January 13, 2017

"When ‘there is serious reason to doubt’ rumors and allegations, is it libelous to publish them?"

"[I]s the publisher free to publish them on the theory that it is accurately reporting what has been alleged, even if the allegations are not accurate?"

Eugene Volokh does the legal analysis. It's complicated. You have to understand the republication rule, the “absence of malice” standard, the fair report privilege, the neutral reportage privilege, and 47 U.S.C. § 230.
[T]he legal result would turn heavily on (at least) two contested questions — whether the jurisdiction recognizes the neutral reportage privilege and would apply it to this situation, and whether § 230 is read broadly when applied to a news site’s publishing particular material that it itself has deliberately chosen.

60 comments:

tds said...

if you're a journalist, and what you want to publish reeks of confirmation bias on your side, don't.

EsoxLucius said...

Republotards should enter the Olympics with all the back flipping they're doing in the month between "Hillary is on death's door" and ladyfinger's golden showers. So fake news is all right as long as it suits you.

FullMoon said...

Any other Republican would be lax in response, putting out a news brief, sending surrogates to talk shows. Trump gets on twitter and meets them head on. The lies are damaging, though because millions of people only get news on the radio on the drive to and from work, or at dinnertime.

Lem said...

Sounds like you would need Thiels pockets...

Thiel tweeted: #BuzzFeed, you saw what I did to Gawker. You are next.

FullMoon said...

EsoxLucius said...

Republotards should enter the Olympics with all the back flipping they're doing in the month between "Hillary is on death's door" and ladyfinger's golden showers. So fake news is all right as long as it suits you.


Hurts, don't it?

Rae said...

You know trolls, they make ointment for butt hurt.

Big Mike said...

When it comes to Donald Trump neither Buzzfeed nor CNN can employ the "absence of malice" defense.

Matthew Sablan said...

"if you're a journalist, and what you want to publish reeks of confirmation bias on your side, don't."

-- If it is too good to be true, it probably isn't.

Nonapod said...

I have no idea what the legal ramifications are, but it seems to me that if you want to be considered a "serious source for news" you should probably avoid publishing anything that doesn't seem to be completely solid. Maybe I'm being a bit too reductive but it just seems like common sense. There's more than enough of these shady websites, purveyors of real fake news, conspiracy theorist sites, rumor mills, and blogs of one sort or another that will print just about anything. Logically there should also be sites that at least make an effort to only report reasonably verifiable stuff.

Of course the problem goes beyond just standard confirmation bias. It's just human nature for people to click on a headline that's more salacious in nature, and clicks = money, therefor online publishers are often desperate for clicks.

Hagar said...

Repeat.
The 35 page "dossier" (dossier is just French for "file") on Trump in Moscow had been around since last June, but no one even in the MSM would touch it as being obviously "fake news."
So, someone - apparently the FBI - makes up a 2 page summary and hands it to Trump as part of a "briefing," which makes it a news story, and the MSM can at least hint at the full 35 page "dossier" and claim they did not say that, they are only reporting on what those other publications of dubious repute have said.

It is war.

I just love that phrase, "deep state."

Fernandinande said...

Lem said...
Thiel tweeted: #BuzzFeed, you saw what I did to Gawker. You are next.


That's a fake account, "Thiel3X": https://twitter.com/thiel3x
"For real Thiel follow @PeterThiel"

wildswan said...

"Logically there should also be sites that at least make an effort to only report reasonably verifiable stuff."

True, but the MainSlimeNews specifically went into "active objectivity" last summer so they aren't working on a "reasonably verifiable stuff" standard. When you add in the clickbait motive and the blacklist presence, I think we have to declare them totally compromised. And Trump has taken their measure. That is what is needed - that the President elected understand the opposition. Over time other sources will emerge or the MainSlime will get over their tantrum and move back toward objectivity - if only to hold market share.

mockturtle said...
This comment has been removed by the author.
mockturtle said...

Hedda Hopper or Louella Parsons never let concern for rumors and innuendo stand in the way of an item. But no one really took them seriously. Just as few of us take the MSM seriously any more.

