First Amendment Scholars Flunk An Integrity Test

Lawsuits have been brought in several state and federal courts accusing accuse Project Veritas, Fox News, The Gateway Pundit, One America News and other conservative news and commentary sources of intentionally making false claims of voter fraud after the 2020 election, harming innocent civil servants and businesses in the process. Apparently a lot of “legal scholars” who typically take the side of the news media in such cases, like Sarah Palin’s recent lawsuit against the New York Times which she lost last month, feel differently about these lawsuits. Many First Amendment lawyers are rooting for a finding of liability in the cases to make it possible to punish the intentional or extremely reckless dissemination of false information while protecting the press from lawsuits over inadvertent errors.

You see, false information disseminated by a conservative news source is intentional disinformation, while false information disseminated by a mainstream media news source is just an inadvertent error. Clear?

New York Times v. Sullivan established the “actual malice” standard for defamation, which requires that a suing public figure must prove a person or media outlet knew what it said was false or acted with “reckless disregard” for the high probability that it was wrong. The lawsuits against the conservative outlets argue that by uncritically presenting “disinformation” from guests (Like Sydney Powell, above) who questioned the legitimacy of the 2020 election, the news sources were endorsing defamation and became a malicious party to it. The Times writes,

As a defense, Fox and others invoke the First Amendment and Sullivan, arguing that their reporting on the 2020 election and its aftermath is legally indistinguishable from the kind of basic, just-the-facts journalism that news organizations have always produced. Fox has portrayed itself as a neutral observer, saying it did not endorse claims about hacked voting machines and systemic voter fraud but instead offered a platform for others to make statements that were unquestionably newsworthy.

As Fox News mounts its defense in the Dominion case and in a lawsuit by another voting systems company, Smartmatic, the network’s lawyers have argued that core to the First Amendment is the ability to report on all newsworthy statements — even false ones — without having to assume responsibility for them.

When was the last time news organizations, especially Fox News (and the New York Times!) practiced “basic, just-the-facts journalism”?

I hope Fox News loses too, but because I don’t think the Times et al. will be able to keep the precedent from coming back to haunt them. It is telling, though, that these Freedom of the Press absolutists in the legal world suddenly lose their verve when conservative media are being sued.

60 thoughts on “First Amendment Scholars Flunk An Integrity Test

  1. “You see, false information disseminated by a conservative news source is intentional disinformation, while false information disseminated by a mainstream media news source is just an inadvertent error. Clear?”

    This is a misrepresentation of why Sarah Palin lost that lawsuit. You also seem to be accusing “legal experts” (scare quotes yours) of hypocrisy without even naming any specific legal experts that you believe are acting hypocritically, or quoting any of them in a way that would support the double standard you’re alleging. I am sure you could find some, but there’s just no support in this post for what you’re claiming.

      • You may suggest that source, Steve, but I’m sure not going to click it!

        “ Canada Free Press is an overtly Christian, extreme right website that peddles conspiracy theories such as Obama being an Islamic Terrorist and 9/11 as an inside job. They also promote pseudosciences such as human-influenced Climate Change Denial and Creationism…

        Overall, we rate Canada Free Press Questionable based on extreme right-wing bias, promotion of conspiracies, and numerous false claims.”

        https://mediabiasfactcheck.com/canada-free-press/?amp=1

        • Suit yourself. I don’t think you do much better with the mainstream media. And mediabiasfactcheck has their own issues, but, if you’re going to treat them as gospel, there’s nothing I can do about that.

          • I didn’t “take them as gospel.” Everything I quoted can be easily verified yourself.

            How am I supposed to take media criticism seriously from people who take sources like the Canada Free Press seriously, or who try and conflate literal fake news sites with the the flaws in the mainstream media? There is such a thing as reliable vs. unreliable sources, and the attempts to collapse those distinctions over the past few years is a big reason why we are living in an unethical post-truth society.

    • You have the link, Katie—I don’t have to regurgitate what’s in the story already, and the fact that experts always back the news media in these suits but aren’t in this case was the whole reason for the article. There’s no “seem” about: it is hypocrisy.

      • Except that the article in the link gives plenty of reasons besides hypocrisy for their stance on this case to be different than usual. You simply ignored every reason given in the article and instead decided that the reason was hypocrisy.

