Libel law and Donald Trump

This is not a political post about Donald Trump.

Trump today threatened to sue The New York Times over a story accusing him of sexual misconduct of two women in the past. Trump is threatening to sue The Times for libel.

As someone who is teaching media law this semester, I can tell you that Trump will face a very tough road in this lawsuit. It will be very hard, if not impossible, for him to win.

To win a libel lawsuit, a public figure like Trump needs to prove four things: publication, identification, defamation and actual malice. Let's look at all four:

Publication: The plaintiff must show that the item was published to at least one other person aside from themselves and the defendant. Trump's got this one, since it was a story in The New York Times.

Identification: The plaintiff must show that the item is of and pertaining to them. Again, Trump's got this one since it's very clearly about him.

Defamation: The plaintiff must show that the article contained a false statement of fact that injured their reputation. And here's where Trump's case could start falling apart. Because the statements have to be false. If they are true, there is no defamation. If there's no defamation, there's no libel.

Here's a key point in libel law, and it comes from the Supreme Court case Times v. Sullivan. Everyone always focuses on the "actual malice" part of that ruling (more on that below), but the court also changed the burden of proof in libel cases. Now, the burden of proof is on the plaintiff. That means that Donald Trump has to prove these allegations are false (rather than the defendants having to prove that the allegations are true).

That is a huge bar for Trump to clear to win.

Actual Malice: This is the big one from Times v. Sullivan. Trump has to prove that The Times printed the stories either knowing they were false or with a reckless disregard for the truth. In other words, they didn't even try to verify the veracity of the allegations, they didn't care, they wrote the story anyway.

Trump's lawyers (if the suit actually happens) will probably try to argue the fact that the story was published less than a month before the election is proof of this. But the actual story in The Times shows that they attempted to corroborate the women's allegations and they reached out to Trump for comment. That, on the face of it, does not appear to constitute actual malice.

The point of the ruling is that it should be very hard for public officials (and public figures) to win a libel suit. Which is the case for Trump here. If he goes through with the lawsuit, it will be incredibly hard — if not impossible — for him to win.

How the Jason Pierre-Paul lawsuit could change sports journalism

One of the most interesting ongoing stories in sports journalism is the lawsuit between Jason Pierre-Paul and Adam Schefter.

Schefter, you'll remember, tweeted a picture of Pierre-Paul's X-rays after the Giants' star blew off part of his hand with fireworks. Recently, a Florida court dismissed ESPN's motion to dismiss the case.

On its own, that means nothing. It simply means the case will continue in courts, that it isn't being thrown out before it starts. But this is a case that has the potential to reshape the perception and practice of sports journalism.

Writing about the case on Deadspin, Kevin Draper compared the lawsuit to the one that Pete Thiel used to drive Gawker into bankruptcy.

Now, as the powerful seek to operate unchecked, the courts are opening up the question of whether it’s even legal to publish true things about public figures.

The core issue of the case lies in two areas of media law — privacy and newsgathering.

ESPN's defense is pretty straightforward. I wrote about it when the story first broke. Essentially, the argument is that Shefter did not break the law by publishing the picture. Even if the picture was illegally proivided to Schefter, he can still publish it. The Supreme Court has held that journalists can publish material that was illegally obtained by a third party — provided the journalists themselves did not break the law to obtain it. This comes from the case Bartnicki v. Vopper. This is the case that provides the New York Times with a legal defense for publishing Donald Trump's tax returns a few weeks ago.

Pretty straightforward.

Except …

Except this is an invasion of privacy lawsuit. The general area that Pierre-Paul is suing under is the publication of private facts. This is where a plaintiff claims that the defendant published private, intimate facts that would be highly embarassing to a reasonable person and are not of legitimate public concern. (emphasis added)

Defenses for this tort include if the information was lawfully obtained (a question, given that they are private medical records), public records (not the case here) or of public significance.

And here's where it gets interesting.

Is a football player's injury of public significance?

For us in the sports world, this doesn't even seem like a question. Of course it is. Jason-Pierre Paul was a star player on a major-market team. His blowing off several fingers in a freak fireworks accident is clearly signficant. Publishing documents is an important part of journalism, and ruling against it could lead to a chilling effect among reporters. From Draper:

If Pierre-Paul’s charts are off limits, or even conceivably off limits, where does the boundary fall now? The mere existence of the case puts journalists on notice that facts and documents, the basic materials of the job, might be unsafe to use. Forty years of what seemed to be established media law are suddenly being reopened.

But will the Florida courts agree? Will they see publication of the picture not as an essential act of journalism but as a careless, reckless move? Will they see this injury not as something of public significance but rather as a trifling story about sports — something from the toy department?

(This is, in a sense, the core of the issue in the Hogan-Gawker case. Was Hulk Hogan's sex tape a matter of legitimate public concern?)

In a sense, this case could give legal weight to the question of how "signifcant" sports news and sports journalism area. If a federal court rules that sports news is not "publicly significant" enough to warrent protection under privacy law, that is potentially frightning. That could have a massive chilling effect on future sports journalism.

