New York Times v. Trump

screen-shot-2016-10-14-at-9-23-18-amThe New York Times’ decision to draw a line in the sand against Donald Trump’s threat to file a libel suit may come back to haunt the news organization.

The issue involves a story about two women who allege that the presidential candidate groped or kissed them without their consent. In a letter asking for a retraction, Trump’s attorney claimed the article was libelous, reckless and defamatory. The Times’ attorney fired back: “…[I]f he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”

The Times’ response is extraordinary in that most news organizations, when facing such a threat, issue the appropriate response: “We stand by our story.”

As an expert witness in nearly 30 defamation lawsuits, I have never seen a news organization take such a combative and public stance except in the courtroom.

This immediate and rather vitriolic response places The Times into the presidential muck that this campaign has become. No longer is the news organization standing above the fray.

In an editorial, The Times lectured Trump on constitutional law. “it should come as no surprise that Donald Trump, the Republican nominee for president, is as ignorant about constitutional law as he is about every other matter pertinent to the nation’s highest office.”

The editorial noted Times v. Sullivan, the important case that defined the tenets for a successful libel suit against a public official, which was extended to a public figure in a later case. Trump would have to prove the Times engaged in reckless disregard of the truth.

What The Times failed to mention is another important libel case: Herbert v. Lando.

Anthony Herbert was a U.S. Army officer in Vietnam who claimed he witnessed war crimes that his commanding officer refused to investigate. In a 1973 report on 60 Minutes, correspondent Mike Wallace and producer Barry Lando argued that Herbert had lied and was himself guilty of war crimes. The Army officer filed a libel suit.

Even though CBS eventually won the suit, the U.S. Supreme Court provided plaintiffs like Herbert, and potentially Trump, the ability to investigate the “state of mind” of journalists while they are reporting a story.

“When a member of the press is alleged to have circulated damaging falsehoods and is sued for injury to the plaintiff’s reputation, there is no privilege under the First Amendment’s guarantees of freedom of speech and freedom of the press barring the plaintiff from inquiring into the editorial processes of those responsible for the a publication.”

I doubt the news organization wants to have its editorial process placed under a microscope. The Times may win the battle and lose the war. To wit, I do stand by my story.

 

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