PALIN V. NEW YORK TIMES: NOTHINGBURGER OF THE YEAR. The dust hasn’t quite settled on the meaning and effect of Judge Rakoff taking the case away from the jury. But having followed the case from its inception there are some deeper issues to be considered. This is not a law review article and I’ll try to keep the jargon to a minimum. I also apologize for the length of this note, but there’s a fair amount of background context that needs to be laid out. That said, the issues fall into two groups: first, the potential endgame of this case; and second (and far more importantly), the implications about media and the way they treat the public in general.

As for the case itself, in short, it revolved around an editorial that regurgitated the “conventional wisdom” that Palin’s infamous “crosshair map” impelled lunatic Jared Laughner to shoot Representative Giffords. Unfortunately for the Times, they had previously published a news article that clearly exonerated Palin from any vicarious liability. In editing and fact-checking the editorial however, the Times staff purportedly looked only at previous editorials and not news articles. So the theme for Palin was “don’t you people even read your own paper?” That’s not a bad question.

There were a few oddities in the judge’s handling of the case. I’ve litigated before Judge Rakoff and found him to be highly intelligent and virtuously unbiased. Nonetheless, during the Motion to Dismiss phase (in which the judge is required under Rule 12(b)6 to review only the motion papers), Rakoff decided nonetheless to hold an evidentiary hearing. This was appealed and the usually press-friendly Second Circuit pointed out the error in holding such a hearing and sent the case back to Rakoff. After discovery had been completed Rakoff held that there was “a genuine issue of triable fact” appropriate for a jury to decide. Then things got weird: While the jury deliberated, Rakoff announced publicly that he would grant “JNOV” to the Times, meaning that under Rule 50, a reasonable jury would “not have a legally sufficient evidentiary basis to find for the party”.

What does this mean for the endgame of the case? It seems to me that Rakoff handed Palin a serious appealable issue on a silver platter. The un-sequestered jury had learned about Rakoff’s decision prior to their finding for the Times. It seems to me that it’s not unreasonable to assume that jurors either took that as an implicit instruction or were subliminally influenced by Rakoff’s decision.

Here’s where it gets kind of interesting (at least to constitutional law geeks). Normally a jury finding is almost sacrosanct in appeals, and jury findings will not be overturned unless there is a showing of “manifest injustice.” Not so for First Amendment cases. Federal courts exercise “independent appellate review” and essentially look at every aspect of the case (called “de novo” review). Although the Times initially denied that the editorial made a defamatory assertion, they were rightly able to argue that as a public figure, Palin had to prove more than bumbling idiocy on the part of the Times, but that they published it with knowing falsity. On those grounds, it’s highly unlikely that the Second Circuit would reverse the finding. More problematic for the Times is whether or not Rakoff’s announcement so contaminated the jury deliberations as to warrant a mistrial. This all remains to be seen.

The implications outside of the case are far more serious in my mind. To begin with, it appears to me that the Times’ “victory” will only calcify the media’s terrible and repetitive habit of jumping to erroneous and often defamatory conclusions. We saw CNN settle the lawsuit brought by “the Covington kid” after they lost a Motion to Dismiss pleading that their broadcasts were not defamatory statements of fact but “mere opinion.” Even today the “ready, shoot, aim” habit again reared its ugly head.

The Las Vegas Sun today published an editorial decrying “increasingly violent rhetoric coming from extremist Republicans” in connection with the attempted assassination of Louisville, KY mayoral candidate Democrat Craig Greenberg. This was after it was revealed that the alleged shooter, Quintez Brown was not only a former Louisville Courier columnist specializing in race issues but was a self-described Black Lives Matter activist. Underscoring that fact is the revelation that Brown’s $100,000 bail was paid by the BLM-aligned Louisville Community Bail Fund, who states on their fundraising page that:

“To build transformative communities, we must perform transformative acts of liberation. Cash bail is one of the aspects of the criminal justice system that keeps communities wrapped up in systemic slavery and in debt.”

