Bring on the libel suits

Rolling Stone’s Matt Taibbi, a terrific writer with a biting sense of humor, wrote a piece this week that probably hasn’t generated the attention it deserves.

Taibbi watched with some horror this month when right-wing news outlets launched their “madrassa” smear against Barack Obama. It caused him to realize that “even the most outrageous media fictions about candidates are apparently going to go unpunished,” in large part because current media standards and expectations are self-reinforcing. Taibbi realized he could never get away with making a mistake this bad, but the right-wing media machine does it all the time, with impunity.

I get the feeling that as a society we have decided to give a collective pass to serial media swindlers like Sean Hannity simply because we never expect them to actually document the “facts” that come spewing in mass volumes out of their zoster-covered mouths every day. We actually expect them to pull most of their material out of their asses, and are mostly content to address the problem by pompously correcting their errata post-factum in whiny media-crit outlets like…well, like this one. Actual real punishment never seems to be forthcoming.

Taibbi uses the Obama incident as a helpful example. Insight made up the story, and Fox News trumpeted it. Even after the story was destroyed, Insight stood by the nonsense, while Fox News’ “retraction” didn’t actually retract anything, and simply told viewers that Obama claims the story isn’t true. The network refused to acknowledge its error.

I’m not sure if people realize exactly how serious a situation this is. The way our national media is currently constructed, a lie of this magnitude broadcast on a major network becomes an irreversible blow within, I would guess, about 24 hours after it appears. There are rare cases of an unsourced hoax blowing up quickly enough that it won’t stick to a politician — the John Kerry mistress story is a good example — but for the most part, once the lie is out there, it’s there to stay. This is especially true given the nature of the audience for outlets like Fox and Hannity. Unless you force a Hannity or a John Gibson to apologize by ripping his own still-beating heart out on national television, their audiences will assume that any “retraction” comes with a grain of salt, that the original report was true.

Indeed, people filter out facts to believe deceptive reporting all the time. People believe Saddam was linked to 9/11, and assume reports to the contrary are part of some ideological agenda. The same goes for WMD in Iraq, global warming, etc.

Taibbi, however, suggests a remedy.

The lesson of all this — and of the Iraq war, the Swift Boat controversy, and indeed the whole careers of swine like Hannity, Rush Limbaugh, Glenn Beck, Michael Savage and the like — is that unless you prevent the lie from coming out to begin with, it doesn’t really matter what happens afterward. In the Internet age, and with no kind of regulation of the “facts” that are circulated on afternoon radio, once that genie is out of the bottle, he’s staying out. […]

Now we’re seeing the same thing with the Obama story; it is lingering, even after it has been totally discredited. Emboldened by a generation that has refused to punish their libelous behavior, these guys now just take whatever “facts” they like and run with them. Hannity is one culprit. Michael Savage, a spineless little f**khead who should be torn apart by hyenas, responded to the debunking of the Obama story by telling his listeners that Obama “will not reply” to the original Insight report, a blatant lie. He added, for good measure, that “assuming the world is still here” after a Clinton-Obama administration, Obama would then run for president with “Saddam Hussein’s younger grandson” as his running mate.

The very fact that the liars are allowed to continue their trade unpunished is a sort of endorsement of their original versions of the “truth.” I have absolutely no doubt that many Americans believe deep down in their gullible hearts that if people like Hannity and Limbaugh were really liars, they would be pulled off the air, or punished for some reason. They see that a Michael Savage can be yanked from a lucrative job for gay-bashing, but there appears to be no punishment at all for unchecked, intentional lying, which is at least as serious an offense for a journalist. […]

The direction all of this is traveling in is a future of pure informational mayhem, in which people will have absolutely no reliable means to make political decisions, leaving the political landscape ripe to be seized by demagogues and swindlers of all stripes, the public with no defense against political and environmental corruption, etc.

If the press is serious about saving itself as a social institution, it has to start policing its own business. We all have to encourage the likes of Barack Obama to hire the meanest lawyers on the planet and to file the hairiest lawsuits imaginable against the Hannitys, Gibsons, and Savages of the world. We have to impress upon the victims of these broadsides that choosing to ignore that style of libel is a betrayal of the public trust and an act of political cowardice that the rest of us end up paying for in spades.

