Category Archives: Media Law

Social instability and the media

Ezra Klein’s Feb. 25  New York Times interview with Martin Gurri is a fascinating and troubling hour-long ramble through the wreckage of McLuhanism and aging concepts about chaotic information systems.

The highlight is a temporal excursion into the Thirty Years War and the role of the printing press. The low point is a defense of right-wing free speech absolutism that should have been better informed.

Gurri’s book,  “The Revolt of the Public,” argues that the new abundance of unfiltered, non-hierarchical information creates a fractured media system that is fundamentally unstable.  “It knows how to destroy but not how to build,” as Klein says.

This is not a new idea. Jay Bolter’s 2018 book,  The Digital Plenitude, made the same argument about the instability inherent in the erosion of authoritative information. So did Marshall McLuhan in the 1960s, although McLuhan approached it from the other side, more or less cheering the erosion of straight-jacketed cultural institutions.

What’s different about Gurri’s book is that he connects this information instability to the rise of authoritarianism in the US with the re-election of Donald Trump.  And he has this to say about the role of revolutionary media using a time machine metaphor :  Continue reading

AI sidelines Sports Illustrated

By Bill Kovarik
Jan 26, 2024

Sports Illustrated — once the beloved icon of sports news and photography — has been sidelined for financial irregularities and technical fouls. It probably won’t be back.

The fouls involved articles scraped up through artificial intelligence bots – an ethical lapse which came to light in November, 2023. Worse, the magazine tried to cover it up with AI portraits of the supposed authors. The ruse was quickly spotted and the editor was fired.

As advertisers began pulling out, the remaining editors and management faced increasing financial trouble. Then, on Jan. 5, 2024,  Sports Illustrated defaulted on regular quarterly payment to its owners, Authentic Brands Group. Two weeks later, ABG terminated the licensing agreement and laid off most of the reporting staff.

So, let’s pause for a moment of silent reflection, in recognition that another great institution is passing us by, headed for the intellectual property bone yards, where its icons will be recycled to brand products like designer swimsuits and tennis shoes.

Sports Illustrated was founded in 1954 by Henry Luce of the Time-Life group to compete with two of the major sports magazines of the time — Sport (founded 1946) and the venerable Sporting News (founded 1886). Back then, people thought Luce was crazy to invest in a “jockstrap” magazine, but his timing was good.

Back then, Illustrated magazines were filling the consumer demand for high quality visual experiences while the dominant media — radio and early television — offered audiences only low visual definition. Sports Illustrated also presented better quality journalism and photography than was possible in daily newspapers at the time, and Luce managed to keep all his magazines a step ahead of the competition.

In the 1950s and 60s — a time when politics was America’s most dangerous occupation — Sports Illustrated occupied center field by raising the tone of sports news. Along with sports that were already well covered, like boxing and baseball, Sports Illustrated opened the fields of tennis, golf, football and basketball to greater public participation.

Some of its editorial innovations are still well known, such as the athlete of the year and the annual swimsuit issue. Making the cover of Sports Illustrated was, for an athlete, a lot like a Nobel Prize for a scientist.

However, by the end of the twentieth century, the business of magazine and newspaper publishing fractured under competitive pressures from cable, streaming and internet publications. Advertising and circulation declined, and so did Sports Illustrated, despite valiant attempts to save it.

The magazine was sold during the Time-Warner breakup in 2018 and, after changing hands, was picked up by Authentic Brands Group, which specializes innfranchises like Reebok shoes, clothing brands like Juicy Couture, and commercial celebrity names like Elvis Presley and Marilyn Monroe.

ABG will profit from the Sports Illustrated photo archives and the famous swimsuit editions, if nothing else. But the chances that Sports Illustrated will return from the elephant graveyard of news magazines are probably about the same as those of Sport (d. 2000), Sporting News (d. 2012), or for that matter, general photo magazines like Look (d. 1971) or Life (d. 20 00).

Its not only that the genre is no longer profitable, or that if you want to make a small fortune in publishing, you have to start with a big one.

No.

It’s that the world has moved on. Deadspin, theAthletic, network media like ESPN, and media from individual franchises and conferences have all taken center field now. Magazines of all kinds are long gone.

One reason why all this matters more than, say, shifts in seasonal produce or fashions in furniture, is that print journalism was a quality element in a bundle of services that have come unglued.

Thoughtful writing and brilliant photography no longer have solid financial support from middle America.  Magazines like Sports Illustrated were lost on the amusement park midway and drained of life by the digital-industrial information complex.

There is no fixing the loss of magazines, but there are ways to rebuild the media. Repealing Section 230 would be a start in the US.  Adopting legislation like Canada’s Online News Act and Australia’s News Media and Digital Platforms Mandatory Bargaining Code would be helpful. In Europe, the Digital Services Act is expected to restrain Big Tech and new cross border journalism initiatives will help stabilize financing for some publications.

Recent reform proposals in the US include the Local Journalism Sustainability Act of 2021, 2022 and 2023.  While the act has attracted bipartisan support, it remains in committee while larger antitrust issues get sorted out in US v GoogleUS v Apple,   issues with Microsoft, and US v Meta. 

Still, none of these legal initiatives seem likely to help a media system that everyone uses but many people hate.  Rebuilding trust, serving communities and sharing the power of the media will help more than all the AI – powered high-tech advances that can be churned out by the digital-industrial information complex.

Fact checking Holocaust disinformation

This is an example of just how far right-wing disinformation will go. According to the narration in this video:  “The Holocaust stuff was about them (the New York Times)  not wanting to be seen as a Jewish-owned  newspaper, because this was America in the 1940s, there was a lot of antisemitism. They were afraid it would jeopardize their position in the market, and for them, that was just something they would not sacrifice, even for the truth. They actually forbade the word “Jew” in their news reports during that period.”  

