By Kevin
D. Williamson
Monday,
February 13, 2023
The New
York Times dodged a bullet a while back in the Sarah Palin libel
matter, and its publishers and editors know it, which is why a recent story
is headlined, “DeSantis, Aiming at a Favorite
Foil, Wants to Roll Back Press Freedom” a claim that—ironically, in this
context—isn’t quite right. Presumably, “freedom of the press” does not include
the freedom to publish untrue and defamatory things about people, and DeSantis
is taking up the cause of a small group of activists, including a few
conservative legal scholars, who want to make it easier for people who have
been misrepresented by the press to win libel judgments against newspapers and
other media properties.
This
hits close to home for the Times: The landmark Supreme Court case
in the matter of libel is called New York Times Co. v. Sullivan,
and the most recent big-time libel suit was Sarah Palin v. New
York Times Co. Palin lost—wrongly, in my view—but is appealing.
The Times’
misrepresentation of Palin should have been, liberated from the weight of
political tribalism, an open-and-shut case. For this kind of claim in print to
rise to the level of libel, it must meet three conditions: The claim must be
false, the claim must be defamatory (meaning that it injures the reputation of
the party in question), and, in the case of a public figure, it must have been
made with “actual malice” or “reckless disregard for the truth.” The Times libeled
Palin by falsely claiming in an editorial that Palin’s campaign rhetoric had
led to the shooting of Rep. Gabby Giffords. “The link to political incitement
was clear,” according to the Times, a claim that is—and this
matters in this context!—not true. There was no connection at all between the
Palin campaign and the Giffords shooting, a fact that has been reported in and
confirmed by, among other reputable journalistic sources, the New York
Times itself. Even if we accepted at face value the extraordinarily
tendentious claim that Palin’s utterly normal campaign rhetoric constituted
some sort of incitement to violence, the man who shot Giffords was not inspired
by it and seems never to have even seen it before committing his crime.
The
editorial in question was not about the Giffords shooting or about Palin: The
swipe at Palin was inserted—with positively reckless disregard for the
truth—solely for the purpose of taking a swipe at Palin, i.e., with the intent
to damage her reputation and harm her political prospects. This was, very
straightforwardly, libel. The the jury saw it otherwise is a reminder of the
limitations of juries.
There
isn’t anything inherently wrong with the “actual malice”/ “reckless disregard”
standard, but it has been interpreted so narrowly—with so much solicitousness
toward institutions such as the New York Times and so much
callousness toward unsympathetic figures such as Palin—that nothing short of a
signed and notarized statement of intent to commit libel seems to satisfy
judges or juries. The political biases of the Times are not in
and of themselves libelous, but they surely attest to a pattern of disregard
for the truth that in the Palin matter grew to be reckless, indeed,
and malicious in any meaningful sense of the word.
The
prolix New York state legal standard for “defamation” includes that which
exposes someone to “public hatred, shame, obloquy, contumely, odium, contempt,
ridicule, aversion, ostracism, degradation, or disgrace,” or that which brings
about an “evil opinion of one in the minds of right-thinking persons.” Who can
doubt that this was precisely the Times’ aim
vis-à-vis Palin? It was, in fact, the only point of the exercise.
DeSantis
and others would like to see Times v. Sullivan overturned,
and some legal thinkers have made a
plausible case for doing so. At least two justices of the Supreme Court have signaled a willingness
to reconsider the case.
Floyd
Abrams, the famous First Amendment lawyer who defended the Times in
the Pentagon Papers case, tells his sometime client: “What they’re saying is
that they want to crack down on American journalism.” I do not doubt that
DeSantis and other Republicans generally hate the press (and the press has done
its share to earn that hate), but that is an unfair overstatement. The first
and most important criterion when it comes to libel is truth: Truth, in the
familiar legal language, is an “absolute defense” against a libel claim—no
falsehood, no libel. Donald Trump would like to punish CNN for comparing him to
Adolf Hitler, but there is no libel in CNN’s comparison because there is no
falsifiable claim of fact: If CNN had said, “Donald Trump is exterminating Jews
in camps, just like Hitler,” then there would have been a real libel claim, but
“We think Donald Trump is a lowlife and a thug who reminds us a lot of Adolf
Hitler” is no such factual claim. So what’s in question here is not the ability
of news organizations to do good journalism—what is in question here is what
happens to them when they make a claim of fact that 1) is not true and 2)
damages someone’s reputation. What is in question is not good journalism, but
the consequences for making a false claim that damages someone’s reputation.
