Friday, December 29, 2017

"Reckless Disregard", by Renata Adler

Adler brings her considerable analytical powers to bear on two major libel trials of our time--Sharon v. Time and Westmoreland v. CBS. The Sharon case stemmed from a Time magazine article portraying Sharon as encouraging the 1982 massacre of Palestinian civilians. The Westmoreland case stemmed from a 1982 CBS documentary titled "The Uncounted Enemy: A Vietnam Deception".

As it happened, both trials took place simultaneously in different federal courtrooms in New York City in late 1984 and early 1985. Adler is uniquely qualified to provide the analysis of these two cases, as she is a graduate of Yale Law School as well as a trained journalist.

One of Adler's main points is that the way the media portrayed the results of these trials is totally inadequate and misleading. The story we got from the media is that both cases were a huge victory for the First Amendment rights of free speech and a free press, but Adler has a different take.

When Westmoreland decided, at a time when the trial was almost over and ready to go to the jury, that he would dismiss his case against CBS, it was reported that his change of heart was due to the testimony of his two underlings which supported CBS's position. Adler says that the testimony of these two witnesses was no surprise, as they had both given depositions prior to trial setting out their positions in detail on falsification of enemy troop numbers, and the CBS lawyer even read from the depositions in his opening statement to the jury.

The real situation is that the Westmoreland camp was simply exhausted and ready for the case to end. Westmoreland had a 70-year-old lawyer who had never tried a jury case before, and who was trying the case for free. Westmoreland had vowed to give whatever he might get from the case to charity, so it was never about money. The two sides issued a joint statement announcing their mutual respect for each other, and that was that.

The Sharon case actually did go to the jury, and, in answer to a series of questions, the jury found first that Sharon had been defamed, and second, that the publication complained of was false, bringing the jury to the third issue: was Time guilty of malice in the publication, malice being defined as knowing the publication was false, having a reckless disregard for its truth or falsity, or having serious doubts as to its truth or falsity. On this, the jury found that Time lacked malice, so, under the standards for public figures announced by the Supreme Court in the 1964 case of Times v. Sullivan, Sharon could not collect.

This was viewed as a win for Time, but Adler shows that what was revealed at the trial showed a shocking lack of professionalism by Time and its reporting staff. Adler says that both cases show huge problems with the stories which generated the lawsuits, as well as huge problems with how the media organizations involved handled the aftermath of the stories. With Sharon, she says Time could have simply printed an apology and retraction and that would have avoided any legal action. But Time decided to "stand by its story", despite the source of the story being an unreliable reporter who had been disciplined before, and who cited anonymous sources for his false report that Sharon had encouraged revenge against a group which was involved in an assassination.

Similarly, CBS also "stood by its story", instead of undertaking a detailed investigation and correcting the shoddy reporting which led to the offensive broadcast Westmoreland complained of. Adler says that a Supreme Court decision after Sullivan expanded the notion of "malice" to include the news organization publishing something for which it had "serious doubts" as to the truth or falsity. What this does is to discourage the kind of analysis and self-examination which a responsible news organization should be doing constantly. She says a good reporter will always entertain "serious doubts" about a story which is not adequately nailed down with good, reliable sources. But now the law discourages this.

Adler asserts that the lawyers for the media, which was the Cravath law firm in both cases, unnecessarily drug out the trial by trying to litigate the truth or falsity of the publications at issue. She says all this did was unnecessarily prolong the trials, and that a better approach would have been to litigate the lack of malice, which would be a complete defense. What occurred was that when the reporting staff of the publications were asked at trial what checking they did after the fact in response to the complaints, they said it "was in the hands of the lawyers"; i.e., it was up to the lawyers at that point to look into the situation, and the reporters and editors washed their hands of it.

The bottom line was that, in the Sharon case, the jury felt that Time had been quite negligent and careless in its reporting, but that it didn't rise to the level of "reckless disregard", which under the applicable standard had to be shown by "clear and convincing evidence".

Added to the problems and delays in these cases is the convoluted way in which most of the reporters and editors testified. They would repeatedly try to argue with the lawyer asking the questions, instead of simply answering the questions. Oftentimes questions would have to be asked numerous times, before any kind of actual answer would be forthcoming.

Adler is a well-regarded media critic, and she is acting as such in this book. The fact is that both of these plaintiffs were well-known public figures, meaning they had a public platform which they could have used to contradict and correct the stories they complained of.  This would have been far preferable to resorting to the courts, an approach which benefited only the defense lawyers.

There was a particular problem with Westmoreland's case, in that the broadcast complained of never mentioned Westmoreland by name. Rather, the broadcast referred to a conspiracy to falsify enemy troop estimates which took place at the "highest levels of the U.S. military intelligence community". Westmoreland was not a part of the "U.S. military intelligence community". He should have ignored the broadcast, rather than putting himself and many others through the ordeal of a long legal trial.

