Category: Journalism

Media Coverage of Blankenship Cert Denial Remarkable for Its (Mostly) Lack of Hyperbole

Over time tort law has become reluctant to provide compensation for harms to reputation caused by what people say or print.1 In New Jersey the statute of limitation for a defamation action is just one year from the date of publication. If the alleged defamatory matter is true, well that’s an absolute defense (although it has not always been). And only statements of fact, as opposed to opinion, are actionable.

Since the 1964 case of New York Times Co. v. Sullivan,2 the First Amendment has been interpreted to protect the news media from liability for defamatory falsehoods against public figures unless the statement was made with “actual malice,” either knowledge that the statement was false or reckless disregard as to whether it was true or false. The commercial media understandably view this decision as an important one.

It is not, however, without its critics, one of whom is Supreme Court Justice Clarence Thomas, who has been known to question the correctness of many prior decisions. In McKee v. Cosby, 586 U. S. ___ (2019), Thomas concurred in the denial of certiorari but called for the re-examination of Sullivan. He did the same thing last Tuesday in Blankenship v. NBCUniversal, 601 U. S. __ (2023).

Media reaction has been a bit more subdued than I might have expected. Yes, BNN Breaking, a news website of which I was previously unaware, called the denial of certiorari a “landmark decision” with “far-reaching implications, carving the path for future defamation cases and highlighting the crucial balance between freedom of the press and individual reputation.”3 But much of the other coverage, from, for example, CNN, The Volokh Conspiracy, and even the New York Times itself, has been sober, factual, and accurate.

Jay Bohn

October 16, 2023

  1. The generic term is “defamation,” with “slander” being the more specific term for spoken remarks and “libel” for things printed. ↩︎
  2. I won’t be looking there for informed legal analysis anytime soon. ↩︎

Moran Editorial on Hudson County Prosecutor Shows Need for (and Failure of) Newspapers

Yesterday Star-Ledger Editorial Page Editor Tom Moran published a column entitled “Biden rejected Hudson County Prosecutor. Why Murphy Didn’t.”1 According to Moran, the indictment of Senator Robert Menendez states that Menendez recommended Hudson County prosecutor Esther Suarez to President Biden as U.S. Attorney for New Jersey because he believed that she would go easy on fraud charges against his co-defendant Fred Daibes. I won’t spoil the rest for you; the column is worth a read.2

It may not have been Moran’s intent, but the whole situation shows the critical importance of newspapers (and I mean print newspapers, not TV news and not even online newspapers) to inform the citizenry what its government is doing to it. The only way to fight political machines is to make sure that the people know what is going on.

While I’m certain that Moran would agree to the importance of newspapers, I am not convinced that he would admit they are doing a horrible job. They need to give us facts, not just spoon feed the opinions we ought to have.

Jay Bohn

October 8, 2023

  1. As usual, the online version has a slightly different title: “Biden rejected Hudson Prosecutor Esther Suarez. Here’s why Gov. Murphy didn’t.” (subscriber exclusive) ↩︎
  2. If you’re a subscriber of course. ↩︎

Trump Disqualification 6: What Are Others Saying?

Now that I have completed my discussion of the elements that have to be established for Donald Trump to be disqualified under section 3 of the Fourteenth Amendment, here is a roundup of what others are saying:

CBS News “The Constitution’s disqualification clause and how it’s being used to try to prevent Trump from running for president,”

The Atlantic “The Constitution Prohibits Trump From Ever Being President Again” (paywall)

Baude, William and Paulsen, Michael Stokes, “The Sweep and Force of Section Three” (August 9, 2023). University of Pennsylvania Law Review, Vol. 172, Forthcoming , Available at SSRN: https://ssrn.com/abstract=4532751

Tillman, Seth Barrett and Blackman, Josh, “Sweeping and Forcing the President into Section 3: A Response to William Baude and Michael Stokes Paulsen” (September 12, 2023), 28 TEX. REV. L. & POL. (forth. circa 2023-2024), Available at SSRN: https://ssrn.com/abstract=4568771 

Eric Segall, The Difficult Legal and Political Questions Surrounding Trump’s Disqualification Under Section 3 of the 14th Amendment, Dorf on Law

Michael B. Mukasey, “Was Trump ‘an Officer of the United States’?” Wall Street Journal (paywall)

Steven Calabresi, “Trump Is Disqualified from Being on Any Election Ballots,” The Volokh Conspiracy (agreeing with the Baude-Paulsen article above)

Steven Calabresi, “President Trump Can Not Be Disqualified,” Wall Street Journal (paywall) (Professor Calabresi changes his mind based on the Mukasey article)

Steven Calabresi, “Donald Trump Should be on the Ballot and Should Lose,” The Volokh Conspiracy

