the first time some cautious and reluctant concern that media defendants holding all the cards in tort litigation might—wait, is this a secure channel?—might not necessarily be the best strategy to ensure the freedom of speech and to protect the flow of truthful information in America, especially in the digital age.
Now where have I heard that before?
Author guidelines and the official CFP are at the journal website. Manuscripts, preferred length of 3,000 to 5,000 words, are sought no later than April 30, 2021, and will be peer reviewed.
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| Dr. Manish Verma |
The information flow in digital societies has been discussed and analysed for more than a decade with close watch on social media networks. The shift from traditional forms of communication to social media enables users to gratify their daily needs of information digitally. The current paper builds on narrative analysis of selected social media active users and their digital social engagement to understand how a user and a network of users engage with information. To understand the role of social media literacy, the current paper interviews the users and correlates the findings with contemporary literature on social media. The results show that social media literacy becomes a pillar of information system, but it works in micro-level of societies at crossroads of online and offline spaces.
The authors survey digital media users to analyze the efficacy of efforts by social media platforms to enhance digital literacy to combat misinformation. The paper concludes that the efforts are less than efficacious because they derive from a holistic vision of society and politics rather than an understanding of the literacy deficiencies of individual users.
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| The National Communication Association met in downtown Baltimore, Md. (All photos by RJ Peltz-Steele CC BY-SA 4.0.) |
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| Keohane and Broeckelman-Post |
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| Huddy and Morreale |
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| Morreale |
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| Huddy |
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| Thorpe, Keohane, Morreale, Huddy, and Broeckelman-Post |
There can't be enough research on facilitating the freedom of information, given that today we are a global information society. A new journal debuted this month from the Brechner Center and partners that strikes at the FOI sweet spot, and as we wish all information projects were, it's open access. Welcome to The Journal of Civic Information. Here is its About:The Journal of Civic Information is an open-access, interdisciplinary journal that publishes peer-reviewed research related to the field of accessibility of public information. We welcome submissions from both scholars and practitioners from all disciplines that involve managing information for public use.
The Journal is a publication of the Brechner Center for Freedom of Information at the University of Florida. The Brechner Center is an incubator for initiatives that give the public timely and affordable access to the information necessary for informed, participatory citizenship. The Center is a source of research, expertise and advocacy about the law of gathering and disseminating news across all platforms and technologies.
The Journal publishes quarterly online, and author submissions will be accepted on a rolling year-round basis.
Proposals may encompass any research methodological approach (legal, survey, experimental, content analysis, etc.), and should provide insights of practical value for those who work day-to-day in access to government information. Topics may include issues regarding access to public records and meetings, court transparency, access to public employees and elected officials, open data and technology, and other related matters. The Journal gives priority to articles with relevance to the state-and-local levels of government.
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| Carolina Academic Press mocked up a display copy of the forthcoming Media Method. |
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| Contributors to The Media Method include Professor DeLeith Duke Gossett at Texas Tech School of Law. Presenting at center here, DeLeith is a former student of mine. Teachers will understand the giddy pride induced by collaborating with such a colleague. |
