Category: Publishing

Posted on By Richard T. Kaplar

Free Speech Week: Time To Celebrate, Time To Reflect

As Free Speech Week gets underway today, it’s a good time to celebrate this fundamental freedom (as the week is intended to do) – but it’s also a good time to reflect on the state of free speech in America today.  Even the most cursory reflection, however, is sure to give one pause.

Freedom of speech remains under assault on many fronts.  And most people, when they think of free speech, think of the First Amendment. But it’s important to draw a distinction here.  The First Amendment only protects speech that is threatened by government control, and thus laws and regulations seeking to limit speech can be subjected to First Amendment challenges in the courts.

Paradoxically, however, the gravest threats to free speech today aren’t coming from government lawmakers and regulators, but from non-government groups and individuals who want to stifle the speech of others.  That type of speech suppression is, in its own way, even more insidious because there is no fail-safe defense against it like the First Amendment.

Media Institute President Patrick Maines has written numerous columns in this space decrying all manner of attempts to suppress free expression.  One of the most onerous threats is the political correctness (or “PC”) movement, whereby the “politically correct” try to stifle the speech of those with whom they disagree.  Nowhere is this more evident than on college campuses, which should be the ultimate marketplaces of ideas.

Examples abound of campus activist groups pushing to “disinvite” guest lecturers or even commencement speakers whose views they dislike – often with the tacit or overt support of university officials.  High-profile incidents at Fordham, Brown, and Brandeis universities have captured media attention, but they were hardly isolated occurrences.  In fact, an organization called the Foundation for Individual Rights in Education (FIRE) exists solely to fight these and other types of PC attacks on campus.

Speech suppression beyond the reach of the First Amendment takes other forms as well.  Activist groups and their “speech police” routinely try to intimidate speakers, especially through social media.  And even some journalists and editors in the mainstream media are prone to political correctness, though here the approach might be more subtle – a story presenting a PC point of view uncritically, or a story about a contrarian viewpoint never written at all.

Free Speech Week, then, offers the chance to celebrate the First Amendment as the protector of our speech (or the vast majority of it) from government interference.  The week also invites us to celebrate free expression in the broader sense.  Yet as we applaud freedom of speech generally, we need to be aware of the threats that continue to render this a fragile freedom.  There is a vocal opposition to these threats out there, including The Media Institute, FIRE, and others – but the voices challenging these threats and supporting truly free speech need to be more widespread.  We can indeed celebrate during Free Speech Week – but we can’t afford to be complacent.

Free Speech Week (FSW) is taking place Oct. 19 to Oct. 25.  You can learn more about how to get involved here: www.freespeechweek.org.

Posted on By Patrick Maines

News Corp. CEO Robert Thomson: Telling It Like It Is

It’s not every day that a speech given by a publishing executive is truly noteworthy, but remarks given earlier this month by Robert Thomson, CEO of News Corp., are the exception to the rule.

Speaking on August 13 at Australia’s Lowy Institute for International Policy, Thomson delivered a powerful speech in which he decried, among other things, the business practices of “distribution” companies like Google, the commentariat’s disdain for markets, the theft of intellectual property, and the politically correct mindset of Silicon Valley.

Though now chief executive officer of one of the largest newspaper and publishing companies in the world, Thomson has spent most of his life as a journalist, having earlier in his career been an editor of the Financial Times, The Times newspaper in London, and the Wall Street Journal.  And it’s these experiences that inform his views about the media and more.

Speaking about markets, Thomson had this to say:

When some commentators speak of markets it is in the abstract, slightly pejorative sense – markets are actually an aggregation of collective effort and hope and action….  >> Read More

Posted on By Patrick Maines

Decline of Legacy Media, Rise of the Conservatives?

For the legacy news media, the bad news just keeps on coming.  In recent days, for instance, the Pew Research Center released a piece titled “The Declining Value of U.S. Newspapers,” chronicling the extraordinary decline in the purchase and sale price of major U.S. dailies.

Some of the examples given are so extreme they look like misprints.  The New York Times Co., for instance, purchased The Boston Globe and Worcester Telegram & Gazette for a little over $2.2 billion, and sold them both in 2013 for $71 million – a valuation change of minus 96 percent!

Not far behind are newspapers like the The Philadelphia Inquirer/Daily News, the Chicago Sun-Times and the (Minneapolis) Star Tribune, all of which themselves sold in 2011 and 2012 for around 90 percent less than their earlier purchase prices.

