New York Times – Media & Communications Policy

October 11, 2023 By Stuart N. Brotman

The Important Formative Years of a Legendary First Amendment Advocate

The new PBS “American Masters” documentary, Floyd Abrams: Speaking Freely, chronicles legendary First Amendment lawyer Floyd Abrams. It largely focuses on the amazing trajectory of his career in this vital area of constitutional law.

As a young law firm associate on Wall Street, Abrams was a pivotal member of the legal team that successfully argued before the U.S. Supreme Court that the national security concerns advanced by the U.S. Department of Justice did not justify a publication prior restraint of the Pentagon Papers by The New York Times.

December 14, 2021December 15, 2021 By Stuart N. Brotman

Fifteen Days in June: The Inside Story of the Pentagon Papers Case

Last month, Justice Charles D. Wood of the Westchester County Supreme Court issued a controversial order blocking The New York Times from publishing or seeking various documents related to Project Veritas. The Times had published an article on Nov. 11, 2021 that discussed the group’s journalistic practices, along with an investigation by the Department of Justice concerning the potential theft by Project Veritas of President Biden’s daughter Ashley’s diary. The article also mentioned a separate defamation case against the Times that Project Veritas had initiated in 2020, based on coverage of a video the group had released alleging voter fraud related to the campaign of Rep. Ilhan Omar (D-Minn).

Times Executive Editor Dean Baquet commented that “[t]his ruling is unconstitutional and sets a dangerous precedent. When a court silences journalism, it fails its citizens and undermines their right to know. The Supreme Court made that clear in the Pentagon Papers case, a landmark ruling against prior restraint blocking the publication of newsworthy journalism. That principle clearly applies here. We are seeking an immediate review of this decision.”

March 2, 2017March 10, 2017 By Patrick Maines

In ‘Media vs. Trump’ Battle, the President Has the People on His Side

It’s safe to say that nobody alive today has ever seen anything like it: A newly elected president who, so far from being a professional politician, says off-the-cuff things in conversation or midnight tweets that positively invite indignant responses – and a media and entertainment industry that has been loudly marching against him ever since he won the nomination.

The consuming question in these parts is less how it began than how it will end, and with what consequences. It’s pretty clear now that it’s open warfare between the White House and the mainstream media (MSM) – the New York Times, Washington Post, and CNN in particular – and Hollywood.

Of course it could come to an end with a kind of detente with no clear winner, but that seems unlikely given the hubris of the combatants. So it probably comes down to one of two results: (1) The president is undone politically by GOP defections or through impeachment proceedings; or (2) Trump and his supporters engineer an anti-media campaign with teeth, causing the media to back down.

Everyone is familiar with the practice of activists harassing advertisers, starting letter-writing campaigns, picketing the homes and offices of businesses and executives, and promoting boycotts » Read More

Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors. The full version of this article appeared in The Hill on March 2, 2017.

January 6, 2017March 10, 2017 By Patrick Maines

Donald Trump and the Future of the Mainstream Media

The presidential election has lit a fuse on discussions about the present and future of the mainstream media (MSM). Opinions are hot and heavy, and predictable for the most part according to the political mindset of the commenter.

Some people, for instance, attribute Trump’s win to the media’s extensive coverage of him during the primaries, while others see the influence of so-called “fake news” as a factor. People of these and kindred opinions tend not to see, or acknowledge, any significance in the election results for the future of the MSM.

Other people think that Trump won precisely because he characterized the media as being part of the “corrupt establishment,” with Michael Wolff, for instance, writing in the Hollywood Reporter that the election was not between the Republican and Democratic parties but between the Trump Party and the Media Party. As Wolff puts it, “The media turned itself into the opposition and, accordingly, was voted down.” Many such people, Wolff excluded, tend to see (indeed, hope for) a dismal future for the mainstream media.

Yet other commenters see in the election results the damaging effects on the MSM and the country as a whole of the social media, » Read More

November 15, 2016March 10, 2017 By Patrick Maines

The Biggest Loser in 2016? The Mainstream Media and Journalism

There are many losers in the wake of Donald Trump’s victory. They include Hollywood, pollsters, the Bush family and the GOP’s donor class, and neocons. But the biggest losers are the mainstream media (MSM) and journalism itself.

And it’s the damage done to journalism, not the fate of pundits or media outlets, that is the most disturbing. After all, it’s been reported for years that Republicans and conservatives in ever larger numbers deem the MSM to be in the Democrats’ and liberals’ corner, and if that perception is okay with media moguls it’s their choice to make — and to live with the consequences in the marketplace.

But when, as happened this year, so much of the media openly and willfully suspended the practice of separating news from opinion, they crossed a boundary of what’s rightly theirs and what’s ours. It’s our right and need to know about civic matters, fully, fairly and accurately, that is the public virtue in journalism and the sine qua non of democracy.

