BEN RHODES WAS RIGHT: Katie Couric, the ̶b̶u̶b̶b̶l̶e̶h̶e̶a̶d̶e̶d̶  bubbly journalist is mocked for showing her intimate knowledge of people in European cities, telling us rubes that people in Amsterdam skate everywhere all the time:

“As you all know, it has lots of canals that can freeze in the winter,” Couric said, “so for as long as those canals have existed, the Dutch have skated on them to get from place to place, to race each other and also to have fun.”

Now, this. Either the guys in the control room were really hungry for generic Chinese food, or they need to buy an atlas. Ben Rhodes was right: they don’t know anything.

PUT THE POM-POMS DOWN AND START ACTING LIKE REPORTERS: The commitment to principles over “motives” or “cui bono” is writ large here, and Judicial Watch — generally considered a “right-leaning” outfit — deserves credit for filing this FOIA suit.

Judicial Watch, a local legal watchdog organization, announced Feb. 9 that it filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Department of Homeland Security for Secret Service travel-expense records related to expenses incurred protecting President Trump and his family while they traveled between June and October 2017

If only more journalists put their pom-poms down and remembered their mission is to “seek truth and report it” without regard to who it “helps” or “hurts.”

*updated for Latin spelling*

NOT A GOOD LOOK: Rep. Nunes (R-CA) is being accused of creating an “alternative” news site by Politico, and it looks pretty nailed down:

“Resembling a local, conservative news site, “The California Republican” is classified on Facebook as a “media/news company” and claims to deliver “the best of US, California, and Central Valley news, sports, and analysis. But the website is paid for by Nunes’ campaign committee, according to small print at the bottom of the site.”

Because the server at www.carepublican.com seems to have crashed, it’s hard to see whether it passes the tests for credibility as a “legitimate” news site. On the one hand, whois records show it uses a real person, not a private secret registration, as fake sites do. By the same token, that person, Alexander Tavlian, according to Politico, runs a company called Sultana Media who allegedly paid Nunes’ campaign $7,773 since July for “advertising; digital advertising management.”

At the moment, that URL is redirected to a Facebook page, and that page does not disclose any masthead, leadership or ownership. That’s usually the sign of a fake news site. Opacity is always bad.

I can’t see any laws being broken here, unless there’s some campaign law I’m missing. And I do believe that everyone who feels mistreated by the press (and Nunes has some genuine gripes in that regard, perhaps even against me) has the right to engage in counter-speech. Koch Industries — the favorite whipping post of the left — has a brilliant spot on their website where they have occasionally taken to task what they feel is unfair reporting. Similarly, Exxon-Mobil used an internet page to challenge a series of news articles with which they took issue. Good for both of them.

The part that’s a “bad look” for Nunes is that the Facebook page has no ownership disclosure, and even if the website has a small print disclosure, pretending that he’s running a “Media/News Company” just doesn’t pass the straight face test. But my grandfather’s caveat serves us all well: “never attribute to malice what you can account for with stupidity.” 

Nunes should take a cue from POTUS and get himself a .50 cal Twittergun. There, I fixed it.

PICK A STORY AND STICK WITH IT, FFS: For the past several weeks we’ve been told by our intellectual betters at MSNBC, Washington Post and The New York Times that daring to question the FBI’s actions was “unpatriotic” and a “national security risk.” (These are the same hypocrites who are wetting themselves over Meryl Streep’s performance in “The Post” when such questions were considered legit).

Notorious moron Adam Schiff even went as far as saying on live television that Tucker Carlson was “carrying water for the Kremlin” by daring to ask such questions.  So what should cross my wire today but a press release from the ACLU stating that it may sue the FBI:

What seems to be a made-up term raises concerns that the FBI created the designation to enhance government scrutiny of Black activists, including people involved in Black Lives Matter, which some wrongly blame for incidents of violence and label a hate group. By focusing on ideology and viewpoint in defining what constitutes a so-called “Black Identity Extremist,” the FBI is spending valuable resources to target those who object to racism and injustice in America.

The mask slips further. In 2018, if a truth-seeking question’s answer might provide succor to your political opponents, it’s a Russian plot and you are unpatriotic. If the same reasonable – no, important – question supports a DNC-approved minority, then it’s your duty to ask the question. Poor Kathryn Graham, it’s almost a blessing that she’s not around to see this perversion of “truth-seeking.”