For people who are not “public figures”—a term vaguely defined in the law—only
two criteria need to be satisfied: that the claim is false and defamatory—no
need for “actual malice” or “reckless disregard.” But newspapers do not often
undertake vendettas against private persons, and there is a very good argument
that the “actual malice” standard, or at least its current interpretation,
gives newspapers such as the Times too much license to conduct
precisely such vendettas against figures such as Palin.
Ron
DeSantis has good reasons for taking note of that.
Every
reporter who is doing his job gets things wrong from time to time. Columnists,
too. There’s isn’t any shame in an honest correction of an honest mistake. But
honest mistakes can hurt, too. Every now and then, those mistakes will be the
sort of thing that harms someone’s reputation: I know a reporter who was fired
because he mixed up his notes and reported that the victim of a certain robbery
was the suspect in that robbery and vice versa. I know of another case in which
a campus newspaper assumed—wrongly, as it turned out—that a sex-crime suspect
with an unusual name was the same person who worked in a women’s dormitory and
had the same unusual name. (In the second case, the lawyer for the campus
newspaper advised the relevant parties: “If he asks for anything less than $1
million, just write the check.”) If you’ve ever wondered why newspapers
typically identify criminal suspects with three names and a place of
residence—Oscar T. Grouch of the 100 block of Sesame Street—that is why. It is
a way to avoid even innocent mistakes.
But
the Times case was not an innocent mistake of that kind:
The Times was trying to damage Palin’s reputation and
undermine her political ambitions—that was the whole point of the insertion that
got the Times in trouble to begin with. And if that does not
constitute actual malice or reckless disregard, then those words do not have
any meaning.
Losing
the Palin case would have been good for the Times and good for
American journalism—there’s nothing like having to write a seven- or
eight-figure check to somebody you hate to encourage a newspaper to tighten up
its editing standards.
Or 10
figures.
Do you
know what the editorial writer in question, Elizabeth Williamson, does now? Her
duties include covering high-profile defamation
cases for the Times. “Alex Jones Files for Bankruptcy,” reads the headline over her gleeful
account of the $1.5 billion judgment against the cynical conspiracy
entrepreneur. Alex Jones’ financial situation has come into alignment with his
moral situation, and the Times has Elizabeth Williamson to
tell you all about it. That’s brass.
I don’t
want to see the Times bankrupted. (Hello, David!) But it ought to have paid damages for its
ugly and irresponsible smear of Sarah Palin. The fact that this did not come to
pass is a big part of why figures such as Ron DeSantis want to see Times v. Sullivan revisited.
The Times didn’t just hurt Palin: It undermined the very
enterprise—journalism—about which it purports to offer such tender care.
Expect
this to be a continuing story. Maybe the Times will get
Elizabeth Williamson to cover it.
N.B.,
Elizabeth Williamson: no relation.
And
So It Begins
If you
live in the hot part of the country, then you appreciate the sensation of
walking into a store on a 93-degree day and feeling that first frigid,
semi-Arctic blast of excessively conditioned air, a great pleasure that can be
ruined by only one thing: Christmas music. Because I live in Texas, this gets
complicated: The summers are getting longer and hotter, and the retail
Christmas music starts earlier and earlier. September in Texas can be pretty
weird, with Maharashtrian weather and, in some shops that really ought to be
boycotted, the first choruses of “Rockin’ Around the Christmas Tree.” I don’t
want to go into a whole Andy Rooney screed here, but we’re going to end up in a
situation when the only time you don’t hear Christmas music in shops will be
roughly between the weeks between the Feast of the Presentation and the Feast
of the Annunciation, basically the end of February and the beginning of
March.