A Daily Caller headline summed up the media’s knee-jerk reaction perfectly: “Former Biden Campaign Staffer Tried To Blame Attempted Assassination On ‘Right Wing Rhetoric,’ But Suspect Is Left-Wing Activist.” That article pointed out that “Brown is an anti-capitalist activist who praised Che Guevara and Mao Tse-Tung in a post on Twitter.” The odds are pretty darned good that no amount of “violent rhetoric coming from extremist Republicans” would convince Brown or his cohorts to do anything, let alone take a shot at a political candidate.

Sadly, there are no winners here except for the law firms. The Times’ “victory” exposed a high degree of untrustworthiness, if not ineptitude. (Fortunately for the Times, ineptitude is not tantamount to actual malice). In addition, Palin was reportedly a terrible witness, according to observers, and her claims of emotional damage were empty and unconvincing.

The biggest losers – again – are the media who are already suffering an all-time low in public trust, and the readers who look into these publications for truth in reporting.

MY SHAMELESS BLEGGING: As some of you may know, I was a photojournalist in the late 70’s to mid 80’s before becoming a media lawyer.

I recently discovered a trove of negatives that are a real time capsule of a violent and yet charming time and place, both long gone. I’m crowdfunding the cost of scanning more than 200 rolls of black and white film, and of course, printing a high quality photobook.

The link to the Indiegogo campaign is here.

The campaign page shows a few samples of what the book will be like. (Having trouble upload photos to Instapundit at the moment.)

DEBUNKING THE WARREN REPORT:  Emerald Robinson published a piece on Substack today about Thomas Lipscomb‘s forthcoming book “The Oswald Letter” and it reveals a calm, reportorial approach to the still-unsettled questions about the assassination of JFK. It also raises newer questions never asked before.

This is not tin-foil hat stuff. Lipscomb discovered many facts that truly challenge the integrity of the Warren Commission. In the excerpt published today, Lipscomb and co-author Jerome Kroth look at an artifact from that fateful day and explain how it severely undermines the Report.

The windshield of the limousine in which Kennedy was killed has been in the National Archives for almost 59 years. The problem is that it’s highly unlikely that is it genuine, and the history of this windshield points to solid forensic evidence that one of the bullets — possibly the lethal one — fired into the car came from the front, not from behind where Oswald was allegedly perched in the Book Depository:

The Secret Service had the Presidential limousine shipped from Dallas to the White House garage the night of the assassination. Then they sent it to the Ford Factory at River Rouge in Detroit, where it was built, for refitting. […]  a senior manager there was ordered to immediately report to the glass plant lab. In a recorded interview, [the senior manager} said “And the windshield had a bullet hole in it, coming from the outside through…it was a good, clean bullet hole, right straight through, from the front. And you can tell, when the bullet hits the windshield, like when you hit a rock or something, what happens? The back chips out and the front may just have a pinhole in it…this had a clean round hole in the front and fragmentation coming out the back.”

The Ford employee’s story is backed up by interviews with Dallas police officers who also said “There was a hole in the left front windshield…It was a hole, you could put a pencil through it…you could take a regular standard writing pencil…and stick [it] through there.” Lipscomb interviewed several people on the record who saw the windshield, including hospital staff.

Two really strange facts stick out: First, the windshield in the National Archives has no such hole. Second, and perhaps more ominously, not a single person who could verify that there was a shot from the front — including the surgeon who inserted the tracheal tube in the dying JFK — was quoted in the Warren Report. Many were never even interviewed by federal authorities.

There are a lot more details to come…

Merely a system test. Nothing to see here.

IT WAS TRUE THEN, IT’S TRUE NOW: I wrote this for The Daily Caller about three years ago, and it’s truer than ever. Who didn’t know that Whoopi “rape-rape” Goldberg is a moron? Her imbecilic take on the Holocaust just exposed her knuckleheadedness to a wider audience.

But knuckleheads have the right to speak, even if it shocks or outrages people.

(Illustration by Tom White)

WAS IT A COVER-UP OR JUST A NARRATIVE IN SYNCH? JustTheNews.com has an exclusive this morning that shows that the State Department knew all along that Hunter Biden was up to his neck in corrupt practices in Ukraine. John Solomon reports that:

[T]he email’s stark message directly conflicts with the narrative the mainstream media, State Department witnesses and Democratic congressmen gave the public two years ago, when they insisted Hunter Biden’s lucrative job with the allegedly corrupt Ukrainian gas company Burisma Holdings — while creating the appearance of a conflict of interest — had no impact on U.S. efforts to fight corruption in that country.