HARD TO BELIEVE HE SAID THIS WITH A STRAIGHT FACE:

“Gingras said Google was “in the trust business” and felt “an extraordinary sense of responsibility” about the reliability of information highlighted by its search engine and news app.”

They keep insisting that they are a mere conduit, a common carrier like the phone company. But one look at “Google News” shows a selection and arrangement evidencing an editorial skew than simply cannot be attributed to a mere algorithm. And that skew extends well past editorial content: Google was fined $21 million by India’s competition commission for abusing its dominant position in the local search market for online general web search and web search advertising services.

“Don’t be evil”?

SHARYL ATTKISSON: “I’VE NEVER SEEN JOURNALISTS SO UNCURIOUS ABOUT SPYING” On Tucker Carlson’s show last night, Attkisson pointed out that in her extensive experience as a political and investigative journalist, she has never seen reporters so obliquely refuse to read — let alone report on — a government document. Carlson nails it when he says it’s stunning to hear reporters (who by trade are trained to seek out as much information as possible) say “tell me no more.”

Now you may believe that Nunes is a dope, a stooge, a liar, crazy (or in the fevered mind of Representative Schiff, a Russian agent). But that sidesteps the real issue for me as a journalist and media ethics specialist. As Attkisson points out, our newsrooms have never been so heavily populated with political operatives, and I would add that too many reporters are so saturated with fear and loathing of Trump that committment to their core principle (“Seek Truth and Report It“) has been swept aside. Read the documents, evaluate them for their probity and *then* decide what is and isn’t reportable. To go backwards and discredit anything because of Nunes’ shortcomings (which are many) is a public disservice.

STATING THE OBVIOUS: It doesn’t appear that the Girl Scouts offer a badge for enterprise, but if they did, this young lady deserves one. According to CNBC:

The San Diego Girl Scout council is looking into whether a scout who was photographed selling cookies outside a marijuana dispensary broke any rules […] Urbn Leaf founder Will Senn said the girl was with her parents and was just passing by with her wagon. He said he likes to support local fundraising efforts. “Cannabis is now legal in California and a direct result of that is the munchies a lot of times,” he joked.

PLACE YOUR BETS, FOLKS: Forcing bakers to make gay wedding cakes violates free speech, a California judge rules. The court said:

“A wedding cake is not just cake in Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as centerpiece in the celebration of marriage. There could not be greater form of expressive conduct. Here… They plan celebration to declare the validity of their marital union and their enduring love for one another.”

Who wants to take bets that the Cal Supremes will flip this, or if they don’t, lawfare activists will try a writ of mandamus in federal court?

WHAT DO THEY HOPE TO LEARN? In an unusual move, the UK Parliament (which has like many EU nations been flirting with “anti-fake news” laws), will be holding hearings in Washington DC on  Thursday, 8th February 2018.

This is the first ever live broadcast, public hearing of a House of Commons select committee outside of the United Kingdom. It will be a formal proceeding of the UK Parliament. A transcript of the proceedings will be available later via the Official Report/Hansard.

I won’t be attending, though I hope to be able to catch the webcast. I’d encourage any reporters who cover media or lawyers or educators with an interest in the subject to attend and report back.

THAT’S A NICE DELI YOU GOT HERE. WOULD BE A SHAME IF SOMETHING HAPPENED TO IT.

Businesses pay between $4,000 and $6,000 to join Project Green Light, a program that allows police to monitor businesses’ video surveillance feeds in real time. The cost covers installation of high-definition cameras and lighting. There also is a monthly fee of up to $150 for cloud-based video storage.

They should just elect Fat Tony as Mayor and be done with it.

PAGING WINSTON SMITHNOWICKI: “Polish Parliament Votes to Criminalize Any Mention of Polish Crimes During the Holocaust.” Not that I believe any enforcement of this law would succeed in the ECHR under Article 10, but speech bullies rarely care about a law’s infirmity as long as they can bring the pain for speaking up.

According to the law, which was approved on Friday by the country’s lower parliament, anyone who publicly attributes guilt or complicity to the Polish state for crimes committed by Nazi Germany, war crimes or other crimes against humanity, will be liable to criminal proceedings. Punishment will also be imposed on those who are seen to “deliberately reduce the responsibility of the ‘true culprits’ of these crimes.”