I’m afraid I know very little about libel law. As I understand it, the threshold as it applies to public figures is quite high.

Nevertheless, I couldn’t agree with Taibbi more about the problem, the consequences of that problem, and the need to “prevent the lie from coming out to begin with.”

Any libel lawyers in the audience who can comment on whether these suits are feasible and/or likely to succeed?

The standard is very high, and the conservative media meets it every day.

Sue.

  • The controlling case here is NY Times v. Sullivan and the standard for proof of libel against a public official is showing “Knowing Falsehood” or “Reckless disregard for the Truth.”

  • An alternate remedy, or at least one that could be used until either libel suits start to prevail or the industry starts to police itself, would be to have left wing commentators spreading similar “facts” or “stories” about right wing candidates. What’s good for the goose is good for the gander and all.

  • Another thought: We need to break up the stranglehold that a small group of biased media comglomerates has on virtually all other media outlets. Too much power concentrated in the hands of a few whose only motivation is to swell corporate profits is causing all of this. Break up the media monoplies is the first order of business in my book.

  • Actually, it is the difference in the law. In Britain and Canada, the burden of proof depends on the defendant, not the plaintiff which is why it is easier to sue news organizations or magazines such as noted British muckraker and gossip mag, Punch. From what I understand, the US libel laws are based on the plaintiff having to do the burden of proof.

    I can even give an example of this. In 1995 the RCMP sent an exploratory letter to Swiss banks regarding any bank accounts of a still unindited ex PM (although later records showed that he had an undisclosed 300K “fee” for consulting purposes) who then sued the RCMP and Feds for libel. Thanks to him putting several of his lawyer buds on the Federal bench, it became the quickest libel lawsuit in the history of Canada. He “won” because all the burden of proof was on the Feds to make their case which they didn’t which is why they had sent the letter to the Swiss. As a comedian at the time noted, the 2 million dollar settlement was a small price to pay for making Brian Mulrooney look like an ass.

    I’m not a lawyer, but I play one on a blog…

  • Actually, the Sup Ct standards (the most important being NY Times) look at the plaintiff, the defendant, and the context. In this case, all three conspire to set the bar really, really high. Public figures have lesser protection, “the press” has higher protection, and “political speech” (which this would almost surely qualify as) is more protected still. Obama would need to show actual malice, knowing falsity (or reckless disregard for the truth) and damage.

    Having said that, I have all along thought that individual Faux Newsites and Insight, by sticking with and repeating the allegations after major news outlets thoroughly debunked it, present one of those rare situations where the high standard is actually met. Obama should sue the Unification Church and the Murdoch Church each for every penny of blood money they have between them. This one really looks like a winner.

  • I’m glad that Tabbi finally “gets it.”
    Saw him on The Daily Show quite a while back, and it was obvious that he didn’t get it at that time. How he missed it during the Clinton Presidency, I’ll never know. Ask Al “I inventen the internet” Gore about press responsibility. Better yet, ask Bob Somerby (The Daily Howler, for you out there who don’t know him).
    Presonally, I’d like to see Rupert Turdlock and all of his executives bankrupted, and homeless out on the street. Then I’d set the dogs on them, literally.
    But the most I can do is boycott and ridicule. It will always be FOX “news” to me, to the point of doing the finger quotations when saying it.
    Direct message: It’s NOT news.

  • Not a libel lawyer, but I have helped with research for several libel cases. The likelihood of success in a situation like this is extremely small, but discovery/trial would unearth and publicize a wealth of information about the way outfits like Insight and FoxNews operate. If I were Obama and Clinton, I would consider a few million in lawyers fees uncovering this scam to be campaign money well spent. Of course, they’re probably afraid of how a loss would be spun so I doubt either will go ahead with it.

  • On the other hand, Zeitgeist makes an excellent point. Insight in particular continues to stand by their libel even after it has been thoroughly debunked. If there was ever a winnable libel case for a celebrity, Obama should have one against Insight.