Nor is the challenge to newspapers just an American phenomenon.  Recognizing the importance of the American media, and its similarity to their own challenges, the World Association of Newspapers and News Publishers (WAN-IFRA) is holding its annual World News Congress in Washington June 1 to June 3, only the fifth time in the past 60 years that they have held this event in the United States.

A WAN backgrounder puts the matter succinctly: “The 2015 [Congress] comes at a time when independent news media are under enormous pressure, one that threatens their societal role as the provider of credible news and information to citizens so they can make informed decisions in democratic societies.”  >> Read More

Posted on By Patrick Maines

We Are Not Charlie. We Are Weak.

The worst aspect of the Charlie Hebdo affair is that human beings were murdered for practicing free speech.  A distant second is the way this affair, and the earlier hacking of the Sony Pictures studio, has exposed the pieties and inadequacies of so much of the media.

Speaking the other day at the Consumer Electronics Show, Kazuo Hirai, CEO of Sony Corp., is reported to have said that he was proud “of all of the employees of Sony Pictures for standing up against the extortionist efforts of those criminals that attacked” the company.

Really?  No acknowledgment that the studio belatedly moved to release the film only after being criticized by virtually everyone in the country up to and including the president?

And despite the happy profusion of “Je Suis Charlie” displays, what has been the response of American media companies to that monstrous act?  As reported in Politico on Jan. 7, CNN senior editorial director, Richard Griffiths, sent a message to CNN staff saying, among other things, that “Video or stills of street protests showing Parisians holding up copies of the offensive cartoons, if shot wide, are OK.  Avoid close-ups of the cartoons that make them clearly legible.”

And here, according to a piece in Rolling Stone, is the way the Associated Press described its decision regarding the Hebdo cartoons: “We’ve taken the view that we don’t want to publish hate speech or spectacles that offend, provoke or intimidate, or anything that desecrates religious symbols or angers people along religious or ethnic lines. …  We don’t feel that’s useful.”

Even the Hollywood bible, Variety magazine, adds to the general alarm:

A brutal attack on French satirical magazine Charlie Hebdo over cartoons depicting the prophet Mohammed has jolted Hollywood, escalating concerns by artists and producers that major studios and networks may avoid greenlighting movies and TV shows with potentially inflammatory content….

Freedom of speech is under attack, but, given Sony’s initial decision to pull the release of The Interview and its subsequent about-face, it’s not clear how rousing a defense the entertainment business is willing to mount in the midst of financial pressures, political dangers, and the threat of violence.

Making matters incalculably worse is the fact that the most immediate threats to free speech in this country don’t come from abroad, but from here at home.  As described three years ago by Jonathan Turley in the Washington Post, we are witnessing the censoring of speech under one of four rationales: Speech is blasphemous; Speech is hateful; Speech is discriminatory; Speech is deceitful.

Shortly after the Sony affair broke open, Ross Douthat, the loneliest and bravest journalist at the New York Times, wrote one of the most powerful paragraphs about that, and related, matters:

Of course it had to escalate this way.  We live in a time of consistent gutlessness on the part of institutions notionally committed to free speech and intellectual diversity, a time of canceled commencement invitations and CEOs defenestrated for their political donations, a time of Twitter mobs, trigger warnings and cringing public apologies.  A time when journalists and publishers tiptoe around Islamic fundamentalism, when free speech is under increasing pressure on both sides of the Atlantic, when a hypersensitive political correctness has the whip hand on many college campuses.

So why should anyone be remotely surprised when Kim Jong-un decided to get in on the “don’t offend me” act?

So what to do?  Enforcement of the First Amendment won’t suffice because it only proscribes governmental abridgement of free speech, and only, of course, in the United States.

Here are a couple suggestions.  The next time you read or hear something that you think is truly awful, moronic, hateful, or false, send a comment by email, text, or social media stating your objections but also saying that you respect the right of the offending party to speak his or her piece.

And when you hear of some group or individual threatening advertisers with boycotts for advertising on programs they don’t like, contact those same advertisers yourself and let them know that you have a different view.

In the end, free speech can be guaranteed, if at all, not by the press or government, but only by the people.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  This article was originally published here in the online edition of USA Today on Jan. 15, 2015.

Posted on By Patrick Maines

Dropping George Will Is a Bad Way To Arrest That Subscriber Decline, Post-Dispatch

Even as such things are becoming commonplace, the sacking of George Will’s syndicated column by the St. Louis Post-Dispatch sets a new low in mainstream journalism’s race to the bottom.