The European Court of Human Rights has spanked Poland’s judiciary before for enforcing judgments against political speech. Columbia University’s Global Freedom of Expression Center (where I serve pro bono as one of their experts) details Ziembinski v. Poland where a writer was punished for calling a local politician “a “numbskull”, “poser” and “dim-witted official.” That sounds like most local officials I know.

As to the new law, it’s doomed on extraterritorial reach as well: “The new law will apply both to Polish citizens and to foreigners regardless which country the statement is supposed to have been made in.”

Good luck enforcing a judgment enforcing that law in a US Court:

The SPEECH Act provides that a domestic court “shall not recognize or enforce a foreign judgment for defamation” unless it satisfies both First Amendment and due process considerations.

The law also forbids use of the term “Polish death camp” to describe the death camps where Jews and others were murdered in Nazi-occupied Poland during the Second World War.

MESS WITH THE BEST, DIE LIKE THE REST: James Woods, who wields a 50. cal Twitter feed like it’s nobody’s business wins his libel suit:

Portia Boulger alleged that Woods defamed her by tweeting out a post that falsely claimed she was a Bernie Sanders supporter who was planted at a March 2016 Trump campaign rally in Chicago and photographed giving a Nazi salute…On Wednesday, U.S. District Judge George Smith threw out the case, finding that Woods had not defamed Boulger because his post could be seen as posing a question about her identity and was “susceptible of more than one interpretation.”

Ohio law has the “innocent construction rule” in libel cases, wherein if a word is capable of multiple meanings, it isn’t defamatory per se. The court also went on to explain that questions are not statements of fact.

THERESA MAY TO “TACKLE” FAKE NEWS: How does that work, exactly?

Officially named the National Security Communications Unit, it will be tasked with deterring adversaries and combating misinformation spread by state actors, Press Gazette understands.

Having a bureaucrat decide what is and isn’t legitimate news will never end well. Do they block the the publication from access? Arrest the poster? Flag such postings as fake? What ideological tests will be imported into the decision making process?

It reminds me of Obama’s deservedly mocked “Attack Watch.”

TRUMP TRAUMA: ex-Washington Post and current Fox media critic Howie Kurtz comes right out and says it:

“These are not easy words for me to write. I am a lifelong journalist with ink in my veins. And for all my criticism of the media’s errors and excesses, I have always believed in the mission of aggressive reporting and holding politicians accountable […] But the past two years have radicalized me. I am increasingly troubled by how many of my colleagues have decided to abandon any semblance of fairness out of a conviction that they must save the country from Trump.”

The nut graf:

“This is not just a feud or a fight or a battle. It is scorched-earth warfare in which only one side can achieve victory. To a stunning degree, the press is falling into the president’s trap. The country’s top news organizations have targeted Trump with an unprecedented barrage of negative stories, with some no longer making much attempt to hide their contempt. Some stories are legitimate, some are not, and others are generated by the president’s own falsehoods and exaggerations. But the mainstream media, subconsciously at first, has lurched into the opposition camp and is appealing to an anti-Trump base of viewers and readers, failing to grasp how deeply it is distrusted by a wide swath of the country.”

I have nothing to add, other than “Read the Whole Thing.” ™ And I promise the link is not behind a paywall.

IT TAKES AN AUSTRALIAN TO EXPLAIN ANTI-TRUMP HYSTERIA:  The clearest, most sober and non-emotional essay on Trump and the backlash I’ve yet to read. Fair dinkum. Kicker of the Year:

Perhaps those who hysterically condemn Trump as a means of ­expressing their own virtue need to consider that if their aim is to portray themselves as more tolerant and urbane than the US President, they might be setting a pretty low bar.

As the Professor says: “Read the whole thing.”

UPDATE: Non-paywall link here.

FIGHT AGAINST “FAKE NEWS” FRAUGHT WITH FAKERY: Our intellectual betters in the EU, including France, Ireland, Germany and England have been passing or flirting with all sorts of laws criminalizing “fake news.” Industry giants Facebook, Twitter and Google have consistently failed at sorting out “fake news” and more often than not, simply add an ideological filter skewed against conservative-leaning speech as if that would fix the problem. I, for one, think the “problem” is greatly exaggerated.

