Judge And Jury Say Sarah Palin Failed To Prove 'Actual Malice' In Defamation Case Against The NY Times

from the because-she-didn't dept

The last time we wrote about Sarah Palin's defamation lawsuit against the NY Times was in 2017 when Judge Jed Rakoff was dismissing the case, noting that Palin had failed to show "actual malice," by the NY Times, which is the necessary standard under the seminal defamation case (also involving the NY Times), NY Times v. Sullivan. However, two years later, the appeals court ruled that Rakoff violated procedural rules in doing so, and reinstated the case. It's been three years since then and over the past few weeks an actual trial was held -- which is extraordinarily rare in defamation cases.

The "actual malice" standard is both extremely important and widely misunderstood. It does not mean that the speaker/publisher "really disliked" the subject or wanted to get them. It has a distinct meaning under the law, which is that that the publisher/speaker either knew it was false at the time of publication, or that they posted it with "reckless disregard" for whether it was true or false. And, again, people often misunderstand the "reckless disregard" part as well. It does not mean that they were simply careless about it. For there to be reckless disregard, it means that they had to have substantial doubts about the truth of the statement, but still published it.

In other words, for defamation of a public figure, you have to show that the publisher/speaker either knew what they were writing was false, or at least had strong reasons to believe it was false, and still went ahead with it. This is extremely important, because without it, public figures could (and frequently would) file nonsense lawsuits any time some small mistake was made in reporting on them -- and small mistakes happen all the time just by accident.

But, still, the Palin case went to trial and before the jury even came back, Judge Rakoff announced that, as a matter of law (which the judge gets to rule on) Palin had failed to show actual malice. The oddity here was that he did so while the jury was still deliberating, and allowing the jury to continue to do so. The next day, the jury came to the same conclusion, finding the NY Times not liable for defamation, as a matter of fact (juries decide matters of fact, judges decide matters of law -- and it's nice when the two agree).

It seems likely that Palin will appeal, in part because there are a contingent of folks in the extreme Trumpist camp -- including Supreme Court Justice Clarence Thomas and some of his close friends who have been campaigning over the past few years to over turn the "actual malice standard" found in the Sullivan case.

As many observers have noted, this case is probably not a very good test case for that question, but that doesn't mean Palin won't try to make it just such a test case -- and even if it's a weak case, we should be watching closely as any such case moves through the courts -- as they are, inherently, attacks on free speech. Weakening the actual malice standard would be a way for the powerful to more easily silence the powerless who speak up against them. The "actual malice" standard is a key element of strong free speech protections -- and attempts to weaken it are attacks on free speech.

Filed Under: 1st amendment, actual malice, defamation, free speech, jed rakoff, nyt v. sullivan, sarah palin
Companies: new york times

Facebook's Latest Privacy Screwup Shows How Facebook's Worst Enemy Is Still Facebook

from the get-your-act-together dept

There's another Facebook scandal story brewing today and, once again, it appears that Facebook's biggest enemy is the company itself and how it blunders into messes that were totally unnecessary. When the last story broke, we pointed out that much of the reporting was exaggerated, and people seemed to be jumping to conclusions that weren't actually warranted by some internal discussions about Facebook's business modeling. The latest big scandal, courtesy of a big New York Times story, reveals that Facebook agreed to share a lot more information than previously known or reported with a bunch of large companies (though, hilariously, one of those companies is... The NY Times, which The NY Times plays down quite a bit).

The social network permitted Amazon to obtain users’ names and contact information through their friends, and it let Yahoo view streams of friends’ posts as recently as this summer, despite public statements that it had stopped that type of sharing years earlier.

As Kash Hill notes in a separate story at Gizmodo, this suddenly explains a story she had explored years ago, where Amazon rejected a review of a book, claiming the reviewer "knew the author," (which was not true). However, the reviewer had followed the author on Facebook, and Amazon magically appeared to know about that connection even if the reviewer did not directly share her Facebook data with Amazon.

