Law

“Can You Libel a Disaster?” (And several other questions that came to mind after The Atlantic gave Ruth Shalit Barrett $1 Million)

Ruth Shalit Barrett received more than $1 million after suing The Atlantic for defamation, based on its approach to retracting this story. For that kind of money, they must have said this is a photo of Barrett drowning a couple dozen kids in a pool laced with electrical lines. 

THE LEAD: When in doubt, sue somebody, because it apparently works:

The Atlantic quietly agreed to pay more than $1 million early this summer to settle a lawsuit by the writer Ruth Shalit Barrett, who had accused the magazine of defamation after it took the rare step of retracting an article she had written and replacing it with an editor’s note, according to a person with knowledge of the settlement.

Ms. Barrett, who wrote an article about youth sports in wealthy areas as a freelancer for The Atlantic in 2020, sued the publication and one of its editors in January 2022. She said the outlet had smeared her reputation and asked for $1 million in damages.

 

DOCTOR OF PAPER FLASHBACK: I was working on another post over the weekend when I noticed a post I wrote several years ago about Barrett’s article and subsequent lawsuit was getting heavy traffic for no apparent reason. A quick Google search of her name helped me figure it out.

At the time, I figured there was NO WAY this thing was going anywhere. The strength of my prediction powers is also why I suck at Fantasy Football.

 

THE DETAILS: Barrett wrote a story about niche sports that rich parents were pushing their kids to enter, in hopes of gaining an edge when the kids applied to Ivy League schools. The story had a number of problems, including an anonymous source that wasn’t that anonymous, the creation of a kid out of thin air, the exaggeration of an injury to a kid during a fencing match and more.

Eric Wemple of the Washington Post dug into this story and started finding more and more things that didn’t make sense, something the editors of The Atlantic also began to notice. At some point, they decided, “Screw it, we can’t save the patient” and retracted the story with a lengthy editor’s note about the story and Barrett’s history in media.

As a result, Barrett filed the suit, arguing that the note defamed her in several ways. She asked for it to be rewritten and that she be given the story’s publishing rights. The two sides went to arbitration, leading to some edits to the note and a lot of cash.

 

A FEW QUESTIONS: In reading this over and over again, I found myself asking several rhetorical questions, one of which was, “Can I sue Sage for no good reason with the hopes that they give me a squillion dollars to go away for a while?”  While the answer to that one marinates in your mind, here are a couple others:

CAN YOU LIBEL A DISASTER? I’m not calling Barrett a disaster for obvious reasons, not the least of which is I don’t have a million bucks I want to throw away. I’m more or less wondering how we started with a story so bad that it required a full retraction and ended with a pay day of this nature.

The publication stated it was aware of her history of not quite exhibiting the best level of judgment in regard to journalistic integrity. Wemple dug a bit deeper into her life and found more than a few clinkers along the way, including problems with the story on these weird sports. The fact checkers were lied to in at least two cases, with one source being encouraged to lie. (The original note said “at least one” while the new note says “one,” a distinction without merit from a language position. Also, who told you it was “only” one? The person you initially found was involved in all the lying and encouraging others to lie, so… um…)

Courts have ruled on a number of occasions that certain people and situations are “libel-proof,” in that nothing further can be done to harm their reputation. In addition, courts have stated that libel doesn’t apply if only “incremental harm” can be demonstrated. In the former, the courts basically say that someone or something is so bad, any statement that might be libelous toward any other person or group won’t qualify as libel. In the latter, it’s like a person in prison for 10 counts of murder sues you for reporting that they have a dozen unpaid parking tickets.

In looping back to this situation, I fail to see how the changes to the note or the statements regarding Barrett improved the situation to the point of avoiding libel. The distinctions in here feel to me like the quote in “Great Balls of Fire!” when someone yells at Jerry Lee Lewis that  he married his 12 year old cousin, Myra, to which she retorts, “Second cousin, twice removed!” Oh. Well.

The question of how bad was the defamation in relation to what was already out there has me pondering what level of reputation she recouped as a result of the suit. In short, do people who thought poorly of her now think better of her after this? Or did people who thought better of her before the retraction think worse of her AFTER that retraction?

Or did the big check just make things better?

 

WHEN DID GP GO MIA? I seem to remember a time, not so long ago, when people did things on “GP” or “general principle.” In other words, it was standing up for the right side of something or holding someone to account for something, even if it would be easier to just throw in the towel.

Case in point, my parents told me when I first got my license that if I got a speeding ticket, I’d lose my right to drive for a protracted period of time. No muss, no fuss, no BS. Just put the keys on the table. Sure enough, when I was 17, I was ticketed for speeding along a stretch of road that was a notorious speed trap. I walked into the house, put the ticket on the table, dropped the keys on top of it and that was that for a while.

What my parents DIDN’T foresee was that I was involved in about 912 activities that required me to be at various locations at night and on weekends. It would have been far easier for them to just give me back the keys and let me drive myself. However, Mom and Dad dug in and ended up driving me to and from all those things until the predetermined punishment time had ended. It was inconvenient for them, but they decided the principle of the thing mattered. I learned a lot from that and have since avoided speeding tickets, although now that I’ve said that, I’m sure I’m getting nailed on the way home.

The larger point is: When did we stop fighting just because the fights were hard? We’ve recently had the “60 Minutes” lawsuit, the ABC lawsuit, and several other lawsuits that have the “Fourth Estate” folding like a cheap cardboard box in a rainstorm. It’s like, “It’s cheaper and easier to just pay people to go away.” Well, that’s like paying protection money to the mob, assuming it’s a one-time thing.

It’s not just the news business, but it seems like we fold up everywhere: A kid threatens us, we change a grade. A social media “influencer” pulls focus onto a post we made, we take it down and apologize. Don’t even get me started about what the kids are doing in the ice cream aisle at Walmart these days. What happened to standing on principle?

There are times where I go into a situation knowing full well I’m going to lose and there are other times, where the risks are pretty damned high that I will. Still, there’s something that says, “No. You aren’t folding. You’re gonna play this hand out, because you can’t live with yourself if you don’t.”

I feel this moment so deeply

I understand that money is a predominant factor in pretty much everything in the world today and I know that it’s easy to say what I would or wouldn’t do when it’s not my money to spend. That said, I think back to the people I admire the hell out of in this business, who would never have acquiesced as easily as it seems like so many people are so willing to do.

“Education in Indiana is a mess right now:” Student media are getting beat up in the Hoosier State

THE LEAD: Indiana, home of some of the best student media outlets in the country, appears bound and determined to kill off that reputation in some of the dumbest ways possible.

Purdue University recently informed its independent student newspaper, The Purdue Exponent, that the university would no longer assist in distributing print copies of the paper. Purdue also informed the Exponent it no longer wants the Purdue name to be commercially associated with the paper and that Exponent staff can no longer purchase parking passes on campus.

