If You're A Journalist Hiring Lawyers To Intimidate Publishers Into Killing Stories About Your Misdeeds, You're A Hypocrite
from the shameful dept
Over the years we've obviously written tons of stories about the rich and powerful hiring shameless lawyers who try to browbeat and intimidate news organizations (both large and small) out of publishing embarrassing stories. That's one of the many reasons why we support strong anti-SLAPP laws across the country, as an essential protection for a free press. Media companies and journalists tend to be some of the biggest supporters of free speech and anti-SLAPP laws as well for this exact reason. But what happens when rich and successful journalists are suddenly the subject of unflattering stories as well? Apparently, they throw out their principled support of free speech and hire a sketchy law firm that celebrates its history of "killing stories."
Lachlan Cartwright, over at the Daily Beast, has a story about the law firm Clare Locke, who not only specializes in killing stories, but appears to brag about why we should chip away at the First Amendment. After opening with a story about how a 60 Minutes producer hired the firm, Cartwright mentions some of the other high profile journalists who have hired the firm:
Clare Locke also did work for former Today show host Matt Lauer and current New York Times reporter Glenn Thrush, three sources say. Both men were accused in news publications of sexually harassing women. The law firm was also recently hired by David Pecker, the CEO and chairman of American Media Inc., parent company of the National Enquirer, to try and shut down a negative story from a newspaper, according to two sources.
The article notes not just a history of litigation against various news orgs (Rolling Stone, The New York Times, Katie Couric, CNN, and Gawker among them), but also how one of the firm's named partners, Elizabeth Locke, has some bizarre views on free speech:
Locke has publicly backed President Trump’s call to “open up” libel laws and attacked shield laws that protect journalists from disclosing their sources in court. “How are you supposed to prove as a defamation plaintiff that the journalist knew what they were writing was false if you don’t have access to the identities of their sources? It’s really problematic,” she said in a speech last year to the Federalist Society, a conservative legal group.
Locke continued, saying she wanted to “talk a little bit about why the pendulum has swung too far in the direction of freedom of the press.”
There are so many things to say in response to this, but let's just start with the big one: free speech is not a pendulum. It doesn't swing back and forth. Free speech either exists or it doesn't.
Second, any journalist hiring a firm with a partner who would say such a thing is a disgrace to the practice of journalism. Obviously, some would (perhaps reasonably) argue that the names listed above are already disgraces to the practice of journalism, and perhaps that's true. But the whole idea of supporting a firm that openly advocates for limiting free speech and freedom of the press, while practicing intimidation tactics against a free press is horrific and shameful.
Third, Locke is being disingenuous in arguing that you need to know someone's sources to prove defamation. That's not even remotely how it works in most cases. Whether Locke knows it or not (and you can speculate on your own whether she does), demanding that journalists hand over sources is a popular and powerful intimidation technique. It serves to accomplish a number of things antithetical to a free press and reporting: it makes it that much more difficult for journalists to get sources to come forward for whistleblowing or other information. It makes it much, much more costly for journalists (even if they have not defamed anyone) to defend against defamation claims. In other words, even in the very, very, very rare instances where it might make legitimate defamation claims easier to make, it would also serve as a huge help in both threatening and filing SLAPP suits designed solely to kill legitimate, but embarrassing stories.
There's a lot more in the Daily Beast article, and the firm itself insists that it is not "making threats" or "chilling speech." You can, of course, make your own judgment on that. Also, it's no surprise that there are law firms that are building up reputations as specializing in going after media organizations, but the fact that journalists themselves are hiring such a firm is an absolute disgrace.
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Filed Under: anti-slapp, chilling effects, david pecker, defamation, elizabeth locke, free speech, glenn thrush, intimidation, journalism, matt lauer, shield law, sources, threat letters
Companies: clare locke
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Reading comprehension?
I see nothing in there about not disclosing sources.
A LOT gets "read into" the Constitution. A LOT of the Constitution proper is ignored by the Government.
I'm sure that somewhere in US Code is are several LAWS regarding "sources", along with when they MUST be disclosed.
But it's NOT a First Amendment issue.
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Re: Reading comprehension?
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Re: Reading comprehension?
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Re: Re: Reading comprehension?
Did "press" refer to news organizations in 1791, or would it have been intended as a literal reference to printing presses? (Regardless, as Thad points out, the 9th and 10th should be in play when determining the rights of the former.)
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Re: Re: Re: Reading comprehension?
Today, although access to and use of literal physical printing presses would still be covered, the primary means of publication is *the Internet* - which would seem to imply that laws which impose "being kicked off the Internet" as a penalty for violation are in violation of the First Amendment.
