Two unrelated but parallel items moved on the news wires last week, each of which has the potential to change the information landscape significantly.
First, Nick Sandmann, a student at a Catholic school in Covington, Ky., through his parents, has filed a libel suit against the Washington Post, alleging the paper defamed Sandmann for exercising his rights under the First Amendment, and using Sandmann as an acceptable casualty in an effort to discredit President Trump, since Sandmann was wearing a Trump-campaign signature MAGA hat.
While much of the web chatter has it that Sandmann does not have a case, I am of a different opinion. Irrespective of how you see the facts of the incident itself, the coverage was typical of news in the MeToo era – a kind of ready, fire, aim approach to incidents as long as they fit a narrative, irrespective of who gets hurt – in this case, a minor.
Sandmann is asking for $250 million, which is approximately what Amazon entrepreneur and Trump hater Jeff Bezos paid for the whole newspaper, and so has the tone of being very political and very punitive.
News organizations have enjoyed a virtual immunity from defamation suits over the years, given that a free society must have credible, valid information on its leaders and regulators, irrespective of how badly those leaders and regulators want to remain unseen. However, there is growing evidence that the news organizations have morphed from small, independent voices of local or regional constituencies into what amounts to being leaders and regulators in their own right, but unregulated and sometimes renegade.
I have long felt that, while we need the press to be both free and protected, there was always the underlying assumption that it would also be just and fair. Recent coverage, however, of riots, elections, investigations and allegations have given rise to concern that it is neither just nor fair, and that it operates monolithically, as if one overwhelming voice, instead of a range of voices and opinions exploring society’s situations and options.
If, in fact, the press has been acting politically and in a partisan manner, and if it has been using its protections against defamation as a shroud and cloak, from behind which it can slash and kill with impunity, it is time for a review. Especially when it attacks a minor.
The media’s love of directing, rather than reporting, policy became evident when Woodward and Bernstein were successful in deposing a sitting president, rightly or wrongly, accelerated down with the Anita Hill and Bork hearings, the latter successful in destroying a nominee for the Supreme Court and continued to spiral down as it attacked dozens or hundreds of would-be public servants, to the recent debacle at the hearings regarding Supreme Court Justice Brett Kavanaugh.
Concurrently, Supreme Court Justice Clarence Thomas last Tuesday called for a review of the landmark case New York Times v. Sullivan, in which the Court recognized a higher standard of proof when suing public figures for defamation. The idea at the time was that public figures are better targets for suits, as they often have deep pockets, and they can be scrutinized continually for slip-ups. The new standard, “actual malice,” is not malice, actually, as my journalism law professor loved to quip. It is knowing falsity or reckless disregard for the truth.
The Court subsequently recognized another level of public figure, known as a “limited-purpose” public figure, wherein if a private party voluntarily injects himself or herself into a controversy, that person can become a public figure for the purpose of that suit, even though they may have no other pubic profile.
Thomas has another view. When the Court decided not to take up the case of a woman that accused Bill Cosby of abuse, Thomas concurred, but for an entirely different reason than the majority. “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” he wrote. “If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we. We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.”
Thomas is a smart guy. As an aside, if you have not read his book, My Grandfather’s Son, you should.
Reputational harm is devastating, and the current application of New York Times vs. Sullivan has opened the gates for the vilest, most hateful, most calculated and most criminal minds in history to work their magic on reputable, productive, brilliant leaders our country can muster. The media has the bit in its teeth, and it intends to exercise its power. No longer are newspapers the voice of independent, local or regional constituencies. Ben Franklin would be confounded to see one of his dearest principles so perverted. They are the tools of megalithic corporations bent on one goal – power to generate profit. This creates, to my mind, an irresolvable conflict of interests. They cannot be trusted.
In my view, these two cases have come in an environment where the country is ripe for a change. The abuses have gone too far and have become endemic. For my money, I will bet on Nick Sandmann. The media needs a good caning to remember what its job is and who’s the boss.
What has this to do with the wood industry? We hope it is obvious. The incremental takeover of the trade press by commercial interests has tracked right along with commercial occupation of the mainstream press, to the point most “publishers” today are nothing more than stenographers for their best two advertisers. God forbid that anybody publish something critical of Homag or Biesse. On that point I have personal experience.
But my situation is not an example of the oppression of commercial interests, but rather and example of how things should be. We work for the interests of the wood industry in the U.S., and we do so independently. We can be right or wrong; it’s your pick. But we are not under the thumb of commercial, political or governmental handlers. The New York Times and the Washington Post lost their right to that claim long ago.