<SNIP>

Indiana University’s student newspaper, the Indiana Daily Student, has reduced its print distribution from weekly to a few times a month while struggling to navigate a changing relationship with the school.

Last year, the IDS found out from a leaked document that it would be part of a financial merger that included IU student television and WIUX. As part of the new arrangement, the IDS’ weekly print distribution was reduced.

This year, the IDS applied for funding from mandatory student fees through the university’s standard review process. The student-run Committee for Fee Review unanimously approved the proposal, but Provost Rahul Shrivastav rejected it — apparently the first time a provost had overruled the student committee’s decision.

 

DOCTOR OF PAPER HOT TAKE: Student media is always on the cusp of being beaten to death, but this situation hurts a little more because a) There appear to be fewer guardrails to prevent this kind of stuff these days in student media (and media in general) and b) it’s happening in Indiana, which has a strong, proud history of awesome student media that was well protected from overreach.

The logic behind both maneuvers appears to be as flimsy as the reason to keep Indiana’s Blue Laws on the books. (When I lived there in the mid 2000s, I wasn’t able to buy beer for making brats on a Sunday. That’s a crime against humanity, if you’re from Wisconsin.)

In Purdue’s case, the argument is that a contract expired and it’s time to reconsider the relationship between the paper and the campus. This might make sense, if the contract hadn’t expired in 2014 and yet both sides have abided by the contract terms in the intervening 11 years. Also, a “reconsideration” should probably involve some discussion between the parties (missing here) and some explanation as to WHY they’re reconsidering it (missing here as well).

In Indiana’s case, it’s a rolling clustermess of stupidity that we covered last year in detail. What was initially pitched as a “convergence effort” seems to be morphing into something else. To make up for the cutting of the print edition, something the students resisted, but the admin demanded, the Indiana Daily Student applied for campus funds to make up the difference. The student group that needed to approve it did so, but apparently “the kids’ opinion” only counts when it does what the admin wants, so the provost red-flagged the operation. According to coverage of this, it was the only time this kind of overreach happened. 

The students have the support of amazing organizations like SPLC, FIRE, ACP and CMA. In addition, student media outlets tend to have deep, rich alumni networks of people who will step up and say, “Oh HELL NO!” when this kind of thing happens. That said, the overall environment in which the media finds itself these days seems to make it easier to beat up on the media and get them to acquiesce to outrageous demands. That’s a clear concern.

The second concern about this happening in Indiana is really more problematic to the student media community at large than it might seem at first glance. When a friend of mine tipped me to this situation, she noted, “Education in Indiana is a mess right now.”

To my way of looking at it, hearing that Indiana is falling this hard is like hearing the New York Yankees are going bankrupt and turning to a little league team for players. If that’s happening to a big dog, the rest of the litter is screwed.

Two days after I got to Ball State to become a media adviser,  Louis Ingelhart was sitting in my office, ready to explain to me the importance of free and unfettered student media in this state. Louie was the gray eminence of student media in the state and in the country at that point. Every major First Amendment award worth winning, he won as a champion of free press. After he retired, pretty much every student media award associated with the First Amendment was named after him. He had established a policy that the only hands that should be reaching out to student media were helping hands and hands full of cash. Other than that, it was hands off.

One day later, I found a letter with a post-it stuck in my mailbox: It was from Louie, telling me I should get involved with SPLC. I still have that letter nearly 25 years later.

The ink has faded over the years, but it remains one of my favorite possessions.

It wasn’t just Louie, though. My boss in the department stood up for us more times than I wished she had to, all without once thinking about it being easier to acquiesce to the dark overlords of suppression. When we got a new dean who asked, “If Vince isn’t down in the newsroom every night editing the kids’ stuff, what are we paying him for?” she set the guy straight and made sure he understood how life worked.

At Indiana, we had David Adams, who helped develop outstanding journalists in a professional environment, all while making sure nobody messed with the IDS (and other outlets). Dave and I sat on the Indiana Collegiate Press Association board for about five years, and that group had significant participation from all the big and small schools, the publics and the privates. Administrators learned that the kids all had “big friends” who were not going to let the university steal the kids’ lunch money. Department heads at Indiana State, IU, Ball State, Purdue and others were behind the kids’ rights.

Now it looks like the admins aren’t as afraid as they used to be. That’s not to say that the advisers, student media outlets and student media folks aren’t as tough as they used to be. Not at all. In fact, they’re probably tougher and stronger than we were because they HAVE TO BE. However, it sucks that they have to be that good at this. Even more, it’s disappointing that administrators don’t understand they’re killing the goose that laid the golden egg.

Getting a publication off the ground is ridiculously hard. Keeping it running is even harder. Making sure it stays consistently awesome for a protracted period of time? Yeah, I’ve got a better chance of growing a “Farrah Do” by tomorrow than having that occur on the regular. Watching these people starve and abuse these kinds of publications is like watching some idiot spinning donuts in a parking lot with a classic car. Why wreck something something so amazing?

And, not to put too fine of a point on it, but if Indiana is kicking around student media, given the state’s decent history on being a beacon for First Amendment freedom, it’s going to get worse for everyone else as well.

A Mob Shakedown, Chump Change or An Affront to The Foundations of The Country: Framing Paramount’s $16M Settlement With President Trump

This interview, which literally and figuratively did absolutely nothing to the outcome of the 2024 presidential election, was at the core of a multi-billion-dollar lawsuit President Donald Trump filed against “60 Minutes.” 

THE LEAD: Paramount agreed late Tuesday to pay $16 million to settle President Donald Trump’s lawsuit over the editing of a Kamala Harris interview on “60 Minutes” that Trump deemed fraudulent and deceptive.

Trump sued Paramount in November for $10 billion, claiming the editing of the interview created “partisan and unlawful acts of election and voter interference” intended to “mislead the public and attempt to tip the scales” of the 2024 election toward Harris.

Experts had long noted that the suit was frivolous and that Trump had a better shot of quarterbacking the Cleveland Browns to a Super Bowl title this year than he did of winning this case. Still, the parent company of “60 Minutes” took the settlement route, as a corporate sale of several billion dollars seemed to be at risk if it didn’t:

Many lawyers had dismissed Mr. Trump’s lawsuit as baseless and believed that CBS would have ultimately prevailed in court, in part because the network did not report anything factually inaccurate, and the First Amendment gives publishers wide leeway to determine how to present information.

But Shari Redstone, the chair and controlling shareholder of Paramount, told her board that she favored exploring a settlement with Mr. Trump. Some executives at the company viewed the president’s lawsuit as a potential hurdle to completing a multibillion-dollar sale of the company to the Hollywood studio Skydance, which requires the Trump administration’s approval.