That seemed pretty far fetched on the face of it, so we fact-checked the claim that the word “Jew” could not show up in the New York Times. Using the full text ProQuest database to search of the Times for the words  “Jews or Jewish” in the date range 1933 – 1946, we found 95,085 articles over 5114 days (14 years), for an average of  18.6  articles mentioning Jews or Jewish people  per day.

There are over 3,500 articles with the term “concentration camp,” and of those, over 750 also have the words “Jews or Jewish.”

The Prager U media “expert” also says that the New York Times w0n Pulitzer prizes during World War II for pro-Nazi coverage.  Checking the roster of Pulitzers from 1942 through 1946, there are no prizes for the Times coverage of the European war. There are two for  Pacific war coverage, and one in 1941 for general coverage of the emerging war. There are none for anything remotely resembling “pro-Nazi” coverage.

This Prager video fits with the right-wing canard that political progressives in the US are antisemitic, but unfortunately, it doesn’t fit the facts.

As an interesting side – note:  The New York Times did win a Pulitzer Prize for Public Service in 1944 in honor of its April 4, 1943 survey about understanding of US history.   We wonder how well the Prager staff would fare on that kind of history test.

Also See: 
American Public Opinion and the Holocaust (Gallup polls)

A silent movie and the right to be forgotten


By Bill Kovarik  (for The Conversation

In 1915, Gabrielle Darley killed a New Orleans man who had tricked her into a life of prostitution. She was tried, acquitted of murder and within a few years was living a new life under her married name, Melvin. Then a blockbuster movie, “The Red Kimono,” splashed her sensational story across America’s silver screens.

The 1925 film used Darley’s real name and details of her life taken from transcripts of the murder trial. She sued for invasion of privacy and won.

In deciding in favor of Darley, a California court said that people have a right to rehabilitation. “We should permit [people] to continue in the path of rectitude rather than throw [them] back into a life of shame or crime,” the court said. It is a sentiment that is harder to put into practice today, when information is much more readily available. Nonetheless, policymakers and media outlets are looking at the issue.

As a scholar of media history and law, I see Darley’s story as more than an interesting slice of legal and cinematic history. Her case provides an early example of how private people struggle to escape their pasts and how the idea of privacy is linked to rehabilitation.

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Media, antisemitic lies and censorship in 1938

By Bill Kovarik
Published in The Conversation, Jan. 15, 2021
Creative Commons license for non-profit republication.

In speeches filled with hatred and falsehoods, a public figure attacks his enemies and calls for marches on Washington. Then, after one particularly virulent address, private media companies close down his channels of communication, prompting consternation from his supporters and calls for a code of conduct to filter out violent rhetoric.

Sound familiar? Well, this was 1938, and the individual in question was Father Charles E. Coughlin, a Nazi-sympathizing Catholic priest with unfettered access to America’s vast radio audiences. The firms silencing him were the broadcasters of the day.

As a media historian, I find more than a little similarity between the stand those stations took back then and the way Twitter, YouTube and Facebook have silenced false claims of election fraud and incitements to violence in the aftermath of the siege on the U.S. Capitol – noticeably by silencing the claims of Donald Trump and his supporters.

A radio ministry

Coughlin’s Detroit ministry had grown up with radio, and, as his sermons grew more political, he began calling President Franklin D. Roosevelt a liar, a betrayer and a double-crosser. His fierce rhetoric fueled rallies and letter-writing campaigns for a dozen right-wing causes, from banking policy to opposing Russian communism. At the height of his popularity, an estimated 30 million Americans listened to his Sunday sermons.

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A laughable attempt to muzzle the press

The last time a sitting president sued a newspaper for libel, laughter broke out on the floor of the US Senate as a clerk read the news.

That was December 15, 1908, and the president was Teddy Roosevelt. He was said to be  “furious” that the New York World  newspaper linked him to corruption over the Panama Canal. Teddy ordered federal attorneys to file criminal libel suits against newspapers carrying the story all over the country. Democrats considered it to be outrageous, and one US attorney resigned in protest rather than prosecute for libel.

New York World publisher Joseph Pulitzer said in response:  “He cannot muzzle the World.”  (See Pulitzer’s Reply Dec. 16, 1908)

Roosevelt’s lawsuit,  US v Press Publishing,  is today considered the “last gasp” of seditious libel. The US Supreme Court ruling  in 1911 was only two pages, and it didn’t even bother to touch on the merits of the case. Instead, the court simply sustained an objection by the newspaper that “the court has no jurisdiction in this case, because there is no statute of the United States authorizing the prosecution.”

The case was thought to be a First Amendment landmark at the time, but it is barely remembered in communications law textbooks today.  After all, what sitting president would lower himself to file such a suit?  Even outright allegations of murder did not tempt President Bill Clinton to wield that cudgel against critics like Jerry Falwell. What president would be so foolish as to sue for libel just because a newspaper published a disagreeable opinion?

Which brings us to Donald Trump, who sued the New York Times  on Feb. 26, 2020, and the Washington Post, on March  3, 2020, for daring to publish an apparently disagreeable opinion about Trump’s relationship with Russian dictator Vladimir Putin. In the suit, Trump claimed that the Times knowingly published the supposedly false charge that there was a “quid pro quo” with the Russians in return for  their help in the 2016 election.  (The plaintiff’s petition can be read here.) 

This “quid pro quo” was described in  an op-ed written by former New York Times editor Max Frankel and published March 27, 2019.  In the op-ed, Frankel rejected  small concerns about “collusion” with Russia in the Trump campaign. The much larger issue, he said, involved the relationship between Trump and Putin.

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