Even offline publication, on non-industrial scales, has long since seen the printing press superseded by these computer-accessory devices called "printers".
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Re: Reading comprehension?
Of course this doesn't say that journalists may not be forced to disclose sources, because it doesn't have to. If a law that requires sources be disclosed would have the ultimate effect of intimidating and interfering with the ability of the press to do what the press is supposed to do, then that law abridges the freedom of the press and is therefore unconstitutional.
This is what gets read into the constitution, or rather, what should be read into the constitution.
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Re: Reading comprehension?
So one of the issues with simple language laws is this kind of bullshit. They write laws in legalese to reduce the amount of reading into the law we need to do. I will highlight again that if you have an issue with the way courts have interpreted the constitution, too bad, because under that standard, courts do not have the power of judicial review, and therefore there is no protection against unconstitutional action.
But the first amendment was written with simple, understandable language, which means the courts have spent years reading into the meaning of those words. The key question is, what constitutes an abridgement of "the freedom of the press"?. In general courts have recognized that government actions which will have the effect of discouraging future first amendment activity (a chilling effect) are considered an abridgement of first amendment rights.
So, forcing the disclosure of sources makes it unlikely that future sources will come forward, due to the likelihood of being revealed and the potential for negative consequences. That reduces the ability of the press to hold the government and corporations accountable. Action by the judiciary to force the reveal of anonymous sources is the government chilling the speech of the source, and the ability of the press to function. Abridging 1st amendment rights in 2 ways. It is most certainly a first amendment issue, as understood by constitutional case law.
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Re: Reading comprehension?
But, still, the Amendment makes NO MENTION of "journalists" being permitted to keep sources secret.
Several of you gave a "read between the lines" "argument". Which means it does NOT say that.
Again, "sources" have NO Constitutional protection, nor do "journalists" who refuse to disclose theirs.
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Re: Re: Reading comprehension?
So what. That means they have no rights then? What about case law? You seem to be rather sure of your self, I dobt your arguments would stand in a court hearing.
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Re: Re: Reading comprehension?
It also doesn't mention phones or the internet(among other things), so are actions involving those covered by the first amendment, or are they excluded because they aren't mentioned?
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Re: Re: Reading comprehension?
Fun fact: the Bill of Rights has an entire amendment saying that just because something isn't explicitly mentioned in the Constitution doesn't mean it's not a right.
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"Exists or doesn't"
If you believe that, the only conclusion is that it doesn't exist. Anywhere. Publish a threat to the President if you don't believe me.
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Re: "Exists or doesn't"
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Re: Re: "Exists or doesn't"
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Re: Re: "Exists or doesn't"
FYI, “shouting ‘fire’ in a crowded theater” comes from a Supreme Court case that was used to prevent the expression of what would later be ruled legal speech. The quote from Schenck v. United States goes like this:
This may sound reasonable until you remember that the case involved socialists peacefully expressing their views on the U.S. military’s draft program. They had not called for violence or even civil disobedience; they had only expressed their views on the draft and talked about peaceful ways of repealing the draft. Brandenburg v. Ohio later overturned Schenck by limiting the scope of banned speech to speech that would be directed to inciting or producing, and would be likely to incite, imminent lawless action.
Besides that, there are plenty of reasons one might shout “fire” in a crowded theatre—e.g., someone shouts “fire” as part of a play being put on inside the theatre. The test, then, is whether that shouting would be likely to create a riot or stampede that could result in violence.
The phrase can be used to denounce any form of unpopular speech precisely because it was used to denounce a form of unpopular speech for no reason other than it was unpopular. We would all do well to banish the phrase from any discussion of free speech; it is a call for censorship that does not—and should not—stand the test of time.
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Re: Re: Re: "Exists or doesn't"
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Re: Re: Re: "Exists or doesn't"
And yet the drafters of the Constitution said "Congress shall make no law... abridging the freedom of speech", without any allowance for these "obvious" exceptions. It's a stark difference from most other countries, that give exceptions like "the protection of national security or of public order" (Canada). It leads us to slippery slopes, like the general warrants that allow the NSA to tap the entire internet (obviously they didn't mean to ban general warrants relating to terrorism!).
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Re: Re: Re: Re: "Exists or doesn't"
The drafters of the Constitution are long dead. Their intent should be noted, but it should not be the set-in-stone laws by which we all live. We have a century or two of First Amendment jurisprudence to help us interpret and work with the Constitution so that it balances the interests of the state with the rights of the people.
