Judge Refuses To Dismiss Batch Of Nicholas Sandmann's Media Lawsuits In The Laziest Defamation Ruling I've Ever Seen

from the wait,-really? dept

I am perplexed. Nicholas Sandmann, the Kentucky teenager who had a highly publicized and widely debated encounter in Washington DC is somewhat of a Rorschach Test for how you view the media. There are all sorts of interpretations of his encounter, and all sorts of arguments about the media coverage of that encounter -- and much of it is driven by people's prior beliefs. What should not be controversial, however, is that his ongoing series of SLAPP suits about the media coverage of that encounter are an attack on the 1st Amendment.

We were a bit surprised that (after first having the case thrown out before it was reinstated on very narrow grounds), the Washington Post agreed to settle, as did CNN. Given the basis of the case, and the nature of defamation law, it seemed highly likely that the cases settled for what is known as a "nuisance fee." Less than it would cost to actually bring the case to conclusion, but not a significant amount to either media property. Of course, Sandmann's lawyer has threatened to sue some more journalists and end careers of some who speculated on the nature of the settlements, though as far as I can tell, no such lawsuits have been filed.

That said, there was a long list of other Sandmann lawsuits filed against major media companies for reporting on his DC encounter. All of them are under the same judge, William Bertelsman, and he has now refused to dismiss all of them. The opinions in the cases against the NY Times, ABC News, Rolling Stone and CBS News are all virtually identical.

I will admit that I am perplexed by the judge's reasoning in these cases, which does not seem anything even remotely like any other defamation case I've ever seen. Because the rulings are all pretty similar (with just some slight differences), we'll just go through the ruling against the NY Times and highlight some of the oddities. The judge summarizes the case and then just says "well, I found the statement to be libelous in previous cases, and therefore it is here."

The Complaint is based on the defendant’s news coverage of an event that occurred on January 18, 2019, during a visit by plaintiff Nicholas Sandmann and his fellow Covington Catholic High School students to Washington, D.C.

Greatly summarized, the Complaint alleges that Sandmann was libeled by the defendant when it published a news article stating that Sandmann, while at the Lincoln Memorial, “blocked” Native-American activist Nathan Phillips and “prevented Phillips’ retreat while Nicholas and a mass of other young white boys surrounded, taunted, jeered and physically intimidated Phillips.”....

This news story is alleged to be false and defamatory.... Sandmann further alleges that this publication by defendant and similar stories by other news media caused him to be harassed by the public, causing him great emotional distress..... Sandmann also alleges that defendant’s article “is now forever a part of the historical Internet record and will haunt and taint Nicholas for the remainder of his natural life and impugn his reputation for generations to come.”...

The motion to dismiss argues that this publication is not libelous, but the Court has ruled in companion cases that it is libelous. The Court continues to hold that opinion for the reason stated in such preceding cases. See Sandmann v. The Washington Post, Cov. Case No. 19cv19 (Docs. 47, 64); Sandmann v. Cable News Network, Cov. Case No. 19cv31 (Docs. 43, 44); Sandmann v. NBCUniversal Media, LLC, Cov. Case No. 19cv56 (Doc. 43).

So, there are a bunch of oddities already in here, but I'll just focus on that last paragraph, in which the judge says that "the Court has ruled in companion cases that it is libelous" and then points to those other cases. But, that's not what actually happened. The key case that matters here is the one against the Washington Post. The judge points to two documents in that case: 47 and 64, neither of which have the judge saying that these statements are libelous. In fact, the only thorough analysis of the statements comes in document 47 and it concludes that... what was written by the Washington Post was not libelous. It goes through it all pretty thoroughly and notes that the claims of libel are either protected opinion or not about Sandmann himself.

More to the point, this ruling -- again by the same judge -- says that what constitutes "blocked" is a subjective matter of opinion and thus not defamatory:

This is kind of important, because it's the exact same statement that is the basis of all of these lawsuits that the judge refused to dismiss.

Yet, he says that he found that statement to be defamatory... while pointing to a filing in which he did the opposite. Now, in the later ruling that reinstated a tiny, limited part of the case (filing 64) involving that same statement, the judge says that he will allow for more discovery before deciding on whether or not they're defamatory.