In case you’re unfamiliar with the situation, Will wrote a piece (“Colleges become the victims of progressivism”) in which he ridiculed, in the context of a new Education Department mandate, some phony math and dubious cases being cited to demonstrate that America suffers from a rape epidemic.

Will’s larger point was that the DOE mandate threatens the loss of federal funding to colleges that do not institute a “preponderance of the evidence” standard when adjudicating allegations of sexual assault.  This, he wrote, would inevitably lead to costly litigation “against institutions that have denied due process to males they accuse of what society considers serious felonies.”

Elsewhere in his article, Will also points to the growth of campus speech codes and the idea, on some campuses, of the need for “trigger warnings” on college textbooks that feature language or concepts as might “victimize” unwary students.  Will contrasts these developments – none of which are much resisted by college faculty and administrations – often they’re welcomed – with those same colleges’ anger at another prospective DOE program, a rating system that would compare schools on things like graduation rates, student debt, and earnings after graduation.

Will concludes his piece with this: “What government is inflicting on colleges and universities, and what they are inflicting on themselves, diminishes their autonomy, resources, prestige and comity.  Which serves them right.  They have asked for this by asking for progressivism.”

So that’s it.  That’s what the piece is about.  But not to one Tony Messenger, the editorial page editor at the St. Louis Post-Dispatch.  To Mr. Messenger, Will’s column “was offensive and inaccurate,” for which apologies were in order, and sufficient grounds for dropping his column from the paper permanently.  And what, precisely, was the offensive and inaccurate thing to which Messenger objected?

Well, as reported by the Washington Post’s Erik Wemple, it was: “Seeing the reaction and intensity of the hurt in some of the social media and the reaction of women I know and talking to people who really were offended by the thought that sexual assault victims would seek some special victimhood – it helped seeing that response and it informed my [Messenger’s] opinion.”

Against the slim chance that anyone wonders about it, the St. Louis Post-Dispatch has a long record of supporting liberal and Democratic priorities, which means that Tony Messenger fits right in.  He routinely bashes the Missouri Republican Party, often harshly, and champions every liberal cause that comes his way.

Because it’s not nice to pick on the weak, it wouldn’t be right here to speak about Messenger’s abilities in and of themselves, except perhaps to say that somewhere between his brainpan and his mouth there are little walls that prevent him from making sense when speaking.  You can witness this yourself, and in fact it’s recommend just for the humor, by checking out Messenger’s interview, available on YouTube, with a fellow named Lee Presser (“A Conversation with Tony Messenger”).  Videotaped in 2012, not long after Messenger was hired, it’s almost comic how Messenger filibusters the hard questions while still managing to back himself into rhetorical cul-de-sacs.

One such is his claim that a unique feature of his paper’s editorial page setup is its insulation from the publisher.  This, because of a special editorial board that meets regularly.  Asked by Presser who sits on that board, Messenger says it’s him, two guys who report to him, plus the editor-in-chief, who Messenger reports to, and the guy the editor reports to, the publisher.

Apart from the substantive nature of this matter, and Messenger’s personal shortcomings, there are many smaller ironies.  One is that George Will is the recipient of a Pulitzer prize, named after the former owners of the St Louis Post-Dispatch.  (It and some other newspapers were purchased from Pulitzer by Lee Enterprises for $1.5 billion, a few years after which Lee Enterprises filed for bankruptcy.)

Another is the fact that, from 2010 through the end of 2012, the Post-Dispatch’s circulation dropped from 213,472 to 178,801, while the Sunday paper dropped from over 400,000 readers to 299,000.  At the same time the paper routinely excoriated Republicans and the Republican Party, which today controls both the Missouri House and Senate by more than 2-to-1 majorities.

Asked by Presser in the aforementioned YouTube video why so many people say they no longer read the paper because of its transparent political bias, Messenger’s answer (trimmed of its fat) was that such people are confused, and that they should remember they can always write letters to the editor.

Yes, that’s it exactly.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  A version of this article was first published here on The Daily Caller on June 23, 2014.

Posted on By Patrick Maines

Reflections on the Sale of the Washington Post

Much is being said, almost all of it guesswork, about why Jeff Bezos bought the Washington Post, what he plans to do with it, and what it all means.  Some argue it’s just a kind of trophy purchase, others that it was done to gain political influence, for Mr. Bezos and/or Amazon, in the Nation’s Capital.

Still others see in the purchase a path leading to a future in which important elements of the news media are nonprofit entities, either by design or in consequence of operations that, while unprofitable, are subsidized by owners with deep pockets.

