gabriellegdotblog

The use of the First Amendment as a shield for reporters I believe should be used as the stronghold it is meant to protect against censorship, but should not extend so far it becomes all-powerful legally. There should not be this freedom to act recklessly in violating different standards of care or act with such malice their reporting trespasses into harassment disguised as reporting. Part of acting within this watchdog position is this self-awareness in the influence as reporter’s one possess and with that is the weighing consequences for one’s actions. Those protections offered by the First Amendment can work very well in upholding those responsibilities. The ACLU breaks down the main safeguards this kind of shield provides reporters with the rejection of the government blocking a story before publication, no retaliation in response to a reporter, bars for defamation to be considered, and no discrimination based on personal grievances. All these different functions of the shield offer reporters a landscape in which they can freely express their stories and uphold their own role as a watchdog. This can be seen manifested in The New York Times v. Sullivan. The story published by the New York Times gave truth to the heart of criticisms against Montgomery, Alabama segregational actions and violent violations of civil rights. By falling back on the First Amendment as a shield and recontextualizing this understanding of “actual malice” there was this allowance for a journalist to act freely in their investigations moving forwards. That is not the same as glorifying reports created with the true purpose of vilifying or launching smear campaigns. Reporters’ abilities can extend beyond this with in pursuit of the story ignoring the rules that govern them. While the government cannot censor their expressions, they can keep them in check in terms of illegal activity in the pursuit of justice. The way a reporter conducts themselves directly reflects on their work. There should not be a gross breach of process in the name of the “story” by justifying that it falls under the First Amendment. In these instances of abuse of power there needs to be proper action for correction. The role of a reporter can be delicate in balancing the needs of the public with standards of care, but neither should be sacrificed in the name of another. Misuse of the First Amendment as a shield yields it useless and untrustworthy while simultaneously stripping away its importance as a shield leaves reporters vulnerable and that access to information the public needs at risk.

I believe the weaponized defamation lawsuit against members of the media is very concerning. This concept sets up for a trend of behaviors across different levels with journalists and outlets being put off from investigation due to fear of causing money draining lawsuits, with different corporations or individuals this trend sets a precedent of filing these types of cases not for the pursuit of accountability, but to either create a large financial gain or become so financially or socially burdensome that the defendant is forced to retract. Lili Levi explores this concept across different examples in “The Weaponized Lawsuit Against the Media: Litigation Funding as a New Threat to Journalism”. She examines in detail the Bollea v. Gawker case in which professional wrestler “Hulk Hogan” sued the media outlet Gawker Media in response to their publication of sex tape. It was later revealed that the lawsuit was funded by Peter Thiel who set out with a personal agenda to seek retribution against the outlet for a previous story published by the site about himself. This reveal of how a single rich individual was able to utilize their funds to help orchestrate a bankrupting court battle against a media outlet and win is very startling. There is this underlying understanding from the plaintiff that anything will be done to “win” outside of the courts. It is not about this specific case with Hulk Hogan or if they believe the media outlet to be in egregious violation, it is about setting what they believe to be right in place by depleting a media outlet of all their sources. This mindset sets up this concept of weaponizing defamation lawsuits on a very risky path of abuse. When cases of this nature are exploited it can cause a saturation in the market. There will be so many infractions against different outlets it will be difficult to understand when the true cause is justified. On the other side media outlets and reporters will feel that pressure to avoid becoming entangled. Investigations can fall apart or be let go when the fear of retaliation by these private corporations threaten their organization. With Gawker Media Levi goes on to explain that direct affect from these types of lawsuits, “Because Florida law would only grant Gawker an automatic stay pending appeal if the company posted a supersedeas bond of $50 million4 1 -which it could not do-Gawker filed for bankruptcy, citing the Hulk Hogan damages award for its decision to seek bankruptcy protection. Subsequently, the Gawker properties (minus Gawker.com) were sold for $135 million to Spanish-language broadcaster and publisher Univision in a bankruptcy auction.43 Gawker.com ceased operations,” and Univision renamed its Gawker Media properties Gizmodo Media Group” (Levi 772-773). While there have been arguments from Thiel about his choice to fund the lawsuit separate from his own grievances with the outlet, this aftermath showcases clear signs of a pattern that can follow these types of cases. The media outlets have less resources and sway as those coming forward to attack them with “good faith” cases of defamation. While this is not to say these types of cases are not important or do not deserve fair retribution, there needs to be an understanding of when these cases come from a place of weaponization. Would the same decisions have been made if the public had known that Hogan was being backed by a Silicon Valley millionaire? Would Hogan have pursued the case to the extent he did (with refiling after more information came to light) if he did not have Thiel’s financial support? These types of cases cause great concern for the way they inform the choices made by every person involved from the reporter to the public. There needs to be a level of accountability held for reporters, but not when they come from this malicious intent unconcerned with the nature of these outlets. When one group can abuse the system in their favor it all trickles down to affect all of those involved.

When bringing forward counterarguments in a defamation suit a plaintiff would want to address the defense of “truth” and the intent of the defendant. In a defamation suit this use of the truth is one that originates from The Trial of John Peter Zenger.  The plaintiff would need to look at the invert of this origin to dissects and dismantle the representation as truthful. Although they cannot only address this point of falsity. On the surface level it may seem that proving statements are false would be enough justification there is a need for deeper analysis within these cases. David Anderson explains this as, “The question is more abstract: It asks whether the statement exposes the plaintiff to injury or tends to cause injury. Conversely, plaintiffs who can show reputational harm will still lose unless they can show that the statement causing the harm is of a sort that the law recognizes as “defamatory.” The explanation is that the law of defamation takes cognizance only of certain kinds of attacks on reputation” (1048). So, a plaintiff could prove that the statements made were false and caused them some level of distress (can range from emotional to financial), but without meeting the standards of “defamatory” it does not matter. There is a need to address the intent of the defendant. The case of The New York Times v. Sullivan set this precedent of the plaintiff needing to provide objective evidence of the intent of the reporter as malicious. The requirement of malicious intent as ProJourn explains is, “This requires a showing that the journalist either knew the statement was false or showed a reckless disregard for whether the statement is true or false.” That awareness in their actions is crucial in the counterarguments made by plaintiffs. While commentary or hurtful observations can be damaging to a public figure, there needs to be these specific thresholds of affect and intent for the suits to have merits. Many defamation cases are dismissed due to this lack of minimum requirements. On the surface it does lay a heavy hand of burden on the plaintiff, but this is all necessary to give cause and proper attention to these cases where accountability is most important.