Although virtually all of the MSM violated this boundary in their frantic support of Clinton, some were worse than others. As is often the case, CNN led in this category, » Read More

August 15, 2016March 9, 2017 By Patrick Maines

Defending the Indefensible: Bias at the New York Times

The New York Times’ media columnist, Jim Rutenberg, penned a recent piece suggesting that biased news coverage of Donald Trump, at the Times and among other mainstream media, is justified and rarely observed in the context of other partisan or ideological issues.

Rutenberg’s claim is that because Trump says things that are rude, politically incorrect, or debatable, and “conducting his campaign in ways we’ve not normally seen,” there is no need for news reporters to treat him to objective reporting.

As the gentleman puts it: “It may not always seem fair to Mr. Trump or his supporters. But journalism shouldn’t measure itself against any one campaign’s definition of fairness. It is journalism’s job to be true to the readers and viewers, and true to the facts, in a way that will stand up to history’s judgment. To do anything less would be untenable.”

So … by this standard, which has been honored more in the breach than the observance by the Times for years, Rutenberg justifies the open vilification of Trump’s statements in things written not just by opinion writers but by reporters as well.

It’s as fine a piece of hypocrisy clothed in “journalistic idealism” as you’ll ever see, » Read More

June 14, 2016January 30, 2017 By Patrick Maines

The Overblown Backlash Against Peter Thiel for Destroying Gawker

The news that pro wrestler Hulk Hogan’s lawsuit against Gawker has been financed by Silicon Valley billionaire Peter Thiel has sparked many opinions, some of them erroneous, some duplicitous, and some deeply shameful.

Before providing examples of each, a little background. In 2007, Valleywag, a now-defunct blog site then owned by Gawker Media, outed Thiel, against his express wishes, as a homosexual. Though he is in fact gay, Thiel was angry about this, and angry too about what he saw, and sees, as Gawker’s bullying journalism in its coverage of Silicon Valley’s tech industry.

For some apparent combination of these reasons, Thiel subsequently offered to covertly pay for Hogan’s legal fees in connection with the wrestler’s invasion of privacy suit against Gawker. The gravamen of Hogan’s suit is that Gawker published online a secretly taped video of Hogan having sex with the wife of a friend of his. At trial the jury awarded Hogan $140 million.

So right off the bat a couple of things are clear: Neither Hogan’s lawsuit nor Thiel’s payment of his legal fees are First Amendment issues, despite allegations to that effect in stories published by such as the New York Times. >> Read More

July 15, 2015January 30, 2017 By Patrick Maines

The First Amendment and Free Speech Under Assault

If you’re not alarmed by the assault on the First Amendment and free speech generally, you’re not paying attention.

Consider the list of offenses committed by the government. They range, in recent times, from the Department of Justice’s spying on the phone records of reporters at the Associated Press, to the National Security Administration’s domestic call tracking, and from the IRS’s targeting of conservative nonprofit organizations, to the suggestion by the ranking Democrat on the Federal Elections Commission that political speech on the Internet should be regulated.

Other examples include the Obama Administration’s resistance to Freedom of Information Act requests, as documented in a study by the AP, and the issuance, by the CIA, of a subpoena to James Risen of the New York Times, demanding the identity of one of his confidential sources.

The party-line passage, by the Federal Communications Commission, of its so-called “Net Neutrality” regulations is another example. In addition to inaugurating the regulation of the formerly unregulated Internet, the Title II approach adopted is certain, as FCC Commissioner Pai has warned, to open the door to attempts to use this regulation for purposes that, both intended and unintended, undermine free speech.

The most recent example of governmental speech suppression is the subpoena served on the online version of Reason magazine by the U.S. Attorney’s Office for the Southern District of New York. The subpoena, which for a time came with a gag order, demanded to know the identity of a handful of commenters that, angry about the life sentence handed down to the founder of the drug trading site, Silk Road, wrote denunciations of the judge who presided over the trial.

An example of one of the comments that occasioned the U.S. Attorney’s subpoena for the identification of that commenter: “I hope there is a special place in hell reserved for that horrible woman.”

So there it is. Your taxpayer dollars at work! And not just by a few bureaucrats, but by a veritable army of them: DOJ, NSA, CIA, IRS, FEC, FCC. As Everett Dirksen might have put it, an agency here and an agency there, and pretty soon you’re talking about some real government.

Making matters worse and infinitely more depressing is the assault on free speech being committed by people wielding the bludgeon of political correctness, a concept that from the beginning symbolized the very opposite of free speech.

The venues of choice for the PC speech police are mainly the media (social media especially) and college campuses, and 2014 was a banner year for such stuff.

Take, for instance, the petition generated by two “climate change” groups in February of last year. Having collected 110,000 names, the groups demanded that the Washington Post stop publishing “editorial content denying climate change.” The Post refused, but the Los Angeles Times happily adopted a policy that was similar to what the groups were demanding.

