Media and Communications Policy : Media Policy & First Amendment Foundation : The Media Institute : Free Speech, Media Regulation, Content Controls

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By guest blogger ASHLEY MESSENGER, Editorial Counsel to U.S. News & World Report, L.P., Washington, D.C.

The U.S. Court of Appeals for the First Circuit recently ruled in Noonan v. Staples, Inc. that truth is not necessarily a defense to a libel claim.  This is a troubling holding, as libel is generally defined as a false, defamatory statement.  

But Massachusetts has a law that allows a true statement to be the basis of a libel claim if the statement is made with “actual malice,” which the First Circuit interpreted as “ill will.”  The ruling appears to be predicated on the fact that the plaintiff, Alan Noonan, is a “private person” and the statement was not a “matter of public concern.”

It is undisputed that Alan Noonan was fired from Staples for violating the company’s expense policies.  A vice president sent an e-mail to Staples employees stating that Noonan was fired for failure to comply with expense policies and reminding employees of the importance of compliance.  The court allowed his claim to go forward to let a jury decide whether the statements were made with “ill will.”

But if a private person can sue for libel when a true statement is made with ill will, the courts will be flooded with victims of petty gossip and spiteful ex’s.  A cheating spouse, for example, would now have a libel claim if the aggrieved spouse vents to friends about the betrayal with “ill will.”

In addition, there is the policy matter of permitting a person to recover damages when their reputation is damaged with good cause.  If a spouse cheats and that true fact is disclosed, his or her reputation may be damaged, but justifiably damaged.  Do we truly want to permit people to be compensated for their own bad behavior?

Finally, there is a problem with the increasingly false distinction between matters of “public concern” and “private” things.  The value of hearing truthful information is the same reason reporters use anecdotes in newspaper stories.  It makes a situation more real when you can associate a name and specific event to an issue rather than relying on vague assertions of what might or might not have happened.  

In fact, if a reporter had used Noonan’s story as anecdotal evidence of why it is important to comply with company policies, it should have been deemed a matter of public concern.  The correct result, whether it’s a company or a reporter, is that all speakers should be protected by the First Amendment.

This post is adapted from a Media Institute  Perspectives issue paper by Ashley Messenger on this topic.  View the full paper here.

Ashley Messenger is Editorial Counsel to U.S. News & World Report, L.P., and an adjunct faculty member at American University School of Communication in Washington, D.C.  The opinions expressed herein are those of the author, and not of these institutions.

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One of the differences between, say, your everyday community organizers on the one hand, and investors on the other, is that while both have opinions, the investors have money.  Not only do they have some money, in a very practical sense they have all the money. 

This is an important thing to know these days because, as measured by the relative value of every asset class — from common stock to collectibles, real estate to commodities — investors of all sorts are making it clear by their actions that they are deeply worried about the future, and growing more so.

Many people, perhaps most, know this already.  They know it because they are among those who have already lost their jobs, or fear they soon will.  Or because they have seen the value of their 401K plans cut by half.  Or because they own houses whose value has declined so much they no longer have any equity in them.

Or perhaps they know it because they are avid consumers of the financial and business press; media outlets like Barron’s, the Wall Street Journal, Forbes, Fortune, the Economist, IBD, CNBC.

If, however, they are among the lucky few who have not been personally wounded by the current crisis, and get their news of the nation not from financial journalists but from political reporters online or off, stories reaching them of investor angst may seem like a kind of nasty and unwelcome rumor, like the warmongering of a distant and unimportant country.

And why wouldn’t it seem that way to someone munching solely on the crudites served up by our political journos?  Instead of digging into the facts of what the markets are saying, they offer up one story after another sourced by a political pollster or partisan strategist.

Rather than write about the substantive aspects of our financial and economic problems, they write about which party or politician is pulling from the gloom the greater number of political points.  In other words, they write about opinions — their own, those of the political class, and those of what are said to be the people.

One of the most durable sayings in the world of finance is that money goes where it’s treated best.  This isn’t a political statement, or an opinion, or a matter of manners and morals.  It’s a physical law, like gravity.

And where is money going right now?  It’s going into gold that costs more than $1,000 per ounce, and into short-term Treasuries that are paying less than inflation.  And what is that telling us?  It’s telling us that investors — professionals and amateurs, Republicans and Democrats — are scared to death and doubt, given what they know now, that our government is pursuing strategies that will help.

But don’t expect political reporters to tell you much about any of this.  They didn't do so last fall, when the economy might have been carefully examined in the context of the national elections, so why would they do so now?  They’ve got too many opinions to spin to get bogged down with something as dreary as facts.

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In Washington, the lingua franca of policy discussions is "lobbyspeak," a form of communication that seeks, among other things, to conceal any hint of personal belief or interest.

The allure of lobbyspeak is that it allows the speaker to say things in a way that inoculates him from the risk that someone might denigrate his arguments as being just his own opinions, as contrasted, say, with positions derived from case law, or precedent, or that runaway favorite, the “public interest.”

