October 26, 2016

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Rolling Stone is trying to put lipstick on a pig.

Tuesday was day eight of the defamation lawsuit brought by Nicole Eramo, a former University of Virginia dean, over the notorious Rolling Stone story that suggested she was indifferent to campus sex crimes.

A key magazine fact-checker testified that she was confident about the piece before it ran, only later coming to regret grotesque flaws that were detailed in a formal Columbia Journalism School critique. (The Associated Press) She also conceded not verifying key quotes. Sheesh.

Talk to media lawyers following the case and you’ll find a suspicion that Rolling Stone had best pin its hopes on an appeal of an adverse jury verdict. (Poynter)

How common are appeal victories in these cases? Late Tuesday I tracked down George Freeman, executive director of the Media Law Resource Center and former longtime chief lawyer for The New York Times.

“The dynamics of the Virginia case explain why, according to MLRC statistics, plaintiffs win over two-thirds of libel trials, and then over two-thirds are reversed on appeal.”

A plaintiff deemed a public figure, which is the case with the former dean, must show actual malice, namely knowledge of falsity or reckless disregard as to truth or falsity. That’s different than the standard definition of malice, which we use to mean ill-will or spite.

“So the jury sees the reporter relying on an unreliable source, not doing enough interviews, not seeking the right documents, and not caring about the plaintiff and sees recklessness and malice and returns a huge verdict against the purportedly arrogant and insensitive media.”

That may not be the case here.

“But actual malice really requires a showing of ‘serious doubts as to the truth,’ and from what I’ve heard there is no real evidence that the reporter and editor didn’t believe their story at the time it was published,” Freeman said. “Hence, a good argument for reversal.”

But don’t be surprised if a terribly botched story gets a comeuppance from a jury.

Wall Street cool on AT&T-Time Warner deal

“Time Warner Inc. shares closed Tuesday some $20 a share below the price spelled out Saturday in AT&T Inc.’s $85 billion takeover bid.” (The Wall Street Journal)

So what’s up? There are very low-interest rates and cravings for investment returns but “little interest from Wall Street traders, thanks in part to concerns about potential regulatory action and lingering fear that the post-crisis stock-market boom could be on borrowed time.”

Kelly-Gingrich spitballs

When MSNBC this morning shows you the crux of a Fox News back and forth, you can bet it’s not about U.S. fumbling in Syria or the Vatican clarifying cremation rules. No, it was about sex and media bias.

Newt Gingrich was upset last night that Megyn Kelly used the term “sexual predator” in discussing Trump. “I’m sick and tired of people like you using language that’s inflammatory, that’s not true.” Kelly said, “Excuse me, Mr. Speaker, you have no idea whether it’s true or not” and said she wasn’t taking a position.

“You want to go back to the tapes of your show recently? You are fascinated with sex and you don’t care about public policy….I want you to use the terms, Bill Clinton, sexual predator, I dare you.”

The Washington Post offers us instant macro historical context by casting this exchange as “one for the ages.” (The Post) I guess we live in rather drab times.

But there must be a Solomonic solution here with Gingrich and Kelly. There must be some way we can discuss global warming, declining infrastructure, segregation, poverty, mass transit and reforming public school education and get in the term “Bill Clinton, sexual predator.”

Sometimes, it’s like stealing

Ah, what you can accidentally pick up as a reporter! I was talking to Mike Dorf, a Chicago First Amendment expert, about the Rolling Stone trial and wound up getting this from a guy who’s also been President Obama’s election law counsel:

He was preparing for an appearance before the Chicago Bar Association on election law when he came across a passage from Thucydides’ “History of the Peloponnesian War” (431 B.C.) that he finds relevant to a hot media topic, namely Trump’s whining about a “rigged” election.

“In a democracy…someone who fails to get elected to office can always console himself with the thought that there was something not quite fair about it.” (Book VIII, Section 89, Rex Warner translation for Penguin Classics).

The accuracy of many journalists’ best friend

With the death of many research operations at media outlets, more than a few reporters (and editors) rely on Google and Wikipedia more than they might let on when it comes to fact-checking. They might be relieved to learn that a Harvard Business School study (“Do Experts or Collective Intelligence Write with More Bias?“) find Wikipedia “increasingly balanced.” (The Washington Post)

Yes, kids, your Mom and Dad — or at least Grandma and Grandpa — used to have these actual large, hardcover editions of the Encyclopedia Britannica on bookshelves at home. They were many a child’s window on the planet.

