It's an interesting thing this business of sides--you defending Sidney Blumenthal and me Matt Drudge (although I daresay, I've been kinder to Drudge than you to Blumenthal ... ouch). What makes it so unusual, I think, is the fact that most fights these days seem so totally political that they end up being about nothing--i.e., campaign finance, Paula Jones, etc.
Anyway, about rumors: One of the things that makes this case interesting, legally speaking, is this whole business of whether the reporting of rumors gets held to a different standard than the reporting of news. If you label something a rumor--and you have a credible source for the rumor--is that enough to make it news? To make truth a legitimate defense? What makes it particularly interesting is that basically, in both Hollywood and Washington, all anyone on the inside really cares about is rumors. I mean, everyone will know the box-office grosses on Monday, but only Matt Drudge tells them to the plebeians on Saturday morning--at the same time as all the big shots are calling each other to whisper them. I used to go to parties on Saturday night where people would trade the numbers, like we traded exit polls (which Drudge also reports, and which are a cousin of rumors, I think--declaring winners based on very educated and well-sourced guesses, which is I suppose what Russert did with "Luke"). Same in Washington: Does anyone really care who is going to be Secretary of the Interior the day after he is appointed? But the day before, if you can get the name first, it's front-page news. Or in the case of the president's dog-naming, a major scoop--which is why people like Sidney Blumenthal, who are in a position to decide who will learn that name first and get that exclusive scoop, are in a codependent relationship with the insider press corps.
Not to sound like an out-of-town populist or anything, but if all anyone in Washington seems to care about is hearing everything first, why shouldn't the rest of us learn it too? If it's news to you, it's news to me. When someone tells you some hot gossip, do you say to them, don't tell me unless it's reliably corroborated? No. You want to hear it and make the judgment for yourself about how much to believe, based on who is spreading it, who the source is, etc.
Why can't I do that myself? For myself? Can I be a pro se journalist, as it were?
Matt Drudge didn't report that Sidney Blumenthal was a wife beater; he reported that Republican operatives were putting that story out in retaliation for the Sipple wife-beating story in Mother Jones magazine, and that the White House denied it and called it trash. So should it be enough for Drudge to prevail if it turns out that such a rumor was indeed widespread, and was being put out by GOP operatives? Does Drudge win in that case?
You write, "Printing a damaging story in a style that invites the reader's belief about an operative of one political party based entirely on undocumented and uncorroborated information from operatives of the other certainly comes pretty close to a working definition of recklessness."
That's true only if the question is whether you are being reckless as to the truth of the underlying fact rather than the existence of a rumor about it. It's true that hearsay is generally inadmissible because of the danger that juries will take a third-party statement as proof of the underlying fact, but there are so many exceptions to this rule that you'd have to conclude that the law in general recognizes that it is possible to draw such distinctions.
Now if I had read Drudge's piece on Blumenthal, or if someone had told me on the phone, here's what I would think: Boy, do they hate Sidney. But wife-beating? Nah. I don't buy it. ... These guys are so low that they will stop at nothing. Somebody should do a story about how the Republicans run their rumor operation, the food chain of how these stories get put out. Stick it to them, for a change.
I read Drudge differently than I do the New York Times. I read him knowing that he has an ideological point of view, a different conception of his role, and less of a filter on what he reports. But I still read him, and much of the time, he's right. He also reports the inside stuff that people in Washington take for granted, participate in, the stuff of the codependent relationship. Who else would tell me all the details of the Mandy Grunwald wedding, including the fact that the president had a long conversation with Joe Klein? That isn't to say I like all the garbage I read and hear. Quite the contrary. I'm told that Sidney's wife had people coming up to her and asking if she needed shelter, which is horrible. When I asked Sid why he was bringing the lawsuit, he told me it was because it hurt his wife, and that's where he drew the line.
If you're going to report a rumor, you need to make clear that it is a rumor, make clear who the source is, even if he or she is not named, and whether they have a reputation of accuracy. Sort of like a cop using an anonymous tip for probable cause. As a matter of professional journalism (oxymoron?), I think particular care should be taken in reporting about rumors, especially when those rumors are highly damaging to the personal reputations and lives of individuals, public or private. As a writer, I would not have written the story that Drudge did--I would have seen the story as being the low-blow rumor operation, not the Blumenthal marriage. But no one writes that story either, maybe because they don't want to bite the other hand that feeds them.
I--and much of the country--agree with you that the state of modern journalism stinks, which is why this is a particularly bad time, in my judgment anyway, to revisit New York Times vs. Sullivan, as many media critics want to.
You're right, of course, that "judges police the limits of free speech." They police the limits of everything, and the lines they draw are ultimately political. The public-private distinction has been deconstructed so many times it's amazing it still stands, or wobbles anyway. But the question is, how much policing do you want? In which direction should we be pushing? Do we want judges to be thinking that their job is to protect the press against undue intrusion or to protect people against being smeared? If the answer--as always--is both, in which direction do you want them to err? Before New York Times vs. Sullivan, libel law in most states was stacked in favor of the plaintiffs and against the press; the decision shifted that, at least in cases involving public figures. For a time, anyway, the courts saw it as their role in these suits to ensure that tort law did not become a means of government chilling of a free press.
There is a very strong argument today that the press has too much power in America, and that it is corrupt to its core, the mirror reflection of those they cover. When I joked with Drudge about his report on the president and Joe Klein, he said, "They're peers, after all." Yikes. Dick Reeves says the press has become too upper-class; they used to be working stiffs who didn't fancy themselves as the politicians' peers. But that's not true anymore. Bob Woodward is more powerful than anyone he covers. I wouldn't want to be the person who assured Tim Russert that the dog's name was Luke.
But lest I sound like a conservative, this is not necessarily a problem government can solve, and in attempting to do so it may only make things worse. I don't want to see angry juries--who like everybody else today, hate the media--treating Matt Drudge and Internet providers (note: my column runs on America Online, and here we are at Microsoft) the way they do McDonald's when it serves coffee that is too hot. Heaping million-dollar punitive damage awards on journalists, and holding AOL or Microsoft liable for everything we nutballs say, is certainly going to chill the next Drudge. And who knows, she might be a liberal.