Malpractice?
Hey, I’ve got a dumb question.
Our enemies are engaged in an information war. They’re also using lawfare, leveraging our own legal sysem and rule of law to advance their interest. Last week, they’ve had two successful information fires: the Patterico-identified mess that Lex pithily characterized as
The point is not that the Times is happily swallowing and uncritically regurgitating terrorist propaganda. It’s that, if they were doing so, you wouldn’t be able to tell the difference between that and what they wrote on 13 November.
…and this other faked-but-reported event identified over at Flopping Aces which includes some interesting sources and methods of how bad information gets injected into the news stream.
Information gets results, but those results are slow in coming and it’s hard to see stimulus-response except in hindsight. We’ve had enough time to see the results of this fake news–and the results of the corrections appearing in a box on A-12 after the initial report went all over the front page and NPR and caused opinions to form.
So what’s a standard by which a person or organization can call out, sue, or otherwise cause a chilling effect on blatantly false and insufficiently corrected news that’s known to be a force multiplier for an enemy’s war efforts? I’ll have to better understand the legal line between free speech and responsibility for that speech to know this question better, of course. But if there’s a “yelling fire in a crowded theater” standard, is there a legal analogy? If people are dying, directly or indirectly, because the AP picks up a phoned-in report from some Baghdad jounalist blindly regurgitating a jihadi stringer’s blatant lie, why is this not malpractice? Is there anything stronger to combat this than merely complaining (as was done for, say, Rathergate)? Put another way, what other corrective possibilities exist for speech that is still subject to the First Amendment, but also a blatant, killing falsehood intended and willingly used as a strategic attack on an American center of gravity?
Any ideas? Anyone have historical precedents–previous wars or other big issues, perhaps–that identify that line and what is do-able?
9 Responses to “Malpractice?”
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November 26th, 2006 at 1:54 pm
Not a dumb question, but possibly a glaringly obvious answer from me:
Blogging, as you’ve noted, has turned out to be an effective check and balance against an out-of-control media on some big stories, already; this effect is just going to become more powerful with time, and is probably our best bet.
In the US, at least, there is no codified set of ethical or professional standards by which journalists must operate, and to which they must be held accountable. So there are no malpractice, disbarment, or removal-of-licensure proceedings to use as a weapon.
The problem of accountability for journalists in free-press countries has been around for a while, and there have been many organized attempts to correct “media bias” in the past, from all points on the ideological spectrum, and hold reporters, editors and publishers accountable.
Two reasonably effective groups you might be familiar with:
Accuracy In Media – AIM (and Accuracy in Academia – AIA) -right-wing organizations that seek to correct what they see as a leftist slant on the news and in higher education, respectively.
Fairness and Accuracy in Reporting (FAIR) – left-wing group that seeks to counter what they see as right-wing/corporatist bias in the news.
You might wish to find one or more groups already in existence whose opinions are more or less in line with your own and consider supporting their work, or you might consider the approach that I have taken, which is to monitor the reports and claims of two or three various media watchdog organizations from different points on the political spectrum; I picked AIM and FAIR in the example above because I’ve read credible arguments from both mixed in with all the partisan hooey.
(In countries where there isn’t guaranteed press freedom, of course, it’s easy to hold journalists accountable, by methods ranging from censorship to execution.)
November 26th, 2006 at 2:30 pm
True, and good points all.
So what avenue is there if X prints something and Y dies and it can be proven that X caused Y, and the something was false?
November 26th, 2006 at 3:31 pm
So what avenue is there if X prints something and Y dies and it can be proven that X caused Y, and the something was false?
Nothing easy or obvious, as long as X printed the “something false” in good faith and with an absence of malice aforethought. Public shaming is about the best anyone has come up with so far.
November 27th, 2006 at 12:07 pm
Assuming that you can PROVE that printing something caused a death, which I think is very difficult to do in the types of cases that you are hypothesizing, I can think of a handful of options.
Criminal: send the reporter to jail for life for violating 18 USC 2339A or 2339B. (Providing material support to terrorists.) But, and it’s a big but, expect a monumental First Amendment challenge and you have to find a US prosecutor willing to file the charges.
Civil: the widow sues for negligent infliction of emotional distress or “aiding and abetting” another crime, such as murder, malicious maiming, etc, or wrongful death. (Assuming that the state in question has an aiding and abetting cause of action.)
Non-starters, I think: malpractice and libel/slander. Journalist malpractice doesn’t really exist, but even if it did it would apply to the relationship between the reporter and the READER, not the reporter and the VICTIM. Likewise libel: the victim there is the person who had something untrue said about him, not somebody who died because of it.
But certainly not a bad question, and a creative lawyer could probably make the LAT’s day a bit painful. Maybe your best option would be to stop linking to the LA Times. A blogger boycott drops pageviews, which has an eventual effect on the revenue that the Tribune group makes off advertising on the Times’ website.
November 27th, 2006 at 3:21 pm
I really like Matt’s thinking on this. Creativity is clearly needed on this issue as there isn’t a bright line test here.
The NIED claim by the widow and even extended family could prove very, very sexy to the other media outlets. This then allows the monster to consume itself: the reporters (who you are trying to effect change in to begin with) report on the poor widow and family left behind who were injured by bad reporting. You’ve got deep pockets and an extremely sympathetic jury pool. All you’d need then is a lawyer willing to file a lawsuit. Hmmmm.. those don’t seem to be in short supply. Win and you’ve economically impacted the bad media outlet. Lose and you still put the fear of copycat suits in the other reporting media outlets and made the defendant gun shy for sure.
-Tu
November 27th, 2006 at 9:32 pm
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December 2nd, 2006 at 1:57 pm
Getting The News From The Enemy, Update…
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December 6th, 2006 at 10:01 pm
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