After weeks of negotiations with a mediator, lawyers for Paramount and Mr. Trump worked through the weekend to reach a deal ahead of a court deadline that would have required both sides to begin producing internal documents for discovery, according to two people familiar with the negotiations.

FRAMING THE OUTCOME: We talked about Framing Theory a few months back, but for a brief recap, the idea is that how the media chooses to focus on an issue can shape how people in general will look at that issue. In this case, here are three I’ve seen pop up:

The Mob Shakedown: In most good gangster movies and TV shows, a scene emerges that showcases how to threaten someone without actually threatening them. It’s a pure demonstration of the power the “Don,” the “boss” or the “enforcer” has: Force someone to do something they don’t want to do out of pure fear of what otherwise might happen.

The shakedown scene usually starts with the gangster offering “friendship” or “protection” for a business owner, explaining that the world is a dangerous place and that a lot of bad things can happen. So, for a small percentage of the owner’s finances, this gangster will keep those bad things at bay.

If the owner protests, the gangster tends to get a little more specific while still being vague, offering “God forbid” scenarios like how a mysterious fire could burn the business to the ground or how a random act of violence could lead to the owner being hospitalized for serious injuries. However, fortunately, a payment to this “ambassador of goodwill” can pretty much eliminate those possibilities:

(This was the best “shakedown” scene I could find from any TV show or movie that a) didn’t use enough F-bombs to destroy an underground nuclear bunker, b) use other pejorative language regarding someone’s race, gender, ethnicity, sexual orientation or pet preference and c) didn’t actually use the violence that was suggested earlier in the clip. Still, it’s not pure enough for totally virgin ears, so watch at your discretion.)

In the Paramount case, the company had a multi-billion-dollar deal waiting in the wings, but it needed “the Don’s” blessing to go through and a lot of terrible things can happen to a deal if, God forbid, the FCC decided to look reeeeeeealllly closely at it. I mean, who knows what might happen to all that money? If Paramount lost that deal just because of a little misunderstanding it could make right with this “60 Minutes” thing? Hey… I’m just saying…

Of course, the Trump administration definitely wasn’t doing that:

Brendan Carr, the chairman of the Federal Communications Commission, has said the president’s lawsuit against Paramount was not linked to the F.C.C.’s review of the company’s merger with Skydance. Paramount has also said the two issues were unrelated.

Right. And the business owner got that black eye and broken arm after “accidentally” falling down a flight of stairs before coming to the conclusion that protection money is a small price to pay for proper piece of mind.

 

Chump Change: If you look at some of the more successful campaigns to get money out of people, they tend to be the ones that appear to be the least taxing or consequential. Case in point, each year, my alma mater (or maters) send me a pledge card, asking for a “gift” of between a few hundred and a few thousand dollars. Those always go right in the trash without a second thought.

That said, I have a hard time recalling the last time I refused to “round up” at the grocery store, the hardware store or anywhere else for whatever charity the business was repping at the time. It’s like, “Hell, I’m already $132.47 into the Kroeger Family at this point. What’s another 53 cents for a good cause?”

In addition, I’ve seen people drop a few coins in a parking lot and refuse to pick them up, folks at rummage sales drop the “and XX cents” on a customer’s total and other similar maneuvers that basically just round off a relatively insignificant amount of cash.

Thus, the concept of “chump change.”

I personally have a hard time thinking about $16 million as “chump change,” but everything in life is relative, as noted in this clip from “The Social Network:”

I suppose if I’m looking at it from the perspective of a multi-billion-dollar company that wants to make several billion dollars on a deal, giving up $16 million isn’t a lot to make things happen. I also suppose that if a collections company told me I owed $1,000 to a creditor, but I could pay it off today for $1.60, I’d probably avoid the argument and fork over the cash. (Trust me on this one: The comparative math is solid.)

To Paramount, this is the cost of doing business. It’s rounding up at the register to move things along. It’s chump change.

 

An Affront to The Foundations of The Country:  After the news broke about the Paramount capitulation, it might have felt like time stood still for a few minutes. That’s probably because when Edward R. Murrow, Katherine Graham, Walter Cronkite, Ben Bradlee and David Brinkley (among other journalists) started simultaneously started spinning in their graves, the Earth found itself dealing with that “Superman The Movie” trick:

We’ve discussed SLAPP suits here before, where people with virtually no case whatsoever sue for a ton of money to get people to back off. In many of those cases, the defendants lack the sufficient means to truly stand their ground and fight back on behalf of truth, justice and the American way, so they knuckle under.

In this situation, Paramount had the funds, the legal might and the legal precedents to stand up for all the mom and pop media operations (whatever of those are left) and tell the president where to put his suit. Paramount also had the opportunity to stand up for the free press and free speech rights that have defined the country for generations.

It’s something Graham and Bradlee did before when a president came at them. It’s something Murrow did in a time in which a demagogue rattled this country to its core. It’s something so many other journalists and journalism operations have done in big and small ways to reassure us all that our rights are not a “when it’s convenient to people in power” thing.

But a funny thing happened on the way to our current predicament. News outlets are now part of larger conglomerates with larger concerns. TV news always lost money, relative to other programming, but it was seen as part of the deal: You give us quality news, we let you use the public airwaves. Newspapers use to make money and hold sway over larger groups of people. Furthermore, they weren’t part of a collective that also did entertainment programming, sold time shares, controlled real estate and answered to shareholders. Their concern was doing the news well and defending their right to do it.

For Paramount, “60 Minutes” is a “property” of the company, just like all the other stuff they put on TV. If an episode of “School Spirits” pissed off enough people to prevent a multi-billion-dollar deal from happening, they’d kill it or edit it or pay off someone, too. Cost of doing business. That’s the company’s view. The needs of the many outweigh the needs of the one.

However, when one company lets the powerful dictate the news based on threats like this suit, it undermines the strength of those First Amendment rights for everyone else.

Sieve! Sieve! Sieve! AG Pam Bondi green-lights the harassment of journalists as a result of Trump administration leaks

(Rare footage of Wisconsin Badger Hockey fans either taunting an opposing goalie for failing to make a save or mocking Pam Bondi for not running a tighter ship when it comes to stopping sources from leaking information to the media… )

THE LEAD: Attorney General Pam Bondi decided the best way to stop the sieve-like nature of the Trump administration’s leaking problem was to go after the journalists who received the information instead of the people leaking it.

To do that, she issued a memo late last month that made it easier for the government to subpoena reporters, their notes and other documents.

[T]he Bondi memo appears to have rescinded a specific provision protecting journalists from Justice Department subpoenas, court orders and search warrants based on the “receipt, possession, or publication” of classified information.

This change would make it easier for Justice Department attorneys to pursue journalists to identify confidential sources in reporting that involves leaks — like the Pentagon Papers or Watergate. And that could chill news reporting in the public interest.