Lem said...

Yikes... not the last time I'll be had. Thanks

wildswan said...

As for libel - isn't "political enemies seeking sleazy, unverified rumors from a known disinformation source" almost the definition of "malice"?

Chuck said...

EsoxLucius said...
Republotards should enter the Olympics with all the back flipping they're doing in the month between "Hillary is on death's door" and ladyfinger's golden showers. So fake news is all right as long as it suits you.

And the murder of Vince Foster...

And the child sex ring being run out of the pizza parlor...

And the fake birth certificate of Barack Obama...

And the "medical technician" posing as security for Mrs. Clinton, following her with a giant syringe...

ALL of which have been floated on the Althouse.blogspot.com comments pages.

Chuck said...

Big Mike said...
When it comes to Donald Trump neither Buzzfeed nor CNN can employ the "absence of malice" defense.

And when it comes to bullshit stories, Donald Trump cannot avoid the "turnabout is fair play" charge.

PaoloP said...

"When ‘there is serious reason to doubt’ rumors and allegations, is it libelous to publish them?"

You can't complain with "fake news" and, when it's advantageous for your side, invoke the right to spread "fake news" (or the right to do that because some other newspaper already did).

Day one: "We are a serious journal; we check our news; we are not like the birthers, not like Breibart; we don't even discuss Planned Parenthood videos because we're not 1000% sure absolutely all photo-frames are there. Our public deserves that we "protect the Truth' (M. Streep)".

Day two: "This document about possible Trump's misbehavior could be very important: he is our President! we have a duty to inform our public! Besides: the BBC already wrote about it! Our public deserves that we 'protect the Truth' (M. Steep)".

Fabi said...

Chuck rushes to defend the Clintons and Obama and then trashes Trump. Unexpectedly.

Christy said...

Even Fox had media experts, all of whom, claimed CNN did no wrong. Made me think all those reporters wanted to keep the option of going to work for CNN one day.

Let's see if I understand correctly: Russia makes sure a vile dossier is developed and sent to various government officials. Buzzfeed publishes it, and CNN puts up a big ole flashing sign pointing to it. CNN looks to be a tool of the Russians. I don't care what the legalities are, I no longer believe any media.

StephenFearby said...

Buzzfeed's Ben Smith channeling Nancy Pelosi.

"We have to [publish] pass the [dossier] bill so that you can find out what is in it, away from the fog of the controversy.”

Smith gave Trump the best inauguration present he could possibly receive. A first rate made up National Enquirer story (along the lines of "Cruz's father may have been an accomplice of Oswald in JFK's assassination")...but in this case, giving credence to the equally fictional "Trump is a compromised stooge of Putin".

Certainly made the building meme of "Hilary lost the election because Russia hacked Podesta and the DNC suddenly go away.

Now Trump gets to pass the guilt (with considerable relish) instead of being the recipient.

Michael K said...

all the back flipping they're doing in the month between "Hillary is on death's door" and ladyfinger's golden showers.

The trolls are out. DNC briefing this morning ?

Did you notice Hillary stumbling coming out of the restaurant this week?

She is not well, unless of course she was drunk.

Fernandinande said...

Lem said...
Yikes... not the last time I'll be had. Thanks


Ha ha, you're as dumb as me. I fell for the fake North Korean twittings because it was so similar to the real one, which seems to be dead.

traditionalguy said...

Chuck is one of us. @1:50 he listed the top secrets that Hillary has accumulated, and then he pretends not to believe them. Good Scott Adams like work there, Chuckie.

Let's discuss how much of each one of them is true.

Krumhorn said...

The problem with the neutral report privilege in the BuzzFeed publication, apart from the anonymity of the source, is that the public policy foundation of the privilege is that airing the details of the allegation is necessary so that the public can properly measure the influence on the official performance of the plaintiff.

