Donald Trump infamously said he was going to "open up the libel laws." First Amendment loving people pushed back — even a lot of Trump supporters, or at least people who are not suffering from Trump Derangement Syndrome. See, e.g., Is the First Amendment Safe from Donald Trump?
We don't need to make it easier for public figures to sue the media. New York Times v. Sullivan and its progeny have given us a wide open and robust marketplace of ideas, which has withstood the test of time. That case affirmed our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide‐open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."
Of course, the powerful have never liked Sullivan. How then does one go about marshaling the people to get behind eroding this precious freedom?
Step one is to create a villain. Make "the press" seem unworthy of protection.
Enter the "piss gate" memo. An epic trolling operation if there ever was one.
I don't think that the author of the memo had any designs on causing any real harm to the press. This looks like a classic "lulz" operation. Someone wrote this document, I suspect, for the laughs. He wanted to see who would be so foolish as to take the bait. It was the equivalent of the coyote putting out a pile of "free bird seed" in the middle of the highway. Except, this time, the Road Runner ate it, and a load of Acme brand dynamite exploded in his stomach.
The author put in just the right amount of bait, that someone with "Trump Derangement Syndrome" would find it irresistible. At the same time, anyone not suffering from TDS would have been skeptical.
It had something for everyone who loves to hate Trump. A sex scandal + Russians. A "winning" combination.
Of course every random TDS suffering fool repeated it. But, "journalists" are not supposed to be so deranged. Journalism implies some level of skepticism and responsibility. Responsible journalists understood that the "pee report" was unverified. In fact, irresponsible "journalists" published it noting it was both unverified and "unverifiable." Then why publish it?
BuzzFeed's excuse was "let the people make up their own minds."
That is not "journalism" and that is why we can't have nice things.
If the media publishes a known lie, then that is (of course) actionable defamation. If they are merely negligent, then it can be a "you break it, you buy it" situation. But, if the plaintiff is a public figure, the media is allowed to be negligent.
What a great deal the press has.
The press has constitutional protection for its fuckups. The press gets to fuck up and then say "but the Constitution lets me fuck up".
This is the only industry that has constitutional protection for its errors.
That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the “breathing space” that they “need … to survive…”
And, I have no problem with that. In fact, I think it is a magnificent thing. This protection creates the necessary breathing space for the press to be hard-hitting, investigative, and an effective watchdog. We don't want the press to write a scathing story about a government official and fail to publish it because there might be some errors in it. We would never have had the Watergate story or The Pentagon Papers if that were the rule. Government scoundrels would have huge shadows in which to hide if we didn't give the press that degree of latitude. threats of defamation suits would suffocate the Fourth Estate if we didn't give it this latitude.
But, that breathing space is not infinite — thus, Sullivan left room for even the most public person to protect his reputation when it gave us the "actual malice" standard.
Even some judges and lawyers get this wrong, so don't feel bad if you didn't know what "actual malice" means.
It has nothing to do with "malice" at all. It means that the defendant published the statement knowing it was false or with a reckless disregard for the truth.
So if someone writes a blog post about Donald Trump, accusing him of a crime, basing it just on an anonymous report, without following up — that might be considered "reckless disregard" for the truth. Publishing it, just because the mere accusation is newsworthy? You can get away with that, sometimes, as a matter of "neutral reportage." But, that isn't the thickest shied.
When I first read the "piss gate" document, my initial reaction was to scroll to the end to see if it ended with "we call it 'The Aristocrats!'" If you get a document that purports to describe such sordid "facts," then you should do some investigation. If it is both unverified and "unverifiable" (as BuzzFeed said) you don't just "publish and let the public make up its own mind." That's simply irresponsible and stupid.
Unfortunately for us all, a few very irresponsible media sources took the bait. They published this "report" with reckless disregard for the truth.
You might ask, "why should anyone care?"
In fact, those of you with TDS are probably tearing your hair out right now — whining "But Donald Trump does this all the time!"
That isn't the point, fuckhead.
For starters, if Donald Trump (or one of the other identified subjects in this false report) were to bring a defamation claim against a media outlet that republished it, the case would have some legs. I can't predict with certainty that it would be successful, but it would not be frivolous. Congratulations, BuzzFeed, you just created a factual scenario where Donald Trump could bring a non-frivolous defamation claim. (Whether he can is different than whether he should – I think it would be a bad idea, personally).
However, the other reason to care is that those in power hate the press. The press is here to keep them honest. The press is here to keep their feet to the fire. The press is here to make sure that we have an informed and self-governing society.
And in Trump-Derangement-Syndrome fog of terrible judgment and an act of complete journalistic malpractice, BuzzFeed gave the press' enemies all the ammunition they would need to begin their campaign to "open up the libel laws." What better way than to irresponsibly publish a ridiculous salacious "report" that anyone reasonable would at least question? Now when we fight back against any such measures, we wind up looking like we're defending that kind of thing.
A news editor walks into the marketplace of ideas with his entire family staff. He bends lady liberty over the market stall, and dumps Trump Derangement Syndrome all over his dick … his dick which, by the way, is covered in pus-filled sores from his entire history of working at the dog-shit blog where he is employed. In walks Sabrina Erdely and she starts fucking lady liberty up the ass with a strap on, while her dog starts fucking her mouth. In walks Justice Brennan's ghost, and the whole family throws it to the ground and starts shitting on its face. Oliver Wendell Holmes pokes his head in to the room, and the son starts fucking it in the mouth, while shitting on Brennan's face as Ben Bradlee and Edward R. Murrow stumble in, slip on the shit all over the floor, and BuzzFeed's editorial staff tear off their pants and start fisting them – but they fist them so far, that their fists come out their mouths, and then they start giving donkey punches to Brennan and Holmes. Then, the Lady Liberty stumbles away and gets grabbed, and someone gives her a "who's the boss?" (A variant on the donkey punch, where she gets fucked up the ass, and while that is going on, the fucker says "who's the boss?" She says, in a panicked voice, "you are!" And then, the fucker says "WRONG, TONY DANZA!" and then administers a punch to the back of her head).
Justice Kagan pops her head in and says "wow… what do you call that?"
Everyone stops and says "BuzzFeed!"
UPDATE: If you're wondering what "responsible" reporting (or just not being a fuckhead) looks like:
Marc Randazza is the national president of the First Amendment Lawyers Association
Last 5 posts by Randazza
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