        • Would you prefer the term rationalization? The First Amendment and freedom of the press apply equally or they don’t mean anything. Content-based regulation is subject to special scrutiny, and that’s what we have at issue here.

          • None of the legal experts quoted in that article say or imply that the First Amendment and freedom of the press doesn’t apply equally to everybody. Again, they give specific reasons why they think the Dominion lawsuits allege wrongdoing that crosses the line from protected opinion to defamation.

        • No, the article at the link has the “experts” employing different standards to find Fox News liable than they have when the dispute involved the MSM. But never mind: your initial complaint was that I didn’t name the “experts.” The link did.

          • I didn’t see the link at first. Now that I have, and read it in full, I do not see them employing different standards; I see them explaining why this case is different from previous ones.

            Can you quote the specific examples from the article you are referring to of experts utilizing different standards to compare this case with previous cases against the MSM?

          • What is this standard, specifically, that you say isn’t being applied equally here?

            Again, you’re conflating two different cases and trying to say there’s an inconsistency.

            The outcomes aren’t the same because the cases aren’t the same.

            If you’re going to make an argument like this, you have to say something specific.

  2. Secretly, I am thinking that the mainstream media do not want the conservative news media to lose the suit, because if they do, as you point out, it will set a potentially dangerous precedent that will come back to haunt them later. Do they want a republican administration suing them just for what they think is doing their job? I think you already know the answer to that.

    It should come as no surprise that the First amendment absolutists suddenly lose their motivation when conservative sources are involved. Like much of the legal community, a lot of them have a distinctly liberal band, and would like nothing more then to eliminate the competition, especially the competition that disagrees with them.

  3. “Many First Amendment lawyers are rooting for a finding of liability in the cases to make it possible to punish the intentional or extremely reckless dissemination of false information while protecting the press from lawsuits over inadvertent errors.”

    This statement means that reporters will be required to divulge their sources. It would be impossible to determine in court whether it was reckless dissemination of false information or an inadvertent error. It would be necessary be able to investigate all the various sources of information to establish a preponderance of evidence to establish reckless disregard for the truth. What constitutes a reliable source? Was Sydney Powell a known prevaricator prior to this event? If yes, then I can see it being a reckless disregard for the truth, but I don’t believe that was the case. Far too often corroboration of information is simply duplicative and circular; source a tells reporter b and other party c the story and then other party c becomes a source to corroborate the original claim.

    If Fox loses this case, then Donald Trump will eventually own all of the news outlets when he sues over the Russian collusion narrative. In that case many citizens were harmed because we wound up with Biden because of it.

    • I wonder what CBS would think if the Bush family sued them for their attempts to undermine GWB’s 2004 campaign by running that unverified story on GWB’s Air National Guard service that later turned out to be a complete lie and deception. Ooh, the media is really playing with fire on this one. Did they learn nothing from the Nick Sandmann suits? Do they want that to be the rule rather than the exception? They may eventually reduce themselves to the point where they are printing nothing but press releases. It’s unwise to cut off the right hand with the left.

      • “ Did they learn nothing from the Nick Sandmann suits? Do they want that to be the rule rather than the exception?”

        What rule do you think that established? That you can get a network to pay out an undisclosed nuisance settlement? They already know that.

        • No basis for believing it was a nuisance settlement. There’s a lot of conjecture out there about what he got, but no one actually knows or will know. I’m an attorney myself, and, although I’m certain it was not ANYWHERE near the asking amount, I don’t think it was next to nothing either. There is no basis to believe that other than other lawyers, some of whom have agendas of their own, offering what they believe. I’ve settled many cases, and if you are trying to avoid a trial, you have to make it worth the plaintiff’s while to settle, and that goes double if you’ve taken your crack at summary judgment and the judge has turned you down.

          My point is, they got sued and had to pay, and everyone knows they lied. Even if they only paid out a fraction of the demand (also fairly common, since many plaintiffs’ lawyers start with ridiculous demands), this was a warning that lying will result in suits that might well reach a jury, and then they are potentially really in trouble. If more of those suits get filed and reach trial, the settlements could add up, and if they actually roll the dice, there’s a good chance they could get hit and hit hard.