So, for example, had BuzzFeed published a report, even if likely false, that Trump had traded a particular security based on insider information, it might be justified in order to audit his official acts to see if he is either returning the favor or benefiting from the trade. However, publication of reports of kinky sex do not require details. The only purpose BuzzFeed had in publishing the report was to promulgate the salacious details and for no other purpose. And beyond the odor of urine, the salacious details in this case literally stink of librul snark.

But this is how the lefties roll.

- Krumhorn

Larry J said...

You have to understand the republication rule

Is that the one where "journalists" are free to say any thing they want about Republicans because "screw them"? If it's not, it ought to be.

n.n said...

Internally, externally, and mutually consistent with the Pro-Choice (i.e. selective, opportunistic) philosophy.

Drago said...

Christy: "Even Fox had media experts, all of whom, claimed CNN did no wrong. Made me think all those reporters wanted to keep the option of going to work for CNN one day."

This is understandable given the fig leaf CNN constructed.

If the reports of Biden and Obama asking why such material made its way into their briefings (and that is what Biden and Obama have been reported saying about this material), it would indicate after lo these many years that it was out of the ordinary for these types of briefings.

So what we have is this: The material is floating around forever and all the MSM-ers know it AND time is running out to use the Obama/dem created executive organization to make use of it.

Again, TIME IS RUNNING OUT!

So how do you get this stuff "out there"?

You get the briefers to include the nothingburger as an addendum at the end, very quickly go over it as "hey, there's this crazy disinformation out there and you guys should totes take it seriously".

After the briefing, one of the participants dials up CNN and says "hey man, this crazy salacious stuff was part of an "Official Briefing to the POTUS and PEOTUS"!!eleventy!!

CNN reports out that the highest intel officials were in on this briefing and that this (insert fancy, cool and cloak/dagger type terms "dossier" and/or "Kompromat" in the CNN feed), was in the report, call on Carl Bernstein et al to talk about how this is another Watergate!!

Make sure the reporting continues to go to DEFCON1 all day and night long, make sure all your panels are 7 to 1 MSM+lefty vs anyone else and speak as if it is all true or so very very very likely that OMG everyone in the Intel world is running with it.

Of course, at no time does CNN tell you what this salacious material is.

My goodness no, that would be "Bad Journalism"!

No, all you do is tell everyone that there is some incredible, unbelievable, amazing, astonishing stuff "out there" (hint hint you can find it at BuzzFeed!) but CNN is above all that!

And lo and behold BuzzFeed launches all 35 pages of this nonsense even while admitting many items are false and that nothing has been verified!!

Success all around!! BuzzFeed is the garbage dump and CNN, not the garbage dump, is merely the SuperHighway constructed to take everyone to the garbage dump. But NOT the garbage dump mind you, oh no. Not the actual dump itself.

Of course we all see that there are multiple investigations kicked off by the dems, being run by the dems and will no doubt cook the books for the dems (Gorelick on the 9-11 commission? Ring a bell? Nothing wrong with that, eh?).

And the dems are now saying that none of these people can be replaced. Why, it would be another Saturday Night Massacre!! Watergate!! But those were republican appointees, not holdover dems seeking to overturn the election.

Trump should fire every one of them, including fatboy over at the OGE.

mccullough said...

I agree with Volokh that when it comes to public figures, the neutral reportage should apply. It's relevant news that the CIA provided this information to Trump. even if it's unsubstantiated. The CIA and FBI should not report intelligence rumors or gossip to the president, even if it is about him.

But by putting it out there, the news media is dancing on the end of the strings Putin pulls. Just as he pulled off Snowden and the DNC/Podesta hacking, he pulled this off.

Unknown said...

Reminds me of Trump's tweet about Ted Cruz's daddy and a JFK assassination connection. Trump said he simply passed it along because the National Enquirer ran a story on it.

Unknown said...

How about a Trump still publicly saying the Central Park 5 are guilty, even after it was proven they were innocent.

HoodlumDoodlum said...

Chuck said...ALL of which have been floated on the Althouse.blogspot.com comments pages.
Yep, good one, Chuck: it's perfectly rational to expect the same ethical standards of a "major news outlet/of journalist" as one does for random commenters on a public website.
Total equivalent, man. You're 100% not making yourself seem silly here, no sir.

