Former U.S. Congressman Barney Frank (co-author of the Dodd Frank legislation adopted after the 2008 failure of private financial markets to responsibly price certain financial contracts) once observed to me that in modern times, much of the law is a response to new technologies brought to scale by private entrepreneurs.
The new technologies – steam engines, electricity, telephones, airplanes, the internet – change lives and provoke new behaviors and new ways of looking at the world.
The technology of the internet and the invention of the smartphone are new technologies which have changed our politics and our journalism. Politics has become more personal, more emotional and more tribal. Journalism is no longer a profession, but entertainment. Journalists have become narrators of stories designed to grab our attention so that we will tolerate viewing advertisements.
This not-so-brave new world has changed the business model for print media. Traditional newspapers and magazines have lost advertising revenue and subscribers. Since 2004, some 2,000 newspapers have gone out of business in the U.S. The new model for journalism is less a public service and more a hard-hearted commercial scramble for profit and the way to profit is to attract consumers. What consumers of media want now is a simple storyline, a quick, gossipy take on life; emotions, not facts, nuance or the complications which often accompany the truth.
In 1964, the U.S. Supreme Court provided traditional media with a high level of protection from libel litigation. The court did not want media to be intimidated and fearful of publishing the truth about government and those who were public figures. The court concluded that disclosure was such an important deterrent to abuses of power that it needed to be encouraged. Thus, the court provided free speech protections to speech that was untrue, but not knowingly or maliciously published by a media enterprise. That ruling came in the case of New York Times v. Sullivan.
But times do change. In the drive to secure reliable income, contemporary major media firms have, more and more, identified with one cultural mindset over others to gain a loyal consumer following. A number of major media firms – the New York Times, Washington Post, CNN – have closely aligned their narration of events with storylines most closely aligned with the Democratic Party’s policies, priorities and perspectives.
Under these circumstances, the high level of protection given the media by New York Times v. Sullivan has come into question. Does storytelling need the same degree of protection as truth telling?
Recently, Judge Lawrence Silberman of a lower federal court wrote a dissenting opinion in a case of libel which laid out reasons why the rule in New York Times v. Sullivan should not be overruled and replaced.
I have excerpted the relevant parts of Judge Silberman’s opinion here.