The Court will adhere to its previous rulings as they pertain to these statements except Statements 10, 11, and 33, to the extent that these three statements state that plaintiff “blocked” Nathan Phillips and “would not allow him to retreat.” Suffice to say that the Court has given this matter careful review and concludes that “justice requires” that discovery be had regarding these statements and their context. The Court will then consider them anew on summary judgment.

The other cases that the judge mentions as proving he found these statements libelous only point back to the Washington Post filing... that again says the opposite. So the judge is basing his ruling on the fact that he already found these statements to be libelous when he didn't actually do that. It's the most bizarre thing I've seen from a federal judge.

From there he goes on to quote the same paragraph (oddly leaving out quotation marks where they obviously belong):

As in other cases, the Complaint herein alleges that the defendant’s article quoted the following statement by Phillips:

It was getting ugly, and I was thinking: I’ve got to find myself an exit out of this situation and finish my song at the Lincoln Memorial, Mr. Phillips told The Post. I started going that way, and that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn’t allow me to retreat.

The Complaint alleges that this statement was false in that Sandmann did not block Phillips or interfere with him in any way, and that it conveys a defamatory meaning because it imputes to Sandmann racist conduct.

Note that this is again the same statement that the court originally found to be not defamatory and then later said he would allow discovery on, but over which the case settled before going much further. So I'm completely lost as to how the judge can say he already found this to be defamatory.

The parties agree that Kentucky law applies to this case. Under Kentucky law, a writing is defamatory “if it tends to (1) bring a person into public hatred, contempt or ridicule; (2) cause him to be shunned or avoided; or (3) injure him in his business or occupation.”... The allegations of the Complaint fit this definition precisely.

Wait... what? This leaves out more than a few things about defamation under Kentucky Law (and the 1st Amendment). It leaves out that the statements need to be false statements of fact, for example. Statements of opinion cannot be defamatory. That seems, you know, kind of... important?

The judge then rejects the NY Times' citation of another case in the same circuit, saying that that was under Ohio law rather than Kentucky law. But that ruling was using standard 1st Amendment standards for defamation law that still apply in Kentucky. And the reasoning the judge gives makes no sense at all.

In Croce, a newspaper published an article that included unflattering allegations against the plaintiff, a university professor and cancer researcher. The Court held that, in “full context,” a “reasonable reader would interpret the article as a standard piece of investigative journalism” which simply reported “newsworthy allegations with appropriate qualifying language.”

That holding is inapplicable under the allegations of the Complaint here. Defendant published a statement by Phillips that was made after Sandmann had departed for home, a statement to which Sandmann had no opportunity to reply in real time. While Sandmann had such an opportunity later, and such evidence might be admissible to show lack of malice, it is not a defense to the defamatory meaning of Phillips’ original statement itself.

WHAT?!? That's not how defamation law works at all. The question of whether or not someone has the ability to "reply in real time" has nothing to do with the standards for defamation law. Notice that the judge here doesn't cite anything for claiming this. He just... says it. And, again the other case that the NY Times points to is exactly on point, whether it's talking about Kentucky or Ohio. The 1st Amendment still exists. The fact that Phillips said stuff after Sandmann went home is... totally and completely irrelevant.

Also, let's be clear here. This is a case about Phillips' statement that he made to the Washington Post, which were then repeated in the NY Times (attributed to the Post). If this case were against Phillips, you might be able to squint and kinda sorta, but not really, find a way to say that there's an argument here (again, no, not really). If this were the case against the Washington Post, again, you might be able to squint and see that, which is why the allowance for more discovery was made in the first place. But, how does Sandmann's inability to reply to the Washington Post quoting Phillips in real time have anything whatsoever to do with the question of whether or not the NY Times is liable for defamation? It doesn't.

The judge also rejects the Times' statute of limitations claim, which under Kentucky law is one year. The lawsuit was filed 14 months after the incident. The judge says that since Sandmann is a minor, the statute of limitations is effectively extended until he turns 18. The Times argues that at the very least, the statute of limitations should have started ticking when he filed the original lawsuit against the Washington Post, but again the judge just says "nope." Even though the NY Times pointed to previous rulings that agreed with their analysis of the statute of limitations the judge says that the procedural history in that other case was different (he doesn't explain how or why) and that he "does not believe" that the original case the Times point to would be upheld if it were appealed. Which... is a take.

