The Biggest Threat To Press Freedom Is The Media Itself

While the outrage over the Covington high school kids in MAGA hats may have blown over online, the story is far from over. On February 1, an attorney retained by the family of Nicholas Sandmann, the 16-year-old who allegedly “smirked” at the Native American activist banging a drum in his face, released a video that succinctly explained the broader context of what happened. Suffice to say, the video is a damning indictment of how many media outlets and personalities led a social media-fueled outrage mob and wrongly rushed to smear Sandmann and his fellow students.

On Monday, Sandmann’s legal team told the Cincinnati Enquirer that more than 50 letters had been sent to various organizations and people that are likely to precede defamation and libel lawsuits. A host of elite media outlets received some of these letters, including The New York Times, Washington Post, CNN, The Atlantic, TMZ, National Public Radio, The Guardian, and Conde Nast. A number of prominent reporters also received letters individually, such as Maggie Haberman, Chuck Todd, Savannah Guthrie, Erin Burnett, David Brooks, and Andrea Mitchell, among others.

Media organizations and reporters have traditionally been given extremely wide latitude by courts in the name of protecting free speech, so at first glance it may seem absurd to sue America’s biggest media organizations en masse for defamation and libel. But for those who have been paying attention, for decades now, courts have been trying to balance privacy concerns with rapidly evolving technology that allows for dissemination of information at a rate that far outpaces editorial judgment. Far from endorsing a maximalist vision of what journalists are allowed to get away with, relevant court decisions have trended toward winnowing the definition of what journalists are allowed to print.

Further, the people wronged by the media in the Covington case were not public figures who have to clear a high legal bar of proving actual malice. They were, in fact, children. Further, a majority of the public distrusts the media — and that distrust didn’t start in 2016, despite the media trying to define this distrust as a wholly Trump-related phenomenon.

To the extent that politicized charges of “fake news” do enter the picture, can anyone honestly say there isn’t good reason to suggest that elite media are overwhelmingly biased against certain political and religious viewpoints? The media response to public anger at the media thus far amounts to little more than a condescending chorus of complaints that half the country doesn’t know “the facts” and lacks the sophistication to appreciate the editorial worldview being foisted on them.

But that flippant dismissal could have painful consequences for the media, because media protections ultimately depend on a societal consensus that they are working in the public interest. Put another way, if you were a lawyer who had to represent CNN and The New York Times in the Covington case, how apprehensive would you be about defending the honor and integrity of the media before a Kentucky jury?

The incident with the Covington high school students could well prove to be a perfect storm that forever reshapes how we view media rights and responsibilities, as well as the consequences of social media mobs. At the bottom of the Covington case is a truth the media don’t want to confront: The greatest threat to First Amendment freedoms might be irresponsible journalists.

Eroding Consensus on Press Freedoms

You don’t have to take my word for it. In 2015, Tulane law professor Amy Gajda wrote “The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.” “In an age when news, entertainment, and new media outlets are constantly pushing the envelope of acceptable content, the consensus over press freedoms is eroding. The First Amendment Bubble examines how unbridled media are endangering the constitutional privileges journalists gained in the past century,” notes the book’s jacket copy.

For decades, judges have generally affirmed that individual privacy takes a back seat to the public’s right to know. But the growth of the Internet and the resulting market pressures on traditional journalism have made it ever harder to distinguish public from private, news from titillation, journalists from provocateurs. Is a television program that outs criminals or a website that posts salacious videos entitled to First Amendment protections based on newsworthiness? U.S. courts are increasingly inclined to answer no, demonstrating new resolve in protecting individuals from invasive media scrutiny and enforcing their own sense of the proper boundaries of news.

Indeed, journalists should be required to read Gajda’s book. If they did, they would probably be mortified to discover that skirting the fringes of libel and defamation has become standard operating procedure for their entire industry.

Ramping up in the 1990s, there was a litany of cases where courts ruled against media on privacy grounds. Some of these cases involve very sympathetic plaintiffs, and one might understand where, say, the distressed mother of a murder victim who did not want to be quoted might be shown deference over Chicago Tribune reporters, as happened in one case. On the other hand, courts also been more than willing to smack the press for violating the privacy rights of people whose behavior might court attention, such as swingers, psychics, women who flash their breasts in public, and men who appear on “To Catch a Predator.”

The simultaneous rise of the internet has caused media to stretch arguments for newsworthiness until they break. In the book, Gajda delves into plenty of legalities involving specific cases, but notes that the cases where newsworthiness has been regularly disputed by courts “can be grouped into five main categories, included here as an overview before a closer look at specific causes of action: (1) those in which the disputed information shows, to this author’s mind, clear newsworthiness; (2) relatedly, those involving information concerning public wrongs; (3) those that seem a response to push-the-envelope media; (4) those involving celebrities in some way; and (5) those involving nudity.”

Now think about how much content online, especially on social media, falls into one or more of those categories where the “newsworthiness” is far from clear. And it’s not like there haven’t been warning signs that juries are more than willing to put entire media organizations on blast.

Gajda spends a fair amount of her book discussing various controversies involving the website Gawker—again, the publication was called “Gawker” as if announcing it specialized in exactly the kind of content that courts found increasingly hard to justify. At the time “The First Amendment Bubble” was published, the lawsuit over their decision to publish Hulk Hogan’s sex tape, which was filmed without his knowledge, had yet to be resolved.

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