But I’d
rather have bad Christmas music force-fed into my central nervous system Clockwork
Orange-style than endure an expanded presidential-election season. But,
like Christmas-shopping season, the presidential-election season is expanding:
There’s too much money to be made to pass up the opportunity. Donald Trump
announced his candidacy in November 2022, and Nicki Haley plans to make an
announcement—her announcement has been announced, that’s how we do things,
now—this week. It’s fixin’ to be happy hour at the Republicans’ version
of Chalmun’s Spaceport Cantina, and drinks are on … well, here’s an interesting list,
courtesy of the Washington Post.
It wouldn’t
bother me so much if I thought it was just about making money, one of the
least-harmful of all human pursuits. But, tragically, this isn’t just a
money-making scheme: These maniacs are sincere.
Last
week, I got off a plane in beautiful, sunny Charleston at 3 p.m. (Have you been
to Charleston, lately? It’s really something.) By the time of my 6 p.m.
engagement, I had been asked about the 2024 presidential election four times.
Talk at dinner turned to presidents past and future. I might expect that if I
were someone who spends a lot of time covering presidential campaigns and horse
race politics, for the same reason that an orthopedist can expect to hear a lot
of questions about his friends’ aching shoulders. (I’ll see you in a couple of
weeks, Steve.) But that isn’t really what I do. I typically will spend some
time covering a campaign every four years, maybe hit the Iowa State Fair during
primary season, etc. But this isn’t about me and my work—the presidency is an
American obsession, an increasingly central fascination of American public
life.
Republics
don’t do well with deified leaders.
The
first Roman public figure about whom we have much in the way of real reliable
historical information is Appius Claudius Caecus, who was elected censor
(meaning the keeper of official property records; the morality-police sense
of censor would come later) in 312 B.C. (Many of the Roman
figures familiar from literature, including my man Gaius Marcius Coriolanus, may not be historical at all.)
Caecus was an infrastructure man, credited with commissioning both the first
major Roman road (the Via Appia) and the first aqueduct (the Aqua Appia).
Caecus was, in that sense, a real servant of the people, a public-minded man in
the most genuine sense. In only a few hundred years, his political heirs would
be declaring themselves gods—but they would go nearly a century without
building any new aqueducts. In fact, the number of years elapsed between
Caecus’ election as censor and Julius Caesar’s official deification is the same
as the number of years between George Washington’s famous service in the French
and Indian War and Joe Biden’s most recent State of the Union speech. A lot can
happen in a republic in a relatively short time.
Whoever
the next president is, I hope to hear less about him, and less from him. This
is an unhealthy fixation.
And
Furthermore …
All I
think needs to be said in response to Patrick Deneen’s predictably imbecilic
misrepresentation of my work in that recent Harper’s forum on
liberalism is: You can still read the original for
yourself.
Economics
for English Majors
There
are no original ideas. Or not many, anyway.
I heard
a story about a schoolkid who apparently, on his own steam, discovered that
there was a regular, predictable relationship between the hypotenuse of a right
triangle and the two other sides. He was disappointed to learn that this
discovery—the Pythagorean theorem—predated him by several thousand years. The
history of the theorem is a matter of debate—it may have been discovered
independently by different mathematicians going back to ancient Babylon and
well before Pythagoras’ time—and dozens of proofs of the theorem have been put
forward over the centuries: Euclid had one, and Einstein had a different one.
So, I
feel a little bit better about the Jevons Paradox.
I have
been writing about environmental and climate issues for some years, and I’ve
made a point out of reminding people that the economics involved can get
complicated and counterintuitive. My example—which I thought was a very smart
example—had to do with limiting coal use: When the advanced economies restrict
the use of coal, that doesn’t necessarily mean that less coal is used. Less
demand for coal in the United States should, in theory, put downward pressure
on the price of coal, to such an extent that we might expect to see more coal
use in places such as China and India. The perverse effect there would be that
not only would coal use not decline, the coal that is used probably will be
used in Chinese and Indian plants that are, on average, more polluting than
U.S. or German plants.
