Defamation Vibes

The malice standard is made the F up.

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Ron DeSantis wants to make open and slacken up national libel laws and, as always, it gets complicated. Sarah and (host emeritus) David try to help out. Also: Meta  gets sanctioned!

Show Notes:

-Advisory Opinions: The Problem with “History & Tradition”

-Fl. Gov. DeSantis floats legislation that would make it easier to sue news outlets

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  1. Avatar photo
    Njh2005

    A bit late to this podcast but would love your take on this analysis of the freedom of the press. https://reason.com/volokh/2018/04/24/freedom-for-the-press-as-an-industry-or/

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    Ben Connelly

    Haven’t seen The Last of Us, but David is totally right: you have to go on. There is something beautiful and noble about soldiering on, in the way of The Road or in Atlas Shrugged when Dagny meets the hobo on the train who refused to just lay down and die, but said, “it seemed a sin not to at least make a try for it” (meaning find a job). And she hires him on the spot because here is a man who wants to live and wants to work.

    Like David, I’m a Christian, so I don’t believe our meaning is found ultimately in other people, but in God - and therefore one would have a duty to go on living even if one were the last person in the world. BUT even if I were an atheist, I strongly believe that one has to go on. As Albert Camus told us, “Sisyphus is happy.” Being the last person in the world is the perfect encapsulation of his existential philosophy: you have to push the stone up the mountain and go on pushing it up the mountain, while knowing full well that you will utterly fail and your efforts will be futile and meaningless. And there is almost (almost, but not quite) meaning and happiness to be found in that struggle. You have to go on and to curse the darkness and refuse to “go quietly into that good night.”

    Finally, I also think you would have to go on because you have a duty to yourself, not just to other people. Each human life is an end in and of itself, and no life (not even yours or mine) needs to justify its existence through other people (though it is of course good and important to love and serve others).

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      Picov Andropov

      Well said.

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    Sarah DeSalvo

    To David specifically, regarding the discussion of masculinity and the idea that has been perpetuated in Christian circles that men need respect and women need love. I don't know if you've read the book "Love and Respect" by Emerson Eggerichs that you reference in your piece and on the podcast. You also reference the "sociological research" done about men needing respect. If you are referencing the "research" that Eggerichs cites in his book (and the premise on which his whole book is based), it is extremely flawed. He did not do the research himself. He cites a study done by Shaunti Feldhahn where 400 men were asked if they would rather be "alone and unloved or "inadequate and disrespected", and 74% of men answered that they would prefer the former over the latter. Disregarding the fact that the question is framed poorly (are the respondents choosing the "inadequate" part or the "disrespected" part when they chose that answer?), the conclusion the researchers drew was that since men answered one way, women must want the opposite (prefer love over respect.) They did this without surveying any women! Other research has shown that overwhelmingly women will answer the SAME way as men! In addition, a survey of over 20,000 women by Sheila Wray Gregoire (detailed in her book "The Great Sex Rescue") shows that the book "Love and Respect" has caused immense harm to many marriages. Unfortunately it is still recommended in Christian circles. As you stated in the podcast, some men use their "need" for respect to assert a position of hierarchy over their wives. In fact, Eggerichs in his book uses this as a positive and "Hierarchy" is one of the points in his "CHAIRS" acronym in the book where he states the things that men need from their wives!

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      Ben Connelly

      Yeah strikes me as probably the case that most men and women would prefer the “alone and unloved,” to a relationship that is framed as being so undesirable as to cause unhappiness. “Inadequate and disrespected” could be more benign than I took it, but who wants to live with someone who constantly puts them down and reminds them of past humiliations?

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  4. Richard Kennedy

    For all fellow armchair dilettantes in the Law who love AO, two films graphically portray Malice and running out the clock. Absence of Malice from 1982, I believe.
    The Rainmaker is heartbreakingly detailed in the deep pockets stall, but mostly from the little guy lawyer’s POV.

    DAVID: your description of a layover in Kuwait at the end of deployment reminded my of Tchaikovsky’s Patheque Symphony (aka The Sixth Symphony). The last two movements are a musical contrast of the highest order, particularly hearing it for the first time. I risk giving it away if one has not heard it!

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  5. Acre00

    My understanding is that NYT v Sullivan originally limited its test to public officials rather than public figures, which I support. I strongly disagree with how insanely narrowly the courts have read "reckless" to be, but the basic standard is pretty good policy in my opinion. That having been said, it's not the court's place to make policy, and I am highly skeptical that the 1st amendment requires this result.

    The surrounding jurisprudence of the "public figure" standard - separate from the public official standard - is both bad constitutional interpretation and bad policy. As our wonderful host and guest point out, there is a ridiculous amount of grey area around who is a public figure for the test, and oftentimes it is the alleged libel itself that makes the target a public figure against their will. The same policy and political arguments simply don't apply.

    It was noted in this episode that getting rid of the Sullivan standard would hurt Fox, OANN, etc, much harder than NYT or WaPo partially because the latter have the funds to pay an army of editors while smaller outfits don't. I would say that (a) right now the NYT and WaPo also have the funds to pay an army of lawyers so any standard will be to their advantage over smaller rivals, and (b) clearly they aren't using that money to hire editors or else they wouldn't have the original they've been having.

    And to the extent that overturning the Sullivan standard would hurt Fox and friends because of existing legal exposure: Good. The fact that those cases are even close is a better argument against Sullivan than I could ever put forward.