THE MEMO: Bondi’s four-page explanation for her rollback of the protections put in place more than a decade ago under Merrick Garland offers both shot across the bow at journalists who receive and use leaked material as well as a general disdain for journalists generally:

Without question, it is a bedrock principle that a free and independent press is vital to the functioning of our democracy. The Department of Justice will defend that principle, despite the lack of independence of certain members of the legacy news media.

My takeaway is bloggers, as non-legacy news media, are safe to be completely dependent upon whomever they want for cash and prizes while taking leaked documents. So… Send your cryptocurrency bribes and emails about TrumpCoin to the email address linked on the blog’s About Us page…

Also, this feels more like an angry wedding party host giving a toast more than a serious memo at this point: “I’d like to say congratulations to Jill, the bride, my sister and my best friend. I will always be there for you, even though you slept with my prom date while I was throwing up in the bathroom at after prom. Still, love you, Jill! Jack, welcome to our family, and you might want to get a blood test… ”

And then there’s this…

This Justice Department will not tolerate unauthorized disclosures that undermine President Trump’s policies, victimize government agencies, and cause harm to the American people. “Where a Government employee improperly discloses sensitive information for the purposes of personal enrichment and undermining our foreign policy, national security, and Government effectiveness—all ultimately designed to sow chaos and distrust in Government—this conduct could properly be characterized as treasonous.”8 

A lot of suppositions there, not the least of which is that stuff “could” be treasonous or that all disclosures they want to attack are also definitely meant to undermine policies, victimize agencies and hurt people. By the way, the quote is from one of Trump’s executive orders, as are several other footnoted passages. Just one more reason to read the footnotes before assuming the content is valid.

The memo demonstrated why she probably should have hired one of those journalists she is now targeting to do some proofreading and copy editing:

The Attorney General must also approve efforts to question or arrest members of thew news media.

(Emphasis mine)

 

SO HOW FREAKED OUT SHOULD YOU BE? I wanted to run this past a couple of my “legal eagle” friends to basically get two questions answered before I posted about this:

  1. What is essentially going on here?
  2. How freaked out should journalism folks be about this and why?

Starting with the answer to number one, the legal folks explained that we do not have a nationwide press-shield law, nor an unfettered reporter’s privilege to legally keep the government at bay indefinitely. The case of Branzburg v. Hayes (1972) established that reporters can be compelled to break confidentiality agreements with sources if the government feels it is important that they do so.

As one of the legal folks noted, this isn’t just Trump being Trump about stuff he doesn’t like. Other administrations have also poked the media in a similar fashion when the situation benefited them:

“Many admins have used their federal investigative powers to harass journalists — Nixon famously, but definitely GW Bush and even Obama and certainly the Trump 1 admin. Merrick Garland as AG issued a memo saying his justice department wouldn’t do that, but that’s just guidance, it’s not binding. Congress had a chance to pass the PRESS Act in December provide more protection by law, but Trump told the GOP to kill it, and they did.”

As for number two, the answer basically comes down to, “Be as freaked out as you normally would be about dealing with leaks, because you never really had a lot of protection to begin with.” As one of those legal eagles put it:

“Congress has never passed a shield law, or Free Flow of Information Act, so our legal protection has always been in that weird middle space left by Powell’s concurring opinion in Branzburg.

“We still have a little bit of protection if there’s evidence the government is acting in bad faith or retaliation or harassment against journalists instead of having a bona fide need to get information they can’t get otherwise.

“I think this is more about undoing anything the Biden admin did than anything practically different. We all knew Trump and his admin would go after journalists — he’s been clear about that since before he was elected the first time.”

Essentially, the law itself hasn’t really changed, nor has anyone really stood up for journalists on the federal level (states have passed shield laws here and there, but that doesn’t apply when the fed comes calling). That said, it’s the enforcement that’s likely to be more of a concern.

“Trump and anyone serving in his administration see journalists who report things they don’t like as the enemy. They will target them for retaliation and force their newsrooms (if they work for one) to invest resources to fight in court. Bondi just gave the green light for that. Nixon would be proud.”

(SNIP)

“If anything, I think it’s aimed at trying to scare journalists from publishing leaks — or to scare leakers that journalists may not be able to protect them.”

“I’m not sure that’s gonna work, but it’s definitely the message Trump wants to send.”

DISCUSSION STARTER: What are your thoughts on the Bondi memo as well as the history of the government not solidifying a national media-protection act of some kind? Would that make you more or less worried about what to do if you received important information via a leak?

 

It’s all fun and games until someone sues you for being an idiot: Pat McAfee Edition

ESPN forced to put out 'don't sue us' disclaimer as Pat McAfee show launches on live TV as NFL icon apologizes at start | The US Sun

The disclaimer on the front of Pat McAfee’s show.

THE LEAD: Pat McAfee, former NFL punter and current podcast maven, amplified an internet rumor on his show about Ole Miss quarterback Jaxon Dart and his girlfriend, Mary Kate Cornett. The unsupported allegation was that the 18-year-old freshman student was involved in a “triangle” of sexual relations with Dart and Dart’s father.

After suffering weeks of abuse, threats and other unpleasantness via the Online Idiot Brigade of Dude-Bros, Cornett plans to sue for defamation:

Now she is looking to hold accountable those who contributed to ruining her life, with McAfee and his network, ESPN, clearly in her sights.

“I’m not a public figure that you can go talk about on your show to get more views,” Cornett said on NBC.

BACKGROUND: McAfee is one of several larger “main-stream” media outlets that amplified this rumor. Barstool Sports folks promoted the rumor, along with a meme coin of Cornett. Former NFL player Antonio Brown posted a meme about the rumor. And this doesn’t count the number of other yahoos and local “shock-jock” idiots who did their own hot takes on the topic.

As a result, Cornett’s life has become a literal living hell:

As the rumor spread, Cornett removed her name from outside her dorm room, but she still had vile messages slipped under her door. Campus police told her she was a target, and she moved into emergency housing and switched to online courses.

Houston police showed up to her mother’s house, guns drawn, in the early hours of Feb. 27, in an apparent instance of “swatting” – when someone falsely reports a crime in hopes of dispatching emergency responders to a residence. According to security camera footage and a police report reviewed by The Athletic, the homicide division responded to the call.

After her phone number was posted online, Cornett’s voicemail was filled with degrading messages. In one, a man laughs as he says that she’s been a “naughty girl” and cheerfully asks her to give him a call. Another male caller says that he has a son, too, in case she’s interested. Several people texted her obscene messages, calling her a “whore” and a “slut” and advised her to kill herself.