“The real issue to my mind was that someone in Washington needed to engage VP Biden quietly and say that his son Hunter’s presence on the Burisma board undercut the anti-corruption message the VP and we were advancing in Ukraine,” Kent wrote multiple high-ranking officials in the State Department in Washington.

Read the part where the State Dep’t and White House ran interference to keep Biden from being personally confronted with this information. It’s what Nixon and others called “plausible deniability.”

In either event, the public is owed some explanations, and that’s what FOIA is for.

THINKSPACE: A SAFE PLACE FOR REASON — McGill Professor Pat Kambhampati, who specializes in physics and chemistry has helped formed a chapter of  Society for Academic Freedom and Scholarship at McGill, the elite Canadian University.

The point and purpose of the group is to maintain freedom in teaching, research and scholarship; To maintain standards of excellence in academic decisions about students and faculty and; To resist censorship and provide a convivial forum for critical thought about academic freedom at McGill University.

It’s good to see that people of all walks of life and professional backgrounds, like Greg Lukianoff, William Jacobsen and others are pushing back on what I call “The New Lysenkoism.”

RECOMMENDED READING: I just finished “What Next, Chicago?: Notes of a Pissed-Off Native Son” by Matt Rosenberg. On the surface, it details the 2020 riots, strikes, murders and mayhem that so sadly but accurately defines what Chicago has become. More importantly, Rosenberg doesn’t just say “see, this is what Democratic Machine politics brings” but instead asks deeper — and non-partisan — questions about the root causes.

Of course, MSM always calls any such questions “partisan” (or even “racist”) but that’s only because it’s easier than stepping up and answering the question. Available from Amazon, I believe if you buy it by clicking here, Instapundit gets a small bit of income.

On a separate note, IP readers will be very interested to learn more about Post Hill Press, who runs the Bombardier imprint that published Rosenberg’s book. The roster of authors — from Alan Dershowitz to Adam Carolla to Andrew Klavan — is mighty impressive, and (IMHO) represents the best in free thinking, questioning authority, and asking smart questions. We would do well to see publishers like this thrive.

MEMO TO ALEC BALDWIN: If you consistently act and speak like a jerk, avoid getting into flame wars with people on social media. Alec Baldwin was sued earlier this week by the family of a Marine killed in Afghanistan, according to the Casper Star-Tribune. Baldwin is being accused of weaponizing social media, and the fact pattern seems to support that theory, even if there is little case law that does.

The allegations in the Complaint sound a lot like Baldwin. Allegedly after making a donation to the family, Baldwin later learned that one of the family members was present at the Jan. 6 Capitol riot. Of course, to people like Baldwin it was more than a protest or riot, it was the bloodiest coup since the Ayatollah overthrew Iran’s Shah Pahlavi.

After learning of the woman’s attendance at the worst insurrection since forever, Baldwin quite naturally flipped out, and used his 2.4 million Twitter followers the same way the Wicked Witch of the North used her Flying Monkeys:

“[y]our activities resulted in the unlawful destruction of government property, the death of a law enforcement officer, an assault on the certification of the presidential election. I reposted your photo. Good luck.”

“Go get her, folks.”

This case is a bit unusual because it holds Baldwin accountable for the words and actions of others, and causing intentional infliction of emotional distress and invasion of privacy. Here’s the key paragraph of the Complaint:

By way of example, among the hundreds upon hundreds of hateful messages ROICE began to receive one read, “Get raped and die, worthless c*nt (kiss emoji). Your brother got what he deserved.” Upon receiving this message, ROICE forwarded it to BALDWIN sarcastically “thanking” him for posting her Instagram feed. This unbelievably callous message from a woman who goes by the name “Antifa Ally.” Incredibly, even after reading it, BALDWIN actually followed Antifa Ally on Instagram.

***

BALDWIN then continued to chime in on the increasingly hostile feed saying that ROICE “participated in the insurrection” and that she was an “insurrectionist.”  He continued to engage his followers. In doing so, Plaintiffs are informed and believe and allege that he fueled the firestorm of hatred that he started.”