I would guess, and hope, that all of these speculations are false.  The more likely reason that Mr. Bezos bought the Post is because he suspects he can operate it, using the tools of the new technologies, at a profit.  That by doing so he would also, serendipitously, save professional journalism may be a by-product of his purchase, whether it’s part of his motivation or not.

In 2000, The Media Institute gave Mr. Bezos its Free Speech Award, largely in recognition of the global reach of his book selling operation, sometimes over the objections of local governments.  In his acceptance speech, Mr. Bezos talked at length about the path he and his wife had followed in the creation and growth of Amazon, and the picture that emerged was not that of a politician or a philanthropist.

Instead, Mr. Bezos came across as an ambitious, disciplined, and hard-charging businessman.  (That same year, the Institute gave its other annual award to Robert Johnson, founder of BET, and I have often thought how similar the two men are.)

To put it another way, I think Mr. Bezos has too much self respect, and too little ego, to have purchased the Post either as a kind of grandstanding event, the better to aggrandize himself or Amazon, or to stand by and subsidize indefinitely a financially failing company.

After all, if news organizations are not created to make a profit, what are the standards of success or failure?  The idea that nonprofit status produces a more value-free product is belied by the reality that most philanthropists operating in the realm of the media have decided political views, a la the Knight Foundation, ProPublica, Open Society Institute, etc.

Going forward, there is one thing I would recommend to the gentleman: that he insist that the editors and reporters at the Post understand how important it is that the media be a watchdog on government. After all, if the media are not a check on government, who is?  If the only role of the media is to deliver eyeballs to advertisers, the media wouldn’t deserve a First Amendment and the Founders wouldn’t have produced one.

Which is not to say that the Post is in all ways politically or ideologically one dimensional.  As contrasted with the New York Times, where the right-leaning Ross Douthat toils away in solitary isolation, the Post’s editorial page features lots of conservative columnists.

The problem so defined is not in the editorial pages but in the news pages – the paper’s breaking, feature, and investigative reports.  No subject better illustrates this point than the paper’s coverage of the ruinous, not to say corrupt, fiscal antics of Congress and the Administration.

Perhaps the greatest threat not just to the financial health but to the very security of this country’s citizens is the growth of government, and of the corresponding governmental debt, at the federal, state, and local levels. Nor is this a new development. It’s been going on for years and the Washington Post has looked right past the kind of things that, were they done in the private sector, would yield indictments and incarceration.

There are things to admire in the Washington Post, and it’s to be expected that Mr. Bezos would not come out with early comments of concern about the editorial product there.  But if he cares about the promotion of excellence in journalism, and would like to add conservatives and Republicans to the newspaper’s admirers, this is something he ought to put in his cart.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Patrick Maines

Britain Opts To Censor the Press

With its peerage and royals, Beefeaters and such, Britain in the 21st century sometimes seems like a large theme park, but its historical influence on the USA is clear.  From language to culture, and above all to law, what’s happened in Britain hasn’t stayed in Britain.

Which is precisely why that nation’s new press law, which creates by “royal charter” a speech-suppressing media “watchdog,” is so much to be rued.  Briefly stated, the watchdog will have the power to oblige participating media to post apologies and take complaints into arbitration, thereby creating a system of government regulation of the press that hasn’t happened there since 1695.

It is commonly said that the tracks that led to this train wreck were laid by the misbehavior of Britain’s tabloid newspapers, and there’s truth in that.  Caught in the act after years of hacking into private e-mail and phone calls, and bribing public officials, the tabloids acted outside the bounds not just of ethical journalism, but of the law.

But the better explanation for why the British have now endorsed regulation of the press (rather than relying just on the enforcement of criminal laws already on the books) is because that country has no First Amendment. That, and also because there (as here?) there exist large numbers of people who value political correctness, and political advantage, over freedom of speech.

Indeed, though the new press rules are said to have become inevitable given the failures of Britain’s (recently extinct) Press Complaints Commission (PCC), another way of looking at it is to say that the very existence of the PCC inadvertently cleared the way for the more intrusive regulations.

Some years ago there existed in the United States a National News Council (NNC), whose charter was similar to the PCC.  It failed to take root for many reasons, but perhaps most notably because the New York Times’ Abe Rosenthal wisely refused to cooperate with it.  Rosenthal’s concern was that the NNC would fail to satisfy press critics, and that some sort of government program would then be invited to succeed it.

