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Matt, Bill, and Monica

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from: David Frum
to: Susan Estrich

Posted Tuesday, Dec. 16, 1997, at 3:30 AM ET

Believe me, I'm as horrified to find myself arguing in favor of Sidney Blumenthal as you are to find yourself defending Matt Drudge. I feel like the old hippie during the Los Angeles riots of 1992 who was interviewed by a reporter as he patrolled the blockade at the entrance to Laurel Canyon: "I always knew I'd end up on the barricades. I just thought I'd be on the other side."
Let's be clear what the issue in the Drudge-Blumenthal spat is. It isn't whether the press can report rumors. Of course it can. And it isn't whether judges ought to police the limits of free speech. Of course they must--unless you want to scrap the laws against perjury, blackmail, false advertising, obscenity, and copyright infringement as well as against libel and slander.
I agree that Matt Drudge has done a lot of good work. But he also put into circulation on the Internet a very damaging story about ex-journalist and present White House aide Sidney Blumenthal's marriage. We don't know where Drudge got the story, but it's a good bet, as you say, that he got it from someone in or close to the Republican Party. That kind of story from that kind of source demands confirmation, but Drudge seems to have made no effort to confirm it, other than a phone call to the White House to collect a ritual denial.
Now it's extremely difficult to libel a public official in the United States. Had Drudge printed the most savage remarks about Blumenthal's official conduct--no case. Had Drudge got his story about the Blumenthals from a marginally more reliable source (say a friend or relative of Mrs. Blumenthal's)--no case. Had Drudge made some effort to check the story--almost certainly no case. Had he even printed the rumor in a context that situated it in its political context and emphasized its untrustworthiness--just as you suggested--there would probably be no case again. You seem to think that these are trivial distinctions, but they're not. It's not at all unreasonable for the actionability of a damaging rumor to depend on how the journalist reports it.
For a public official to win a libel suit, the Supreme Court said back in 1964, he must show not only that the story was untrue but also that the reporter either consciously knew it to be untrue, or exhibited a reckless disregard for truth. 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.
Which is why the defenders of Drudge are implicitly or explicitly proposing an even more stringent standard. They are now insinuating--and I think you are agreeing with them--that journalists should be able to say absolutely anything about public figures; and not just about their official conduct but also about their private behavior. I don't know what our public figures have done that they should be treated like enemies of society in this way.
My conservative friends think it poetic justice that Sidney Blumenthal should be on the receiving end of a slur. And with good reason. This is a man who has seldom hesitated to say the most disgusting things about his political adversaries--even claiming in the New Republic in 1992 that George Bush's wartime heroism was a fraud. But someday, someone we conservatives like will be a victim of an equally damaging and baseless charge. Do we really want to establish it as a political rule of the road that public officials can never, ever vindicate their good name in the courts? After all, since we conservatives do believe in principle, we will be held in the future to what we say now.

dialogues
entries
123456789101112
from: David Frum
to: Susan Estrich

Posted Tuesday, Dec. 16, 1997, at 3:30 AM ET
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Susan Estrich is a law professor at the University of Southern California. She is a columnist for America Online's "Great Debate" section. David Frum is a senior fellow at the Manhattan Institute and a contributing editor to the Weekly Standard. He is the author of What's Right: The New Conservative Majority and the Remaking of America. This dialogue was originally based on a lawsuit filed by White House aide Sidney Blumenthal against Matt Drudge, founder and gossip columnist of the Drudge Report. The focus of the exchange has now shifted to the Clinton sex scandal story. Click here to purchase David Frum's What's Right from Amazon.com.
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