NYT’s Libel Defense: No Need for Opinion/Fact Labeling


In 1964, the New York Times was party to a landmark Supreme Court case that bore its name. New York Times v. Sullivan was an important victory for civil rights and it established broad protections against libel lawsuits that have protected generations of journalists. Today, the Times finds itself fending off libel lawsuits by making legal arguments that undermine the entire concept of factual reporting, and notable judges are now citing politically motivated hostility and eroding journalism standards as justification for rolling back the generous libel protections established over 50 years ago.

A New York state Supreme Court judge rebuked the Times last week for pioneering a novel defense against libel. The paper is now asserting it is entitled to assert opinions in news stories, without labeling or distinguishing the opinion from fact.

Last September, Project Veritas — a conservative journalism outfit known for doing undercover and hidden-camera investigations — released video purporting to expose an illegal vote brokering scheme. The story was centered on Minneapolis’ Somali immigrant community in the congressional district of controversial Democrat Ilhan Omar. In the videos, a Somali man recounts a scheme where men go door to door with absentee ballot paperwork, telling voters, “This year, you will vote for Ilhan. … When we sign the voting document and they fill it out is when they give us the money.”

In news stories last autumn, the Times called the report by Project Veritas “deceptive,” “disinformation,” and “false.” Project Veritas responded by suing the Times and two of its reporters, Maggie Astor and Tiffany Hsu, for defamation.

The Times’ initial coverage of the Project Veritas report began with this sentence: “A deceptive video released on Sunday by the conservative activist James O’Keefe, which claimed through unidentified sources and with no verifiable evidence that Representative Ilhan Omar’s campaign had collected ballots illegally, was probably part of a coordinated disinformation effort, according to researchers at Stanford University.”

The Times published another article in October, noting that “conservative publications magnified the reach of a deceptive video released last month by Project Veritas, a group run by the conservative activist James O’Keefe.” A total of five Times’ stories are cited in the lawsuit, though that number appears to include differing print and online versions of the same stories.

“Astor and Hsu were driven by resentment and journalistic competitiveness after NYT’s ‘much-hyped story’ about President Trump’s tax returns was upstaged by Veritas’ video report, as well as by ‘their own political biases against Veritas’ perceived right-leanings,’ so they set out to discredit Veritas’ reporting,” wrote Judge Charles D. Wood, summarizing the complaint.

Project Veritas’ claim that the Times was upset with it for upstaging the paper’s report on Trump’s taxes isn’t mere conjecture. The Times’ initial story accused O’Keefe (pictured) of trying to distract from its report on Trump’s taxes in the second paragraph: “Mr. O’Keefe and his group, Project Veritas, appear to have made an abrupt decision to release the video sooner than planned after The New York Times published a sweeping investigation of President Trump’s taxes, the researchers said.”

The Times’ responded to the defamation suit by asking for it to be dismissed on multiple grounds, including the notion that some of the most damning accusations the paper leveled at Project Veritas in its news stories were really matters of opinion. “In part, Defendants argue that their statements describing Veritas’ Video as ‘deceptive,’ ‘false,’ and ‘without evidence’ were mere opinion incapable of being judged true or false,” observes Wood in his opinion rejecting the motion for dismissal.

This isn’t the first time the paper has defended potentially defamatory reporting by claiming it is opinion ex post facto. The Times employed this defense successfully in federal court last year. In Peter Brimelow v. The New York Times Company, it was sued for calling an editor at VDARE, an immigration website accused of publishing racist material, an “open white nationalist” before stealth editing the article to merely calling him a “white nationalist.” Brimelow denies he’s a white nationalist.

The judge in that case, Katherine Polk Failla of the Southern District of New York, noted the news outlet’s defense of its description of Brimelow was that the term “constitute[s] nonactionable statements of opinion rather than false statements of fact.”

A key assertion of Brimelow’s was that the article allegedly defaming him appeared in the news section, not the opinion section, which Failla rejected. “The Court does not agree that the analysis is this simple,” she wrote. “By the Court’s reading, the overall tone of the January Article indicates that it is meant as commentary rather than straight news. The article clearly conveys a particular perspective about Congressman King and his views; one need not look any further than the headline’s reference to ‘racist remarks and divisive actions,’” the judge added. “Thus, a reasonable reader would understand that the January Article provides opinion as well as facts.” Failla dismissed Brimelow’s case in December, noting that other courts have argued for adopting a “holistic approach” and a close scrutiny of the context in which the assertions were made.