The NY Times report further explains another bit of confusion that Hill has spent years trying to track down: how Facebook's People You May Know feature is so freaking creepy. Apparently, Facebook had data sharing agreements with other companies to peek through their data as well:

Among the revelations was that Facebook obtained data from multiple partners for a controversial friend-suggestion tool called “People You May Know.”

The feature, introduced in 2008, continues even though some Facebook users have objected to it, unsettled by its knowledge of their real-world relationships. Gizmodo and other news outlets have reported cases of the tool’s recommending friend connections between patients of the same psychiatrist, estranged family members, and a harasser and his victim.

Facebook, in turn, used contact lists from the partners, including Amazon, Yahoo and the Chinese company Huawei — which has been flagged as a security threat by American intelligence officials — to gain deeper insight into people’s relationships and suggest more connections, the records show.

As Hill noted on Twitter, when she asked Facebook last year if it uses data from "third parties such as data brokers" to figure out PYMK, Facebook's answer was technically correct, but totally misleading:

Specifically, Facebook responded: "Facebook does not use information from data brokers for People You May Know." Note that the question was if Facebook used information from "third parties" and the "data brokers" were just an example. Facebook responded that it didn't use data brokers, which appears to be correct, but left out the other third parties from which it did use data.

And this is why Facebook is, once again, its own worst enemy. It answers these kinds of questions in the same way that the US Intelligence Community answers questions about its surveillance practices: technically correct, but highly misleading. And, as such, when it comes out what the company is actually doing, the company has completely burned whatever goodwill it might have had. If the company had just been upfront, honest and transparent about what it was doing, none of this would be an issue. The fact that it chose to be sneaky and misleading about it shows that it knew its actions would upset users. And if you know what you're doing will upset users, and you're unwilling to be frank and upfront about it, that's a recipe for disaster.

And it's a recipe that Facebook keeps making again and again and again.

And that's an issue that goes right to the top. Mark Zuckerberg has done too much apologizing without actually fixing any of this.

One bit in the NY Times piece deserves a particular discussion:

Facebook also allowed Spotify, Netflix and the Royal Bank of Canada to read, write and delete users’ private messages, and to see all participants on a thread — privileges that appeared to go beyond what the companies needed to integrate Facebook into their systems, the records show. Facebook acknowledged that it did not consider any of those three companies to be service providers. Spokespeople for Spotify and Netflix said those companies were unaware of the broad powers Facebook had granted them. A Royal Bank of Canada spokesman disputed that the bank had any such access.

Spotify, which could view messages of more than 70 million users a month, still offers the option to share music through Facebook Messenger. But Netflix and the Canadian bank no longer needed access to messages because they had deactivated features that incorporated it.

This particular issue has raised a lot of alarm bells. As Alvarao Bedoya points out, disclosing the content of private communications is very much illegal under the Stored Communications Act. But, the NY Times reporting is not entirely clear here either. Facebook did work hard for a while to try to turn its Messenger into more of a "platform" that would let you do more than just chat -- so I could see where it might "integrate" with 3rd party services to enable their features within Messenger. But the specifics of how that works would be (1) really, really important, and (2) should be 100% transparent with users -- such that if they're agreeing to, say, share Spotify songs via Messenger, they should absolutely be told that this means Spotify has access to whatever they have access to. A failure to do that -- as appears to be the case here -- is yet another braindead move by Facebook.

Over and over and over again we see this same pattern with Facebook. Even when there are totally reasonable and logical business and product decisions being made, the company's blatant unwillingness to be transparent about what it is doing, and who has access to what data, is what is so damning for the company. It is a total failure of the management team and until Facebook recognizes that fact, nothing will change.

And, of course, the most annoying part in all of this is that it will come back to bite the entire internet ecosystem. Facebook's continued inability to be open and transparent about its actions -- and give users a real choice -- is certainly going to lead to the kinds of hamfisted regulations from Congress that will block useful innovations from other companies that aren't so anti-user, but which will be swept up in whatever punishment Facebook is bringing to the entire internet.

