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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

 

…regarding libel law:

While I am not litigious by nature — my views being rather Jacksonian in that regard — perhaps Governor Palin, Mrs. Vincent and their publishers have different views. It is my understanding that British libel law is far more inclined toward the plaintiffs than is true here in the United States, especially for “public figures” as covered under the U.S. Sullivan precedent.

Should Mrs. Vincent retain the services of a British attorney, I suspect that your publisher would be advised to settle the suit at any sum asked, as it would be quite impossible to prove that Mrs. Vincent is “closely associated with a well-known white supremacist,” which I most assuredly am not, no matter what any particular idiot has published to that effect or how often it has been repeated.

Think of the cost to your publisher, Felix Dennis, of flying Charles Johnson, Michelangelo Signorile, Rachel Maddow, et al., to London for a libel trial, sir. Ask yourself how such witnesses might stand up under cross-examination,

How do I know this is good advice? As Chris Hitchens reminds us Polanski won such a case in England :

In July 2005, Polanski took advantage of the notorious British libel laws to sue my colleagues at Vanity Fair and collect damages for his hurt feelings. It doesn’t matter much what the supposed complaint was—he had allegedly propositioned a Scandinavian model while purring about making her the next Sharon Tate—so much as it mattered that Polanski would dare to sue on a question of his own moral standing and reputation. “I don’t think,” he was quoted as saying of the allegation, “you could find a man who could behave in such a way.” Say what? Anxious for his thin skin, the British courts did not even put Polanski to the trouble of appearing in a country where he has never lived. They allowed him to pout his outraged susceptibilities by video link before heaping him with fresh money.

That being the case a certain Little Green Flake should be happy Mr. McCain is Jacksonian by nature. I’d say the same about Maddow but she doesn’t have to worry as Robert Stacy somehow thinks she is a handsomer woman than Mika. I beg to differ.

Frankly I think he should be more worried about Todd Palin. He has a lot more free time to avenge his wife’s honor.