          • Simple, Jack, there have been some conversations on Twitter where various lawyers have given their opinions that this was probably a nuisance settlement, based on the circumstances. However, at the end of the day, those lawyers do not know any more than we do, since the terms of the settlement were confidential. A lot of similar lawyers said that Dr. Dao, who got the tobacco juice beaten out of him when he was dragged off a plane, must have gotten a settlement “north of a million dollars” but, in the end, that is just as much of a guess. No one challenged that, though. There was no need to, since the airlines had already gotten the black eye they were going to get. The media and the left would score no points by challenging this. The media and the left had plenty to win by deflecting these cases, burying them, and saying that in the end they didn’t mean a thing. So that’s why they turned to these lawyers to say this was no big deal.

            Katie is not being objective. She’s clearly got an agenda, and she hasn’t once offered anything other than her own opinion. I think she is headed towards being a paid Democrat Party troll.

              • It’s completely possible for someone to disagree with me without being paid. I just question whether someone would come on here and regurgitate Democratic talking party points without being one of those people they pay a couple of dollars a post to go into the comments sections on this or that publication and spew the party line, just like the record companies used to pay people to go on sites devoted to artists and shout down anybody who was even mildly critical.

                So far, you’ve done nothing except it’s about the Democratic party line and say prove this, cite to that, etc., etc. You haven’t brought anything original or interesting to the table. There was a teacher from CA named Chris who did the same kind of crap, when was generally rude and impatient about it, just like you’re being. We put up with him for years, then finally he overreached by mocking the moderation here in May 2018, and Jack threw him out the fifth story window, which he probably should have done soon after the election of 2016, but, his site, he decides who stays and who goes. I don’t think it’s good for the site to be an echo chamber, but I also don’t think it’s helpful to have someone here who brings nothing original to the table. If I want to read Democratic party talking points, I can go on dailykos for one of those other sites that does that. This isn’t one of those sites.

                  • “I guess by your standards we should believe you’re paid to spew conservative talking points then?”

                    What an asinine thing to say BadKnowledgeMiner because you know fully well that is untrue as in factually incorrect as in therefore purposeful slander. You should be punished.

                    • I think you meant to comment to Steve since he said the EXACT SAME THING.

                      I was making a point. I agree it’s a stupid viewpoint.

                      Isn’t Batman supposed to be smarter than this? The worlds greatest detective!

                • Sorry I don’t bring original, non-partisan content like rants about how George Soros controls the media. I’ll try to do better.

                  • Katie says:
                    “Sorry I don’t bring original, non-partisan content…I’ll try to do better.”

                    We are still waiting Katie but at least you apologized.

    • “ Was Sydney Powell a known prevaricator prior to this event?”

      Yes.

      “If yes, then I can see it being a reckless disregard for the truth, but I don’t believe that was the case.”

      Why don’t you believe that?

      “ If Fox loses this case, then Donald Trump will eventually own all of the news outlets when he sues over the Russian collusion narrative.”

      Over which specific false statements of fact?

      • Katie
        I stopped responding to trolls because you offer no evidence to support any claim you make.

        Sydney Powell was a highly respected attorney not a known liar. Therefore, I could expect that there may be some truth – until proven wrong – in her statements. That made them newsworthy.

        The Russian collusion narrative has been disproven time and again. If you are unwilling to believe based on the investigative results as well as Trumps actual actions and language regarding Russia, then there is no point in reading your comments or taking you seriously.

        You cannot state one fact that clearly shows evidence that Trump was in Putin’s pocket in a way that would harm American national interest or security. You have your own version of Qanon to which you subscribe because it supports your overtly biased perspectives.

        • I have no idea why you brought up “the Russian collusion narrative” here.

          You asked, “Was Sydney Powell a known prevaricator prior to this event?” I assume you meant prior to her false and baseless accusations against Dominion. It’s funny that you bring up Qanon, because Powell has been promoting Qanon since 2019. That is more than enough to label her a “known prevaricator prior to this event.”

          https://www.businessinsider.com/trump-election-lawyer-sidney-powell-is-longtime-qanon-supporter-2020-11

              • I am very much not kidding you. That publication had nothing but bad stuff to say about Trump, and I never saw a single article that leaned any direction other than left from it.

                • “Had nothing but bad things to say about Trump”

                  Oh no!

                  It’s because
                  there’s isn’t anything good to say about him. Maybe when he started his campaign…maybe.

                  I mean…the guy keeps topping himself for most idiotic comment with each passing month.