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Re: Re: Re: Re: Re: "Exists or doesn't"
This is not about "intent", which we could only infer; it's about the straightforward text of the law (that courts have been ignoring from the beginning). You're right that the constitution doesn't have to be "set in stone"; that we're talking about an amendment proves it isn't. There's a procedure by which we can amend again if necessary.
(The "balance" idea sounds a lot like the "pendulum" idea Mike was dismissing BTW.)
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If we based our laws specifically by the straightforward text of the Constitution, defamation laws wouldn't be a thing (First Amendment) and private citizens being able to own a gun wouldn’t be a thing (Second Amendment). The Constitution should not be set in stone that way; it should be interpreted with the intent of the Founding Fathers in one hand and the realities of our modern existence—an existence that the Founding Fathers never could have imagined—in the other. Men like George Washington had their say in the crafting of this country; their words and their intent should never be what governs the United States for all time.
That comment was specifically referencing free speech. My comment was not.
Whereas a law will always affect the state in some way, it may affect a large group of people in a positive way, a smaller group of people in a negative way, and an even smaller group in no way at all. In an ideal world, the law would perfectly balance the rights of citizens and the interests of the state in a way where the people retain as much freedom as possible while the state retains enough power to govern the populace in an effective way. We do not live in an ideal world; the balance of the law exists as an ideal, but cannot be achieved. The best we can do is strive for the ideal by figuring out how to best craft laws that benefit both the state and as much of the populace as possible. At the least, a law should have good reasons why the balance must favor one side over the other, and why the people who will be most affected by the law will feel those effects more than others.
Non-discrimination laws are a good example. The state has an interest in keeping the economy booming by having as many people as possible participating in the public sphere, so disallowing discrimination based on immutable traits (race/ethnicity, sex, sexual orientation, age, etc.) benefits that interest. Such laws would also help people who would face such discrimination enter the public sphere with less fear of being booted from it, which can improve their societal relationships and thus society as a whole. Public-facing business owners who would discriminate on such grounds will feel the effects of the law more, as they would be barred from such discrimination in the future, but the state’s broader interest in both the economy and the improvement of society would need to override a businessperson’s desire to say “no Blacks” or something similar. Non-discrimination laws, then, would favor the state—giving them the power to punish business owners for certain kinds of discrimination—while abridging a freedom of a small part of the populace to benefit a greater number of citizens. If the balance of such a law were a see-saw, the law would sit close to the middle, but always on the side of the state.
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Right, that why I said courts have ignored the first amendment all along. The text makes it clear that defamation laws are illegal.
If you mean the militia part, you're misreading it. It's only a justification; the right is specifically reserved to the people.
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Yet we have them precisely because they serve a compelling interest that overrides the freedoms guaranteed by the First Amendment—perhaps not a compelling interest for the state, but definitely a compelling interest for the people.
Possibly, yes, so I’ll grant you that.
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Re: Re: Re: Re: Re: "Exists or doesn't"
You're mostly right, but that reference at the end to "balancing interests" isn't really accurate in terms of First Amendment jurisprudence. Exceptions to the First Amendment are explicitly defined; the Supreme Court has acknowledged that such exceptions exist, but has rejected the premise that they can be based on balancing tests.
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Fair point; thanks for the correction.
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Re: Re: "Exists or doesn't"
In that case, when did anyone ever not have free speech? When an agent makes their mouth disappear like in the Matrix?
You could say whatever you wanted in the Soviet Union. They might throw you in the gulag after, or kill you, but you could say it. Modern China, Thailand, same idea. More to the point, you could be hung for treason in 1776 Britain, and I think there may be a connection to the American idea of free speech here. Freedom from consequences—government consequences, anyway—was the entire idea.
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Re: Re: Re: "Exists or doesn't"
That is what the law allows for, yes. With few exceptions, expressions of ideas and opinions are protected from government intervention. But consequences other than government intervention exist for speech considered offensive or distasteful—and no one is free from experiencing those.
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Re: "Exists or doesn't"
I took this as a reference to what's discussed in Ken White's Trope Three: 'Not all speech is protected', along the lines of
Plain URL: https://www.popehat.com/2015/05/19/how-to-spot-and-critique-censorship-tropes-in-the-medias-coverage -of-free-speech-controversies/
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He's not a hypocrite
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Typo?
"Lachlan Cartwright, over at the Daily Beast, has a story about the lawyer Clare Locke"
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Re: Typo?
Anyway, fixed now... thanks.
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The implication is that all of your friends are pristine or you wouldn't associate with them. I wouldn't say that's the case for very many.
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