Filed Under: data sharing, mark zuckerberg, people you may know, privacy, tracking
Companies: amazon, facebook, netflix, new york times, spotify

The New York Times Tries Something Novel: Listening To And Interacting With Readers

from the treating-humans-like-humans dept

For years the whine-du-jour in online media circles has been about the poor old news comment section. Time and time again we've been told that in the modern era, the news comment section is an untamable and unredeemable beast: a troll-factory hellscape that is simply too hostile and dangerous to be manageable. So instead of trying to fix the problem, outlets have prevented users from commenting at all. Usually these announcements arrive with some disingenuous prattle about how the outlet in question really "values conversation" and was just trying to "build a stronger community" by muzzling on-site discourse.

The real reason killing the news comment section is so popular is less glamorous. Most websites simply are too lazy or cheap to try and explore solutions, since "quality discourse" isn't something site bean counters can clearly monetize. Many other editors simply don't like having an area where plebeians can so clearly and obviously outline errors made during reporting. Many of these editors believe we can and should return the bi-directional internet back to the "letter to the editor era," when publishers got to choose which member of the public was heard.

So while "who cares about on site community" becomes the trend, the New York Times is trying something particularly blasphemous in 2018: actually interacting with their readership. Several columnists have taken to the website's still-operating comment section as part of what columnist Frank Bruni says is part of a newfound effort at the paper to actually talk with readers from "time to time":

"I'm the column's author, hereby beginning a Times-encouraged experiment of joining the Comments thread from time to time. Thank you, PaulB67, and thank you, all, for reading us and for engaging in this conversation."

And:

"Hi. I'm the column's author; with The Times's encouragement, we writers on staff are beginning on occasion to join the Comments threads on the stories we publish."

Of course actually interacting with your readership is well out of line with fashion trends at the moment, and it's unclear how dramatic the Times' effort will be or if it will stick around. Most websites would rather outsource all public discourse to Facebook where it becomes SOP. But it runs in line with comments that former Times editor Liz Spayd began making a few years ago, namely that treating your audience like human beings instead of an irredeemable pile of jackasses might actually help foster better public discourse:

"Clearly, there is more to understanding readers than to literally have editors interact with them each day. Nonetheless, the small number of consumer-facing staffers is indicative of the bigger problem: a newsroom too distant from the people it serves...

What would prove more fruitful is for newsrooms to treat their audience like people with crucial information to convey — preferences, habits and shifting ways of consuming information. What do they like about what we do and how we do it? What do they want done differently? What do they turn to other sites for?"

That this is a novel idea tells you just far off trail we've wandered.

Spayd has since departed the Times to go work as a Facebook public image consultant, but apparently her lofty goal of actually giving a damn (TM) appears to have stuck around at the Times, for now. Again, actually interacting and caring about your audience is important, but recent evidence also suggests it doesn't really take much effort to craft tools that can have an immediate, positive impact on the quality of public discourse in comment sections. Yes, the news section is filled with a lot of bile and buffoonery, but the idea that this means all on-site news readers should be muzzled continues to be a popular, but flimsy, narrative.

Filed Under: comments, newspapers
Companies: new york times

NY Times Unimpressed With Any Online Protest That Doesn't Rattle The Earth's Very Core

from the you're-not-helping dept

As we recently announced and participated in, a group of websites, companies, consumer advocacy groups and digital rights organizations all joined forces for a day of action last Tuesday against mass surveillance. That protest, dedicated to the memory of Aaron Swartz, involved participants and websites running banners that urged visitors to head over to the protest website and contact their representatives. An underlying goal was to harness some of the outrage against SOPA/PIPA and direct it toward the NSA's ongoing surveillance abuses, since online protest have been proven to help move the needle, even if they can't all be on the scale of SOPA.