 

UNDERSTANDING THE LAW: I talked to a couple Legal Eagle friends about this and they’re pretty much in agreement that anything from a defamation suit to an invasion of privacy case would likely tilt in Cornett’s favor. The key things to consider are this:

  • Cornett is not a public figure by any reasonable definition of the term, which means defamation is easier to prove. Yes, she’s dating a high-profile college athlete in the days of NIL money, but that doesn’t make her fair game. If she were a high-profile athlete or if she were promoting her personal brand of something or other online with a “brought to you by Jaxon Dart’s girlfriend,” McAfee’s actions would remain despicable, but the law could be a bit murkier. As a private individual, the standard she has to prove is negligence, not actual malice.
  • The rumor and the people spreading it (especially McAfee) have offered no proof for the allegations they are making about Cornett. As far as anyone can tell, this started out as a random post on YikYak and just kind of spread all over the place. Truth is one of the best “silver bullet” defenses against libel, which is why accuracy is so vital in journalism. If you accuse your university president of running a cocaine ring out of the basement of the student union, and you can prove it, you’re likely up for a Pulitzer, as opposed to a multi-million-dollar legal bill.
  • McAfee is not protected by the word “allegedly,” despite him and his panel of merry men slathering it about like mayo on a BLT. As we’ve discussed before, “allegedly” offers no legal protection.
  • McAfee is also not protected by his stupid disclaimer about it just being a joke-y show with a bunch of “stooges” just throwing bull around. If simple disclaimers like that worked, I’d put one on the back of Amy’s truck that says, “Disclaimer: I have a lead foot and a total disregard for my speedometer, so don’t pull me over to ticket me. I won’t change my behavior.”
  • Hyperbole doesn’t protect him either. The concept of hyperbole is that something has to be so outlandish that no reasonable person would believe it to be true. That’s why the Flynt v. Falwell case ended up in the favor of the porn producer, not the televangelist.

DOCTOR OF PAPER HOT TAKE: The first and most obvious thought is that Pat McAfee should know better than to do this. He’s 37 years old, so he’s been a grown-up for quite some time. He graduated with a communications degree from West Virginia University, so it’s likely he ran into some course at some point about what is and isn’t legal to say on air. He’s got a listener base of nearly 3 million people, so he should know that anything he says has a real chance to have a significant impact.

Even if he were none of those things, basic human decency plus the ability to observe the carnage that has befallen this poor kid* should have clued him in that it’s time to call off the dogs and apologize about this. (*Yes, the law considers her an adult, but she’s still basically a kid. Tell me you felt like a fully formed adult ready to deal with the world at large and I’ll be hard-pressed to believe you.)

Life as a teenager is ridiculously hard as it is. People are angry, petty and stupid. You feel lost and unable to control anything. Your mind races and wanders all at the same time as you try to figure things out for yourself, as every adult around you seems to be asking, “So, what are you going to do next?”

That doesn’t even account for the way in which social media has amplified the “Mean Girls” aspects of life, in which rumors spread more quickly, people get more vitriolic and anxiety can become amplified many times over. The crap teens say to their peers on a daily basis on social media channels could peel paint and give a truck driver the vapors. Now, imagine that it’s the entire world seemingly aligning against you for no good reason other than some chucklehead thought it would be funny to tell people you slept with someone’s dad.

I can’t imagine a way out. Actually, I can and others have as well, which is devastating beyond belief.

I$ Ca$h $peech? Elon Musk has a couple million thoughts on that…

Make It Rain Money GIF - Find & Share on GIPHY
An artistic rendering of Elon Musk’s rally in Green Bay on Sunday…

THE LEAD: Elon Musk handed out two $1 million checks Sunday as part of his efforts to rally voters for Brad Schimel in the Wisconsin State Supreme Court race.

Musk apparently decided that dumping $20 million in ad money into my home state’s Supreme Court Election wasn’t doing enough, so he decided to start handing out money to potential voters like it was parade candy.

Aside from offering people $100 each to sign a petition against “activist judges” (a thinly veiled swipe at the Democrat-backed candidate Susan Crawford), he took it a step further in offering the big cash prizes to a couple Wisconsin voters.

State AG Josh Kaul filed suit in an attempt to block this move, even as Musk was reshaping his offer:

Kaul is asking a Madison-based state appeals court to issue an order barring Musk from handing out $1 million checks to voters ahead of a planned Sunday event in Green Bay. The Democratic Attorney General first sought the ruling from a Columbia County judge who declined to act before Sunday, according to Kaul.

In a since-deleted post on X, Musk said he would hold an event Sunday in Wisconsin and hand out $1 million checks to voters “in appreciation for you taking the time to vote.”

But after election experts and Democrats raised questions about whether the offer violated the state’s election bribery laws, Musk deleted the post and said he would instead be handing over the checks to two people who would serve as spokespeople for his “Petition In Opposition To Activist Judges.” The new post also no longer said attendance would be limited “to those who have voted in the Supreme Court election,” as the original post had stated.

The appeals court rejected Kaul’s efforts on Saturday, noting that he hadn’t fully supported his application properly, so the judges denied his request. The Supreme Court also shot down his request.

BASIC BACKGROUND ON THE RACE: If you live outside of Wisconsin and have a limited interest in politics, you probably never heard of Susan Crawford or Brad Schimel. If you live in the state of Wisconsin, you probably know their names better than you know the name of your current pets.

(It’s also likely that you think all the Supreme Court will do is rule on when to set pedophiles free, given that seemed to be the gist of every attack ad on both sides of this.)

Like most court races, the Wisconsin Supreme Court election is supposed to be a non-partisan affair. As has become the case everywhere, that’s not entirely true, as both Republicans and Democrats basically pick sides and pour time, effort and cash into getting a candidate more to their liking onto the court.

Unlike most other statewide races in the country, people all over the place have taken a vested interest in whether Crawford or Schimel wins. According to a Milwaukee Journal-Sentinel analysis, people from all 50 states have dumped a record amount of cash into this election. The Brennan Center reported last week that the two campaigns and outside groups have spent more than $73 million on the race, which doesn’t account for whatever was spent since March 24.

The main reason is that whoever ends up winning will tilt the “non-partisan” court 4-3 toward a more liberal or more conservative side of the spectrum. With questions about gerrymandered state maps, women’s rights to bodily autonomy, state workers’ union rights, gun regulations and more likely coming down the road to the Supreme Seven, this race is seen as a really big deal for Wisconsin and beyond.

BASIC BACKGROUND ON FINANCIAL SPEECH AND ELECTIONS: In 2010, the U.S. Supreme Court voted 5-4 in the Citizens United v. the Federal Election Commission case that outside interest groups could spend as much money as they wanted to influence the outcome of elections via messaging of all kinds.