Adam Liptak, “An About-Face on Whether the 14th Amendment Bars Trump From Office,” New York Times, September 18, 2023 (Prof. Calabresi’s change of position)

Akhil Reed Amar, “An Officer and a President,” Amarica’s Constitution (podcast) (which apparently considers my thoughts on whether the President is an “officer” “a genuinely stupid argument”)

David Orentlicher, “Why the 14th Amendment shouldn’t disqualify Trump,” CNN (focusing on whether the events of January 6 were an “insurrection” and concluding that they were not)

Jay Bohn

September 25, 2023

Trump Disqualification 1: Initial Thoughts on CREW Lawsuit

I have read with some interest what commercial media companies have published about the position espoused by some that the Section 3 of the Fourteenth Amendment disqualifies Donald Trump from being reelected as President of the United States due to his actions with respect to the January 6, 2021, attack on the Capitol. Let me put my biases right up front. I believe neither that Trump won the 2020 election nor that he should win (or even run) in the 2024 election, so I have read such articles with some interest. Ultimately, I have been disappointed (but not entirely surprised) that they tend to deal with personalities, labelling of those who espouse their favored position as experts, or just re-hashing of prior reports. Now that an advocacy organization, Citizens for Responsibility and Ethics in Washington (CREW) has filed a lawsuit (press release | petition) in Colorado state court to obtain a definitive ruling, it’s time to discuss some of my initial thoughts about this issue.

The constitutional text reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

So, disqualification requires the following to be true:

  • that the President is an officer of the United States
  • that Donald Trump took an oath to support the Constitution of the United States
  • that the events of January 6, 2021, amounted to an “insurrection,” and
  • that Donald Trump “engaged” in the insurrection.

(Note that I am dismissing any contention that the events of January 6 constituted a “rebellion” or that Trump’s conduct constitutes “aid” or “comfort” to the “enemies” of the United States.)

There are non-frivolous (but not necessarily convincing) arguments against each of these points, and I propose to discuss them in somewhat more detail in subsequent posts.

I don’t know anything about the way pleadings like a petition are generally worded in Colorado, but this one reads more like a legal brief. Whatever its formal merits as a legal pleading, this means that the arguments on these points are spelled out pretty clearly. After reading it there are some good arguments about the first three elements, but I’m not quite there yet with the proof that Trump “engaged” in the insurrection by means of his false claims and incendiary remarks.

The issue is very important and needs to be decided based upon the constitutional text, not one’s position on whether Trump should or should not be reelected, but it’s unrealistic to expect most media coverage to focus on the actual legal issues rather than politics and personalities.

Jay Bohn

September 7, 2023

Best Judicial Decisions Rely on Process, Not Policy.

In one of my earliest posts, COVID-19 and Emergency Powers, I said: “Unfortunately, attempts to rein in the use of emergency powers have been viewed through the prism of politics or the perceived merits of the action taken rather than process considerations or the constitutional separation of powers.” The same goes for any governmental action where an official’s power to take some action is questioned: “the [insert relevant official or agency] should have the power because the [relevant official or agency] makes better choices than the [whoever we’re opposed to].”

This trust was recently shown in connection with the decision by Judge Robert Kirsch who sits on the U.S. District Court for the District of New Jersey. At issue was the extent to which New Jersey could legislatively prohibit private parties from contracting with the federal government to execute federal policies with which New Jersey disagrees. The specific policy here is the detaining of aliens who enter the country illegally. U.S. Immigration and Customs Enforcement (ICE) does not operate its own detention centers and has relied on both public and private jails to house detainees. Because New Jersey’s present administration opposes such detention, a statute was passed which not only prohibited counties and municipalities from entering into or renewing contracts to house detainees, but also prohibited private prison operators from doing the same.

The operator of the Elizabeth Detention Center filed suit. You see, the U.S. Constitution has this thing called the “Supremacy Clause,” which says that federal law supersedes state law. In fact, a famous early Supreme Court decision,1 overturned a Maryland law which attempted to impede the operation of the Bank of the United States by a special tax.2

In an extensive written opinion, Judge Kirsch overturned the New Jersey law because the prohibition of private prison operators3 from contracting with federal government interfered with federal execution of federal policy.

Besides the opinion itself, I have had the opportunity to read two accounts of the matter. NJ.com predictably gave more ink to Governor Murphy and others who oppose the detention of those whose initial entry into, or continued presence within, this country is contrary to law, but New Jersey Monitor, which actually provided a link to the opinion,4 concentrated more on the ruling itself.

The New Jersey attorney general has promised to appeal, but I see merit in such an effort as the decision was really inevitable.