Not everybody was impressed. Because the NSA and friends didn't immediately admit fault and declare an end to all surveillance before crying a lot, launching balloons and committing coordinated seppuku on the steps of the Capitol building, Nicole Perlroth at the NY Times took to penning a slightly-snotty article strongly suggesting the effort was a waste of time and "barely registered":

"...the protest on Tuesday barely registered. Wikipedia did not participate. Reddit — which went offline for 12 hours during the protests two years ago — added an inconspicuous banner to its homepage. Sites like Tumblr, Mozilla and DuckDuckGo, which were listed as organizers, did not include the banner on their homepages. The most vocal protesters were the usual suspects: activist groups like the Electronic Frontier Foundation, the American Civil Liberties Union, Amnesty International and Greenpeace."

Apparently because the "usual suspects" like the EFF are always saying lot of weird stuff, there wasn't much point in paying attention to them (or something). Perlroth also implies that if large companies like Google and Wikipedia aren't going to loudly participate in your online protests, you might as well go home and cry in your pudding, because as we've seen all throughout history, it's impossible to enact meaningful social change without the help of a large corporate donor.

Some of the folks more closely associated with the protest didn't agree, like Sina Khanifar, who helped coordinate the campaign. Khanifar points out in a blog post that Perlroth's definition of "barely registering" could use some fine tuning:

"I'm not sure how 80k calls and over 500k emails counts as "barely registering." That's not to mention over 400k shares on Facebook, and another 100k on Twitter and Google Plus. And over 200 million page views of the banner. Compare Tuesday with the lead-up to the vote on Rep. Amash’s bill to defund NSA’s call records program. In two days about 15,000 calls were made through DefundTheNSA.com. Staffers reported that their phones rang heavily in support of the bill."

Khanifar rather amusingly picks apart numerous other problems with Perlroth's article, like the claim there was no substantive discussion on Reddit (there were roughly 7,000 comments, and Redditors are busy organizing the next wave) and the argument that participants Tumblr, Mozilla and DuckDuckGo did nothing to their websites (they did), while noting that this was one small part of a much broader effort towards NSA reform. He also quite correctly points out that if you're going to compare every online protest to the single largest and most successful protest in the history of the Internet, you're probably going to spend a lot of time disappointed. To make Perlroth happy though, perhaps next time we get the urge to protest, we'll pre-emptively realize the futility of the effort and stay home to watch reality TV instead. That'll learn 'em.

Filed Under: day we fight back, eff, nsa, pipa, protest, sopa
Companies: new york times

Would Bradley Manning Face The Same Charges If He Leaked Same Info To NYTimes Instead Of Wikileaks?

from the questions,-questions dept

Pre-trial hearings for Bradley Manning, the guy accused of leaking State Department cables (and other info) to Wikileaks, are kicking off this week, with many assuming that he's clearly guilty and will spend the rest of his life in jail. Of course, reports suggest that many thousands (and perhaps hundreds of thousands) of people had access to the exact same documents, and we're still waiting for any proof of any harm from the leaks. That said, the most interesting question about the Manning trial comes from Gautham Nagesh, who asks if Manning would even have been prosecuted if he'd leaked the exact same info to the NY Times, rather than Wikileaks (even though the eventual publishing of the documents went through the NYTimes and others).

And that brings up an interesting point. Is this really a trial of Manning... or a trial-by-proxy of Wikileaks itself?

That said, I'm not convinced it would have made a huge difference, but the overall attention level might have been different. If we went back a decade, perhaps it would have been an issue. However, starting under the Bush (the younger) administration and certainly ramping up under the Obama administration, the federal government has been pretty aggressive in going after whistleblowers -- even when they are going to the press (including some specific cases involving the NY Times).

Where I think it might have made a bigger difference is in how the case finally works out. There seems to be this presumption that Wikileaks is obviously "evil" and therefore anyone working with them must be trouble by association. The concern if the leaks had merely been to the NY Times perhaps wouldn't have been nearly as strong.