Now comes the ironic part that court-watchers ought to look for: Baldwin has often blamed Trump for “blowing dog whistles” inciting hatred and for making speeches whipping the Jan. 6 crowd into a murderous frenzy that would have embarrassed  Maximilien Robespierre. (That’s pretty much standard fare for Democrats with a habit of forgetting that pesky Constitution). “Fueled the firestorm of hatred”? True or false, isn’t that what their most oft-repeated line about Trump is? It’s always projection, isn’t it?

I am pretty certain that Baldwin’s posturing will be forgotten, and his defense lawyers (most likely connected to one of the country’s leading media defense firms) will suddenly remember that proving causation of another person’s speech, while not impossible, is a very high bar to cross.

**UPDATE: In the interest of full disclosure, I should add that I was lead counsel in an amici brief to the Supremes actually defending the odious Westboro Baptist Church from IIED claims brought by families who claimed seeing the church’s insane protests (“God Hates Fags”) on TV hurt them. And yes, we won.**

LAWFARE DONE RIGHT: THIS COULD BE A MAJOR CRACK IN THE DAM. As the Good Professor noted earlier today,  shareholders in Google and YouTube are pressing the tech giants to disclose any requests they have received from the Biden administration to scrub politically “problematic” information from the platforms, according to a copy of a shareholder proposal obtained by the Washington Free Beacon.

The article mentions in passing that Supreme Court rulings have held that private entities may not engage in suppression of speech at the behest of government, as it has the same effect as direct government censorship. Although I don’t think the shareholders have standing to sue on anything but the thinnest of corporate governance rules, let me explain how this may open the floodgates and create accountability for BigTech’s censorship.

We know that as “private actors” (a debatable proposition, but let’s accept it for the moment) BigTech cannot be held liable for violating First Amendment rights. But there have been notable cases where the media worked so hand-in-hand with government in violating constitutional rights, they were considered “government agents” for the purposes of 42 U.S. Code § 1983, which allows a private right of action for the violation of established constitutional rights when the “private” entity is “acting under color of law.”

The case that came most quickly to my mind was called Hanlon v. Berger, where CNN did a ride-along in coordination with the United States Fish and Wildlife Service and an assistant United States attorney who raided a Montana ranch. The rancher had allegedly violated Federal wildlife protection laws by poisoning endangered wildlife, including eagles, in an effort to protect their livestock. Citing earlier case law, Justice Stevens noted that:

“There we [held] that police violate the Fourth Amendment rights of homeowners when they allow members of the media to accompany them during the execution of a warrant in their home.” (Emphasis added).

While the feds were excused in Hanlon on qualified immunity grounds based on unrelated facts, CNN was not dismissed from the case, because the rancher had stated enough factual basis to assert that CNN was acting “under color of law.” But private actors cannot assert qualified immunity like law enforcement can.

As is usually the case when corporate media are caught out and face likely loss in court, CNN settled out. (As a result, news organizations have since then severely restricted what we used to call “ride-alongs” with law enforcement).

The rancher suffered a violation of his Fourth Amendment rights, which implicate privacy rights by way of unreasonable search and seizure. This is where it gets interesting: 42 U.S. Code § 1983 allows citizens to sue for the violation of any enumerated constitutional right, and it’s unquestionable that the First Amendment is such an enumerated right.

If, in the matter Glenn referred to, The National Legal and Policy Center can produce evidence showing that the content by specific speakers was scrubbed by BigTech at the behest of the Biden Administration, then it’s “game over” because those censored speakers have the same argument against Google and FB as did the Montana rancher and can use Section 1983 to file suit.

Moreover, even if The National Legal and Policy Center does not produce such evidence of media-government collaboration, conservative and civil libertarian groups can on their own, file FOIA cases to seek that evidence, and the censored groups (*Paging Mr. Prager*) have a legitimate way around the “we’re private entities, so go f*ck yourself” defense.

All they need is the means and the will.

HOW AGITPROP AND MEMETICS WORK IN REAL TIME: The DNC memo went out yesterday that “insurrection” was the only theme that tested well to the base and — unlike inflation, crime, COVID and economic conditions — could not be debunked by pure data.

