Legal experts are warning of a chilling effect on the media after a series of apparent climbdowns by leading news organisations have increasingly emboldened opponents of the press, including Donald Trump.
“It’s a tense environment,” said Samantha Barbas, an expert in first amendment and communications law at the University of Buffalo. “Public confidence in the media is at an all-time low, people are more sensitive about their reputations and more protective of their privacy. When you have those things, people feel bolder about taking the media on.”
Barbas added that while public distrust of the press predated Trump’s election, “there’s no question that the president’s media-bashing has contributed to public sentiment against the media”.
The warning comes after the former Republican vice-presidential candidate Sarah Palin filed a $75,000 defamation lawsuit against the New York Times for publishing an editorial accusing her political action committee of incitement in the shooting of congresswoman Gabby Giffords.Palin has accused the Times of making a statement it “knew to be false” when it wrote, following the congressional shooting in Alexandria earlier this month: “Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms Giffords and 19 other Democrats under stylized crosshairs.”
The Times amended the article and issued a correction on 16 June that read: “An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.”
In a tweet, the paper wrote: “We’re sorry about this and we appreciate that our readers called us on the mistake. We’ve corrected the editorial.”
In papers filed with the United States district court in New York, Palin’s lawyers argued: “The Times’ conduct was committed knowingly, intentionally, wilfully, wantonly and maliciously, with the intent to harm Mrs Palin.”
Palin’s New York Times suit follows the retraction by CNN of a single-sourced story focusing on the Trump transition team member Anthony Scaramucci and alleged ties between the Trump administration and a Russian investment fund.
CNN said it had pulled the story from its website because “standard editorial processes were not followed” and the network accepted the resignation of three journalists responsible.
“Fake news CNN is looking at big management changes now that they got caught falsely pushing their phony Russian stories. Ratings way down!” tweeted Trump on Tuesday as right-leaning news outlets claimed that CNN, whose patent company Time Warner is currently seeking regulatory approval for a merger with AT&T, had “immediately caved”.
Scaramucci told Fox & Friends on Thursday that he had not explicitly threatened CNN with legal action, but he said: “I had a couple of conversations with senior staff at CNN. I made it very clear to them that the story was not accurate and that it was a defamatory story. I reminded them about my legal background.”
He continued: “I needed to get more aggressive. But I didn’t go to sue them or anything like that. I think that got a little bit overblown, to be honest.”
Trump continued his anti-media tirade on Wednesday, taking on the Washington Post, which is owned by Jeff Bezos, CEO of Amazon. “The #AmazonWashingtonPost, sometimes referred to as the guardian of Amazon not paying internet taxes (which they should) is FAKE NEWS!” Trump wrote. The White House did not immediately clarify the meaning of the president’s tweet.
And on Thursday he issued a crude tweet about a frequent target: Mika Brzezinski of the popular MSNBC politics show Morning Joe.
The deteriorating relationship between the media and the White House, said Barbas, reflected the broader deterioration of the public’s perception of the media.
That deterioration, she said, could be observed in the successful multi-million dollar legal actions taken against Rolling Stone magazine over its coverage, now retracted, of an alleged gang rape at the University of Virginia, and Hulk Hogan’s privacy claim against Gawker Media, which led to a multimillion-dollar judgment after which Gawker filed for bankruptcy.
“When you have verdicts like the Rolling Stone and Hulk Hogan verdicts, people feel emboldened,” said Barbas. “Courts and juries have shown themselves to be sympathetic to claims against the media, so we have an environment where the media are thinking twice about publishing material that might invade privacy or defame.”
The anti-media sentiment displayed by juries may also have led ABC to settle a $1bn defamation lawsuit with the meat producer Beef Products Inc. The South Dakota-based BPI claimed that ABC had defamed the company by calling its processed beef product “pink slime” and making errors and omissions.
ABC did not disclose the terms of the settlement. News division sources claim that, after three weeks in court, network lawyers settled the case rather than let it go to a jury in a Republican-leaning state. In a statement, ABC said it stood by its reporting but had “concluded that continued litigation of this case is not in the company’s interests” and it remains “committed to the vigorous pursuit of truth and the consumer’s right to know about the products they purchase”.
David Ardia, co-director of the Center for Media Law and Policy at the University of North Carolina, said: “It’s important to see these lawsuits and threats of lawsuits as part of a larger challenge to reporting on government officials and activities. These cases are putting media companies back on their heels, and the end result of that could be a decline in coverage of some public officials and some public issues.”
While public officials may threaten to bring libel litigation, they rarely follow through, in part because of the high bar for the success of cases involving public figures. For that reason, Palin’s lawsuit is rare.
“The filing of libel case is a way to vindicate oneself in the court of public opinion, and it’s a powerful signal to supporters. Often, these cases are dismissed when that initial signal has been heard,” said Ardia. “However, if a plaintiff can get their libel case to a jury, they do tend to win.”
Elevated fears of financial and reputational attrition can already be observed in the Russia-related Scaramucci-CNN case, Ardia said. While the details of the shortcomings in CNN’s reporting remain unclear, the organisation appears to have taken action in part because the allegations in its report relied on one anonymous source.
In its conflict with the press, the Trump administration has repeatedly expressed its unhappiness with the media’s reliance on unnamed sources.
At Tuesday’s White House briefing, the White House spokeswoman Sarah Huckabee Sanders took issue with CNN’s retraction. “I don’t know that it’s that the response isn’t good enough for the president. I think it’s the constant barrage of fake news that is directed at this president, probably, that has garnered a lot of his frustration.”
Media analysts warn that reliance on a single, unnamed source, as in the CNN case, put the media at a disadvantage.
“It’s a risky position because when you rely on a single source, and you’ve promised that source confidentiality, its difficult to defend yourself in libel litigation without identifying your source. It’s one thing to promise confidentiality, but it effectively ties the hands of the organisation in a legal fight.”