Considered in the larger scheme of things, this is not the worst thing in the world.  Among the initiated, after all, it is easily spotted, and in some cases even appreciated -- like a risqué double entendre -- for its naughty cleverness.  But it can be, and often is, remarkably tiresome.

Which is why I write today to commend a speech given in Washington this week by the president of the Consumer Electronics Association, the people who host the annual Consumer Electronics Show in Las Vegas.  Lobbyspeak it was not.

As reported Tuesday in the headline of a Broadcasting & Cable story, "CEA president Gary Shapiro says media has 'failed' the country by poorly analyzing important stories," the speech excoriated the press for their insufficient attention to the substantive aspects of the recently enacted stimulus legislation, and our financial crisis generally.

In a town in which many, association executives particularly, are loathe to say anything that might upset anyone -- the press and policymakers especially -- Shapiro's speech before The Media Institute was stunningly different, and frank, and courageous.

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From the New York Times comes word this week of big changes looming at one of the country’s oldest newsweeklies.  “Newsweek,” they say, “is planning a redesign and some shifts in content to fashion an opinionated take on events, aimed at a much smaller, and wealthier, readership.”

In truth it doesn’t come as a surprise.  In many ways it isn’t even news.  But it’s disappointing all the same to see one of the country’s mainstream media outlets consciously, and proudly, abandon the time-honored journalistic standard of objectivity.

Nobody’s going to run off and join the circus in consequence of this development because, as seen during last year’s election campaign, virtually all of the mainstream media have demonstrated an ability to abandon objectivity whenever it pleases them.

As mentioned here before, nowhere was this more lamentable than in the coverage of the presidential candidates’ take on economic issues.  When this point was made in an earlier blog, some people took it to be a partisan observation.  But it wasn’t, and isn’t.

Even if the media had done a credible, and objective, job of pressing both candidates on their plans for the economy, Obama would still have won.  Maybe even by a larger margin.  This, because no matter how little Obama may know about economics, John McCain knows even less.

But look how much better off we’d be if the press had challenged Obama to give more than lip service to these kinds of issues.  In addition to a better informed public, we might also have an economic stimulus plan that reflected more of the thinking of the president than of Nancy Pelosi and Harry Reid.

The political and societal ramifications aside, there is another downside to the media’s embrace of opinion over objectivity: It’s unlikely to work, online or off.

As evidence consider what one supposes is a model of future Newsweek reportage, a story by Jon Meacham and Evan Thomas.  Provocatively titled “We Are All Socialists Now,” the piece purports to document a profound shift in our collective view of the correct form of government.

What's striking about the article, however, is that it is about 90 percent opinion, with little or nothing of substance to it.  There’s no there there; nothing that informs, analyzes, or even segues.  Just a kind of fluffy amalgam of the pedestrian and superficial, in which most of the intellectual energy seems to have gone into the title.

A good exercise in times such as these is to ask oneself how much you would  be willing to pay for a thing if you had to pay to receive it.  The question can be asked of all kinds of things.  Were it asked of this Newsweek article, the guess here is that few people would offer to pay anything.

A few months ago a Microsoft executive gave a speech to some online publishers in London in which he said that publishers’ decisions to give their online content away for free had been a disastrous mistake.  And now we have the first, but undoubtedly not the last, of the mainstream media to openly embrace opinion journalism as a model for the future.

The question not yet answered is what – after they have surrendered first their content and then their journalistic patrimony – the media will do if all this fails to halt the slide?

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“If you bring up the First Amendment, you’re a racist.”  In so many words that’s the message – or threat – to anyone who would dare question the constitutionality of a proposal that the government launch an inquiry into media content.     

The threat is leveled by the National Hispanic Media Coalition (NHMC) in a Jan. 28 petition asking the FCC to conduct an inquiry into hate speech in the media.  The petition was written for NHMC by the Institute for Public Representation at Georgetown Law and the Media Access Project.

Ironically, the names of both groups (“Public Representation,” “Media Access”) would seem to suggest support for freedom of speech.  Here, however, the ultimate intent of these groups is to eradicate certain types of speech (and speakers) in the media, and to chill the speech of anyone who would question that endeavor.   

The petitioners throw down the gauntlet to First Amendment challengers with this line: “The NHMC understands that those who would prefer hate speech to remain under the radar will claim that such an inquiry violates the First Amendment.”  

Let me say up front that I find racial slurs and other forms of bigoted, biased, hateful speech to be utterly abhorrent.  Such speech usually emanates either from small-minded, obtuse bigots, or from persons who are smart enough to know better but are consumed with hate, anger, and at bottom, fear.

However, I do challenge the constitutionality of an inquiry that could lead to the banning of speech – not because I’m a bigot (as the petitioners imply), but because I happen to be a staunch supporter of the First Amendment.   