Anyway, this does not mean that Sandmann has yet won. It just means that these cases can move forward. And that's dangerous for a few reasons. I'm not 100% sure, but it's possible that the media defendants won't be able appeal on this point (this gets beyond my knowledge of Kentucky civil procedure -- but some laws allow for "interlocutory appeal" in which you can appeal specific aspects of a ruling, while others want you to wait until the court makes a final ruling on the case before it can go up on appeal). If that's the case then appeals would have to wait until later in the case, after the case has gone on through more expensive stages -- and that means that many of the media companies (and their insurance companies) may feel a lot of pressure to just throw a bit of money at Sandmann to make the case go away for less than it will cost to go through to the next round.

The NY Times has a history of not caving in cases like this, recognizing that it has to set the standard, so I hope it continues fighting. But it would not surprise me to see some of the other media companies also do "confidential settlements" that many people will judge as some huge victory for Sandmann.

All in all this is a very, very, very odd ruling that does not fit with any other defamation case I've seen, appears to go against plenty of precedent and, most bizarrely, has the judge citing his own rulings in a different case that say the exact opposite of what he claims it says in this case.

Filed Under: 1st amendment, anti-slapp, defamation, free speech, kentucky, motion to dismiss, nicholas sandmann, slapp, william bertelsman
Companies: abc news, cbs news, ny times, rolling stone

If The NY Times Doesn't Publish My OpEd On Why James Bennet Is An Incompetent Dweeb, It Must Hate Free Speech

from the this-is-not-how-any-of-this-works dept

Buckle up, because this one is going to be quite the long road trip, and I hope you won't rush to the comments without joining me on the entire journey first. But if you want a sense of where we're heading, here's the route map: the New York Times published an insane warmongering Senator's push to turn our own soldiers on protesting Americans, people (including many Times journalists) complained, the Times tried to defend the decision, and then admitted "mistakes were made," and a bunch of very silly people who pretend to be "serious thinkers" whined nonsensically about free speech and the "unwillingness to listen to opposing ideas," all while refusing to listen to opposing ideas. And all of it's nonsense: because editorial discretion is not a free speech issue and calling out a terrible paean to fascism is not an unwillingness to listen to "opposing ideas."

Off we go.

If you've been paying attention to the world of media in the past few days, you've probably already seen some of the loud and raucous debate. On Wednesday, the Times made the incredibly bad decision to publish the truly awful op-ed from Arkansas Senator Tom Cotton, suggesting that President Trump should send the US military to invade US cities, because, while the vast majority of protests around the nation have been peaceful (other than all those disrupted by police violence), there have been a few cases of some people breaking windows, setting fires, and stealing goods. There seems to be little evidence that this is as widespread a problem as the President and his supporters make it out to be, but in an effort to control the narrative, they're claiming that there's widespread violence and attacks overshadowing protests.

Cotton's op-ed is bad. Just to take one bit of it, this paragraph is utter hogwash:

One thing above all else will restore order to our streets: an overwhelming show of force to disperse, detain and ultimately deter lawbreakers. But local law enforcement in some cities desperately needs backup, while delusional politicians in other cities refuse to do what’s necessary to uphold the rule of law.

This is a "the beatings will continue until morale improves" approach. It doesn't work. It's never worked. It will only make things much, much worse, and put many more lives in danger. It is based on a combination of false statements (regarding the extent of "riots"), a misunderstanding of why people are expressing their anger in this way, and huge confusion about how people are likely to react to even scarier militarized soldiers and weaponry arriving on city streets. The people are protesting the very concept that they are an enemy, and sending in our own military is not only scary and authoritarian, it simply reinforces the message that they are protesting against.

An overwhelming show of force is the problem. Doubling down on that doubles the problem.

Leaving that aside for the moment, what's been much more fascinating is the response to the publication. Many people pointed out that it was simply ridiculous for the New York Times to run this op-ed. After many people on Twitter raised questions about why the Times would publish such dreck on its opinion pages, a bunch of Times journalists themselves decided to speak up and call out their bosses for allowing the op-ed to run. Many pointed out that the op-ed itself put Times staffers in danger.