                  I cant wait to hear what he says to top the Chinese/bomb Russia comment.

                  He’s essentially verbal diarrhea and he appeals to the lowest common denominator. He thrives on people who are scared and are prone to distrust outsiders. People who aren’t happy with their own lives, and desperately want someone to come and just shit on everything…which is what he does.

                  I dont even know how an educated person can listen to any of his rally’s or interviews and not want to stab themselves in both ears.

                  It’s like a con man who is VERY BAD at being a con man.

                  For instance…he’ll saying something like “Putin wouldn’t have invaded Ukraine if I was President” but gives ZERO reasons as to why. And the people he says these things too, never ask him to clarify, or for any plan he has.

                  His knowledge of foreign policy is essentially negative. I wouldnt trust him to run a used shoe store. Al Bundy should be HIS boss.

                  • I can’t disagree with anything Knowledge Miner just said. But of course, acknowledging these basic facts about Trump’s character and qualifications that even many Republicans agree with is to engage in “partisan talking points,” while claiming the mainstream media is the equivalent of Qanon is not.

                  • A verbose way of saying Orange Man bad, Knowledge Miner.

                    Since you like to write; please tell us how you feel about Biden in a similar verbose fashion.

              • BadKnowledgeMiner says: “Everything you just said it wrong.”

                Put that on your bathroom mirror to remind you of a personal truth and as means of opening your mind.
                It could work.

          • You are using an article from an Internet magazine that never wrote a positive story on Trump. BI sought to discredit her allegations about Dominion using the same allegations to prove she was someone who was a known liar. Media Matters , George Soros and others are inextricably linked to push their narrative which is designed to divide along class, income, racial and gender lines. Creating instability in markets is how Soros makes his money. He became a billionaire by undermining the British money supply.

            Politifact has been discredited for its bias.

            Soros and the corporatists by their own admission advocate for global governance which will obviate our rights spelled out in the US Constitution. Far too many see big government as road to nirvana yet cannot see the obvious when the income disparity between the world’s oligarchs and even the US upper middle class is on full display

            You accept that the DNC solicited and paid for the Steele dossier but you believe all the information was fact despite the actual sources claimed it was “bar room banter”. Micheal Sussman who orchestrated the scheme to dirty up Trump has been criminally charged with with lying to the FBI for not disclosing his relationship to HRC. There is some evidence that HRC wanted to tie Trump to the Russians which led to the engagement of Steele. Steele shopped the the dossier to Mother Jones whose story was used to corroborate the Steele dossier (circular) by the FBI. James Clapper told Comey to brief Trump on the salacious points in the dossier after which Comey advised Clapper that Trump was advised. Comey used third parties to communicate with the NYT who was now willing to push the anti-Trump Russian connection narrative. Call it deep state or simply illegal partisan behavior everything stated above can verified.

            The IG last week reported that the FBI was in fact opening investigations without cause and cited over 700 specific acts against political and well known persons. The Qanon charge in the Business Insider related to a deep state effort to undermine Flynn and Trump. Well Comey as much as admitted that when he stated he was the one who said he would not have ordinarily been able to get some agents in there but then said he was taking advantage of the political naïveté of the incoming Trump administration. Further, the notes taken by the agents at the time did not feel Flynn lied but higher ups pushed the issue. Keep in mind that incoming national security officials routinely talk to their adversarial counterparts to prevent any misunderstandings. Flynn’s crime was precipitated by unwarranted investigation by the FBI and one nonconsequential statement he makes that is later deemed to be inaccurate becomes a reason to charge him with a felony. Flynn agreed to plead guilty when the FBI threatened to investigate other family members. It is not a stretch to make the claim that entrenched long serving administrators have skeletons in their closets they don’t want exposed and the Trump administration along with Flynn who was a contrarian to the status would were a threat and needed to be discredited.

            I don’t buy into conspiracy theories but I can see possibilities. I also know that simply because something has not or cannot be proven because of an inability to get concrete proof does not make something a lie or a conspiracy theory.
            Labeling something a conspiracy theory is used by the left to dismiss ideas that are hard to prove. Yet, why is it that no one has brought forth any persons whose votes were suppressed by a requirement for voter ID because of racism but this is not a conspiracy theory. I would hazard a guess that you believe that allegation. Does that make you a conspiracy theorist? Nonetheless, many believe these allegations without proof.

