Author Archives: Bill

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.

Why we can laugh at Trump

Some people are afraid of freedom of speech. Some even think that disrespecting a political  leader shouldn’t be legal.  But there is a long history of  freedom that opens the door  to criticism  about any leader or public figure.  Take the Dec. 16, 2018  Saturday Night Live sketch that used the theme of “It’s a Wonderful Life” (a 1946 movie) to imagine the world if Trump had not won the 2016 presidential election.

In response, Trump tweeted:

@realDonaldTrump  A REAL scandal is the one sided coverage, hour by hour, of networks like NBC & Democrat spin machines like Saturday Night Live. It is all nothing less than unfair news coverage and Dem commercials. Should be tested in courts, can’t be legal? Only defame & belittle! Collusion?    
The SNL satire was not flattering, and it’s not hard to see why it might upset someone who was its target, although it was not “news coverage” or a “Dem” commercial.
But to the main point:  Is it legal?  Shouldn’t a system that allows this unfairness be “tested in the courts”?

Actually, as it turns out, it already has been tested, and rather frequently in fact.  The “fair comment and criticism” defense against libel suits goes back for centuries. The freedom to criticize public officials has been a bedrock point of law since the founding of the country, reaffirmed many times in the courts, and it’s amazing and sad that  Trump doesn’t seem to know one of the most basic and profound facts of American history.

Continue reading

Trump’s Russian allies slowly learning US libel law

Oleg Deripaska totally missed the point of US libel law. (Hint: It doesnt exist to punish the critics of the rich and the corrupt).

A libel suit by a Russian billionaire got booted out of federal court Wednesday, Oct. 18, 2017.

Oleg Deripaskaha had sued the Associated Press for exposing his links  to former Trump campaign chairman Paul Manafort.

US  District Judge Ellen Segal Huvelle said  the suit  “cherry-picked sentences” that he wrongly claimed were defamatory even though he “does not dispute any material facts.”     

According to the AP, the story revealed how Manafort, a decade before joining the Trump campaign, had proposed to Deripaska a confidential business strategy to support pro-Russian political parties and to influence politics, business dealings and news coverage inside the United States, Europe and former Soviet republics to benefit Putin’s government.

To recover for libel, a story must be false.

Constitution Day

Remarks on the occasion of RU Constitution Day 2011 

Thank you for coming out this afternoon for a special panel considering the US constitution.

It’s particularly fitting for Radford University since, across the mall, the RU library houses some of the archives of US Supreme Court Justice Arthur J. Goldberg, who during his term on the court in the 1960s was an outstanding champion of the First Amendment. In Goldberg’s view the right of free speech was that of “an absolute, unconditional privilege” despite any harm that may flow from excesses and abuses”

Justice Goldberg often reminded us that historically, as a nation, we have a bedrock commitment to the principle of free speech. Continue reading

Welcome

Click through to podcasts.

“No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press.” — Thomas Jefferson

Welcome to communications law and ethics, a class that is required for  communication students and that is also recommended for anyone interested in how freedom of speech and press is balanced with the responsibilities of  public communication. Continue reading

Protecting Sources

WHY JOURNALISTS HAVE A DUTY TO PROTECT SOURCES

By Bill Kovarik — 07/06/05

A federal court sent New York Times reporter Judith Miller to jail today. She refused to reveal her source for a leak about the Valerie Plame affair.

“If journalists cannot be trusted to guarantee confidentiality, then journalists cannot function and there cannot be a free press,” she told the court a few minutes before they led her away.

The federal prosecutor, Patrick A. Fitzgerald, said Miller was placing herself above the law and threatened criminal as well as civil contempt charges.

The absurdity of the situation — after all, Miller did not publish the information she supposedly received — is beside the point. And the Bush administration has no doubt forgotten by now just how much flak Miller took for them in the run-up to the Iraq war. Critics of the war wish that she, in particular, had been less guillible. Its a mark of just how alienated Bush is from the press that his administration can no longer distinguish friends from enemies.

Continue reading