Wednesday, December 6, 2017

The Gambling Case

This case was argued this week before the U.S. Supreme Court. The issue is whether states have the right to allow legal gambling on sporting events.

Usually the doctrine of preemption would apply, meaning that the states have to yield to the federal government, in an area in which the federal government has enacted legislation. The problem here is that the federal government has not undertaken to regulate gambling. All the feds did was dictate, in a 1992 law, that the states were prohibited from enacting any legislation allowing gambling on sporting events (except for Nevada, which was grandfathered in).

What this means is that the concept of federalism is front and center in this case. It will be interesting to see whether the conservative justices, who usually make a big deal out of claiming to be in favor of federalism, and states' rights, will be true to their conservative roots and rule for the states. Stay tuned.

Tuesday, December 5, 2017

George Will on the Colorado Cake Case

The famous Colorado bakery case, stemming from the refusal of a baker to bake a cake for a gay wedding, is being argued today in the U.S. Supreme Court. I have previously expressed my sympathy with the baker in this case.

George Will came out with an interesting position, breaking with most of his conservative colleagues. Will says that the cake is primarily food, and "the creator's involvement with it ends when he sends it away to those who consume it." Consequently, the baker ought to lose the case.

However, Will goes on to say that the gay couple who brought this case "have behaved abominably." Will says that the baker's actions "neither expressed animus toward them nor injured them nor seriously inconvenienced them." They simply could have gone down the street to another baker, rather than put the poor baker through the legal wringer.

As a result of the legal wrangling, the baker has stopped making wedding cakes, thereby sacrificing 40% of his business. His number of employees is down from ten to four.

Your attitude about this case is probably determined by whether you see it as a gay rights case, or a First Amendment case. I tend to see it as a First Amendment case.  The gay couple have every right to get married, based on a Supreme Court decision which I wholeheartedly agree with, and they have every right to have whatever kind of wedding ceremony they want. The issue is whether they have a right to have a cake baked by a particular baker, or their photography done by a particular photographer. For the government to enforce such rights seems an overreach.

In an editorial in today's USA Today the baker, Jack Phillips, says he is happy to sell a cake off the shelf to anyone, but he draws the line when asked to violate his personal principles and beliefs. I think this is drawing the line at the right place, from a legal standpoint.

A the oral argument today, the liberals were clearly on the gay couple's side, and the conservatives on the baker's side. Kennedy seemed torn between the two sides, so look for a 5-4 decision with Kennedy, as so often happens, casting the deciding vote.

Surely this case represents another example of our national tendency to whine and complain, to seek legal redress when resort to the courts is totally unnecessary. Although Justice Kennedy asked tough questions of both sides, he seemed more outraged by the gay couple's side, observing that the way the case was handled by the Colorado Civil Rights Commission evidenced a "hostility to religion".

Friday, December 1, 2017

Two Recent Football Issues: A Commentary on our Entitlement Mentality

The fist issue involves Greg Schiano, an Ohio State assistant coach who was hired to coach Tennessee on Sunday, and then unhired the next day after a firestorm of protest arose from Tennessee fans, former players, and state legislators. The protest was centered around Schiano's involvement in the Penn State program, at a time when Jerry Sandusky was molesting young boys.

What is striking to me is the reaction of the national sports talk media, which almost unanimously rose up in protest over Schiano's being tarred by less than convincing evidence of any involvement in the Sandusky scandal. Only one brave commentator spoke out on the other side; this was Bill Reiter, host of a CBS sports radio show on 6-10 P.M. weekday evenings. Reiter rightly pointed out that Tennessee can hire whoever it wants, and that the pity should be reserved for the boys Sandusky molested, not for an assistant coach who may or may not have known of Sandusky's nefarious actions. Reiter pointed out that the evidence pointing to Schiano's involvement in the scandal was based on sworn testimony, offered under oath under penalties of perjury, and this evidence should not be dismissed so cavalierly as the national media were doing.

And then we had the case in the last few days where the NFL Giants announced that Eli Manning would not be starting Sunday.  Here again, a firestorm of protest arose from the lamestream media. "You can't do this to Manning", came the insipid cries, "he has a 210 consecutive game streak" starting at quarterback, second all-time only to Bret Favre.

Here again, only one commentator was thoughtful and mature enough to voice the other side, this being Colin Cowherd. Cowherd pointed out that the Giants can start whoever they want at quarterback, and he pointed out many good and valid reasons why the Giants might want to make a change at this point.

What this dramatizes is how an entitlement mentality has infected our national psyche. People feel entitled to something, whether they have earned it or not.  Related to that is that we have also become a nation of whiners, whining whenever something doesn't go like we had hoped, instead of vowing to work harder to do better in the future. In this case it isn't the two principals doing the whining, but rather their misguided supporters.