Malice

     As I don’t watch broadcast or cablecast television any longer, many a story of interest gets past me until it earns a mention in one of the online outlets I trust. One such story, about which I learned only this morning, has me shaking my head:

     NewsBusters recently reported on Florida’s First District Court of Appeals affirming that plaintiff Zachary Young could seek punitive damages, in addition to economic and emotional damages, from the Cable News Network in a civil trial after they allegedly defamed him regarding his work in getting people out of Afghanistan. The total could near or exceed $1 billion.
     For that outcome to be remotely in the cards, Young needed to prove malice and according to the ruling, he’s done exactly that. “Young sufficiently proffered evidence of actual malice, express malice, and a level of conduct outrageous enough to open the door for him to seek punitive damages,” Judge L. Clayton Roberts wrote in the court’s ruling.
     The court felt the high bars for actual and expressed malice were met because of internal CNN messages that were extremely vicious toward Young. Correspondent Alex Marquardt, the “primary reporter” expressed in a message to a colleague that he wanted to “nail this Zachary Young mfucker” and thought the story would be Young’s “funeral.” On that declaration of wanting to “nail” Young, CNN editor Matthew Philips responded: “gonna hold you to that cowboy!”

     All by itself, the finding of actual and express malice by a news organization toward a private party is front page / above the fold stuff. News organizations are protected against such accusations by very high legal barriers.

     The “due diligence” required of a news outlet to avert a verdict of malicious libel is extremely weak. The movie Absence of Malice, starring Paul Newman and Sally Field, dramatizes it nicely. Once that low bar has been surmounted, the news outlet is free to publish anything it pleases without fear of legal penalty. For example, in the wake of the My Lai massacre, when U.S. Army Captain Ernest Medina sued Time magazine for libel, Time was able to defeat the suit merely by arguing successfully that Medina was a “public figure,” and therefore open to any and all sorts of accusations… because Time had made him one.

     Cornell’s Legal Information Institute puts the standard this way:

     In The New York Times Co. v. Sullivan, 376 U.S. 254 (1964) where a police chief brought a defamation claim regarding a newspaper, the Supreme Court held that for a public official to succeed on a defamation claim, the public official plaintiff must show that the false, defaming statements were said with “actual malice.” The Sullivan court noted the threat relaxed defamatory statements could pose to first amendment freedom of speech, and given the especial importance of being able to question government officials, the court found the state’s libelous per se standard to not satisfy first amendment protections as it relates to public officials. The Sullivan court stated that “actual malice” means that the defendant said the defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” The Sullivan court also held that when the standard is actual malice, the plaintiff must prove actual malice by “clear and convincing” evidence, rather than the usual burden of proof in a civil case, which is the preponderance of the evidence standard. On this point, the precise language the Sullivan court uses is that the plaintiff must show “the convincing clarity which the constitutional standard demands.” [Emphasis added]

     Therefore, a solid defense against a charge of malicious libel is “We didn’t know, but we did try to find out.” CNN didn’t even try to find out. It made no attempt to contact Zachary Young or anyone else who would be able to dispute its defamatory story before publishing it.

     All that makes the legal case notable. What it doesn’t do is reveal why CNN’s personnel, particularly Alex Marquardt and Matthew Philips, were so ardent to blacken Young’s name. Was it a retrograde defense of the Biden Administration’s shocking pell-mell flight from Afghanistan? Were they hoping to shield someone else who had charged Afghan refugees exorbitant sums for rescue? Or were they merely hoping for “clicks?”

     Everyone has an agenda of some sort. Reporters and editors are not exceptions. But what CNN’s reporters and editors, whose decisions are likely to cost that already beleaguered corporation many millions of dollars, hoped to achieve by maliciously defaming Zachary Young is entirely unclear. (Their recent claim that Young’s Afghanistan rescue work was criminal because it violated the Taliban’s sharia law only muddles the matter further.) However, there may yet be deeper reporting on this case. I hope it will come from sources a decent person can read without feeling an urgent need to bathe.