The British have long been accustomed to a significant degree of governmental oversight of their broadcasting companies’ content through what is called Ofcom (Office of Communications), but until now the print media have been spared that oversight.

Though billed by its parliamentary sponsors as a voluntary arrangement, the terms of the new press regulation carry onerous potential liabilities, specifically including “exemplary damages” in court, for media companies that don’t join the quango.  This may even include some companies that are based elsewhere. Indeed, one of the most powerful criticisms – from such as the New York Times and the Committee To Protect Journalists – is that the regulation assumes authority over bloggers and websites, large and small, foreign and domestic.

“In an attempt to rein in its reckless tabloid newspapers,” said the New York Times, “Britain’s three main political parties this week agreed to impose unwieldy regulations on the news media that would chill free speech and threaten the survival of small publishers and Internet sites.”

But the most compelling and powerful criticism has come from The Spectator, the British publication said to be the oldest continuously published magazine in the English language.  As Nick Cohen wrote on March 18:

The regulator will cover “relevant publishers.”  If they do not pay for its services and submit to its fines and rulings … they could face exemplary damages in the courts.  It is not just the old (and dying) newspapers, which the state defines as “relevant publishers” but “websites containing news related material.”

What “news related” material can get you into trouble?  It turns out to be the essential debates of a free society.  Dangerous topics to write about include “news or information about current affairs” and “opinion about matters relating to the news or current affairs.”  Any free country should want the widest possible range of opinions about current affairs.  As of tonight, Britain does not. 

There will be a temptation among many in this country to look past what the British have done as nothing more than the antics, as someone once put it, of an exhausted stock; not to worry about anything similar happening here.  And there’s some truth in that.  Because of our First Amendment and strong case law in defense of it, such regulation is unlikely in this country.

But it’s worth remembering that this happened in Britain at the hands of parliament and that we too have a “parliament,” and regulatory agencies, and that, as in Britain, we have organizations, like the cynically misnamed Free Press, that are constantly pushing for an expansion of government oversight of the media.

Thanks to the Founding Fathers we have some additional protection against the kind of thing that’s just happened in Britain, but vigilance is required, now more than ever.

                                             

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  A version of this article titled "Keep U.K. media rules out of U.S." appeared in the print and online editions of USA Today on April 23, 2013, and can be viewed here.

Posted on By Patrick Maines

‘Interest Groups’ and the News Media

From the Pew Research Center/Project for Excellence in Journalism comes the welcome report that newspaper editors and TV news directors are not eager to be, or to be seen as being, wards of the state.  This wholesome sentiment will not come as a surprise to most people, but it has to be disconcerting to the “media reform” crowd, which has been clamoring for direct government subsidies or tax breaks for the news media.

According to the study, 75 percent of the respondents, drawn from the ranks of members of ASNE and RTDNA, had “serious reservations” about direct subsidies from the government, and approximately half had such concerns about tax credits for news organizations.  (Note: These figures do not indicate how many of the respondents had “reservations,” only those who had “serious reservations.”)

It’s in the matter of non-governmental support, of the sort that issues from “interest groups” or nonprofit organizations, that the picture becomes a little murky.  According to the report, a whopping 78 percent of the respondents had serious concerns about accepting donations from “interest groups that engage in advocacy of some kind,” while a little over half expressed either serious or “some” reservations about funds issuing from nonprofit foundations.

Buts what about those groups, like the investigative news organization ProPublica, that are funded and led by people with extensive, and clearly defined, political profiles?  Is ProPublica an advocacy group or just a nonprofit news group?  The question takes on a practical significance in light of the Pulitzer recently awarded to ProPublica and The New York Times for their collaboration on a piece published in the New York Times Magazine.

As reported here, the founder, chairman, and principal financial backer of ProPublica is billionaire Herbert Sandler.  Since selling his interest in the bank (Golden West Financial) through which he made his fortune, Herbert and his wife, Marion, have become big-time philanthropists, with substantial sums going to “progressive” organizations like the Center for American Progress and Acorn.

Along the way the Sandlers acquired an interest in bankrolling a news organization that would create “journalism in the public interest,” as ProPublica calls itself, and hired Paul Steiger, then the managing editor of the Wall Street Journal, to act as editor-in-chief.

As reported in The New York Times, Steiger, who was then nearing the WSJ’s mandatory retirement age, didn’t know the Sandlers well but regarded them as “civic-minded people who were kind of partial to lefty or progressive causes.”