And then, of course, there are the campuses. Last year’s examples of campus “disinvitation” campaigns against speakers such as Ayaan Hirsi Ali, Condoleeza Rice, and Christine Lagarde have been widely chronicled, but the beat goes on.

In its 2015 Spotlight on Speech Codes, the Foundation for Individual Rights in Education (FIRE) found that 54 percent of some 400 public colleges and universities it sampled maintain speech codes that violate the First Amendment.

FIRE’s response to this state of affairs has been to create a free speech litigation program that threatens offending colleges and universities with legal action, and the organization has had some notable successes. But it’s doubtful that legal action alone will put the brakes on a concept that’s never depended on the law for its foundational principles or propagation.

Incubated on campus by activists and ideologues, and disseminated through the media, half-baked theories like “white privilege” and “microaggressions” and practices like “trigger warnings” and “speech codes” need to be challenged in those same venues by arguments based on logic, history, and science.

Absent this, and without congressional action to rein in the out-of-control federal agencies, free speech in the United States is at risk of becoming a dead letter; extant in the Constitution but without force or meaning.

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

January 16, 2015January 30, 2017 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.

July 14, 2014January 30, 2017 By Patrick Maines

The Udall Amendment: When Politics Mean More Than the Constitution

It came as no surprise when, in June, Tom Udall (D-N.M.) and 41 other U.S. senators, Democrats all, proposed a campaign finance amendment to the U.S. Constitution. Ever since the Supreme Court’s Citizens United decision in 2010, Democrats and their surrogates in the media and allied advocacy groups, worried that the case would work to their political disadvantage, have been on a mission to find some way around it.

So what’s the amendment all about? S.J. Resolution 19, as it’s called, proposes to allow Congress to regulate contributions to candidates for federal office, and to extend similar power to the states for candidates running for state office.

Language in the joint resolution avers that it would amend the Constitution “relating to contributions and expenditures intended to affect elections.” But as Floyd Abrams, easily the most distinguished First Amendment expert of our time, said in congressional testimony, the amendment would have been more revealing and accurate if it had said that “it relates to limiting speech intended to affect elections.”

And there, of course, is the rub, since the most highly protected form of speech is political speech. For the Senate sponsors of this amendment to have clearly and unequivocally stated its impact would have required more candor than they possess, and in addition put themselves in direct conflict with the First Amendment, as found in caselaw, and free speech, as understood by people generally.

Given that this amendment stands no chance whatsoever of making it past all the hurdles that stand in the way (2/3 majorities in both the House and Senate, and ratification by 3/4 of the states), one might wonder why the effort is being made, or why anyone should even bother talking about it.

The answer to the first question is that it’s an election stunt meant to rally the Democratic “base,” while the answer to the second is that sponsorship of this amendment shows that when politicians fear for their own, or their party’s, chances at the ballot box, anything, even the trashing of the most important part of the Bill of Rights, is fair play.

Much as the primary villains in this affair are Democrats and their allies, things might not have gone this far but for the shabby reporting and commentary that has come in the wake of the Citizens United decision. As detailed in a piece published in Mediaite by Dan Abrams, even mainstream media like the Washington Post and New York Times have made egregious errors in their references to this case:

But reading the New York Times, Washington Post, and watching MSNBC in particular, it is hardly surprising that the public would be confused. On January 9 (2012), in a front-page piece on the influence of Newt Gingrich supporter Sheldon Adelson, the Times inaccurately reported that Adelson’s $5 million donation to a pro-Gingrich Super PAC “underscores” how the Citizens United case “has made it possible for a wealthy individual to influence an election.” … The opinion, in fact, did nothing of the sort….

The Washington Post has done no better. On January 11 (2012), Dana Milbank, writing of Adelson’s $5 million donation … asserted that it was “the Supreme Court’s Citizens United decision which made such unlimited contributions possible.”

In fact it was the 1976 case, Buckley v. Valeo, which established the right of wealthy individuals to spend unlimited amounts of their own money for independent political speech.

Some critics of Citizens United point out that with this case the Court undid some earlier decisions, most importantly a challenge in 2003 to the so-called McCain-Feingold law (McConnell v. FEC), where the Court narrowly upheld the constitutionality of that law.

But several years before Citizens United, the Court largely nullified a major section of its McCain-Feingold decision when it ruled, in FEC v. Wisconsin Right to Life, that unless an “issue ad” expressly urged the support or defeat of a candidate it was unconstitutional to forbid its airing on TV close to the time of a primary or general election, something forbidden by McCain-Feingold, and the very issue that was at the center of Citizens United.

Finally, many advocates of campaign finance regulations have mocked the Citizens United decision for empowering corporations with First Amendment-protected free speech rights. But in fact the cases that confirmed First Amendment protection for corporations are decades old, most notably Central Hudson in 1980.

It would be possible to have an honest debate about the constitutionality of campaign finance laws, but not when the facts are twisted and the true motives of the disputants hidden from view.

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 by USA Today, on July 13, 2014.