SMG Weekly (A newsletter)

Newsletters are a big deal in the online journalism world.

As part of an ongoing experiment here (and looking ahead to my online journalism class in the spring, when students will be required to keep one), I've started SMG Weekly. Subscribers get links to all of posts here, podcasts I publish, and links to the best stories I've read.

Subscribe here, and follow along with the experiment:

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RIP Jaws: Remembering Charlie Jaworski

The news began to trickle through the old network late Monday afternoon.

A flurry of text messages. A few messages through Facebook. A tweet here, a post here. The old newsroom from Vestal Parkway coming back together in a digital world, hearing unexpected and horribly sad news.

Charlie Jaworski, the former longtime sports editor of the Press & Sun-Bulletin in Binghamton, my old editor, had died unexpectedly.

A life lived in journalism is one that's inextricably linked to certain people. For me, one of those people was Charlie Jaworski.

Charlie hired me from Olean in 2004. He had wanted to hire me a few years earlier for a high-school beat job, but I passed on that one. Life works out funny, because two years later, he did hire me to cover Binghamton University basketball. A year later, he trusted me with the Binghamton Mets beat. He was my boss until the day I left for grad school in 2009.

Charlie was a legend in the Southern Tier. He covered Binghamton hockey back in the 1970s, in the league that provided the basis for Slap Shot. He ran the annual Press Doubles bowling tournament like a dedicated father. He knew everyone and everything. He was respected, even by the people who disagreed with him. He was the best kind of old-school newspaper guy - the one with stories for days.

He was one of the best line editors I worked with. Very quickly, I started to hear Charlie's voice in my head as I wrote and reported stories, anticipating the holes and questions he'd find in my stories and trying to answer them before filing. I may never have been a great reporter, but he made me a better one.

Oh, he could be infuriating to work with. He had his way of doing things, and woe to anyone who messed with his system. When editing a story, he had a habit of calling (either by phone or across the newsroom) every time he had a question, rather than waiting until the end of the story with a list. He could drive you mad asking questions that he could just as easily Googled himself. One of my favorite things to do, when he'd call exasperated with a question, would be to say "read to the end of the sentence, Charlie." He'd pause, see that the information he wanted was after a line break, and said "OK, bye."

He could be tough. He had high standards, and held you to them. If your work slipped, he'd call you into his office, in a hallway just off the sports department, and give you hell for it. But at the same time, if you told him you were slipping up because of a crisis at home, he would instantly switch into a compassionate person. He did his best to protect the department during the endless layoffs in 2007-2009. He cared about his guys. We invited him to our wedding, on a football Saturday, and he came.

And Charlie worked. God, did he work. I never, in five years, beat him to the office on a Saturday afternoon. I never stayed later than he did. I've never met anyone in the business with the work ethic Charlie Jaworski had.

And he worked because he cared. God, did he care. He wanted his sports section to be the best it could be. He loved talking about The Chase - those moments when you are tracking down a hot story, calling people, piecing it together, the cliche moments you've seen a thousand times in the movies. Those moments of working the phones, talking to people, finding the story, that's what we live for in this business, and Charlie embodied that.

Charlie made me a better writer, a better reporter. And because he hired me in Binghamton, he made it possible for me to meet my wife.

He was old school in the best possible way. He was a newspaper guy, but he knew the industry was going digital and did the best he could. He respected the digital side, even if he was at home in print.

If you worked hard and cared, Jaws had your back.

That loyalty, that work ethic, that caring, is what made Charlie Jaworski one of the best editors a reporter could have had.

Ken Rosenthal's amazingly professional apology

The baseball trade deadline always seems to bring out some rough sports journalism.

Last year, it was the Wilmer Flores trade that wasn't. This year, it was Yasiel Puig's non-storming out of the Dodger's clubhouse.

John Cheney used to say that on defense, as in life, you are going to make mistakes, and that the key is how you recover.

By that measure, Ken Rosenthal set a standard by which all journalists should be held.

To quickly recap: Rosenthal incorrectly reported that Puig stormed out of the Dodgers' clubhouse on the day of the trade deadline. In fact, Puig had been told to stay home and wasn't at the stadium. Along with correcting the story, he issued a series of Tweets explaining the first report:

There's a to learn from Rosenthal's apology. It's an actual apology. He could have done what Chris Broussard and so many other reporters have done, and fallen back on the "my sources told me something, and I reported it" non-apology. He didn't. He said his story was wrong. He explained what happened (sources told him wrong information). He took responsibility for what he reported and for his mistake.

Most importantly, he corrected the story.

From Barry Petchesky:

Fans and readers should demand Rosenthal’s brand of pellucidity out of all reporters, because infallibility isn’t realistic: getting things occasionally wrong is the cost of doing business. The key is being confident enough to embrace your fuck-ups.

Look, mistakes are going to happen. Every reporter makes them. They get accelerated and accentuated these days because of social media. You're reporting live right now, so mistakes are more likely. The key is how you recover.

Rosenthal showed how a pro recovered.