The faithful posted meme after meme, and the Talking Heads repeated absurdities with no provable meaning, such as “worse than Pearl Harbor” and “like 9/11.”

Then the DNC fundraisers send out a message:

Note the highlighted phrases and how nicely they are clustered: they are not designed to point you to reason. They appeal only to your emotion. Nixon did it, Kennedy and LBJ did it, hell, even Hitler did it.

But the speed and reach of digital communications changes everything. Not enough time to stop and think about what you’re being told: Just “be one of us” and move on to the next shiny object. No accountability for statements of puffery. In this way, digital media, which has the potential of bringing knowledge to every person on the planet, is manipulated to make each and every one of us dumber than yesterday.

Someone ought to write a book about it…

LAYERS AND LAYERS OF…OH, NEVERMIND: Remind me again why people at corporate media giants are smarter than everyone else and ought to be the arbiters of what is and isn’t “dangerous information”? This is still online:

IS IT HYPOCRISY, GASLIGHTING OR JUST INSANITY? I suppose one might embrace the power of “and.” You remember George Zimmerman, the “White Hispanic” accused and acquitted of the murder of Trayvon Martin?

Elizabeth Warren and Pete Buttigieg certainly do, and they each utilized the February 2020 anniversary of that tragedy to play the race card on Twitter. Here’s Saint Peter’s tweet:

And here’s Elizabeth Warren’s:

That’s seemingly innocuous and makes me want to sing “Kumbaya” or “Climb Every Mountain.” Unfortunately for Warren and Buttigieg, George Zimmerman doesn’t see it that way, and filed suit against the two, claiming that because of the natural association in readers’ minds between him and Martin he was defamed. A federal court dismissed Zimmerman’s case a few weeks ago with leave to replead because of certain procedural errors in his Complaint.

Here’s the interesting part: While several infirmities in Zimmerman’s case may see him lose — this time with prejudice — buried in the judicial opinion is a discussion about how Warren and Buttigieg claimed …wait for it, wait for it… that calling someone a “racist” is not defamatory. Let that sink in.

In today’s political and media environment, no statement will expose a person to “shame, ridicule, scorn or opprobrium” as much as being called a “racist.” People lose their careers over it, and businesses are ruined when that allegation is splattered on them. You stand a better chance of maintaining the left’s respect if you rape a child (See, e.g., Polanski, Roman) than if you are caught making a bigoted remark.

That may be right, that may be wrong, but in CrazyWorld, Warren and Buttigieg filed arguments to the court claiming that “an allegation of racism or white supremacy is a matter of opinion and therefore not even actionable.” Say what?  On the one hand it’s the worst thing you can call a person, but when it come to accountability, no, it doesn’t count.

It gets worse. The Court rejected Warren and Buttegiegs’ argument, holding that their assertion that “the implication that someone has racist or white supremacist attributes is not defamatory at all, let alone defamatory per se is without merit.”

As I said, there are many reasons Zimmerman could or should ultimately lose his case. But at the same time, I don’t ever want to hear either of these two craven liars take anyone to task for being a bigot, because, according to them, it’s apparently “just” opinion and can’t possibly — as a matter of law — be a bad thing.

WHAT’S ACCURACY GOT TO DO WITH IT? Nothing, if you’re Twitter. The giant censorship machine disguised as a “mere platform” suspended acclaimed journalist John Solomon’s account for sharing an article about the legal distinctions between Pfizer’s fully approved and emergency use authorization (EUA) COVID-19 vaccines. Even Pfizer did not dispute the accuracy of the article, headlined “Pfizer to continue distributing version of COVID-19 vaccine not fully approved by FDA.”

“There is nothing in the story that is not well reported or misleading,” Stanford School of Medicine professor Jay Bhattacharya, whose research focuses on the “health and well-being of vulnerable populations,” wrote in an email to Just the News. “Twitter’s censorship of COVID information has contributed greatly to the collapse in trust in public health.”

Twitter provided no meaningful information about their arbitrary and capricious decision, saying only that “because the tweet violates its policy on “spreading misleading and potentially harmful information” related to COVID.”