  • They should absolutely sue, regardless of the chances of winning. As noted above, the discovery stage of the trial would unearth all sorts of behind-the-scenes details about Fox’s bias, details that their rivals would practically wet themselves airing.

    And, what’s more, simply filing the suit would put them on notice to be much more careful down the line. It wouldn’t knock them out, but it would be a nice rap on the nose.

    Bring ’em on.

  • I think the Obama story is pathetic, but I think we ought to think twice before going this route.

    Look at the Daily Show and Colbert– not from an intelligent, world-wise liberal standpoint, but from a deranged liberal-hating righthand standpoint. Just how many ‘libel’ suits can you come up with in a week of those shows? I’d guess quite a few.

    I;m not even sure the Obama story is libelous, really. It makes accusations whose implications can be construed as malicious. However, the words spoken are simply mis-statements, intentional or not.

  • While I wish it were possible to stop the lies before they came out as Taibbi suggests, the comments above make the case for why that isn’t likely to happen. The only remedy I can see is to refute every false claim immediately and discredit the sources so that the refutation itself is an offensive action. You’ll never stop some people from believing false claims, but you can reduce the number. In the end, all you need is a majority.

  • Any libel lawyers in the audience who can comment on whether these suits are feasible and/or likely to succeed?

    I do not specialize in libel law, though I know a bit about it, and I’m skeptical that, unless the First Amendment is reinterpreted, a libel suit based on something like the Obama madrassa story could succeed. Obama is a public figure, which means that, in order for a libel suit based on a statement about him to succeed, the statement must have been made with “actual malice,” which, as classic legalese, does not mean actual malice. Essentially it means knowing or reckless disregard for the truth, which, though as a matter of common sense, might very well apply to Insight and Fox News, is a very high legal threshold to meet. Unless there’s a smoking gun email or memo saying something along the lines of, “We know this madrassa story is complete bullshit, but we’re going to print it anyway because we don’t like Obama,” I don’t think that a court would find the libel standard met in this case.

  • Shalimar,

    I just noticed your comment– that’s not a bad thought, but the problem is that a libel case like this probably wouldn’t even make it to discovery. It would likely be dismissed for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) or the state-law equivalent before discovery even commenced.

  • In 1955 the scandal rag Confidential was at the height of its success through appeals to the lowest common denominator, its readership. That’s when it was sued for the $3 million. In 1957 it was successfully sued for running the headline “Why Liberace’s Theme Song Should Be ‘Mad About the Boy’.'” The rag was also successfully sued at that time by Maureen O’Hara, Dorothy Dandridge, and Frank Sinatra. Legal problems led format changes, which led to a two-thirds reduction in sales, which led to its being sold in 1958 and finally going out of business in 1978.

    Lets hope the victims of Fox News, Rush Limbaugh, Milton Scaife, et al. have the courage to execute the same fate for the vast right-wing conspiracy.

  • Editor (#13) —
    The Daily Show and Colbert are covered under parody. Insight and Fox are not (yes, we know they’re a parody, but they don’t).

    The problem is this:

    If the press is serious about saving itself as a social institution …

    The press isn’t serious about looking at itself as a social institution — it’s now entertainment, where ratings and ad revenue trump all.

    It’s sad, but true …

  • Okay, so if libel suits are a non-starter, then how about my remedy? We just publish similar “some say…” reports about every GOP candidate/politician. Yeah, its getting in the gutter with them, but is the alternative turning the other cheek and thus being left out in the wilderness?

  • The best way to dis-arm FAUX, etc. is by continuing to push the truth that debunks their claims. We have to insist that the MSM covers the true story – uncovered either by them or others. Since the Obama madrassa “story” has been so thoroughly debunked, Hannity, Savage, etc., by continuing to push falsehoods, are in effect discrediting themselves. Which means fewer people will believe anything they say (much like what has happened to W). In the end, only those who don’t think for themselves (wingnuts) will continue to believe the c*ap. BTW, haven’t FAUX’s ratings gone down substantially of late? Good news, I guess.

  • We need to bring back the Fairness Doctrine for broadcasters. How long do you think Fox, Limbaugh and the rest would stay on the air if they had to give free, equal airtime to the people they attack. And that does not mean that someone like Obama has to appear on Hannity and put up with a Hannity controlled forum. The attacked person would get an equal amount of airtime uncontrolled by the broadcaster. The loss of revenues to a broadcaster would quickly drag them into a more responsible course.

