Author Archives: Bill

Remembering Oprah’s mad cow libel case

By Asheley R. Landrum, Texas Tech University

Oprah celebrates the ruling in her favor on Feb. 26. 1998. AP Photo/LM Otero

More than twenty years ago (1998), images of staggering cattle and descriptions of brains resembling Swiss cheese became associated with one of the most popular television programs of the day when Texas Panhandle cattlemen sued “The Oprah Winfrey Show” for defamation under Texas’ “veggie libel law.” They claimed the program’s negative portrayal of their business caused a steep decline of beef prices.

On the surface, this conflict looked like a battle between an industry and the TV producers who portrayed it negatively. But at its heart was some complicated science that had the potential to scare the public and be sensationalized by the media.

Today’s practitioners of science communication grapple with the difficulty of transmitting science information via the media to a lay audience. This 1998 trial serves as a rare public case study documenting the media’s imperfect attempts to clarify the science of mad cow disease in the midst of a celebrity spectacle.

Ultimately Oprah won the legal case. But how did the public’s understanding of the science fare?

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Appeal in Sarah Palin’s libel loss could set up test of Sullivan standard

Sarah Palin, 2012, by Gage Skidmore, CC / Wikipedia.

By Bill Kovarik
Published in The Conversation, Feb. 15, 2022 under a Creative Commons license for non-profit republication. 

To the numerous challenges facing the U.S. media in recent years, add a libel case against The New York Times – lost by Sarah Palin, but now seemingly headed to appeal and perhaps on to the highest court in the land.

On Feb. 15, 2022, a jury rejected Palin’s claim. As it happened, its verdict was more or less moot. The presiding judge had already said he would dismiss the case on the grounds that the former Alaska governor’s legal team had failed to reach the bar for proving she had been defamed.

A Times editor admitted a mistake in suggesting in a 2017 opinion piece that there was a link between Palin’s rhetoric and a mass shooting. But under the so-called Sullivan standard – a rule in place for nearly 60 years that makes it difficult for public figures to successfully sue for defamation – neither the jury nor the judge considered the error significant enough for Palin to win her case.

But in reaching his decision in the Palin case, the federal judge suggested that it was likely not to be the end of the matter – indeed, an appeal is expected.

And that has defenders of a free press worried. Legal scholars note that recent opinions by Supreme Court Justices Clarence Thomas and Neil Gorsuch favor overturning the Sullivan standard – a move that would take away a key protection for the press against libel suits by vindictive public officials. Continue reading

Invoking George Orwell

George Orwell, author of 1984

George Orwell, journalist and author of “1984”

Big Tech is not the Ministry of Truth.”
Or at least, so says the Attorney  General of Alabama  who has invited citizens to file formal complaints if they have been censored on social media.

“It should concern us all when platforms that hold such tremendous power and influence over information wield that power in contradiction of—and with undisguised disdain for—the foundational American principles of free speech and freedom of the press,” says Alabama Attorney General Steve Marshall. “The censorship campaign currently being waged by giant corporate oligarchs like Facebook and Twitter is, in a word, un-American.”

You may recall that in Orwell’s novel 1984, the Ministry of Truth controls news, entertainment, education, and the arts. Of course, truth is only what the ministry says it is.   Speaking up for some idea that is not “true”  is punishable by death or indefinite  imprisonment.

But it’s just a novel.  It may go without saying, but here in the US at least, nobody’s life is on the line and nobody is headed for Siberia for some crackpot  Q-nut idea they want to shout to the world.

Yes, Facebook and Twitter have blocked or even banned a few US citizens who insist on deadly lies, for example, that the last election was fraudulent;  that vaccines don’t work; that the virus  is a hoax; that masks are the “mark of the beast;” and so on.  Facebook and Twitter are trying to apply a standard of human dignity and provable truth through their terms of service.

Don’t like it?  Fine. Go to the competition.  There are dozens of new social media platforms, according to a July 2021 article in Forbes.  You don’t even have to pay for a subscription. Jeez.

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A Right to be Forgotten


By Bill Kovarik 
(“How a silent movie informs the current debate over the right to be forgotten.”  CC license. 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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That time private US media companies stepped in to silence the falsehoods and incitements of a major public figure … 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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Another laughable libel suit

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

That was December 15, 1908, when president Teddy Roosevelt sued the  New York World  newspaper after it linked him to corruption over the Panama Canal. Roosevelt ordered federal attorneys to file criminal libel suits against newspapers  all over the country. Democrats were outraged, once they stopped laughing.  One US attorney resigned in protest rather than prosecute Teddy’s critics for libel.

The main target of the suits, New York World newspaper publisher Joseph Pulitzer, famously said:  “He cannot muzzle the World.”  (See Pulitzer’s Reply Dec. 16, 1908)

Roosevelt’s lawsuit,  US v Press Publishing,  used to be considered the “last gasp” of seditious libel.

The US Supreme Court didn’t think much of the suit, handing down a ruling  in 1911 that was only two pages long. The ruling ignored the merits of the case and simply sustained an objection by Press Publishing (the owner of the NY World)  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, the president who defied expectations. Tump  sued the New York Times  on Feb. 26, 2020, and the Washington Post, on March  3, 2020, for  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.

(UPDATE: The story continues but the court dismissed Trump’s lawsuit in March, 2021).
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High school media censorship

It’s no secret that a Norfolk, Virginia high school building is deteriorating. School district officials have taken state legislators on tours to show how much they need to fund repairs. They point out problems like the collapsed auditorium ceiling and a sagging classroom floor, along with peeling paint and ancient bathroom fixtures.

