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New York Times v. Trump

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The 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. But The Times’ lawyer seemed pleased with the response. See http://​www​.nytimes​.com/​2016​/​10​/​18​/​i​n​s​i​d​e​r​/​i​-​h​a​r​d​l​y​-​e​x​p​e​c​t​e​d​-​m​y​-​l​e​t​t​e​r​-​t​o​-​d​o​n​a​l​d​-​t​r​u​m​p​-​t​o​-​g​o​-​v​i​r​a​l​.html

This imme­di­ate and rather vit­ri­olic let­ter places The Times with both feet in 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.


Christo­pher Harper, a recov­er­ing jour­nal­ist with The Asso­ci­ated Press, Newsweek, ABC News and The Wash­ing­ton Times, teaches media law

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The 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. But The Times’ lawyer seemed pleased with the response. See http://www.nytimes.com/2016/10/18/insider/i-hardly-expected-my-letter-to-donald-trump-to-go-viral.html

This immediate and rather vitriolic letter places The Times with both feet in 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.


Christopher Harper, a recovering journalist with The Associated Press, Newsweek, ABC News and The Washington Times, teaches media law