Like it or not, the First Amendment was designed precisely to prevent government censorship, not only of popular speech but of unpopular speech – even so-called “hate speech.”  

There are some narrow exceptions, like speech that incites immediate violence.  That seems to be the slim reed on which NHMC tries to build its case.  The petitioners say that there has been an increase in hate speech in the media.  Then they say that there has been an increase in the number of violent hate crimes against Hispanics.  By that juxtaposition they try to imply that there is a causal relationship between hate speech and hate crimes.  

But the petitioners offer no evidence – only vague assertions like “hate speech over the media may be causing concrete harms.”  Even a 1993 report by NTIA, which the NHMC petition quotes liberally,  “found that ‘the available data linking the problem of hate crimes to telecommunications remains scattered and largely anecdotal,’ and that [NTIA] lacked sufficient information to make specific policy recommendations.”

So what’s going on here?  NHMC and its public-interest collaborators take great pains to point out that they are only asking for an inquiry into what’s happening out there, “merely the collection of information and data about hate speech in the media” – not for any overt censorship.  Oh, and of course they’re not calling for a reinstatement of the Fairness Doctrine, they are quick to note.

But as we know, FCC notices of inquiry have a way of turning into rulemaking proceedings.  And if a rulemaking proceeding aimed at outlawing hate speech had the effect of outlawing conservative talk radio ... who needs a Fairness Doctrine?

This is no time for First Amendment advocates to be cowed into silence by bogus challenges to their political correctness.  Speech isn’t always pretty, or pleasing, or even palatable.  That’s why we have a First Amendment.

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By guest blogger ROBERT CORN-REVERE, partner, Davis Wright Tremaine LLC, Washington, D.C.

During the presidential campaign, and particularly since the election, conservative talk radio and the blogosphere have been abuzz with rumors that the Democratic agenda would include reviving the Fairness Doctrine.  Prominent media activists have labeled such claims as fantasy and asserted they have no interest in reviving the policy, which required broadcast licensees to air “controversial issues of public importance” and to do so in a “balanced” way.
    
That debate has now been joined in Washington by actual experts in communications law.  FCC Commissioner Robert M. McDowell, speaking at a Media Institute luncheon on Jan. 28, warned that there may be efforts to bring back the principles underlying the Fairness Doctrine, albeit in some modified form that may extend beyond the broadcasting medium.  In response, my friend Henry Geller, the venerable former FCC general counsel, criticized Commissioner McDowell’s views about the Doctrine and the concept of spectrum scarcity, and suggested instead that other new regulatory approaches may be appropriate.  

In a commentary written for Broadcasting & Cable, Henry acknowledged that “with the growth of cable, satellite, wireless, and, above all, the Internet, it is most unlikely that the fairness doctrine will return as a matter of general policy.”  But he also outlined other possible approaches, such as a spectrum fee to support meritorious programming, and suggested that the overriding issue is “the appropriate regulatory scheme for broadcasting in the 21st Century ... not this skirmish over the unlikely re-appearance of the fairness doctrine.”
    
This looks like a debate in which both sides agree on two fundamental premises: (1) that the Fairness Doctrine is not likely to be resurrected, at least not in the form that existed before 1987; and (2) the real issue going forward is what type of regulatory model should be applied to broadcasting and other electronic media.  

Commissioner McDowell identified and critiqued various ways in which the government may assert its authority over broadcasting and other electronic media (including the Internet), while Henry Geller highlighted ways in which the “public trustee obligation” might be “clarified and made more effective.”  In short, they agree on the central issue, but simply offer quite different perspectives on the desirability of enforcing “public trustee” requirements.  
    
This overriding question about the proper regulatory approach is not confronting us because a new administration has come to Washington.  The Republican FCC under Chairman Kevin Martin launched an unprecedented number of regulatory initiatives designed to bolster and perpetuate government control over broadcast content and to extend such policies to other media. 

These efforts included a single-minded campaign to restrict broadcast indecency and Chairman Martin’s overzealous efforts to require a-la-carte marketing of cable and satellite programming.  They also included the regulation of video news releases – on cable as well as broadcasting – and proposed new rules to restrict product placement.  
    
One of Chairman Martin’s most ambitious initiatives, the so-called “enhanced disclosure form” which requires detailed quarterly reports on broadcast news and public affairs programming, and his proposed “localism” guidelines, to be overseen by mandatory local “advisory committees” and enforced by licensing review, would give the government far greater control over private editorial judgment than ever existed under the Fairness Doctrine.  In fact, forget the Fairness Doctrine.  “Localism” is the new “fairness.”  
    
The common element in all of these initiatives is the assumption that the government should oversee broadcasters’ (and perhaps others’) editorial choices – a philosophy that is antithetical to traditional First Amendment principles.  The real question, then, is whether the FCC can continue to maintain the legal fiction, eroded by time, technology, and case law, that the media it regulates are not entitled to full Constitutional protection.