According to the Brennan Center, this led to the creation of giant “Super PACs” (political action committees) that wealthy interests could use basically steer election outcomes:

In other words, super PACs are not bound by spending limits on what they can collect or spend. Additionally, super PACs are required to disclose their donors, but those donors can include dark money groups, which make the original source of the donations unclear. And while super PACs are technically prohibited from working directly with candidates, weak rules that are supposed to enforce this separation have often proven ineffective.

The court in the Citizens United decision did note, however, that the law could limit money in politics if it was clear that the money was being used in a form of outright bribery, or  “quid pro quo corruption.” So, in short, Rich Dude/Dudette X can drop $500 billion into ads, mailers, events, social media posts and people wearing sandwich boards promoting a candidate for the Omro Dog Catcher Election, but they can’t hand $100 bills to voters outside a polling place for the purpose of buying their votes.

THE SMELL OF MUSK: Elon’s offers are clearly outside of the norm of what we’ve seen in politics to date (at least in recent years). To be fair, he’s giving out cash to people who sign a pledge that has no legally binding requirements and isn’t capable of creating any legally binding action if he reaches a certain number of signatures. In fact, people could take his money, use it to print up a boat load of Susan Crawford lawn signs and move on if they chose.

He also initially tried to skirt the rules meant to tamp down on bribery by making the two $1 million offers a kind of Publishers Clearinghouse Giveaway of sorts. His offer this time was for those folks who helped get the signature, which again, have no actual value in the broader sense of this election, so offering money for them is kind of like when the tooth fairy would pony up cash for your baby incisors.

What becomes a concern here is the psychological impact of reinforcing desired behaviors. The approach Musk is taking to get people to lean toward his liking is like Pavlov’s dogs, Skinner’s pigeons and Bandura’s bobo dolls all in one. Although the law has outlined strict rules for what is and isn’t bribery, psychological researchers have found the line between bribery and reinforcement to be a little fuzzier.

DISCUSSION STARTER: Where do you stand when it comes to the ideas outlined in the articles linked throughout here, particularly as they relate to the offering of money to complete a task like the petition Musk wanted people to sign? Is this a harmless stunt, a bribery attempt to undermine electoral legitimacy or something in between? Explain what you think and why and see if anyone can change your mind.

 

Whether you agree or disagree with Mahmoud Khalil, you need to watch his case

THE LEAD: Mahmoud Khalil, a graduate student at Columbia University and a legal U.S. resident, was picked up in an ICE raid Saturday and faces deportation. Khalil was a leading voice in the Palestine protests on the university’s campus last spring.

Khalil was detained Saturday night as he and his wife were returning to their Columbia University-owned apartment in upper Manhattan by officials from the U.S. Department of Homeland Security.

The agents told the couple that Khalil was being detained because his student visa had been revoked.

When his wife provided documents proving he was a green card holder, the agents said that was also being revoked and took him away in handcuffs, according to a lawsuit Khalil’s attorneys filed challenging his detention.

President Donald Trump discussed the matter in a social media post in which he supported the arrest and potential deportation, calling Khalil a “terrorist sympathizer” for his stand on the Palestine situation.

Secretary of State Marco Rubio concurred, saying Khalil’s protest actions were “aligned with Hamas” and thus it was acceptable to revoke his green card (and his marriage to a U.S. citizen, I guess) and deport him.

A court held up his deportation and his lawyers will be arguing Wednesday that he’s essentially being punished for exercising free speech.

 

DOCTOR OF PAPER FLASHBACK: We talked about the issues related to protests last year when a number of campuses were dealing with upheaval and cracking down on students who peaceably assembled. As we noted back then, you can’t just support free speech when it’s speech you like. The same is essentially true for all of the other aspects of the First Amendment.

In other words, if you’re cool with people standing up for Side A of an issue, you have to be cool with people standing up for Side B of that issue. As long as the protests and speech don’t run afoul of what the law has already stated as being out of bounds (fighting words, child porn etc.), the Bill of Rights protects those actions.

 

WHY YOU SHOULD CARE: You could easily make an argument that this is one guy, speaking out on a topic in a way that a lot of people don’t like, so it shouldn’t really matter.

You could make that argument and it would be both dead wrong and dangerous.

The actions here underlie a broader set of concerns for anyone who supports free expression. Earlier in March, the president noted he would crack down on colleges and universities that allowed for “illegal protests” to persist. It wasn’t clear what made something an “illegal protest” in the eyes of this administration, but I imagine that the translation would be “anything the president doesn’t like.”

Anyone who has an opinion about anything should probably be concerned about this approach, even if you disagree with everything Khalil stands for. Without legal protections for expression, it could be just a matter of time before whatever you think is worth talking about could land you in prison under some sort of trumped up charge.

 

DOCTOR OF PAPER HOT TAKE: Again, I don’t like a lot of speech or protests, and I’m pretty sure I wouldn’t agree with most of what Khalil has to say. That’s not the point of sticking up for his rights.

The law has long held that the government can’t suppress speech it doesn’t like, but it seems like we’re living in some sort of parallel universe right now where the government tends to do something beyond the pale and ask questions later. The Elon Musk line about how the administration will “make mistakes” but fix them up once they realize they made a mistake is a bad idea in general, but it’s even worse when it come to the inalienable rights associated with our country’s founding.

If the courts give the administration a pass and say, “Well, it’s just this one guy and, yeah, screw Palestine anyway,” it sets a dangerous precedent for when someone else upsets this administration. The cure for speech we don’t like is not to crush that speech. It’s more speech that presents a counterbalance to the original speech.

Even if the courts let this guy go, we still have the problem of how these actions have the potential to chill speech throughout the country. It’s like a bad parent smacking a kid in the head for voicing an opinion. That kid is probably not going to pipe up again, but the rest of the kids in that family are probably also going to keep their mouths shut.

That’s not how we’re supposed to roll as the United States.

Trump Is Limiting The AP’s Access To White House Events Because It Won’t Use His Preferred Noun When Discussing The Gulf of Mexico

THE LEAD: The Trump administration barred several journalists from the Associated Press from reporting opportunities in and around the White House over the past week for not calling the body of water to the south of the country the Gulf of America.

AP executive editor Julie Pace noted Thursday that AP had been shut out of multiple events, including an open news conference with Indian Prime Minister Narendra Modi, the signing of at least one executive order and the swearing in of Robert F. Kennedy, Jr. as the Health and Human Services secretary.

“This is now the third day AP reporters have been barred from covering the president — first as a member of the pool, and now from a formal press conference — an incredible disservice to the billions of people who rely on The Associated Press for nonpartisan news,” Pace said.

The dispute began Tuesday, when the AP was informed that it would be barred from attending White House events because of the organization’s decision to continue using the name Gulf of Mexico, not the Gulf of America, as Trump decreed in an executive order last month.

BRIEF RECAP OF THE SITUATION: President Donald Trump declared that the Gulf of Mexico should actually be named the Gulf of America, a declaration he codified with an executive order on Jan. 20. He doubled down on this declaration, when he deemed Feb. 9 the first “Gulf of America Day.”