While Judge Wood acknowledged the Brimelow case and the need to evaluate context, he noted that readers of the Times have other reasons to expect they are not reading opinion in the news section. “Veritas contends that NYT’s own ethical policies — which NYT publishes on its website — prohibit news reporters from injecting their subjective opinions into news stories published by NYT, and thus a reasonable reader would expect a news reporter’s statements to be assertions of fact and not opinion,” he wrote.

Wood proceeded to issue a withering condemnation of the Times’ argument. “If a writer interjects an opinion in a news article (and will seek to claim legal protections as opinion) it stands to reason that the writer should have an obligation to alert the reader, including a court that may need to determine whether it is fact or opinion, that it is opinion,” he wrote. “The Articles that are the subject of this action called the Video ‘deceptive,’ but the dictionary definitions of ‘disinformation’ and ‘deceptive’ provided by defendants’ counsel, certainly apply to Astor’s and Hsu’s failure to note that they injected their opinions in news articles, as they now claim.”

Despite calling Project Veritas’ report “deceptive” and “disinformation,” the Times’ reporting did not actually disprove any of the specific allegations in the report. Instead, Astor quoted third-party sources saying that the nature and timing of the report made it similar to disinformation campaigns.

“It’s a great example of what a coordinated disinformation campaign looks like: pre-seeding the ground and then simultaneously hitting from a bunch of different accounts at once,” Alex Stamos, Stanford academic who studies disinformation, was quoted as saying in Astor’s article, headlined “Project Veritas Video Was a ‘Coordinated Disinformation Campaign,’ Researchers Say.”

In response, Judge Wood observed that the paper made insufficient distinctions between declaring something disinformation and quoting a subjective expert suggesting the way information was presented merely gave it the appearance of disinformation.

“Likewise, Defendants now appear to assert that the promotion of the video was where the deception was,” Wood wrote. “But there is a difference between viewing a disappointing ‘fight of the century’ and reporting that it was not worth the Pay per-View fee or did not live up to the hype, and reporting to the public that Pay-per-View knowingly marketed a fight that was fixed. Plaintiff is entitled to try to establish whether NYT’s writers were purposely and/or recklessly inaccurate, or whether they were inaccurate, sloppy, or something less.”

Wood also was unimpressed by the Times’ contention that Project Veritas’ defamation charges amounted to a nuisance lawsuit that should be rejected as a violation of strategic lawsuit against public participation (SLAPP) laws. “Here, one of the largest newspapers in the world since Abraham Lincoln was engaged in the private practice of law is claiming protections from an upstart competitor armed with a cell phone and a web site,” he wrote.

Wood isn’t the only judge suggesting the press is getting complacent about defamation and libel. The same week that Wood rebuked the Times, the D.C. Circuit Court of Appeals ruled a human rights group was not guilty of libeling two Liberian officials accused of taking bribes. The court determined it could not be proven the defendants were guilty of being motivated by “actual malice,” the libel standard established by the landmark 1964 Supreme Court case New York Times v. Sullivan.

Federal Judge Laurence Silberman issued a blistering dissent in the case and called for reevaluating the malice standard.

“The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness — if not eagerness — to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power,” Silberman wrote. He favorably cited similar remarks made by Supreme Court justice Clarence Thomas in 2019 about the need to reassess the libel standards.

The New York Times is also currently dealing with ongoing libel lawsuit from former Alaska governor and vice presidential candidate Sarah Palin. Before being corrected, a 2017 editorial in the paper stated that “the link to political incitement [from Palin] was clear” in the 2011 shooting of congresswoman Gabby Giffords, when in fact there’s no proof the shooter, a severely mentally ill man of no known political affiliation, was aware of any of Palin’s allegedly inciteful rhetoric. A federal judge ordered a jury trial in the Palin case in August.    

Mark Hemingway is a writer in Alexandria, Va. You can follow him on twitter @heminator.

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