the Times published the columns knowing or suspecting that they falsely accused him of being guilty.
Maybe there's been some new development in libel law* [see Update], but doesn't Hatfill only have to show that the Times acted with "reckless disregard" for the truth or falsity of the charge? ... I think the Journal--and Editor & Publisher--are helping the Times whistle past the graveyard on this one. ... P.S.: Is Hatfill even a "public figure," the trigger for these more permissive libel rules?
*Update: Jack M. Weiss emails to say I am indeed wrong about current libel law:
Although the literal formulation of the actual malice standard encompasses either knowing falsity or "reckless disregard" of the truth, the Supreme Court, and numerous other federal and state courts, over the course of nearly forty years repeatedly have interpreted "reckless disregard" to require that plaintiff show, by clear and convincing evidence, that "the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 730 (1968). This is a subjective standard, not an objective standard of "recklessness" or gross negligence, as might be suggested by a quick reading of the term "reckless disregard", and by your published comment. Contrary to your comment, I am therefore entirely correct in stating that, if Hatfill is a public figure, he will have to show--by clear and convincing evidence, no less-- that the Times and/or Mr. Kristof published knowing of or "suspecting" (my shorthand for "in fact entertaining serious doubts as to") the falsity of what Mr. Kristof wrote.
If Hatfill does have to show "serious" subjective doubts on Kristof's part, than Weiss was in fact right and I was under a misapprehension. (If any First Amendment types out there disagree with Weiss, please let me know at Mickey_Kaus@msn.com.)
But a) If Hatfill can use as evidence of Kristof's subjective doubts the objective circumstances of what he did--i.e. whether an ordinary man would have surely had doubts, given the reporter's (reckless? diligent?) behavior--then the two rules (actual subjective doubts vs. reckless behavior) might amount to the same thing; b) If Hatfill can't use the objective circumstances as evidence, then a "serious doubts" requirement would seem wacky, even if as Weiss says it's the law of the land. It would reward reporters for being so zealous or stupid that they do not entertain doubts even if they are hurling what reasonable people would think are reckless charges; and c) Given that it's at least unclear if Hatfill is a "public figure" who qualifies for this protection, I still think the Times is massively exposed here. ... 10:31 A.M.
Petrelis Files has an interesting list of journalists who've contributed to political candidates. ... Jann Wenner gave $2,000 to Al Sharpton! ... David Talbot of Salon is only down for $500 to Dean. Cheapskate. ... Manohla Dargis, new NYT movie critic, gave Dean just as much. But Vanity Fair'sElise O'Shaughnessy maxed out! ... And Rupert Murdoch maxed out ... for Kerry. That must be how he got that big Gephardt scoop! ... P.S.: Also, Petrelis says
President George Bush didn't receive a single donation from any outlet or reporter in my search.
P.S.: I gave to Kerry at least partly in the hope that I'd be attacked for this gross violation of journalistic ethics. No such luck. ... Yoo hoo, Poynter people. Over here. ... Update: Murdoch maxed out for Kerry in 2001, not in the current presidential cycle (in which Murdoch gave to Bush). ... 3:09 A.M.
Wednesday, July 14, 2004
Kerry Fever Update: Still time for Dems to panic ...