Our Silicon Valley superiors seem to think that “1984” and Farenheit 451″ were instruction manuals.

**Update: Twitter’s Head of News Partnerships sent a note late this afternoon simply saying that the blocking of Solomon’s account was “an error.” No apology. No promise to do better.**

A CORROLLARY TO REYNOLD’S MAXIM: Teach women not to lie about rape, too:
The University of Maryland, Baltimore County will pay three former baseball players a combined $450,000 to settle a defamation case they brought against the college after they said they were wrongly accused of rape and had the false allegations printed in the college’s newspaper.

Truth be told, I don’t think $450,000 has quite enough “sting.”

BEHOLD, THE TRUTH BOMB: As many of you know, I teach a class in the History of Journalism at NYU. This will be referred to in my final exam. From today’s New York Post:

“Yesteryear’s ragtag muckrakers, who tirelessly championed the little guy against powerful insiders, have become insiders themselves,” wrote three social scientists surveying America’s journalists back in 1980. “Newsmen had long cherished the vantage point of the outsiders who keep the insiders straight. But now, leading journalists are courted by politicians, studied by scholars, and known to millions through their bylines and televised images.”

CHINA IS ASSHOLE.

SO IS DISNEY.

SOME PEOPLE DID SOME THINGS: Apparently CNN has appointed Ilhan Omar to Editor-in-Chief of CNN. Because “a car” just happened to do something. Just like those planes just happened to crash into the WTC on 9/11.

Shame on you, CNN.

ARE WE SKIPPING SOMETHING?: The last COVID strain was called “Nu.” Going down the Greek alphabet, today’s new variant is called “Omicron.”

The W.H.O. wouldn’t want to offend China, now, would they?

UPDATE: It occurs to me that if they had any guts they’d have named it “Winnie.” But China is asshole.

FAKE IT TIL’ YOU MAKE IT: Perhaps Rep. Bennie Thompson (D-MS) has been taking legal lessons from the same crew who ginned up the “Steele Dossier” to get FISA warrants used against Carter Page, et. als. JustTheNews has a blockbuster report out this morning, where the journalists used cellphone and toll booth records to prove that Rep. Thompson’s signed subpoena was based in part on a wholly fabricated source.

The Jan. 6 commission in Congress made headlines when it issued a subpoena citing “credible evidence” that on the day before the Capitol riot, former New York Police Commissioner Bernard Kerik attended a meeting at the Willard Hotel in Washington where Trump advisers discussed how to overturn the November 2020 election. The subpoena was supported by a citation to Bob Woodward’s book “Peril.”

Except for one eensie weensie minor detail:

Kerik was 300 miles away in the New York City area on Jan. 5, 2021, according to his own car’s toll booth records reviewed by Just the News. He left Washington the night of Jan. 4 and did not return until the morning of the riots, according to Kerik’s own account at a speech this weekend in Chicago. And that book by Woodward? It makes no claim about Kerik attending a meeting at the Willard on Jan. 5. In fact, the book doesn’t even mention the former NYPD commission once in its 482 pages.

Reporter John Solomon went as far as fact-checking with Woodward himself. Maybe Thompson had a different edition? Maybe Solomon was missing something? Nope:

Woodward and his coauthor, fellow Washington Post journalist Robert Costa, confirmed to Just the News in a statement Monday night that they did not allege Kerik attended a Jan. 5 meeting at the Willard. “The subpoena for Mr. Kerik references page 234 of our book, ‘Peril,'” the Post journalists said. “That page, however, does not mention Mr. Kerik in any way. In fact, he is not mentioned anywhere in our book.”

Making up facts to obtain a subpoena? There oughta be a law!

SUICIDE BY SILENCE?  It’s no secret by now that corporate media has no problem demonizing or delegitimizing what they perceive as “right-wing” media. Tucker Carlson, once America’s favorite conservative, is now depicted as pure evil, somewhere to the right of Genghis Khan. In fact, the phrase “right-wing” itself is attached to the name of some outlets as a sign by left-leaning media to signal to readers that their readers should immediately ignore whatever factual information that the outlet might be presenting, much the same way hoboes in the 1930’s would leave chalk marks on the street in front of houses to warn others of a dangerous approach, say, a jealous husband with a shotgun or a mean dog.