But to heck with what I think. As free-speech advocacy group Article 19 points out, “neither states nor business are getting it right on ‘fake news’ and free expression”:

“The notion of ‘fake news’ is too vague to prevent subjective and arbitrary interpretation, whether in legislation or the rules of online platforms. “Fake news” laws can be (and frequently are under some regimes) used to suppress media freedom and jail journalists, but it would not be much reassurance to have private entities like the tech giants making these assessments instead. Such efforts can lead to undue censorship as a result of flawed algorithms and ill-thought out assessments of what can be considered “true” – not to mention that these businesses may be subject to the influence of non-democratic governments in certain countries where they operate.”

Just last week the Committee to Protect Journalists reported that two Jordanian journalists were arrested for violating that nation’s Press Law, which criminalizes “false information.” In the US, as in Jordan, there is a reflexive impulse of government actors to decry news they don’t like or that may be factually incorrect without proof of malicious motive as “fake” or “false.”

The proof of the problem with these kinds of laws is concrete. In early January, pressured by the new German “fake news” law, Twitter blocked the account of German satirical magazine Titanic after it posted tweets that parodied a far-right politician.  The German Federation of Journalists, which has criticized the law since it was first proposed last year, told CNN said that the suspension of Titanic was exactly the kind of censorship the group has warned about for months. Eurocrats countered by saying that “rules covering hate speech and illegal content on digital platforms [are] in line with those already imposed on print media.” Justice minister Heiko Maas said that “freedom of expression is not a license to commit crimes.” When a bureaucrat can’t tell the difference between “hate speech” and humor that actually lampoons “hate speech,” you know trouble is inevitable. (Not that the Germans are famous for their sense of humor anyway).

Worse yet, even The New York Times has admitted that the impact of the fake news propagated in social media may have been wildly exaggerated. While “fake news” is on the never-ending and always evolving list of reasons that Ms. Clinton lost an election she had thought was sewn up, it is emerging that these fake news stories and memes didn’t change votes, but rather reinforced the bubbles and bias of those who had already made up their minds.

Here’s a crazy idea: how about treating the polity as capable of thinking for themselves and embracing the “marketplace of ideas“? In the words of the great Nat Hentoff: “Let the asses bray.”

**Shameless Self-Promotion: I’ll be speaking on the keynote panel “Fake News Eats the World: Protecting Speech, Evaluating Truth & Validating our Decisions” at the Legaltech 2018 Conference in New York City on Thursday, January 31, 2018

WHO ARE YOU GOING TO BELIEVE? Luis Gutiérrez and Jorge Ramos, or The Associated Press and the US Army? In every interview when asked why the opposition to the wall, they say “it won’t work.” Really?

“Recent assaults by tactical teams on prototypes of President Donald Trump’s proposed wall with Mexico indicate their imposing heights should stop border crossers, a U.S. official with direct knowledge of the rigorous assessment told The Associated Press….Military special forces based in Florida and U.S. Customs and Border Protection special units spent three weeks trying to breach and scale the eight models in San Diego, using jackhammers, saws, torches and other tools and climbing devices…”

Ramos last night again on Tucker Carlson’s show trotted out the exact same “the wall is useless” line he’s been pushing for months. No sale.

WHAT A REAL WAR ON THE PRESS LOOKS LIKE: My friends in the Washington press corps really need to get some perspective. While some of them whine about getting a verbal beat-down from Sarah Huckabee-Sanders or a bellicose tweet from the President and call it a “war on the press,” this happened:

Carlos Dominguez, a 77-year-old opinion columnist who had worked as a journalist for nearly four decades, was stabbed 21 times, according to Mexican authorities. They said he was attacked by at least three men who remain unidentified and at large…He wrote frequently about politics, organized crime and occasionally their intersection — a perilous beat in a country that was second only to war-torn Syria in the number of journalists killed last year.

The L.A. Times continues to note that “Eleven journalists were slain across Mexico in 2017, with no culprits arrested in most of those cases. Dozens of reporters have fled the country or gone into hiding.”

Where any of these deaths caused by 50 caliber Tweets?

SYMPATHY FOR THE DEVIL: The Daily Caller reported yesterday that New York University professor Michael Rectenwald is suing NYU and four of his colleagues for defamation after faculty used the school’s email system to call him a “right-wing misogynist,” an “asshole” and “Satan.”

As sympathetic as one might be towards a professor who stands his ground and rails against out-of-control indoctrination in higher education, if those are the words over which he is suing, he doesn’t stand much of a chance in court. A long line of cases hold that what might be deemed “offensive” language does not meet the critical element in a libel case of making a false statement of fact with the requisite fault level.