Apple and Google maps have made the switch to this nomenclature, even as media outlets and foreign officials have pushed back on this move. (Apparently Bing followed suit, but nobody really noticed because… I mean… c’mon… It’s Bing.) The president of Mexico has threatened to sue Google over this change, while the AP and the White House apparently remain in a standoff over the issue.

Trump also made other name changes, such as shifting Denali back to Mount McKinley. In that case, the entirety of the mountain was within the U.S., so it didn’t require the international community to buy in. (Some folks in Alaska aren’t thrilled, to be fair, and the state’s senators are trying to get this undone.)

DEALING WITH TRUMP, AP STYLE:  The Associated Press is an international organization that operates in more than 100 countries, produces content in multiple languages and serves more than 1,300 news organizations daily, so even minor changes or small disputes can have major consequences. In addition, the AP style guide is the bible (not Bible) for journalists everywhere, so what they say, we all tend to use.

In this case, the AP tried to “split the baby” by both acknowledging Trump’s actions while also not letting 400 years of history and global tradition get scrapped with the stroke of a pen:

Screenshot

In short, “Here’s what we’ve always called it, here’s how it now impacts U.S. government stuff, here’s who can ignore it and here’s our best way forward.” Apparently, that wasn’t good enough for the Trump administration.

CAN TRUMP DO THIS (Part I) ?: The larger question of Trump’s right to rename the gulf unilaterally depends on the specific question being asked. As far as the U.S. government is concerned, yes, he can really do this and has. Reports indicate that both the Department of the Interior and the Geographic Names Information System (GNIS), the official federal database of all U.S. geographic names, are moving in this direction.

In terms of what can be enforced upon the rest of the world, no. The United Nations Convention on the Law of the Sea essentially established that countries have control of things like this only as far as 12 nautical miles from the coastline. (Mexico essentially makes this argument in its lawsuit against Google.) Also, as much as he might like it to be true, Trump does not dictate what everyone on the planet does. Therefore, his declaration has no jurisdiction beyond certain borders.

CAN TRUMP DO THIS (Part II)?: In regard to the issue of barring journalists from stuff, can Trump do it? Sure, and he’s done it before. In 2017, he banned The Guardian, CNN, the New York Times and several other media outlets from a “gaggle” briefing, based on coverage he didn’t like. In 2018, Trump folks barred CNN’s Kaitlan Collins from a Rose Garden event after she had questioned the president in a way that wasn’t taken well.

That same year, the administration revoked the media credentials of CNN’s Jim Acosta after an incident at a press briefing. (The White House reinstated the pass after CNN sued and a judge issued a temporary injunction on behalf of the network.) In 2019, he conducted a “mass purge” of journalists, restricting press access through “hard pass/soft pass” gamesmanship. Trump also just bounced a bunch of journalists out of their office space in the Pentagon, giving the space to outlets that give the administration more favorable coverage.

Generally speaking, the law dictates that the denial of a pass is within the rights of an administration, provided there is “an explicit and meaningful standard” to support its actions and “afford procedural protections.” That case did not say what it would take to revoke a pass, nor did it provide any clarity here in regard to who gets to go into the Oval Office or the Rose Garden or whatever.

DOCTOR OF PAPER HOT TAKE: There’s a lot to unpack here and it’s not entirely one-sided. As much as I hate having to discuss the First Amendment an “it depends” kind of way, at least this time, it doesn’t involve porn.

White House Press Secretary Karoline Leavitt is not entirely wrong in saying that a) covering the White House isn’t something everyone gets to do and b) the administration does have some leeway in how it controls who gets to go where when space is limited. I know I can’t just hop on a plane and demand access to the press room, let alone slide into the Oval Office for a chinwag with DJT, just because I’m writing a blog that dozens of people read.

It’s also no big secret that sources have always played favorites with media outlets. It would piss me off to no end when one of my reporters at the Columbia Missourian would call a police source about some story we had heard about and be told, “Nope… Nothing like that going on.” Then, miraculously, the Columbia Daily Tribune’s ancient cops reporter would somehow manage to break THAT EXACT STORY as an “exclusive” within two days.

I also used to hate the way that the Muncie Star-Press managed to have a great “buddy-buddy” relationship with the Ball State athletic office, so whenever something important would be going on (adding lights to the stadium, scheduling a nationally televised game), the Daily News kids would get shut out and the Star-Press would slather it all over the front page. To think the Trump administration would play more fairly with the national press than some yokel sources in the Midwest would with the local press seems to strain credulity.

Hell, it was so obvious he played favorites during his first term, John Oliver had some fun with it:

These kinds of things aren’t a blatant violation of the First Amendment, even if they feel petty and unfair.

All of that being said, I hate what Trump did here and I totally support AP’s position in regard to the coercive nature of this exclusionary maneuver. It does smack of favoritism, it does undermine their ability to spread information and it reeks of petty bull-pucky. I have a long-standing hatred for bullying, and that’s just what is happening here: “Do what we tell you to do, or else.”

This isn’t a new thing for Trump, nor will it be the only instance of it. I imagine there will be more than a few press passes getting yanked over the next few years, along with the obligatory lawsuits to get the Trump administration to back down. I also imagine that there will be additional significant efforts to cow the media throughout Trump’s reign. If there’s one thing this administration has consistently blessed with favor, it’s those who lavish unrelenting and uncritical praise upon the Dear Leader.

AP right now is in a game of “chicken” with the White House and I certainly don’t want the AP to back down. We could argue that nomenclature of this nature is petty and stupid (see the “freedom fries” debacle), but the bigger issue would be the press caving to power to curry favor. That’s the kind of loss of credibility that the AP could never get back once their reporters lost it. So, please, AP folks, for the sake of all of us out here trying to teach students how to do quality, unbiased journalism, fight like hell to get back what you have lost.

That said, the establishment doesn’t owe the AP a Snickers bar simply because they’re used to getting top-shelf treatment. I would argue that if you work for AP, you’re probably among some of the best, most-resourceful and dedicated reporters on the planet. You don’t get to the top of the heap like that be being spoon-fed and softly petted, so treat this slight like any other obstacle you would need to overcome.

I’d suggest you follow the lead from the folks getting the shaft at the Pentagon: “We’re going to work around this cheap ploy, because that’s what we do and we will not be deterred in holding the administration to account for its actions because that’s our job.”

 

A cussing meteorologist, a porn-star professor and a fan of racy rap: The Suicide Squad sequel of free speech cases (A Throwback Post)

I hadn’t intended to turn the first week back into a First Amendment showcase of sorts, but real life has a way of dictating content, which leads us to today’s installment of “Weird Free Speech Situations Theater.”