The Biden government has this week presented that same corporate media with a moral dilemma that, if ignored by corporate media, may be a form of suicide. The Associated Press reported this morning that in opposing James O’Keefe and Project Veritas’ motion to designate a Special Master to review the documents seized by the FBI in an early November raid, federal prosecutors told the court that the motion should be denied, in part because:

“Project Veritas is not engaged in journalism within any traditional or accepted definition of that word. Its ‘reporting’ consists almost entirely of publicizing non-consensual, surreptitious recordings made though unlawful, unethical, and or/dishonest means.”

Of course, we ought to be free to dislike — or even disparage — any outlet or voice with which we disagree. That goes for Alex Jones and Rachael Maddow alike. But the mainstream media has a dog in this fight, whether they like it or not: the use of hidden cameras or surreptitiously obtained audio has become not just a staple of investigative reporting, but a moneymaker for outlets who normally express a disdain for any platform that publishes material they deem “non-woke” or “right-wing” or otherwise offensive to their sensibilities.

There are two streams of thought that ought to encourage corporate media to take an aggressive stand in O’Keefe’s defense. One is the stream that flows from no lesser an authority than the U.S. Supreme Court, in a line of cases from Bartnicki v. Vopper, where a third-party had published allegedly illegally obtained material with no hand in the illegal acquisition of the material. Professor Jane Kirtley of the University of Minnesota and former director of the Reporters Committee for Freedom of the Press is far from being a conservative, but in an opinion piece published today expressed the all-too-rare quality of an honest liberal putting principle before preferences. Her dislike of Project Veritas is made clear right up front:

“Many journalists repudiate Project Veritas and its methods, contending that the organization is ideologically driven and routinely violates established norms of media ethics. As a professor of media ethics and law, I’ve been grappling with how to think about Project Veritas and its escapades for years. Like many media lawyers, I wish it would just go away.”

But Kirtley knows — and most laudably — expresses her respect for the Constitution and the Rule of Law. She continues to say, quoting Bartnicki, that :

“A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” Justice John Paul Stevens wrote. If Project Veritas was not involved in the theft of the diary, it could also be covered by the Privacy Protection Act of 1980, which bars both federal and state law enforcement from seizing journalists’ work product and documentary materials except in very limited circumstances.

In fact, the Justice Department has been prohibited from even subpoenaing journalists by Attorney General guidelines that date back to 1974 – although investigations into leaks of classified information led to notable exceptions to this rule during the Obama and Trump administrations […] If Project Veritas is found guilty of a crime, any journalist who transports leaked or “stolen” information across state lines could be charged with violation of the law. It’s unclear what that means today when so many documents are transmitted electronically. Or, if the government narrowly defines “the press” based on its political outlook or ethics, then no news organization is safe from attacks by future administrations.”

Kirtley is correct, of course, in that allowing O’Keefe to be defined as a journalist simply because of his political agenda or outlook creates an unsafe (I’d say soviet) future for journalism. But another stream runs down the same mountain that ought to encourage outrage from the press and cause a serious re-think from the Biden administration, to whom the Justice Department ultimately answers.

Corporate media has made millions of dollars and spent untold lucre defending the exact same reporting techniques that Biden’s prosecutors would have “disqualify” O’Keefe from First Amendment protection.

If the use of hidden cameras, undercover stings and “illegally obtained” information is now a judicial litmus test as to who is and isn’t deserving of First Amendment protections, then NBC better close up shop today. In Wilkins v. NBC, the network used hidden cameras to produce the “Hardcore Hustle” report, which exposed the then-growing practice of charging for so-called “toll-free” 800 lines which provided callers with access to 900-number type adult entertainment lines. (This was before the Internet, back when one had to put some effort into getting their smut). In that case, ultimately, the public interest in the story surmounted the private interests of the parties who were surreptitiously filmed.