Filed Under: bradley manning, bush, obama, whistleblower, white house
Companies: new york times, wikileaks

In Which I Debate A Media Mogul Who Insists It's Crazy To Give Content Away For Free

from the more-opportunity-for-me dept

Last week, I went on PBS Mediashift's podcast to debate media mogul Steven Brill about the power of paywalls. Brill runs Press+, one of the first companies that built a business around setting up paywalls for publications. They focus on NYT/FT-like "metered" paywalls, where you get some content for free, but if you hit a certain number of pages, you're locked out unless you pay. Brill, whose company had to sell out to a much larger player recently (suggesting it's not as successful as he makes it out to be), insists during the episode that there is no way to make money giving away journalism content for free, and insists that advertising is no way to make money. You can hear our debate starting at around 18:45 on the podcast:
There was a lot more that could have been said if we'd had the time, but I found a number of his arguments bizarre. The internet represents a huge opportunity to grow and expand a business -- yet he's celebrating the fact that the sites who agree to put up the giant padlock he's selling are "only" losing a little bit of their traffic? This is the time to be investing in and growing traffic, because as soon as free competitors come along, and people realize they don't need to pay any more, what will these sites have left? They'll have less traffic, less advertising and less subscription revenue. That's no way to invest in the future.

Separately, there was a nonsensical story about a journalism student who might get hired for a publication, but if that publication gives away its content for free, she can't pay her rent any more. I have no time for arguments like that. If she got hired, she has a salary. If a publication is giving away content for free that doesn't mean it makes no money or has no business model. Arguments like that suggest someone who has no real argument.

I am sure that the publications -- mostly regional newspapers -- that are using Press + are successful in slowing the rate of churn. Some paper subscribers probably agree to do a bundled package for the time being, getting paper and digital access. But it's not a long term solution. Perhaps for people of Brill's generation, it makes sense, but I don't know many people under 40 who subscribe to a local newspaper any more. There's more and more info available for free online. And there are growing opportunities to provide more such info.

Advertising is a tough way to make a living, but no one says it's the only way to make money online. There are lots of creative ways to make money online that don't involve pissing off your userbase and limiting what they can do. When you do that, you make the content that much less valuable, and that's no way to run a business.

Filed Under: journalism, mediashift, paywall, pbs, steven brill
Companies: financial times, new york times, press+

Pointless Journalist Fight: Who Gets Credit For Tweeting A Story First?

from the get-over-yourselves dept

One thing I always find particularly silly in the mainstream media is when they claim "exclusive" on a story. News is not "ownable," and the second someone gets a story out, that news is out there and the facts are available to anyone else. So every time I see publications claim "exclusive!" it makes me laugh. It may be exclusive for a few seconds, at best. But, old school journalists seem to get really really picky about those things, as evidenced by this particularly stupid argument over who gets "credit" for a story. It seems that the NY Times and Reuters both had reporters working on the story, and the NYTimes tweeted the news out about 26 seconds before Reuters did -- but the Reuters reporter is still demanding credit -- first claiming (incorrectly) that he tweeted it first, but then noting (correctly) that they published first. The simple fact is that no one cares, other than a couple of journalists. No one keeps score, and no one owns the news. After all, if we have to go back to the "original" source, then wouldn't it be the person the story is actually about?

Filed Under: facts, pointless, twitter fight
Companies: new york times, reuters

NYTimes Columnist Stirs Up A Controversy That Will Only Drive Human Trafficking Further Underground

from the dangerous-ideas dept

You may recall a couple years ago that a bunch of politicians, led by state Attorneys General, went on a huge grandstanding campaign against Craigslist, because some people were using Craigslist for prostitution -- including some human trafficking. As we noted at the time (repeatedly), Craigslist was incredibly cooperative with law enforcement, and smart law enforcement officials actually used Craigslist as a tool to help discover, track down and arrest those who were breaking the law. But, rather than recognize that Craigslist was a useful tool, a huge media campaign was set off, leading Craigslist to shut down its "adult services" section, despite plenty of legal uses.

Of course, exactly as we predicted, the people who were previously using Craigslist for illegal reasons didn't magically disappear. They just shifted to other sites. One popular one was Backpage, owned by Village Voice Media, publishers of the famed alternative newspaper The Village Voice. Unlike Craigslist, Backpage told the grandstanders that it wouldn't back down. It noted that it cooperates with law enforcement, and that it understands the law and why it's not liable for the actions of its users. A lawsuit filed against the company resulted in Backpage being declared legal.