All kinds of offensive words that might ordinarily harm a person’s reputation, in certain contexts (like political discussions, union disputes, an even competition in the marketplace) are often rendered mere opinion, or “hyperbole and rhetoric” by dint of their “over-the-top” nature, their literal improvability, and the heated context in which they appear.

The words “scab” and “traitor” were so held in Letter Carriers v. Austin; “pimp” in Knievel v. ESPN; “rip-off,” “fraud, “scandal” and “snake-oil job” were not actionable in Phantom Touring, Inc. v. Affiliated Publications; and “trashy” in Levinsky’s v. Wal-Mart Stores, Inc., my very first Court of Appeals case.

*Classical reference in headline

TRUMP IS LIVING RENT-FREE IN SO MANY PEOPLE’S HEADS: On Martin Luther King Day, The Daily Beast looks back at the time the notoriously vicious Roy Cohn sued MLK for libel. But surprise! They can’t fight the urge to work Trump into the story. Even though Trump was only in his early 20’s at the time of the suit, Cohn had long risen to notoriety as hatchet-man for Joe McCarthy by decades.

But this is a great example of defamation by association, or what I call “drive-by defamation.” Note that it is not an actionable libel, which requires falsity, but it is nonetheless a defamatory implication:  It is entirely true that Cohn worked for Trump. But to identify him as Trump’s hatchet man in the headline is too cute by half. It’s like writing a story about Hitler and referring to him as “Vegetarian and Dog Lover” in the headline.

Of course, the urge (some might even say uncontrollable impulse) to associate Trump with every known evil in the world is the writer’s prerogative, and I’d defend it to the bitter end. But the true disservice here is a warping of history.

FUN FACT THEY ALWAYS LEAVE OUT: Robert F. Kennedy was, like Cohn, Assistant Counsel to Joe McCarthy, and vied with Cohn for McCarthy’s attention, later resigning bitterly when McCarthy gave Cohn more authority instead of Kennedy.

PEAK TRUMP DERANGEMENT SYNDROME: Political scientist, historian and social psychologist Jamie Lee Curtis blames Trump for Hawaiians’ panic on being told missiles were headed their way. Because obviously, if not for Trump, people in Hawaii would simply say “hey, cool, missiles are coming. I’ll go get the sunscreen.”

IN THE MAIL: Joanne Lipman’s “That’s What She Said“, about how we might be able to discuss gender issues in the workplace without being lectured at or reliance on divisive language. Lipman was Gannett’s Chief Content Officer and a veteran journalist at The Wall Street Journal among other places. Here’s the promising part from the jacket notes:

“First things first: there will be no man-shaming in “That’s What She Said.” A recent Harvard study found that corporate “diversity training” has actually made the gender gap worse — in part because it makes men feel demonized. Women, meanwhile, have been told that closing the gender gap is up to them: they need to speak, to be more confident, to demand to be paid what they’re worth. They discuss these issues amongst themselves all the time. What they don’t do is talk to men about it.”

It will be interesting to see the reaction to her work, given that the squeaky wheel of confrontation and currency of victimhood has paid off for a few, (*ahem*, Lisa Bloom) without making a real dent in the overall problem. Here’s hoping calm, intelligent and rational dialogue without demonization wins the day.

JUST BECAUSE YOU’RE PARANOID DOESN’T MEAN THEY AREN’T OUT TO GET YOU: “Google Is Not What It Seems”, by Julian Assange. Between Facebook banning the sale of a book without rational explanation and the revelations of the inherent content-based discrimination at Twitter, it seems that Tucker Carlson and others are correct that corporations are rapidly becoming the New Thought Police.

PROOF THAT THE MARKETPLACE OF IDEAS WORKS: “Bid To Save Gawker.com Falls Short.”

ENJOIN THIS! According to the New York Daily News, WikiLeaks shared the complete text of a new book containing explosive allegations about President Trump before deleting its post on Twitter. But the publisher will find out that suppressing publication is — surprise! — like playing “whack-a-mole”, and links to the book (oddly, without page numbers, suggesting these are page proofs) are popping up everywhere.

Will Wolff’s publishers start filing suit and serving subpoenas to unmask the infringing uploaders? Or will they just send DMCA “take down” notices to the ISP’s? Stay tuned.