World Series, Game 1

“Cleveland Indians ride Corey Kluber express to 6-0 victory over Cubs in Game 1 of World Series.” (Cleveland.com) “Corey Kluber takes page from Jon Lester’s book, but Cubs fans need not fret.” (Chicago Tribune)

Quiet day in L.A.

Trying to get away from the Cubs-Indians game, inexplicably I checked out the website of Los Angeles TV station KTLA. Right there on the main screen were these tales:

Sylmar Security Guard Shoots Man Who Threatened Employees With Shard of Glass: LAPD,” “Tires Didn’t Have Enough Tread on Bus That Crashed, Killing 13 in Desert Hot Springs: NTSB,” “2-Year-Old Girl Found Dead in Fontana Home; Mom and Step-Grandfather Arrested on Child Abuse Charges: Police.”

Sheesh. It felt safe living in Chicago, even if watching the home team get creamed.

What you missed last night

NBC’s evening newscast led with the campaign: “The center of gravity rests in Florida,” announced Lester Holt. CBS opened with the campaign, too: “For Hillary Clinton and Donald Trump, there is not a minute to spare,” intoned Scott Pelley.

ABC’s David Muir waxed melodramatic and tabloid over a British Airways “mid-air scare,” namely a medical emergency of some unexplained sort that prompted the Los Angeles plane to land in Vancouver, where 25 crew members were taken to a hospital and soon released.

Well, the new “Vice News Tonight” on HBO opened with no anchor but disembodied voices discussing what it deemed important happenings: an ISIS suicide attacks kills 60 in Pakistan, Russia claiming it helped civilians evacuate Aleppo, France starting to demolish a camp for migrants, and a judge approving a $14.7 billion Volkswagen settlement.

The show’s pacing and tone remain at a certain pleasing variance from that of the old stalwart shows with their giant audiences, editorial similarities and pharmaceutical ads geared to seniors.

Perils of crowdsourcing?

It might seem, at first glance, apples and oranges, namely reporters using crowdsourcing to get information and advertising creative directors using it to get ideas.

But here’s an interesting tale: “Is crowdsourcing turning creative directors into curators?” (Adweek) It’s about farming out the creative process for reasons of efficiency and cost-savings, especially when it comes to lower-margin business.

So ad agencies farm out work that they don’t feel is “economically viable.” Hmmm. That sounds a bit like a few editors when it comes to devoting resources to stories with lower readership, or clickbait potential, no matter how relevant to a community’s functioning.

Failing “the product solution stack test”

There’s been discussion of late on how badly newspapers have screwed-up digitally. Says Damon Kiesow, a McClatchy product executive, the internet’s been disruptive, for sure, but “blaming our travails entirely on those outside forces risks ignoring the mistakes we do own.” (Medium)

The morning babble

“Fox & Friends” opened with genial John Roberts as usual with a sympathetic report on the Trump campaign, standing in front of his new Washington, D.C. hotel that opens today. There was heralding of inconsequential small bumps in some Trump poll numbers and bashing of rising Obamacare premiums.

CNN’s “New Day” underscored “Trump stumbles on Obamacare attack” and even spent time on an interview in which he discussed his propensity to like fighting as an, ah, eighth grader. Juana Summers, CNN politics editor, found it an “interesting intellectual insight” into Trump.

MSNBC’s “Morning Joe” focused on a bunch of new Clinton emails via WikiLeaks that it found instructive about internal tensions, including on how to deal with her personal server. In particular, there was chum Neera Tanden, who heads a liberal think tank, telling campaign boss John Podesta that Clinton aides hadn’t disclosed use of the server since “they wanted to get away with it,” while also arguing that the candidate’s inability to “communicate genuine feelings of remorse and regret are becoming, I fear, a character problem.”

Mark Halperin demurred when Joe Scarborough argued the emails in general show how Clinton’s got some good honest folks around her and it bodes well for her presidency. Halperin finds that, no, the emails show the Clinton camp’s commitment to transparency was “all political,” not propelled by a sense of doing the right thing. And they failed. “It doesn’t bode well for a Clinton presidency” if those she listens to reinforce her basic instincts to withhold.

Corrections? Tips? Please email me: jwarren@poynter.org. Would you like to get this roundup emailed to you every morning? Sign up here.

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New York City native, graduate of Collegiate School, Amherst College and Roosevelt University. Married to Cornelia Grumman, dad of Blair and Eliot. National columnist, U.S.…
James Warren

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