    I am in favor of anti-SLAPP bills. Making the plaintiff state the exact defensive statement and why it is false before discovery seems like such an obvious step for weeding out the pure nuisance suits.

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    1. MathewA

      "That having been said, it's not the court's place to make policy, and I am highly skeptical that the 1st amendment requires this result."

      Agreed. But when SCOTUS has ruled something part of 1st amendment Jurisprudence, the only way to fix that is either SCOTUS or a constitutional amendment. Which won't happen for libel reform.

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  6. Avatar photo
    Treadmill

    David,
    Thank you for your comments on return from deployment. After my second tour, I likewise felt the pangs of being out of the place where I felt the most competent, the most impactful, and the most appreciated by people who understood the difficulty and shared the purpose. What I didn't precisely expect was the lingering aftershocks during the following years as no other job quite met the same characteristics, at least partly because non-deployed life is full of distractions, obligations, relationships to be maintained, buckets to be filled. Downrange there is only one bucket and that bucket is the mission. I was gluttonous on that undistracted purpose and felt pangs of resentment at having to divide my time and energy upon return.

    When I give people "words of wisdom" during one of my service's traditions, I like to say that people need two things to be vocationally satisfied: a well-defined job worth doing, and the tools to do it well. We want purpose, but we also want to feel competence in that purpose. I hear despair sometimes from other new fathers who fear that they'll not rear their child well - their purpose as a father is evident and weighty, but the road to excellence seems long and perilous most days.

    Thanks for putting words to feelings on this issue. It helps.

    edit: a word

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    Ian Fillmore

    On masculinity, I can't access David's oped. But I did look at the Matt Walsh tweet.

    "All a man wants is to come home from a long day at work to a grateful wife and children who are glad to see him, and dinner cooking on the stove. This is literally all it takes to make a man happy. We are simple. Give us this and you will have given us nearly everything we need."

    The way I interpreted it was that Walsh was talking about purpose and what gives men purpose. For many (most?) men, one of the biggest sources of purpose comes from providing for their families. Providing materially yes, but also in other ways. I didn't interpret Walsh's tweet as being so much about respect as about the sources of purpose in a man's life.

    While I agree with David that purpose is essential, I also agree with Adam Smith that people want to be loved and to be lovely. They need to feel appreciated, even admired by those around them. But they also need to feel deserving of that appreciation and admiration. I think Walsh's tweet was getting at this too. Sarah correctly points out that no man would be fulfilled if he just sat on a park bench all day, then came home to his adoring family. Sure. But that's a bizarre thing to say in response to the tweet because the tweet presumes that the man has come home from a long day at work.

    So implicit in Walsh's formulation is 1) the man works hard at work worth doing, 2) he has a family, 3) he sacrifices to support them with the work he does, and 4) his family loves and appreciates him for the efforts he makes on their behalf. This sounds to me like a decent formula for men to find meaning, purpose, and fulfillment. Personally, I would add faith to the mix (and I suspect Walsh would agree), but it was a tweet, not a full-length essay.

    As an aside, I think we should read people charitably. We should also understand the genre of what we're reading. This was a tweet, which is inherently constrained in its length. The whole point is to convey a thought within those tight constraints. In doing so, writers often employ various rhetorical tools like metaphor, hyperbole, synecdoche, etc. Walsh is doing that here. He is trusting the reader to read intelligently and charitably. I think he managed to pack a lot of wisdom into 137 characters. If you insist on reading the tweet hyper-literally or interpreting it in a way that distorts its meaning or criticizing it because it didn't say everything that could be said about masculinity, then I can't help you.

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    1. MathewA

      Agreed. I think David seems to have misread Walsh. And badly mischaracterized his arguments.

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  8. Paulkempf

    David mentioning the Nicholas Sandmann incident calls to mind an earlier one. Manson groupie Squeaky Fromme was blocked in her attempt to assassinate Gerald Ford in San Francisco when a bystander grabbed her pistol. If memory serves, it turned out the bystander was gay, a journalistic outlet outed him, and he sued. The news medium's defense was that he was a public figure so Sullivan v NY Times applied. And I think he lost.

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  9. Paulkempf

    Re unnamed sources: you touched briefly on one of the many benefits that non-attribution offer journos ( the main one of course being that people talk more freely--but not always more responsibly--when their names aren't attached to their statements). Namely, you can characterize the unnamed source to suit your purpose, making him more disinterested, authoritative, or--per your example, you can transform Miles Taylor (who?) into a senior Trump Administration figure as the NY Times did, to give his anonymous op ed column more weight than it deserved. You can transform interested parties into nonpartisan observers.
    An interesting example was the testimony against interest of Cassidy Hutchinson, a Mark Meadows aide, who testified she had been told that Trump tried to grab the steering wheel away from a Secret Service driver. The next day, when a paper quoted an unsourced agent challenging her testimony, I was struck with how many people held up the anonymous newspaper quote as dispositive. Against sworn testimony in open hearing made against interest! Not with regard to whether it had happened (which, her information being second hand, would reasonably be a source of debate) but as to whether anyone had said that to her. (From there, it was all rank speculation that she was angling for guest appearances on MSNBC.) The tribal brain at work, I suppose. Again, I have no idea what actually might have happened; rather, the point is, you have to give more weight to sworn testimony in open session (especially when it's against interest), than you do to an anonymous newspaper quote, if you have any pretense at all of being fair-minded.

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