It's worth noting that the Times is one of the newspapers that has a set of very stupid social media policies that forbid journalists and staff from making any comment "that undercuts The Times' journalistic reputation." That means speaking out in this manner may actually threaten their jobs as well. As the complaints grew louder, James Bennet, who runs the frequently awful opinion section of the paper, first defended the decision to publish the op-ed on Twitter with a painfully weak and predictable argument along the lines of "we want to show both sides of the debate." He then posted a somewhat better and more thoughtful explanation in the Times itself (seriously, I'd recommend reading that over his terrible Twitter thread). He's still wrong, but his argument is much better articulated.

Of course, later in the day after an apparently vocal discussion inside the newspaper (more on that in a moment), the Times admitted that the Cotton op-ed did not meet its editorial standards, and should have received a more thorough review. Incredibly, that piece says James Bennet claims he never read the op-ed before it was published:

James Bennet, the editor in charge of the opinion section, said in a meeting with staff members late in the day that he had not read the essay before it was published. Shortly afterward, The Times issued a statement saying the essay fell short of the newspaper’s standards.

“We’ve examined the piece and the process leading up to its publication,” Eileen Murphy, a Times spokeswoman, said in a statement. “This review made clear that a rushed editorial process led to the publication of an Op-Ed that did not meet our standards. As a result, we’re planning to examine both short-term and long-term changes, to include expanding our fact-checking operation and reducing the number of Op-Eds we publish.”

This is insane on so many levels. I find it unbelievable (in the most literal sense) that no one within the editorial process thought to flag a piece as obviously as incendiary as this one for the top opinion editor to review. It suggests either that Bennet is really, really bad at his job, or the entire NY Times opinion section is a complete joke. Or both. There's enough evidence to suggest both of those may be the case. Meanwhile, a new report notes that the Cotton op-ed went through three rounds of revisions, which is quite odd for an op-ed piece, and makes the NY Times look so much worse. It means they really spent time thinking about it and still felt it was worth running, and yet Bennet never even bothered to read it? How is that possible.

In the midst of all this, there were a bunch of tweets and accusations thrown around about the internal debate at the NY Times, with one of its many terrible opinion writers, Bari Weiss, writing a huge thread pushing a narrative that there was a "civil war" between the young "woke" journalists and the older traditional "liberal" journalists. The only problem with this is that almost everyone else who was actually involved in the discussion pointed out that Weiss was completely full of shit.

Click through, because that thread goes on and on and on with examples of Times journalists saying that Weiss' statements appear to be more gaslighting than reality.

But then, of course, you had other "serious people" complaining about the complainers. You had long-time mainstream media "political analyst" Jeff Greenfield pushing a truly ridiculous strawman that complaining about one particular op-ed means you don't think the Times should have an op-ed page at all.

If that's the case, I'll refer to the title of this post. The Times must publish my op-ed on why James Bennet is an incompetent dweeb, or it proves that it's afraid to take on the difficult-to-hear opinions of the day. Prove me wrong, Jeff Greenfield. Prove me wrong.

And there was ever sanctimonious Andrew Sullivan, who called Times reporters speaking up about their own fears for their own safety "an attempted coup."

If you're playing along at home, apparently the rules are that if you're a white, war-mongering Senator with opinions about turning the US military on our own citizens, everyone must listen because that's free speech. But if you're a black reporter who is afraid for the risks you now face, and speaks up about it, that's an "attempted coup."

I sense a double standard.

There was also a truly disingenuous focus on the idea that this represented "safetyism" as a way to silence opposition. This was brought up by both Weiss and Randy Barnett, claiming that by playing the "victim" you are somehow "silencing opposition."

Of course, I have trouble seeing how they're doing anything differently than the people they're complaining about. Those complaining about the op-ed are stating their opinions and suggesting that it was silly of the NY Times to publish a garbage op-ed, which might lead to more death and destruction. Barnett and Weiss are now complaining that it was silly of those complaining to publish those complaints. Would it be okay if I accused both of them of resorting to "safetyism" and trying to hide from the opposing viewpoint that "promoting outright fascism is bad"? Or does this only work in one direction?

Unfortunately, this framing is picking up in certain circles, including among people I respect. The folks at Reason, who I tend to agree with much more frequently than not, ran a silly "mock the woke snowflakes" piece, arguing that this is the end result of political correctness run amok.

