Monday, December 14, 2015

Media Law Scholars Discuss The New York Times and Defamation Law (Michael Simkovic)

A recent New York Times editorial attacking law school as “a scam” was widely criticized because of its exaggerations and factual inaccuracies (here and here). The dean of Florida Coastal, which The New York Times specifically targeted for opprobrium, wrote  “the Times is saying something demonstrably false and which had not been properly fact checked. . . . [T]he Times could have had [accurate information] if it had simply asked. . . the Times . . . misled its readership by failing to properly fact check.”

Felix Salmon, contemplating recent journalistic controversies, argues that fundamental problems with journalistic methods lead errors to go undetected and unchallenged. According to Salmon, the risk is particularly high when errors originate with a powerful newspaper like The New York Times.   Glenn Greenwald similarly notes the alarming pervasiveness of factual errors by respected media organizations, and how consumers rarely spot these errors  unless they personally have intimate knowledge of the subject of the article—for example because they are the subject. A large survey found that news sources rarely correct errors because they believe that journalists ignore serious mistakes. Sources also fear that if they push for a correction, the media will retaliate.

To better understand the press’s incentives to carefully research their stories, I asked leading media law scholars to discuss whether The New York Times law school editorial raised any legal issues. According to both my Seton Hall colleague Thomas Healy and Howard Wasserman of Florida International, The New York Times has little reason to fear liability, even if it negligently supplies information that is poorly researched, misleading, or harmful.

Howard M. Wasserman, Professor of Law, FIU College of Law

Facts, Damn Facts, and Statistics (full analysis):

Neither Florida Coastal School of Law nor its owner, InfiLaw, has threatened to sue The Times for defamation over its October 24 op-ed. Any such lawsuit would be futile in the face of stringent First Amendment protections against defamation liability. . . . 

Ongoing controversy over the business activities of Donald Trump’s Trump University rendered it a limited public figure. Similarly, public controversy exists over the very educational practices that Coastal and InfiLaw aggressively engage in, advertise, and market . . . making them (and likely every law school) public figures for purposes of the controversy and debate over legal education . . . .


As public figures, Coastal and InfiLaw can prevail on a defamation claim only by proving . . . that The Times’ statements were false and . . . The Times knew they were false or recklessly disregarded their truth . . . . They thus would encounter three insuperable hurdles . . .  


First, the First Amendment permits rhetorical hyperbole, exaggeration, and vigorous epithets to make a point. A court is unlikely to read the word “scam” as a literal accusation of a fraudulent scheme, particularly in the context of an opinion piece. . . . The Times should be seen as using “scam” to criticize a distasteful, but not necessarily unlawful, educational model. Similarly, the reference to “most” of Coastal’s graduates in a newspaper article becomes a rhetorical synonym for “a lot” or “many,” not a verifiable statistical conclusion of more than half.


Second, courts should not impose liability for speech that criticizes a large group . . .


Third, Michael Simkovic’s statistical analysis . . . is irrelevant to the legal analysis of The Times’ broad-reaching statements. Predictions . . . based on statistics and sophisticated classification of data--are arguably not “facts.” And even if facts . . . A court is unlikely to find a newspaper story false--much less knowingly false--because of disagreement, dispute, or even inaccuracy in its statistical analyses or conclusions.

Thomas Healy, Professor of Law, Seton Hall University School of Law

A Defamation Victory for Florida Coastal? No way. (full analysis):

Could Florida Coastal or any other law school win a defamation suit against The New York Times for its Oct. 24 editorial? The answer is almost certainly not for the following reasons.


[Law schools] are likely limited public figures when it comes to the debate about admissions standards, tuition rates, student loans, bar passage rates, and job placement rates. Through their web sites, marketing brochures, admissions outreach, fundraising, and statements to the media they regularly try to influence public opinion about the quality of their education and the value of their degree. Moreover, the type of business they are engaged in – educating lawyers – implicates the public interest, and courts have been especially willing to find that such businesses are limited public figures.


Because they are limited public figures, the schools would have to establish that the Times knew that its statements were false or acted with reckless disregard as to their falsity. So which statements in the editorial were potentially false? . . . First, the Times stated that according to the Law School Admission Council (LSAC), students scoring in the bottom quartile on the LSAT “are unlikely to ever pass the bar exam.” Second, the Times stated that “most of Florida Coastal’s students are leaving law school with a degree they can’t use, bought with a debt they can’t repay.” And finally, the Times stated that Florida Coastal was engaged in a “scam.”


It is unclear whether any of these statements are provably false. The statement about bar passage rates appears to be technically false since the LSAC never said what the Times reported, but there is truth in the larger claim that a very low LSAT score correlates with bar exam failure, at least on the first try. . . . The statement about debt repayment is also questionable, since there is evidence that Florida Coastal’s default rate in the past has been lower than many other schools’. But because the Times referred both to students entering in 2013 and graduating in 2014, its statement about repaying debt could be viewed as a prediction of future events that is not provably false. Finally, its claim that Florida Coastal is engaged in a “scam” is likely an opinion or rhetorical hyperbole that is not actionable . . . .


But even if some of these statements are partially or completely false, a plaintiff would have to show that the Times knew they were false or entertained serious doubts about whether they were true. This is a subjective standard that is incredibly difficult to meet. The failure of the Times to fact-check its assertions would not be enough to establish liability. There would have to be evidence that the editors themselves questioned the veracity of their statements but went ahead and published them anyway. . .


If this Times editorial is actionable, then commentary and opinion about a host of other businesses . . . could be the basis for successful defamation suits. The media is not perfect, and it is frustrating when it makes overbroad generalizations or jumps to ill-informed conclusions. But a timid and passive media that is too worried about lawsuits to investigate and comment on the affairs of major industries would be far worse.

Professor Wasserman and Professor Healy’s careful, thorough analyses seem to reflect a broad consensus among media law scholars.

Large media groups and their owners may have the financial resources to competently research factual claims before disseminating them to millions of people. However, the law nonetheless grants media companies protection bordering on sovereign immunity. This seems like an invitation to managers who are focused on the bottom-line to cut fact-checking and research budgets.


Update:  Brian Leiter has covered these issues before.

Guest Blogger: Michael Simkovic, Law in Cyberspace, Of Academic Interest, Weblogs | Permalink