US First Amendment guarantees for freedom of speech and press are fairly straightforward “black-letter law” — That is, they are so well settled in precedent and statute that they are no longer subject to reasonable argument.
And yet, this year and last, we have seen a raft of lawsuits apparently filed in the unlikely hope that the Trump administration’s dream of curtailing First Amendment rights will be endorsed by the courts. As Melissa Rosenberg of the Washington Post says: “Billionaires want to enlist you in their secret plans to take down the press.” For example:
Fake earthquake: Comedian John Oliver was sued by coal company owner Bob Murray on June 21, 2017. The libel suit alleged that Oliver “meticulously planned attempt to assassinate the character of … Mr. Murray.” (See Murray’s brief here). Murray filed a similar lawsuit in April over a New York Times editorial. (The Times response is here .) In both cases, Murray’s basic complaint is that Oliver and the Times quoted MSHA, the federal mine safety administration, which said that the deaths were directly caused by unsafe mining practices, and not an “earthquake,” as Murray has persisted in claiming, despite repeated contradiction by mine inspectors. (See Crandall Creek, Wikipedia entry).
Nine seconds of silence: Journalist Katie Couric was sued by Second Amendment advocates for creative editing, injecting silence into a news interview in a way that implied that the question was so tough that advocates had no answer. They advocates actually did answer, although (arguably) not directly. So the suit alleged that the nine seconds of silence were libelous in this context. A judge dismissed the suit in late May, 2017.
Palin’s ‘target’ ad
Palin’s targeted districts: Sarah Palin announced a suit against the New York Times in response to a June 14, 2017 editorial that mentioned her ads in connection with the 2011 shooting of US Rep. Gabby Giffords. The Times editorial, America’s Lethal Politics, was mostly a comment on the rising level of violence in America, and a response to the June 14 shooting of Republican lawmakers who were practicing for an annual charity baseball game. The Times said: “Was this attack evidence of how vicious American politics has become? Probably. In 2011, Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl. At the time, we and others were sharply critical of the heated political rhetoric on the right. Before the shooting, Sarah Palin’s political action committee circulated a map that showed the targeted electoral districts of Ms. Giffords and 19 other Democrats under stylized cross hairs.” Palin complained, the Times apologized, but Palin continued the suit because, she said, the response “did not approach the degree of the retraction and apology necessary and warranted by The Times’s false assertion that Mrs. Palin incited murder.”
UPDATE: The lawsuit was dismissed Aug. 29 in a federal court as an “unintended mistake” rather than actual malice. Federal judge Jed S. Rakoff wrote:
“Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States … But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously.”
Pink slime: ABC News and correspondent Jim Avila are in court in June, 2017, in a jury trial for defamation over allegations by Beef Products Inc. that it is libelous to simply use the term “pink slime” when referring to (ahem) “lean, finely textured beef.” The term pink slime was widely used by many others before a 2012 ABC broadcast. It was used by the New York Times in a 2009 Pulitzer Prize winning story. It was used by right-wing radio ranter Rush Limbaugh in 2012 before the ABC broadcast. It was even used by a public relations firm working for Beef Products itself when it created the “Pink Slime” Wikipedia page in 2011. UPDATE: According to a June 28 Reuters story, ABC and BPI settled out of court, ending the defamation trial.
Trump: Melianna Trump, in April 2017, managed to extract apologies from the UK-based Daily Mail and a US blogger over allegations that she was involved in an “escort service” in Ljubljana, Slovenia, before meeting business executive Donald Trump. Following the apologies and a monetary settlement, Mrs. Trump dropped the suit.
Gawker: Hulk Hogan’s sex video, when published by Gawker web magazine in 2012, seemed like a straightforward invasion of privacy in Bollea (Hogan) v Gawker (2017). But it was, instead, a move by a billionaire investor to destroy the publication, according to Melissa Rosenberg of the Washington Post. Originally, Bollea lost the first round, with the judge saying that given the degree to which Bollea had already made his private life public, the video’s publication was not a violation of copyright. But Hogan sued Gawker in a way that circumvented the publication’s libel insurance with the assistance of Peter Thiel, a billionarie businessman who hated the publication. A Netflix documentary, “Nobody Speak: The Trials of the Free Press,” goes into detail about the Gawker case and its behind-the-scenes financing and maneuvering.
What all of these suits have in common is the assumption by corporations or public people that, one way or another, they can’t lose. If they win, there may be a big settlement. If they tie (or settle out of court), at least their expenses are paid and they’ve made their point on the public stage. But even if they lose, they (or their friends) can easily afford the massive expenses of a libel suit, while the media is relatively under-funded.
Taken as a whole, then, these lawsuits represent a new wave of attacks on the independent press and the First Amendment.