The woke left's march through the institutions, from experimental liberal arts campuses to the most hallowed journalistic outlets, has been breathtaking in its speed and scope. It's a generational war, and the GenXers for whom this stuff doesn't come natural are learning that they have to become fluent in the new language or end up as pariahs in their own newsrooms. The country's top editors—Jeffrey Goldberg at The Atlantic, David Remnick at The New Yorker—discover during moments of staff revolt that their old-timey notions about broad public squares and multi-viewpoint conversations are no longer tolerable.

And, of course, Senator Cotton is loving every moment of this nonsense, and gleefully playing up the controversy and using it to attack the Times (which, who knows, may have been his goal all along, or perhaps was just a bonus):

But there's a huge problem with this nonsense. It has nothing to do with "woke mobs," "political correctness," "safetyism," or an "unwillingness to listen to opposing viewpoints." Speaking up about your concerns is not "an attempted coup" and opposing the decision to publish a stupidly bad op-ed is not an unwillingness to have op-eds.

This is all free speech, and no one has even remotely attempted to stop anyone's right to speak their mind. They've just been highlighting the difference between discretion and censorship that we've been talking about here lately. The New York Times is the New York Times because it has a reputation (for some, good, and for others, bad). But part of that reputation is its editorial discretion. Declining to publish a bad op-ed is not about ignoring "the opposition" or wanting to play the victim and squelch "non-woke" speech, nor is criticizing the Times for its decision to publish it.

It's calling out bad editorial discretion. Every choice the Times Opinion section makes involves editorial discretion. Not agreeing to publish my op-ed on James Bennet being an incompetent dweeb is editorial discretion. Continuing to publish whatever utter bedbug nonsense its columnists come up with is editorial discretion. People can and should criticize bad editorial discretion, because that encourages better editorial discretion.

But it is simply ridiculous to say that complaining about a single editorial decision suggests an unwillingness to engage, or an unwillingness to hear ideas someone disagrees with. As far as I can tell, no one in this debate has suggested that Tom Cotton not be allowed to speak his militaristic, ahistorical nonsense. He can say what he wants. The question is whether or not it's appropriate for the New York Times to publish it at all.

This whole silliness hits home deeply for me for a variety of reasons, not the least of which is that just last week we launched a new project, the Techdirt Greenhouse, in which we will be hosting many opinions I disagree with strongly (oh, and for what it's worth, unlike James Bennet, I do read every piece before it goes out). And, over the past two years, as we worked on this effort, I've had to explain to many people that part of the idea was to publish smart, thoughtful, nuanced commentary that will involve fundamental differences of opinion and disagreement -- but without the crazy takes.

And I'll admit that there are times in this process that I questioned myself closely: when I say "no crazy takes," does that mean that I am silencing a certain point of view? Or is it simply a recognition that there are intellectually honest ways to disagree, and intellectually dishonest ways, and I have no desire to be a part of the latter? That, too, is part of editorial discretion.

It is entirely possible to believe in free speech, to believe in hearing all kinds of viewpoints, including those we disagree with and that make us feel uncomfortable, without saying "yes, this publication should post fundamentally terrible, intellectually dishonest support for a truly crazy idea." That's not running from things that make people uncomfortable. It's having the understanding of what's being discussed in good faith, and what's dangerous populist nonsense, designed to stir up emotions through dishonest means, rather than a debate of ideas.

So, of course, the Times should not publish my op-ed about how James Bennet is an incompetent dweeb (even though it's quite good). That's well within its editorial discretion and (mostly) an editorial position I'd agree with. That does not mean that anyone is uncomfortable with my ideas, or trying to silence me. It's just that they understand that my (mythical, theoretical) piece is an attempt at absurdist, emotional nonsense -- just like Senator Cotton's piece -- and deserves no space in a serious publication.

Filed Under: editorial discretion, free speech, james bennet, op-eds, opinions, political correctness, safetyism, tom cotton, warmongering
Companies: ny times

Sean Hannity Hires Charles Harder To Threaten The NY Times And Its Reporters, Because Of Course He Does

from the ah,-that-old-first-amendment,-what-is-it-good-for dept

Last month, Kara Swisher wrote an opinion piece for the NY Times ripping Sean Hannity and Fox News to shreds for convincing her mother that COVID-19 wasn't going to be too bad back in February and leading into March. It's notable how she started her piece:

You can relax, Sean Hannity, I’m not going to sue you.