You would think, maybe, that the media and the granstanders would get the message. But, no, they just keep at it. Nicholas Kristoff at the NY Times recently posted a ridiculously silly column, which first "outs" Goldman Sachs as a minority investor in Village Voice Media (leading GS to sell all its shares before the article went to press, despite it having nothing to do with how the company operates), and then goes on to insist that the owners of the site must be "held accountable."

This is, to put it plainly, stupid. Kristof even acknowledges that the real way to stop human trafficking and underage prostitution is to have "prosecutors... focus more on pimps and johns." You know how they can do that? By using sites like Backpage to collect evidence and to find out who's actually responsible. But, immediately after that, Kristof insists that:

Closing down the leading Web site used by traffickers would complicate their lives, and after so many years of girls being trafficked on this site, it’s time to hold owners accountable.

That's ridiculous. Two years ago, we were told that the "leading website used by traffickers" was Craigslist. And the same sort of idiotically short-sighted campaign closed down that part of the service, and it did nothing to complicate the traffickers lives, because they quickly moved on to a variety of other platforms, including some that don't cooperate nearly as closely with law enforcement as Craigslist did (and Backpage does today). If Backpage is pressured into stopping adult ads, then the traffickers will move on to other sites within hours -- and many will be less willing to cooperate. Blaming the service provider isn't just stupid and pointless, it's counterproductive. It's helping the very people that the grandstanders claim to be targeting.

It's really quite sickening. The best way to stop these awful acts is to go after those responsible. Adding some ridiculous (and probably unconstitutional) secondary liability to third parties doesn't help. It makes the problem worse. Kristof and others may have good intentions, but their simple (and confounding) inability to think more than a single step ahead is really disappointing. In an effort to do good, they're causing a tremendous amount of harm. Not only that, but they're advocating to set an awful precedent when it comes to secondary liability, taking away the basic principle that you don't blame the tool, you blame the person who actually is breaking the law. Kristof is an award-winning journalist, and clearly a very smart person. That he'd be so short-sighted on something like this -- and stoop to the level of trying to drag other companies through the mud -- is immensely disappointing.

Filed Under: law enforcement, nicholas kristoff, prostitution
Companies: backpage, craigslist, new york times, village voice media

New York Times Adapts Open Source Mini-Game For Some Meta-Journalism

from the more-than-just-a-gimmick dept

By now you've probably caught a link or two to the New York Times' layout-obliterating mini-game embedded in an article about so-called "stupid games". The article itself is an interesting (if slightly long-winded) history and mild (if slightly self-indulgent) condemnation of the "dark side" of hyperaddictive games from Tetris to Angry Birds, and while I don't agree with much of the message, I'm glad to see it's garnering quite a bit of attention for this clever idea to illustrate the point by including a distracting game right there on the page.

The Nieman Journalism Lab got some details on how the game was created, including the fact that it's a fairly simple adaptation of another open source game. Jon Huang, the man behind the NYT version, sounds like a guy who really understands and embraces the potential of open sharing:

“I give all the credit to the guys behind Kick Ass. They’re a really excited pair of 18-year-old twins in Sweden,” Huang told me Wednesday. “I love that’s how the Internet works these days.”

Kick Ass is the open source game that made the Times’ interactive possible. It’s essentially a bookmarklet that allows you to wreak havoc on any given site you find yourself on. It was a perfect fit for the the theme of Sam Anderson’s Sunday magazine story, which examines the rise of games like Angry Birds, Plants vs. Zombies, and others that inhibit a world very different from what we might traditionally think of as regular video games.

They also rightly praise Huang and the NYT for their creative use of technology and multimedia to enhance journalism—though, it seems worth pointing out that the more the game enhances the message of the article, the more it paradoxically weakens it as well: by using a completely pointless but addictive game found on github to improve a story, they've proven that such toys can have uses beyond what is immediately apparent.

Filed Under: gaming, multimedia, open source
Companies: new york times