From its inception in 2008, ProPublica has proclaimed its independence and impartiality — a claim that is undermined by its avowed goal of producing journalism that “shines a light on exploitation of the weak by the strong,” and by the looming presence of Mr. Sandler who, rather than donate his money as a lump sum and walk away, installed himself as chairman and is parceling out his contributions over time.

At a recent conference of the American Bar Association, the general manager of ProPublica who, like Mr. Steiger, was formerly with the Wall Street Journal, defended the organization against criticism of Mr. Sandler’s role by suggesting that ProPublica, like the WSJ, is capable of producing journalism that is independent of the political views of management.  Unfortunately, this is an inapt analogy.  In fact it’s worse than that — it positively undermines the argument it’s meant to buttress.

This, of course, because the reason that the Wall Street Journal, or any commercial news organization, can produce news stories that are not a reflection of the political views of management is because they, like all for-profit organizations, operate on the principle of maximizing returns to the shareholders, rather than as a forum for the expression of management’s political or ideological views.

But contrast this dynamic with the very different operating principle of ProPublica, or any nonprofit enterprise.  As Slate’s Jack Shafer asked at ProPublica’s launch, “What do the Sandlers want for their millions? … How happy will they be if ProPublica gores their sacred Democratic cows?  Or takes the ‘wrong’ position on their pet projects: health, the environment, and civil liberties?”

In fairness, most of the reports produced by ProPublica to date do not suggest an organization that is marching in lockstep with the progressive agenda.  For the most part they are ideologically value free.  But that’s only half the story.  The real issue with a group like ProPublica is not the kind of issues it does cover but the kind it doesn’t.  As Jack Shafer asked, what kind of investigative pieces will ProPublica do — not counting the rare expose that proves the rule — that discomfit progressives?  That will be the true test of its independence from its benefactor, and of its suitability as a partnering organization with mainstream news organizations.

In the meantime, close your eyes and try to imagine the kind of reception that would have come to Paul Steiger and ProPublica if, instead of Mr. Sandler, the group’s founder, chairman, and bankroller had been someone who, politically, was Mr. Sandler’s polar opposite — someone who had supported conservative or libertarian causes and organizations.  How do you think that would have gone down with the J-schools, journalism reviews, and grant-giving foundations?

Posted on By Richard T. Kaplar

More on Newspapers and Aggregators

If newspapers ultimately survive, they might owe a debt of gratitude not only to Rupert Murdoch (as Patrick Maines suggested here recently), but also to two brothers who have combined their expertise in economics and the law to analyze the problem and come up with a potential solution.

As I wrote here earlier this month, online aggregators quite possibly could kill off newspapers by pirating the papers’ original news content.   Among the industry watchers who have studied this phenomenon are Daniel Marburger, Ph.D., a professor of economics at Arkansas State University, and his brother David Marburger, Esq., a partner at the Baker Hostetler law firm in Cleveland.   

The brothers have conducted an extensive analysis of both the economic and legal frameworks of the newspaper industry (print and online), and how these frameworks intertwine in the digital age.  In a number of papers and articles, the Marburgers have gone beyond the usual observations in two important ways: (1) They draw a distinction between “pure aggregators” and “parasitic aggregators”; and (2) they suggest a way of closing a loophole in copyright law that would seriously curtail the so-called parasites.

“Pure aggregators,” they say, use only a headline and maybe a sentence from the original news source, and then link back to that source (i.e., a newspaper website).  Pure aggregators are economically good for papers on balance because they drive readers to the newspapers’ websites.

“Parasitic aggregators,” on the other hand, take content from newspaper sites, rewrite it a bit, and then pass it off on their own sites.  These parasitic aggregators are bad because they retain readers rather than drive them to the newspapers’ sites.

In the Marburgers’ longest paper on the economic viability of newspapers, two section titles sum up the problem and its effect: “The federal copyright act allows parasitic aggregators to ‘free-ride’ on others’ substantial journalistic investments”; and “If the law does not change, newspapers continually will diminish their journalistic resources until they can subsist only by underproducing news or until they go out of business.”

The Marburgers’ solution would allow newspapers to seek redress for unfair competition under state statutory or common-law remedies for unjust enrichment – remedies that federal copyright law has in effect precluded since 1976.  They’re not suggesting a new law – just an amendment to Section 301 of the Copyright Act.

In this short space I am oversimplifying the Marburgers’ excellent analysis and recommendations – but I hope I can help draw attention to a thoughtful paper that is worthy of serious consideration and widespread recognition.   

Posted on By Ashley Messenger, Esq.

Truth Is No Longer Absolute Libel Defense

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.