So it didn’t seem like such a taboo subject when a creative group of the school’s students shot a video that described the building’s condition in May, 2019. But apparently it was. Administrators took the video off the web without explanation a week later.

This is the state of censorship for young people in Thomas Jefferson’s Virginia. A fact so obvious it can be seen from the street can’t be discussed in their own student media.

This type of censorship is exactly what the First Amendment prevents for adults, but these rights do not necessarily apply to high school students, according to the 1988 US Supreme Court decision in  Hazelwood School District v. Kuhlmeier.

Eleven states have created exceptions for high school students under the Tinker v Des Moines standard which is more protective of freedom of speech and press.

First Amendment standards for high school media vary from state to state

Virginia delegate Chris Hurst, a former broadcast journalist has argued that this kind of censorship is “beyond the pale” and introduced state legislation in 2019 that would have recognized the First Amendment rights of student journalists.  The legislation was reintroduced in 2020, and it should get better treatment than it did in 2020, when it was not voted out of committee and was opposed by high school administrators. In committee testimony in 2019, one high school administrator wondered just where this crazy idea of freedom of speech would stop, and envisioned schools being forced to publish sex manuals for first graders. That’s a pretty wild exaggeration, but it shows just how little school administrators understand one of the most important issues in public life today.   

Parents win first Sandy Hook libel suit

Parents of children killed at the Sandy Hook Elementary School shooting on December 14, 2012 won a libel suit yesterday (June 17, 2019) against the authors of a book that claimed it never happened.

It was a victory for parents who have been besieged with hate mail and death threats from alt-right conspiracy theorists and hoaxers. A similar lawsuit against Alex Jones and his program “InfoWars” is still being contested in court. New York Magazine had a good overview of the basic issues in Sept. 2016.

The question in law is whether public figures like the Sandy Hook parents can recover for expressions of opinion, and whether it is a matter of fact or opinion to say that no children were killed at Sandy Hook and that parents are part of a left-wing conspiracy. First Amendment Watch has a good set of resources and a law student’s guide to the issues.

Responding to Trump’s attacks on the press


New York Times Publisher A.G. Sulzberger  wrote this on Feb. 20, 2019: America’s founders believed that a free press was essential to democracy because it is the foundation of an informed, engaged citizenry. That conviction, enshrined in the First Amendment, has been embraced by nearly every American president. Thomas Jefferson declared, “The only security of all is in a free press.” John F. Kennedy warned about the risks to “free society without a very, very active press.” Ronald Reagan said, “There is no more essential ingredient than a free, strong and independent press to our continued success.”

All these presidents had complaints about their coverage and at times took advantage of the freedom every American has to criticize journalists. But in demonizing the free press as the enemy, simply for performing its role of asking difficult questions and bringing uncomfortable information to light, President Trump is retreating from a distinctly American principle. It’s a principle that previous occupants of the Oval Office fiercely defended regardless of their politics, party affiliation, or complaints about how they were covered.

The phrase “enemy of the people” is not just false, it’s dangerous. It has an ugly history of being wielded by dictators and tyrants who sought to control public information. And it is particularly reckless coming from someone whose office gives him broad powers to fight or imprison the nation’s enemies. As I have repeatedly told President Trump face to face, there are mounting signs that this incendiary rhetoric is encouraging threats and violence against journalists at home and abroad.

Through 33 presidential administrations, across 167 years, The New York Times has worked to serve the public by fulfilling the fundamental role of the free press. To help people, regardless of their backgrounds or politics, understand their country and the world. To report independently, fairly and accurately. To ask hard questions. To pursue the truth wherever it leads. That will not change.

Trump dossier libel suit dismissed

In a victory for First Amendment advocates,  a federal court ruled Dec. 19, 2018  that news articles about the Steel Dossier, which alleges illegal and immoral acts by Donald Trump and his campaign in 2016, were protected by the “privilege” defense against defamation suits.

The dossier (memo) was written by former British Intelligence head of the Russia desk, Christopher Steele and circulated in the months before and after the November 2016 election.   It was  published  January 10, 2017, by BuzzFeed News with the headline:   These Reports Allege Trump Has Deep Ties to Russia.

BuzzFeed cautioned that the dossier  “includes specific, unverified, and potentially unverifiable allegations of contact between Trump aides and Russian operatives, and graphic claims of sexual acts documented by the Russians.”

Although the major subject of the dossier was Donald Trump and his attorneys and advisors, the suit was filed by Aleksej Gubarev, a Russian whose name was peripheral to the events described in the dossier.     

In her ruling, federal judge Ursula Ungaro of  Miami granted a motion by Buzzfeed magazine to dismiss the lawsuit, saying that the press was protected by the legal doctrine of  fair report privilege.   

Privilege is one of three major defenses against libel suits. (The other two are truth and fair comment).   The defense of privilege gives journalists the ability to report on official government proceedings whether or not information in the proceedings is provably true or not.   The doctrine of privilege allows unfettered news reporting of conflicting ideas or versions of events that may surface in trials, executive memos or congressional hearings.

According to a Columbia University Global Freedom of Expression article,  the decision turned on the question of whether the report was an official proceeding.  In many cases, courts have interpreted proceedings to be official whether or not they are open to the public.