Some people are suggesting that there might be grounds for legal action against the cable network that you pretty much rule — Fox News — because you and your colleagues dished out dangerous misinformation about the virus in the early days of the crisis in the United States. Some might allege that they have lost loved ones because of what was broadcast by your news organization.

But lawsuits are a bad idea. Here’s why: I believe in Fox News’s First Amendment right as a press organization, even if some of its on-air talent did not mind being egregiously bad at their jobs when it came to giving out accurate health data.

Apparently, Hannity does not have the same respect for the 1st Amendment, because after throwing a complete shit-fit over Swisher's piece, he's now hired lawyer Charles Harder (who, full disclaimer, represented the guy who sued us a few years back, and is now also representing the Trump campaign in an ongoing series of SLAPP suits designed to chill the press) to send a truly ridiculous SLAPP threat letter to the NY Times over Swisher's piece and a couple of other NY Times pieces that have criticized Hannity or noted accurately the times he played down the threat of the virus.

I should note, in passing, that Harder might want to take into consideration what happened to the last lawyer who simultaneously represented Donald Trump and Sean Hannity.

Anyway, the letter focuses on the claims that Hannity also talked about how serious COVID-19 might be. He did do this, but at the same time, frequently was seen doing his usual boosterism of the President's "everything's fine here" messaging, by blaming the "mainstream media" and "the left" for "politicizing" COVID-19 by criticizing the President.

The point that the NY Times was making in its pieces was that in his repeated efforts to play up the President's (misleading) messages of everything being fine, many people (including Swisher's mother) didn't believe the disease was as serious as it really was. That can absolutely be true even if at other times Hannity did say the disease could be serious. You can argue that both sides are cherry-picking here, but that's hardly defamatory. Notably, the best that Harder and Hannity can do here is say that the NY Times implied false things, not that they actually said false things -- which again shows how weak any defamation claim would be:

As detailed herein, the Stories, at the very least, impart the false and defamatory inference that (1) Mr. Hannity’s on-air statements (on March 9, 2020) caused Mr. Joyce to believe it was a safe to take a cruise on March 1, 2020, that apparently led to his death; and (2) Mr. Hannity (allegedly) disseminated “misinformation” about the pandemic. Both of these implied statements are completely false. Moreover, the language in the April 18, 2020 Story reflects that you intended these false inferences, by how you deliberately manipulated the wording to create the false narrative. The Stories also encourage readers to draw the false conclusion that Mr. Hannity has no concern for the lives of his viewers.

I mean, if we're going to be suing based on what other people believe you implied, then, uh, Hannity might be opening himself up to lawsuits as well. Except that in most cases, your interpretation of what someone "implied" is the opposite of defamatory, because it's based on interpretation, not actual statements of fact.

The letter also goes on a long rant claiming that the NY Times ignored the fact that Democratic politicians played down the threat as well, and that the "mainstream media" also played it down as well. This has become a key talking point from Fox News and Trump folks, but as Cathy Young pointed out in an excellent Bulwark piece, many of those complaints are taken way out of context (and Young is not someone who is often found defending mainstream media organizations).

Either way, the letter makes it clear that, unlike Kara Swisher's respect for the US Constitution and the 1st Amendment, Sean Hannity, with Harder's help, is ready to sue the NY Times.

Please confirm in writing within twenty-four (24) hours of transmission of this letter that you will retract, correct and apologize for each of the foregoing statements. Failure to do so will leave Mr. Hannity with no alternative but to consider instituting immediate legal proceedings against you. Should that occur, Mr. Hannity would pursue all available causes of action and seek all available legal remedies to the maximum extent permitted by law, including without limitation, actual damages, special damages, punitive damages, and temporary and permanent injunctive relief.

The NY Times, of course, is not usually one to back down from defamation threats, and wasted little time in responding:

“We’ve reported fairly and accurately on Mr. Hannity and there is no basis for a retraction or an apology.”

Once again, right about now, it sure would be nice if New York had a real anti-SLAPP law instead of the heavily limited anti-SLAPP law it currently has. Oh, and also we still need a federal anti-SLAPP law to stop these abusive, censorial threats and lawsuits. But, considering how vocal Sean Hannity is about how much he "loves" free speech, suing the NY Times because it "implied" he played down the threat of COVID-19 suggests otherwise.