There is
in economics something known as the Jevons Paradox, which shows that when the
use of a particular resource becomes more efficient—when our cars go from 10
mph to 30 mph thanks to technological improvement or government mandates—we end
up using more of that resource rather than less, because the lower cost of use
raises demand. So, even though it takes a little bit less of resource x to
accomplish job y, we end up using more in total.
Do you
know what William Stanley Jevons used to describe this paradox in 1865? Coal,
of course.
So much
for my original insights.
There
are, of course, other examples. For example, if you figured out a more
efficient way to use wood to frame a house, then you could build a
2,000-square-foot house with less wood than you would have used otherwise; but
maybe you decide to build a 2,200-square-foot house instead, because you can
get so much more out of your wood. Maybe structures that you might have built
in a different way end up being wood-framed instead. Result: More wood
use.
(How
much wood would a wood-hog hog if a wood-hog did hog wood?)
Jevons,
unfortunately, had a Malthusian cast of mind—I accidentally typed “cast of
mine” the first time, but that’s appropriate, too: Jevons famously predicted
that Britain’s preeminent place in the world was threatened by the ultimately
finite supply of inexpensive fuel: No more coal, no more British Empire,
essentially. His acolytes have, unfortunately, kept up the bad habit. One of
the articles linked in the Wikipedia entry begins with this summary:
The Jevons Paradox, which was first expressed in 1865 by William Stanley
Jevons in relation to use of coal, states that an increase in efficiency in
using a resource leads to increased use of that resource rather than to a
reduction. This has subsequently been proved to apply not just to fossil fuels,
but other resource use scenarios. For example, doubling the efficiency of food
production per hectare over the last 50 years (due to the Green Revolution) did
not solve the problem of hunger. The increase in efficiency increased
production and worsened hunger because of the resulting increase in
population.
This is,
of course, entirely untrue: In 1970, a third of the population in the
developing world was undernourished, a number that fell rapidly throughout the
rest of the 20th century and into our own time, down to a
little less than 13 percent—not of the world, but of the poor countries. As
recently as 1990, some 656,314 people died worldwide from “protein-energy
malnutrition,” in the clinical phrase, a number that declined to 212,242 by 2019—starvation deaths in absolute-number terms were reduced by
two-thirds even as populations grew.
Population
Bomb author
Paul Erhlich has made a very comfortable career predicting mass-starvation
events and always getting it wrong: Hundreds of millions of people were,
according to his calculations, supposed to have died of starvation in the 1970s, not only in
sub-Saharan Africa, India, and China but in the wealthy countries, too. That …
did not happen!
The
Malthusians almost always get it wrong.
Jevon-style
analysis predicting “peak oil” or “peak x” typically ignores the
basics from Econ 101: Even if technological progress makes using a certain
resource more efficient and thereby encourages its use, when you run up against
the reality of scarcity, you can expect prices to go up and, as a result, that
demand will go down. Some things really are finite, and nobody appreciates that
fact better than the people who pull those commodities out of the ground for a
living.
In
Closing
Last
week, I was invited to speak to a group of very (mostly) nice conservative
activists, as I do from time to time. I enjoy these talks and am grateful for
the opportunity, but I sometimes wonder why people invite me to speak at these
things. The people who turn out for these events tend to be very active, very
partisan Republicans, committeemen and county chairmen and that sort of thing.
And what do I tell them? “Your party is corrupt and dysfunctional, your
candidates are mostly somewhere between pathetic and loathsome, none of this is
as important as you think it is, and you need a lot less Fox News and a lot
more confession and penance.” This message is not what you would call
universally well-received. Conservatives have grown so used to being pandered
to that they have become as sensitive as Bryn Mawr undergraduates, on high
alert for the most subtle slight or insult. And I’m not that subtle.
No comments:
Post a Comment