Jay Bohn

September 4, 2023

  1. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819). ↩︎
  2. The opinion has one of my favorite lines, “The power to tax involves the power to destroy.” ↩︎
  3. The prohibition on municipalities and counties was not challenged and would likely have been upheld because the Tenth Amendment has been interpreted as having an “anti-commandeering” principle which means that the States cannot be compelled to execute federal law. ↩︎
  4. NJ.com also linked to the opinion, but on New Jersey Monitor‘s site as well, as I have. ↩︎

Kudos to CNN for Coverage of Third Trump Indictment

On Tuesday former President Donald Trump was indicted for the third time. A federal grand jury in Washington now accuses him of several federal crimes related to his attempts to avoid the fact that he lost the 2020 presidential election. I hope to be able to write about the charges in the near future, but the point of this post is to congratulate CNN.com for its coverage of the event.

A continuing theme of my posts about journalism has been the need for the news media to present accurate facts and not just conclusions or opinions. I pretty much said exactly that in one of my first posts, The News Media Should Give Us More Details — Not Just Conclusions. Last year I pointed out the lack of detailed coverage of the actual claims that Trump supporters had made and why they are false.

That’s why I was very glad, and just a bit surprised, that CNN has published not just the full text of the 45-page indictment, but also annotated it.

Trump’s post-election conduct, especially leading up to and during the attack on the Capitol on January 6, 2021, was certainly troubling and now we will get the chance to see if it was criminal. It will be up to prosecutors to prove that Trump engaged in the conduct that the indictment charges and that that conduct equates in law to the charged criminal offenses. A resolution of these charges is more important than the other criminal cases against Trump and I hope for a prompt and public trial, with detailed, accurate, and objective coverage (oh, and a public that pays attention).

Jay Bohn

August 3, 2023

Star-Ledger Missing the Chance for Helpful Journalism by Concentrating on the Politics, Rather Than Details, of StayNJ

As I reported last month, New Jersey Assembly Speaker Craig J. Coughlin has proposed a new tax “cut” he calls “StayNJ” which would, he says, “effectively cut most seniors’ property taxes in half.” (emphasis added) Once the details were revealed, we learned (surpise!) that it is not a tax cut at all, but another rebate scheme, no doubt intended to assure Democratic victories in November’s legislative elections.

The Star-Ledger/NJ.com extoll the importance of journalism and seek ever more of their readers’ money, but I wish they (and all journalists) did a better job of reporting facts and useful analysis, rather than rank opinion.((See, for example, my comments in Ruminations on Voting.)) It seems to me that they would better serve their readers by reporting on the details of the plan as it moves through the Legislature instead of concentrating their efforts on the conflict between the Democratic legislators and Governor Murphy, who is said to be ready to shut down the state if StayNJ is part of the budget. As usual, the reporting emphasizes the conflict of personalities over the issues.

One of the details that have been reported is the fact that StayNJ will not take effect until January 1, 2025. What is not explained is why it is part of the 2023-2024 budget (other than to seek votes for Democrats).

Jay Bohn

June 15, 2023

Media Reports of Public Opinion of Courts a Sort of Self-Fulfilling Prophecy

Because the only information most Americans get about court decisions (as just about any other public institution) comes from an increasingly opinion-dominated professional news media, and those media emphasize the politics and personalities of major judicial decisions rather than the actual legal issues and arguments, it is not surprising, as ABC News recently reported,1 that public opinion tends to accept the narrative that judicial decisions are driven by politics.

We don’t have to rely solely on major media. The United States Supreme Court’s website is a comprehensive resource to learn about the cases before it, the arguments of the parties and the Court’s own decision. A reader can find all the briefs, on the day the case is argued a live audio feed is provided, later that day both the recorded feed and a transcript is available, and of course all the opinions are available as soon as they are released. Other courts are not quite so comprehensive, but usually at least the decisions can be found.((New reports of judicial decision, at least the on-line stories, should link to a freely available opinion or at least provide sufficient information, like case name and docket number, that a search can locate it.))

Of course, the subtext of the most media coverage is that being driven by politics is a bad thing only of the judicial decisions under discussion are viewed as supportive of conservative policies. Many conservatives advocate interpreting constitutional and legislative texts according to the meaning they would have conveyed at the time of their adoption. Liberals decry reliance upon originalism and might well argue that the law’s text must not get in the way of its primary goal which is . . . well, whatever the judge wants to say it is. If that’s not politics, what is?

Jay Bohn

May 11, 2023

  1. More say politics, not the law, drive Supreme Court decisions: POLL [↩]

Not Every Bill Becomes a Law

Sometimes you will see a news article describing a trend (usually one of which the author disapproves) derived from bills introduced in a legislative body. An example is a recent piece from Reckon((Reckon describes itself as “an award-winning national news organization that covers the people powering change, the challenges shaping our time, and what it means for all of us.”)), “Texas is on a crusade to kill the state’s stunning renewable energy progress” that was republished on LeghighValleyLive.com a couple of days ago.