Filed Under: 1st amendment, anti-slapp, charles harder, defamation, free speech, kara swisher, sean hannity, slapp
Companies: fox news, ny times

'Free Speech' Supporter Jerry Falwell Jr. Thinks It's Criminal To Report On His Dumb And Dangerous Response To The Pandemic

from the that-ain't-free-speech,-champ dept

Jerry Falwell Jr., the nepotistic hire to be President of the religious extremist Liberty University, has long pretended to be an avid free speech supporter, especially on the campus for his University, where he has declared:

There have been sensational stories written about Liberty and censorship, rumors that we do not allow opposing views or First Amendment rights. But that is far from true. We uphold freedom and put its ideals into practice.

Apparently, that commitment to freedom and First Amendment rights gets completely thrown into the garbage the second some reporters write stories about Falwell's ridiculously dangerous decisions in the face of the COVID-19 pandemic. A few weeks back, when most of the rest of the country was, smartly, moving into lockdown mode, Falwell, reopened school and told Liberty University students to come back to campus after spring break -- a move that local officials described as "reckless."

Soon after that, both the NY Times and ProPublica ran stories talking to students on campus who were scared and nervous about everything. If you read both of the stories, they're both more than fair to Falwell, and provide plenty of clarity in why he made the decision and the various steps that Liberty University had taken to try to keep campus open while keeping social distancing rules (though, they both show that not everyone was following them). To be clear, I wouldn't say that either of the articles paint Falwell in a particularly bad light, beyond reminding everyone how frequently and vehemently Falwell played down the threat of COVID-19 in the earlier weeks.

Falwell seemed particularly angry at the NY Times piece though the story seems to keep changing as to why. There were claims that the Times quoted a doctor who claimed to run health services at the University, but that the University then released a press release saying he had no role at the University -- but in looking at that press release as I type this, I no longer see the claim that he had no role, only that he was misquoted. Similarly, the NY Times piece appears to be quoting Eppes accurately, and it's the Liberty press release that (at least as of right now) misrepresents what the Times piece claimed.

Either way, apparently, Falwell really doesn't care much at all about the First Amendment that he claims to support on campus, because earlier this week, he somehow convinced a magistrate judge to issue arrest warrants for two of the reporters: Alec MacGillis, who wrote the ProPublica story, and Julia Rendleman, a freelance photographer, who took photos included in the NY Times report. Some reports claimed that Falwell also sought, but was unable to get, an arrest warrant for the NY Times reporter who wrote the NY Times piece. When this first came out -- via former Fox News host Todd Starnes (who left Fox News after having on a guest who claimed that Democrats worship a pagan god who "allowed for child sacrifice") -- it was described as Falwell issuing warrants, and that's just not how warrants work at all.

Later clarifications showed that Falwell complained to local officials that the reporters were trespassing, and that's how a local magistrate agreed to issue misdemeanor arrest warrants. And, those warrants do exist, incredibly:

Falwell is, laughably, claiming that this is about protecting his students (the same ones he's now put at risk), rather than retaliation:

Falwell cast his decision to seek a case against the journalists as a move to protect his students, asserting that the journalists had probably come from coronavirus hot spots such as Washington, D.C., or New York, and that by being on campus they had put remaining Liberty students at risk. He also complained that Liberty was being singled out because of its status as a religious school.

This is obviously nonsense. It is clear that that this was retaliating against negative press over his own decisions. I imagine both the NY Times and Propublica will have strong arguments for why these warrants are ridiculous. The NY Times has already made it clear that this was not trespassing, and that the reporter had been invited to campus by a student.

David McCraw, in-house counsel for the Times, said in a statement, “Julia was engaged in the most routine form of news gathering: taking an outdoors picture of a person who was interviewed for a news story.” McCraw said Rendleman had been invited to campus by one of the students interviewed for the article.

“We are disappointed that Liberty University would decide to make that into a criminal case and go after a freelance journalist because its officials were unhappy with press coverage of the university’s decision to convene classes in the midst of the pandemic,” he added.

Meanwhile, Falwell is also threatening a defamation civil suit against the reporters if corrections aren't issued -- which seems to only highlight how all of this is retaliatory and about suppressing speech, rather than protecting students.

Filed Under: 1st amendment, alec macgillis, arrest warrants, covid-19, free speech, jerry falwell jr., julia rendleman, reporting, retaliation, trespassing
Companies: liberty university, ny times, propublica