Unknown said...

How about Trump asking how that pillow got on top of Scalia's face?

Unknown said...

How about all those millions of people who voted illegally?

Unknown said...

How about vaccines causing autism?

Unknown said...

How about Trump not releasing his taxes because he's under audit? Has he shown proof of being under audit? Fake stories, lots of them.

Michael K said...

" apart from the anonymity of the source, "

Kim Strassel has outed the source,

We traced this investigator to an opposition-research chop shop called Fusion GPS.

Fusion is run by a former Wall Street Journal reporter, Glenn Simpson. When we asked how he could justify dumpster-diving into the divorce records of private citizens, he said only that Mr. VanderSloot was a “legitimate” target. He refused to tell us who’d paid him to do this slumming, and federal records didn’t show any payments to Fusion from prominent Democratic groups or campaigns. The money may well have been washed through third-party groups.

Why does this matter? Guess who is behind that dossier against Mr. Trump: Fusion GPS. A Republican donor who opposed Mr. Trump during the primaries hired Fusion to create a file on “the real estate magnate’s past scandals and weaknesses,” according to the New York Times. After Mr. Trump won the GOP race, that donor pulled the plug. Fusion then seamlessly made its product available to “new clients”—liberals supporting Hillary Clinton. Moreover, it stooped to lower tactics, hiring a former British spook to help tie Mr. Trump to the Russians. (Fusion GPS did not respond to a request for comment.)


Unknown is working on an orgasm. Try to be more quiet, Inga.

Kyzernick said...

"How about a Trump still publicly saying the Central Park 5 are guilty, even after it was proven they were innocent."

That word "proven" is doing a lot of work.


"How about Trump asking how that pillow got on top of Scalia's face?"

Lots of people were asking that. The person who made those pillow-related statements to the media phrased it poorly and made it seem as though foul play was a real possibility.


"How about all those millions of people who voted illegally?"

They're licking their wounds and hoping not to get deported so they can do it again next time.


"How about vaccines causing autism?"

How about prominent liberals, alongside some on the Right, consider this a possiblity that ought to be investigated more than it already has? I'm not one of them, but this idea is one with plenty of backers from both parties.


"How about Trump not releasing his taxes because he's under audit? Has he shown proof of being under audit? Fake stories, lots of them"

How about Obama not releasing his transcripts but all of his supporters claim he's brilliant despite never publishing a damn thing while President of Harvard Law Review, which is even more unprecedented than a Presidential candidate not releasing tax returns?

Kyzernick said...

"Unknown is working on an orgasm. Try to be more quiet, Inga."

Normally the sound of a female approaching climax is quite a thrill. With Unknown, it's just wrong.

Unknown said...

Don't be jealous Michael K.

HoodlumDoodlum said...

Unknown said...How about all those millions of people who voted illegally?

How about it? Are you dense? By Ben Smith's standard that's a story the Media should run. "Many high ranking people are discussing rumors that millions of people may have voted illegally." You should be calling for investigations to find out the truth of those rumors, right? Some people are saying it, and so far there's no proof it ISN'T true, so by the dumbass standard you guys are now embracing it's a legitimate story.

Right? Are you TRYING to attack your own argument, or are you just typing faster than you an think?

Unknown said...

Ben Smith, 'nuff said. It stands to reason that millions of people did not vote illegally. Speaking of fake news, fake unrealistic ideas.....

Unknown said...

It stands to reason, by Trump's own personal history, the Golden Showers story is closer to truth than the millions of people voting illegally.

Jay Elink said...

Unknown said...
It stands to reason, by Trump's own personal history, the Golden Showers story is closer to truth than the millions of people voting illegally.

**************


BWAAAAhahahha!

"Stands to reason"!!!

BWAAAAhahahahhahaa!

Jay Elink said...

Unknown said, .... or are you just typing faster than you can think?

***************

No one will ever, EVER accuse you of that, Unknown.

Jay Elink said...