The piece complains about “a series of anti-environmental bills . . . .” Well, I don’t know about Texas, but in New Jersey thousands of bills are introduced in each Legislature,((As of yesterday the highest numbered Assembly bill was A5415 and the highest numbered Senate bill was S3792.)) many time and time again. Most are referred to committee and never heard from again. The sponsor can at least claim an attempt to do something.((The plethora of bills is actually a bad thing because it makes it all the harder for citizens to monitor what their representatives are doing. I haven’t come up with a solution yet.)) No doubt there is a lot of duplication so that everybody gets a chance to take credit.

The author is particularly alarmed by HB33, “which would prevent state agencies from assisting federal agencies in enforcing oil and gas production laws if they contradict state laws.” The executive director of Environment Texas is quoted as saying “It seems to be very problematic from a legal perspective to tell local officials they aren’t to follow federal law.” The bill doesn’t do that. Although a federal law is supreme over a contradictory state law, and we long ago realized that the States cannot “nullify” a federal law with which they disagree, the Tenth Amendment prevents the federal government from “commandeering” State resources and personnel to implement federal law.((This was the legal basis for the Supreme Court’s decision in Murphy v. National Collegiate Athletic Association, 584 U.S. ___, 138 S. Ct. 1461; 200 L. Ed. 2d 854 (2018), which overruled a federal law that essentially required most States to prohibit sports betting as well as the policies of many States not to cooperate with the enforcement of federal immigration law.)) HB33 merely proposes that Texas State resources not be used to implement policies with which the State disagrees.

The article also expresses concern about bills that would prevent localities from banning natural gas appliances (see my post Now We’re Cooking With Gas, But For How Long?) or gasoline-powered lawn equipment (which has similar issues).

Jay Bohn

April 13, 2022

Tennessee Three Perhaps Different in Degree, but Not in Kind, from January 6 Mob

A number of my posts have been about free speech.((See Free Speech is a Bitch and Free Speech, but Not for All Ideas.)) But my support for that right does not mean that I believe that there may not be reasonable restrictions of the time, place, and manner of the expression of ideas and consequences for violating those restrictions.

On January 6, 2021, a mob invaded the U.S. Capitol during the formal counting of electoral votes that would certify President Biden’s election. The mob was certainly expressing political ideas, but not in a way that is protected by the First Amendment. It sought to disrupt and improperly influence an official proceeding. A large number of them are being prosecuted and some will serve substantial jail time. I have no sympathy for them.

Compare that with what happened in Tennessee on March 30, 2023. Hundreds of protesters, reacting to a recent school shooting, entered the Tennessee state capitol to call for greater regulation of firearms. That is not the bad part. Three members of the state house of representatives:  Justin Jones, Gloria Johnson, and Justin J. Pearson, then occupied the well of the House while it was in session and used a megaphone to lead protesters in the gallery.((One of my complaints about the coverage of these events is the lack of detailed factual accounts of what happened. Certainly, Jones used a megaphone, and I have read accounts stating that Johnson did not. Whether Pearson used the megaphone is unclear.)) The “Tennessee Three” sought to disrupt and improperly influence an official proceeding. Two of them were removed from office in consequence.

The disruption of the House session was the anti-democratic act here. It was wrong and even more so because it was done by members who presumably took an oath to support the Tennessee Constitution. On April 6, 2023, the House voted to expel Jones and Pearson; the vote to expel Johnson failed by one vote.

The media coverage has been focused on the expulsions and not the conduct that preceded it. Over the weekend the Star-Ledger re-published the Washington Post‘s story under the title “Experts: Tenn. vote is latest GOP move to stifle dissent.”((The Washington Post‘s on-line version is entitled “Tennessee vote marks latest GOP move to stifle dissent, experts say.” and is behind its paywall.)) I have previously commented that when I see reference to an “expert,” or multiple “experts,” in a headline, it means that the article is going to be a disguised opinion piece.

One can certainly question whether the expulsion of two of the members matched the gravity of the offense. I actually think it a bit too harsh, but not by much. Jones’ response did not help his case. He is quoted as calling the process “unconstitutional,” but of course the reporting of that comment did not specify exactly what constitutional provision was violated. (Perhaps Jones was not clear, but there is no evidence that the authors of the article sought clarity on this point.) He also stated that he did not believe he did anything wrong.

There are also those trying to put a racial spin on the proceedings as the two expelled members are Black and the woman who was not is White. The votes on all three were different,((The vote to expel Jones was 72-25, Johnson 65-30 (failed, 66 votes were required), and Pearson 69-26.)) and you would have to analyze the reasons given by the few representatives who voted differently as to why Johnson was spared. The fact that she did not use a megaphone could have been the difference.

Jay Bohn

April 10, 2023.