Similarly, if the Biden Justice Department is able to re-define journalism as they wish here, ABC needs to sell their equipment and find new work for their investigative team. In Desnick v. ABC fake patients were sent into an ophthalmologist’s’ office to record evidence that Sam Donaldson breathlessly told viewers “[I]n our undercover investigation of the big cutter you’ll meet tonight, we turned up evidence that he may also be a big charger, doing unnecessary cataract surgery for the money.” It would be wise of the Justice Department to heed well Judge Posner’s stern holding in that case:

“Today’s “tabloid” style investigative television reportage, conducted by networks desperate for viewers in an increasingly competitive television market constitutes-although it is often shrill, one-sided, and offensive, and sometimes defamatory-an important part of that market. It is entitled to all the safeguards with which the Supreme Court has surrounded liability for defamation.”

The list of cases where major networks used hidden cameras or surreptitiously obtained material is lengthy, and often praised by those who traffic in that style of reporting. Who can forget the glee with which every media outlet rebroadcast the secretly made videotape of Mitt Romney telling donors “that 47% of Americans are dependent on the government” and “believe they are victims.” Of course, no context challenging the meaning of Romney’s words was provided, but no matter: The secretly taped video was posted online by Mother Jones magazine in the fall, several months after the fundraiser in May in Boca Raton where Romney spoke. The video created a national uproar as President Obama and his Democratic allies used Romney’s words to illustrate how the Republican was out of touch. But to the best of my knowledge, no FBI raids were conducted upon Mother Jones or any of the hundreds of outlets who republished the video. Nor should there have been.

There are a few signs that smarter and perhaps more honest journalists and their lawyers are, like Kirtley, seeing the dark clouds that the Justice Department’s actions portend. Asking if O’Keefe is a journalist in the eyes of the law, Politico’s Josh Gerstein also interviewed Kirtley and others, and noted that:

While many of O’Keefe’s tactics are unsavory, they are far from unknown in the mainstream press. Hidden-camera stings and undercover reporting have fallen out of fashion at most traditional news organizations, but they were once a staple of network television news magazines. In the 1970s, the Chicago Sun-Times bought a rundown bar and rigged it out with hidden cameras, successfully capturing city inspectors demanding bribes. NBC’s popular and controversial series, “To Catch a Predator,” revolves around hidden-camera stings.

If corporate media wants to survive into the next administration — and the ones after that — they will have to step up to the plate and pressure the Biden Administration to rethink this new effort at “disqualifying” outlets because of either their views, or their investigative techniques when properly executed. American government simply does not have the right to “license” or “define” journalism. In Turkey, CNN famously avoided broadcasting images of ongoing anti-Erdogan demonstrations and instead broadcast a documentary about penguins. Penguins.

Perhaps major media, who have already cut their investigative reporting to the bone, are planning as we speak on making exclusive deals with the San Diego Zoo. Because footage of penguins may be all that news outlets are allowed to publish.

SORRY, BUT THIS NEVER GETS OLD:

COMIC BOOKS LATEST PART OF ADMINISTRATIONS “COVID PLAN”: JustTheNews is reporting that Homeland Security is creating comic books to push COVID masks, fight disinformation on 5G and elections. According to the the Cybersecurity and Infrastructure Security Agency (CISA):

“Disinformation is an existential threat to the United States, our democratic way of life, and the critical infrastructure and functions on which it relies. CISA’s Resilience Series (of which Real Fake is its first graphic novel) communicates the dangers and risks associated with dis- and misinformation through fictional stories that are inspired by real-world events.”

The artwork is kind of generic, IMHO:

If you like this sort of thing you can download them directly from the Feds. I find the use of the word “resilience” a bit odd…because to me it seems we ought to be “resilient” against any use of propaganda, but hey, that’s just me.

PORTRAIT OF A DOMESTIC TERRORIST, 2021.

**UPDATE** About 30 mins after I posted the above on Bookface…this:

SMELLS LIKE PANIC: It’s one thing to lose ground in polling, but walking out during a TV interview is a no-win situation.

“C’mon, man. You should have asked better questions early on,” the Democrat admonished his interviewer, whose bio lists interviews with a who’s who of political leaders.

Not unrelated, The Hill’s Joe Concha reported last week that:

“House Speaker Nancy Pelosi (D-Calif.) scolded the press on Tuesday, insisting that journalists do a better job of selling President Biden’s $3.5 trillion spending bill to the public.”

It’s nice to see that reporters are starting to tire of being stenographers.