  • I guess I’ll just have to go on saying it until someone slugs me, but the obvious solution is to quit paying the media who purvey this stuff. Starve ’em out.

    I say this as someone who has done just that, and I’ll tell you honestly that life without TV is way way better in ways you’d never suspect until you do it. Don’t grace rightwing blogs with your traffic if they have ads. Don’t subscribe to irresponsible newspapers. Sounds so radical until you do it and then you ask yourself why you didn’t do it years ago. MSM isn’t going to change just to “be nice” to you and me.

  • Of course they have e-mails saying they made this up. Of course it was knowing and malicious. If it wasn’t, it is certainly knowing and malicious to repeat the claim now after it’s been debunked. The reporter was then attacked as having been a terrorist in response to his story debunking this. How is that not malicious and knowing? We all know Obama did not attend a Madrassa, and anyone on FOX who continues to says so knows it, and is saying so in an effort to damage Obama.

    Believe me, there’s a memo or e-mail somewhere coming up with this stuff. It was designed to tie in with his name. Have any of you seen the memos that have been leaked? If you can’t sue for libel here, there is no such thing as libel. We’ve just become so immune to this slander that we can’t believe it occurs on a nightly basis, but it does.

    The reason Democrats don’t sue is the same reason Democrats don’t openly oppose the war. It’s a mistaken political calculation that ought never to come across like they haven’t been neutered.

  • This problem could be solved pretty easily. All we need is for the progressive blogs to pool their forces and point the collective ire of the progressive blogistan at the sponsors of the fetid trashcans which fould the airwaves with their lies.

    in other words “starve the beast”

  • The standard for libel of a public figure is found in “Sullivan v. New York Times” (1965), and it is that the intentional publication of what is known to be untrue is a libel of a public figure. On the Obama “madrassa” story, this standard is not only met but the perpetrators have essentially admitted it’s true.

    As far as I’m concerned, a “.357 solution” to the likes of Savage, Limpdick and Hannity” would be more satisfying, but that’s merely a personal preference. Taking away a whole lot of their money would be far more damaging to them, because it’s the only thing that counts with them.

  • I think mediamatters.org is the answer. They quickly, concisely, and thoroughly address each falsehood, omission and error as they occur. They don’t inject any opinion, they just explain what was said, in context, and if appropriate, provide background information.

    The reason I think it is the answer is that, taken in its entirety, it shows the overwhelming bias in our media, and not just with Fox News. And it doesn’t just mention bias the way conservatives mention liberal media bias, it documents it.

    When the issue comes up in a discussion, I can just point them to mediamatters.org. Because there is no invective or personal attacks, anyone who is not brainwashed or braindead, will have a hard time arguing with them. And those that do, well, there was no chance of turning them anyway.

  • Proving the obvious in a court of law is often difficult as Mr. Dillon (315 & #17) points out. Most importantly, apart from the financial commitment, the process takes TIME. Wouldn’t (for example) a three year period before a libel case even gets to court be sufficient for it to fade from public view, obscured by all of the new nonsense that will follow? MW’s (#22) urging of restoration of the fairness doctrine might be a better first step. With a Democratic Congress it might even be possible.
    Maybe they could also look into foreign ownership of the media (Murdock) and attack media conglomeration. A spotlight on these twerps might help, but then, it would probably get lost in all of the other pending investigations….sigh.

  • So maybe Media Matters could have a prime time news program called “nothing but the truth”? We would need corporate sponsors but maybe some huge corporation somewhere yearns for veracity?

    For now…hit the sponsors who sponsor the libel and the reckless rhetoric and false opinions that are currently touted as “news”. You hit them with organized write in campaigns and you hit by not watching their pap, and not buying their products…. and you let them know that.

    orange is not green is it?

  • #29. “You hit them by not watching their pap, and not buying their products.. and you let them know that.”

    Exactly.

    Anything else is just talk (or passive derision). And nobody else (kindly corporations, Media Matters) is going to do it for us.

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