Unknown said...
How about a Trump still publicly saying the Central Park 5 are guilty, even after it was proven they were innocent.
************************************

No criminal case "proves" innocence.

You're a dull tool, man. A clam knife in a drawer full of knives.

Unknown said...

Reason in short supply here, I see.

Kyzernick said...

Unknown has already forgotten about the voting irregularities in Democratic districts in Michigan, I see. If California would allow an investigation, I'm damn sure we'd find at least half a million people voted illegally, be they illegal immigrants or felons who've never bothered to get their voting rights restored (there is a legal way to do it for all but the most violent criminals). If that number reached the millions, I would not be surprised.

Drago said...

Unknown: "Reason in short supply here, I see"

Thank goodness you had the good sense to post but one line thereby not adding to the reason deficit problem.

Drago said...

Kyzernick: "Unknown has already forgotten about the voting irregularities in Democratic districts in Michigan,..."

There is nothing "irregular" about the voting patterns in dem precincts in MI from the dem point of view!

Where do you think they get all the extras for "The Walking Dead"?

Drago said...

HoodlumDoodlum: "How about it? Are you dense? By Ben Smith's standard that's a story the Media should run."

By the lefts and the Deep States standard that ought to be briefed to the POTUS!

Drago said...

I must say that the performance of the entire left provides almost limitless encouragement to the Republicans and conservatives for 2020 already.

An utter and complete inability to analyze factually what has occurred, what is occurring and then how to adapt to it.

It's as if Hillary et al decided to bring in Maduros advisors for guidance!

Fantastic.

Bruce Hayden said...

Love it when EV deconstructs something like this. My personal biases, having gone out bar hopping in Austin a couple of times, but he does know his stuff.

Bruce Hayden said...

Sorry, it wasn't that I went out bar hopping, but that EV was along. A mutual friend, Mark Lemley, would put on yearly cyberlaw CLE conferences, and we would both speak there.

Bob Loblaw said...

I have no idea what the legal ramifications are, but it seems to me that if you want to be considered a "serious source for news" you should probably avoid publishing anything that doesn't seem to be completely solid.

That's true, but you have to pay the bills, too, and if you keep getting scooped by the competition you won't be able to. The entire business is in a state of flux, and it's not clear what the viable business model is for serious news. Jeff Jarvis at Buzzmachine used to to cover that end of it pretty well, though I haven't been by in some time.

Michael K said...

"Don't be jealous Michael K."

How come I can never tell when you have an orgasm ?

Because you are never here.

EsoxLucius said...

I can't be the only one just thinking Trump's fetish, even if it isn't true, is perfect for his four year old temper. Like Catherine the Great and the horse or Nero and the fiddle, it wraps him up in a tiny bow. Now that it's obvious that he doesn't have a philanthropic bone in his body, somebody must answer why he ran knowing all this was going to come out? The question Rodger Mudd asked Ted Kennedy in 1980: Why do you want to be President?

BJM said...

Buzzfeed is not a news site, as it's name implies, it's a link consolidator, and one would think that Ben Smith's problem (and perhaps CNN too), isn't Trump, but Michael Cohen who is not a public figure.

Martin said...

I may be a tiny minority. I was outraged at BuzzFeed until I watched the 11:30 CNN piece that led to it. That CNN segment was so scurrilous in using innuendo and clever phrasing to lead the viewer to think there was this credible dossier full of material demonstrating that Trump had made a corrupt deal with Putin, that putting the actual material out for people to see may in fact have been, if not wholly legitimate, at least understandable. Go look at that CNN segment and then imagine if that had been the last word, and we had never seen how ridiculous the material in question really is. And ask yourself about CNN's motivation

I am not saying BuzzFeed was right, but that there is an argument that they were not entirely wrong, once CNN did what it did.

Everyone wants to talk to Chris Steele, former MI6 person supposedly responsible for the material. Well, I want Jake Tapper to explain himself, not that I expect to ever again take him seriously. As far as I can see, if there is any justice (which I doubt, looking at Glenn Thrush), Tapper will spend the rest of his life in journalism as the guy who gets Starbucks for the real journalists.