OK, sabbatical time is over, and I need to discuss stuff other than The Donald— at least for a while anyway.
Instead, I want to talk about a subject that brings Trump to mind, but is hardly about him directly.
There can be little doubt that our country is sliding toward what the press has referred to as a "post-truth era.” Simply put, truth is no longer as relevant as it once was— certainly it is nowhere near as present in our democracy as it was at the time of the passage of our Founding Document.
Putting aside the substance of their false statements, prevaricators frequently assert a “First Amendment right to lie,” arguing that placing an adverse sanction on false speech would be a violation of the Constitution’s ban on “abridgment of free speech.” Ironically, this casual willingness to broadcast "alternative facts" occurs at a time when we have a Supreme Court that has adopted a policy that calls upon it to interpret the Constitution today literally as it was interpreted when it was drafted in 1787. They call it “originalism.”
But the free speech clause did not (and still does not) protect all speech. It doesn't protect a whole list of things, including, among others, true threats, criminal conspiracy, and it doesn't protect defamation.
(Fox recently learned that the hard way, when, after the ruling of a Delaware judge, it forked over $785 million because of the false statements it's employees made about Dominion voting machines. And there’s more to come on that front at the hands of another voting machine company, and against other defendants, including “America’s Mayor,” Rudy Giuliani.)
Let’s come back to this Supreme Court notion of “Originalism”. At the time of the adoption of the First Amendment, to win a defamation case, plaintiff needed only to prove by a "preponderance of evidence" (i.e., it was more likely than not) the defendant made a false statement that caused the plaintiff injury. But starting in the 1960s, liberal Supreme Court panels took it upon themselves to make dramatic changes in libel and slander law that favored publishers of false defamatory material. In the famous case of Times v. Sullivan, the Court ruled that for a public-figure-plaintiff (a category that has since expanded dramatically) to recover, he or she needed prove not only was the defamatory statement false, but that the defendant knew it was false, or suspected it was false and nevertheless published it with a reckless disregard for whether it was true or not. (For reasons that have escaped generations of lawyers and non-lawyers, the Court called that add-on requirement “actual malice.”)
Liberal Supreme Courts thereafter went on a roll, further protecting newspapers, broadcasters, and other defamers. For example, the Court subsequently ruled that the standard test of sufficiency of proof in civil cases, i.e. a "preponderance of evidence," no longer applied to “actual malice” cases. Instead, plaintiff was required to prove actual malice by ‘’clear and convincing evidence,” whatever that means. The law books are full of arcane definitions of that standard, but for our purposes today, it is enough to say it is a standard of proof greater than the civil standard of "preponderance of evidence," but not quite as high as the criminal standard of “beyond a reasonable doubt.”
That change was not the end of the Court's increase of protection accorded to the publishing industry. In1984, they made a ruling that was in my humble opinion, a blatant violation of The Seventh Amendment, which reads:
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
Yet the Supremes neverthless decided that in actual malice cases, the Circuit Court of Appeals can and must re-examine the jury’s finding of fact if it favors the plaintiff on that issue. In other words, to win a libel judgment in an actual malice case,, a plaintiff must persuade a jury, a trial judge, and a three-judge Court of Appeals. If the appellate court disagrees with a jury finding of fact in favor of the plaintiff on the actual malice issue, she loses! This is more review power than a Circuit Court has in a murder case!
I confess a personal failure. I can think of no rational explanation of how a 20th century Court ruling requiring a re-examination of the jury’s finding of fact squares with the Seventh Amendment’s unambiguous command barring such a re-examination.
But the battle between the defamers and the unjustly defamed continues. In addition to the foregoing legal defenses that have been installed subsequent to the passage of the Constitution, we now have the modern communication media asserting new defenses. We have movies and streaming channels, searching desperately for material. They produce not only fiction, but so-called “documentaries,” and "docudramas" which, they say, publish historically accurate tales that are not only informative, but are entertaining. And because these programs strive for drama and entertainment as well as historical storytelling, they claim First Amendment rights to fiddle with the facts in order to enhance their dramatic and artistic values.
Theatrical dramatizations that are truthful certainly do get and deserve full First Amendment protection, but the producers of those products now assert the right to insert invented facts and distort some truths in order to "enhance coherence and heighten theatrical tension." And they demand First Amendment protection even if they get “facts” wrong, and even if with, actual malice, they broadcast false and defamatory things about real people in the process. Are publishers entitled to such protection? If not, they are heading for a big fall. A judicial stretch that accomodated such a publisher's legal claim would make a mush of the law of defamation.
It would appear the legal lassitude toward theatrical and broadcast defamers may have come to an end. The Fox/Dominion case was a start, and now a new entrant on the scene may solidify the law of defamation.
Last week, a New York Southern District federal judge put the wood to Netflix and the authors of a four part so-called “docudrama” about the Central Park Five and the 1989 rape and assault of Patricia Meili in Central Park in New York City. Five defendants had been apprehended by the police, tried and convicted, and years later were released from prison when a sixth person confessed to the rape and said he was the sole assailant. The Central Park Five sued the city and recovered $41 million, and Netflix promoted its "docudrama" about the case, as being "based on the true story of the Central Park Five.”
But it was not "the true story” of the Central Park Five case. Instead, it was a condemnation of the criminal justice system, and for dramatic purposes, the authors and Netflix falsely portrayed Linda Fairstein, the head of the sex crimes bureau of the New York County District Attorney's Office as ''the villain representing that system.”
Let me be clear: I know Linda Fairstein. She is a good friend, and I am not objective about her character and integrity.
Simply put, to dramatize what they saw as the evils of the criminal justice system, Netflix and the writers accused Fairstein of things she never did. She was humiliated by the broadcast and her livelihood as a best-selling author was instantly destroyed. She lost awards, departed from university and charitable boards, lost her agent and publisher and was, as one of the authors of the series wanted her to be, "canceled." She was falsely accused of wrongful prosecutorial conduct.
Fairstein sued Netflix and the authors for defamation. After discovery was completed, the defendants moved for summary judgment -- not on the ground that they hadn't defamed Fairstein, but they asserted that Fairstein could not prove actual malice i.e. she couldn't prove that the defendants either knew she had not engaged in wrongful conduct, or they suspected she hadn't done so, but nevertheless accused her of the wrongful conduct anyway in a reckless disregard of the truth.
In an exhaustive 67 page opinion, Judge Castel rejected the defendants claims. He found that the defendants did know that fictional events were ascribed to Fairstein because defendants intended, for dramatic purposes, to portray her as the over-arching villain who was intended to embody their view of the perceived injustices of a criminal justice system.
Indeed, the court found that "defendants went so far as to reverse–engineer key points, so as to attribute actions , responsibilities, and viewpoints to Fairstein that were not hers and were not supported by independent research material. In effect she was portrayed in a negative light for dramatic purposes”. Indeed, Judge Castel found that one of the defendants confessed,“Fairstein represents the criminal justice system, and the criminal justice system is the villain in the series."
At last, a ray of judicial sunshine: A clear judicial holding that claims of "desirable dramatization" do not cancel the laws of defamation and do not earn First Amendment protection.
Libel is libel. Period. Our Constitution does not suffer lightly reckless indifference to truth that destroys reputation and livelihood.
Broadcasters beware!
A bientot.
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