            People put all sorts of information together and come to various conclusions. Qanon is not that much different than the Southern Poverty Law Center or the NAACP which labels people and organizations as racists because they have different agendas and advocate for different groups.

            • “You accept that the DNC solicited and paid for the Steele dossier but you believe all the information was fact”

              What a weird thing to make up. One of my other comments on this article makes clear that I do not.

              “I don’t buy into conspiracy theories”

              You absolutely do. While there are many facts sprinkled into your comment, the bulk of it is conspiracy theorist nonsense that would be right at home in the Breitbart comments section. I mean, George Soros, really?

              You asked, I answered. Powell pushed Qanon before her baseless claims against Dominion. Qanon is a pack of deranged lies and conspiracies. So yes, she was a known prevaricator before doing so, if by “known” you mean among the reality-based community and not among other right-wing conspiracy cranks.

        • And for the record, I don’t believe Trump is “in Putin’s pocket” either. The notion that he praises Putin because he is being paid or bribed to do so was always a fundamental misreading of his motivations, which are that he likes authoritarian strongmen and thinks they are good. Add in that, despite his denials, he knows the Russian government helped his campaign, why wouldn’t he constantly talk about how strong and smart Putin is? Putin’s everything he’d like to be, and he did him lots of favors, so he’s going to do him favors in return. There didn’t need to be any official agreement or payoff or pee tape or bribe–Trump would much rather be the briber than the bribee, and he isn’t good at keeping his mouth shut, so bribing him would probably be impossible–just pathological neediness.

      • They did much worse than just state false facts. Many of them also willingly laundered fake intel from the DNC, so that their reporting could be used as false evidence to justify spying on U.S. citizens, which spying was itself then leaked to those same corporate news outlets to create a “they must be doing something bad” narrative to influence the 2018 midterms. All crooked as a Virginia fence.

        • “Many of them also willingly laundered fake intel from the DNC,”

          The intel was not “fake;” it actually was collected from sources. It was paid for by the DNC, but it wasn’t created by them. Whether it was accurate or not (much of it was not), none of it was reported as fact by any mainstream news outlet.

          “so that their reporting could be used as false evidence to justify spying on U.S. citizens,”

          Wait, you’re alleging the media knew that the FBI was going to ask for FISA warrants against Carter Page (the only citizen that was spied on in connection to the Trump-Russia investigation) before the FBI requested them? On what are you basing this theory?

          Also, the intel in the Steele dossier was only a very small part of the body of evidence provided to get those warrants, and an even smaller part of the overall Russia investigation. The FISA warrants against him were flawed in other ways, and he has a good case that his rights were violated, but to act like this discredits the overall Russia investigation is ridiculous.

          https://www.nbcnews.com/news/crime-courts/why-team-trump-wrong-about-carter-page-dossier-secret-warrant-n893666

          “which spying was itself then leaked to those same corporate news outlets”

          Earlier you suggested they already knew the spying was going to happen before it happened. Which is it?

          • So, let me get this straight from the start. You are using as a source a website which desperately needs the Russian Collusion story to be factual to protect themselves? I just want to understand this. The Steele Dossier has been thoroughly described as bunk and found to be lacking. Fruit of the poisonous tree sound familiar? They used that dossier to start the process for FISA warrants.

            And here you are, using a news source which printed the Steele Dossier as fact to discredit and undermine a sitting President.

            • So, let me get this straight from the start. You are using as a source a website which desperately needs the Russian Collusion story to be factual to protect themselves?”

              No.

              “I just want to understand this.”

              You clearly do not.

              “The Steele Dossier has been thoroughly described as bunk and found to be lacking.”

              Yes, this is the only sentence of your comment that is true.

              “Fruit of the poisonous tree sound familiar?”

              Yes, but that’s not what this is.

              “They used that dossier to start the process for FISA warrants.”

              No, they did not. The dossier was a very small part of getting the warrants, and was not the reason they started the process.

              “And here you are, using a news source which printed the Steele Dossier as fact”

              No, NBC never once presented the Steele Dossier as “fact.” You are making this up.

              “to discredit and undermine a sitting President.”

              He wasn’t even president yet when the reports of the Steele Dossier first came out. He had won the election, but was not inaugurated yet.

              Other than all that, great points!

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