In this case, it is a settlement over what constitutes “unprofessional” social media posts for a pharmacy student:

A month after Kimberly Diei enrolled as a doctor of pharmacy student at the University of Tennessee, the college’s professional conduct committee received an anonymous complaint about her posts on social media.

The college reviewed her posts, which included racy rap lyrics and tight dresses, and concluded that they were vulgar and unprofessional. It threatened to expel her.

For the last four years, Ms. Diei has been fighting her school in court, arguing that her posts were fun and sex-positive, and unconnected to her status as a student. Now she has won a settlement: On either Wednesday or Thursday, she expects to receive a check for $250,000 — both vindication and relief, she said.

This situation, as well as the ones involving Joe Gow and Sam Kuffel had me thinking back to previous posts about the support of free speech and how the court cases involving it never are about benign speech. As Zach Greenberg noted in his interview with the blog, nobody tends to throw a fit when someone comes out as “pro-cute puppy photo,” so most free speech situations tend to be about things people find beyond the pale.

Thus, free speech advocates tend to end up with the “worst heroes ever,” to borrow a phrase from “The Suicide Squad” movie trailer. Here’s a look back at the first time we made that argument on the blog.

 

 

A rock star with a heroin problem, the “Bong Hits 4 Jesus” guy and a foul-mouthed cheerleader: The Suicide Squad of free speech court cases

A frequent joke told among lawyers is that the best case is the one with a carload of nuns as your client and a busload of priests as your witnesses. In most cases, however, it seems more like this scene from “The Wire.”

When it comes to First Amendment law, it would be great if we had more cases in which polite, articulate young people like Mary Beth Tinker who quietly wore a black armband to school to protest the Vietnam War. Her choice led to hate mail and threats, but also a ground-breaking Supreme Court case regarding student free-speech rights. And, looking back on it now, people can understand better her underlying concerns about the war as well as her relatively mild statement against it.

Tinker v. Des Moines (1969) established that students do not shed their Constitutional rights at the schoolhouse gate. It also provided protections for students who wish to express themselves against intrusion from school overreach.

Unfortunately, an upcoming case in which a high school student did her best “Scarface” dialogue on Snapchat could be the case that undoes a lot of those protections in a digital age:

In 2017, ninth-grader Brandi Levy said on Snapchat some version of what stressed-out students have been saying on the back of the school bus since the invention of buses: “Fuck school fuck softball fuck cheer fuck everything.”

The post was shared on a Saturday afternoon during a trip to the local convenience store, disappeared from Snapchat by Sunday afternoon, and caused no disturbance at school whatsoever—except to irritate the cheerleading coach, who banned Levy from the squad for a year.

She filed suit, and in June 2020, a federal appeals court ruled that school authorities violated the First Amendment by disciplining her for the off-campus speech. Now, the Mahanoy district is asking the Supreme Court to overturn that ruling.

The case doesn’t matter in regard to that single incident anymore. Levy is now a college student, the cheer team has had a complete turnover in terms of membership and nothing the court could do would change what happened in regard to the punishment levied at the time.

However, if the court decides to overturn that appeals court’s ruling, it could mean that schools can now actively monitor social media and punish students for ANYTHING that appears to be “objectionable.” If that doesn’t scare you, you probably had one of the six “really cool” high school principals I was always told existed somewhere.

Me? I dealt with a lot of nuns and balding guys who wore short-sleeve shirts with brown ties. This is terrifying…

This leads to the point of the post: It seems like we NEVER get the perfect Supreme Court case that perfectly showcases speech that deserves to be protected for the betterment of society. It’s never the student newspaper that was censored for reporting that the principal had stolen money or the kid with the bullhorn outside the school telling people not to eat cafeteria food because the workers were being abused.

It’s always something with an F-bomb, a nude pick or a drug reference that we get to stand behind and say, “Hey, look… You CAN’T censor this because… well… geez…”

We don’t get Superman, Batman, Aquaman or Wonder Woman as our defenders of freedom.

We get The Suicide Squad:

In other words, we get a “mental defective dressed as a court jester,” a “guy who wears a toilet seat on his head” and a “shark with hands,” to quote the red-band trailer I’m not allowed to show you here…

If you think I’m kidding about this, consider the following court cases on important topics:

The landmark case for online speech and defamation? Rocker/Actress/Woman I’d be most scared of meeting in a dark alley Courtney Love won and survived an appeal of her “twibel” case (Twitter plus libel) in 2014. Love, whose outlandish behavior and heroin abuse have long been the subject of media coverage, stated that an attorney had been “bought off” instead of helping Love recoup parts of her late husband’s estate.

A crucial Supreme Court case regarding speech at school sponsored events? Morse v. Frederick, also known as the “Bong Hits 4 Jesus” case. A student held up a sign at an event proclaiming the cryptic message. When the sign was taken away by school administrators, the student later sued claiming his First-Amendment rights had been violated. The SCOTUS ruled that schools have the right to remove pro-drug messages, even though students have some free speech rights at school.

The case that dealt directly with a reporter’s right to maintain confidential sources? Branzburg v. Hayes, which dealt with reporters being forced to disclose the names of sources who were manufacturing hashish.

And, of course, the case involving satire and hyperbole in regard to public figures comes from the apparent patron saint of this blog, pornographer Larry Flynt.

Now, the question of whether students can get smacked around for writing things on their own time on their own social media that school officials dislike comes down to one foul-mouthed 14-year-old cheerleader.

The problem with all of these cases is that it becomes so much easier to suppress speech that is unpopular, vulgar or otherwise disagreeable.

If the reporters in Branzburg were protecting whistleblowers who had uncovered some sort of dark plot by a foreign government to go all “Red Dawn” on the U.S., it would likely feel better to the courts to support their interests in remaining anonymous.

If the school was trying to suppress speech about the superintendent stealing money from the district to buy weed, maybe a “No Bong Hits 4 Superintendent Smith” sign would have garnered a different outcome.

If Sally Fields had tweeted about potential legal malfeasance (while wearing her “Flying Nun” costume), it might not have felt like the entire future of online free speech hinged on whether the defendant was going to lose her mind on the stand and start throwing things at the jury.

If the cheerleader had done her rant without the f-bomb, maybe the courts would be more inclined to side with her at every level.

However, we don’t get to choose the cases that decide our fate, which is why it’s important to make sure that we stand up for all speech because what one person thinks is a felony charge, others might consider a misdemeanor at best. In the mean time, keep an eye on this one, as it’s got a lot more at stake than a lot of people think.

Former UW La Crosse Chancellor and Porn Actor Joe Gow is Suing the UW System to Get His Professorial Gig Back

UW-La Crosse chancellor Joe Gow fired for producing porn

Former UW La Crosse Chancellor Joe Gow at a convocation of some sort, making sure not to go “Elon Musk” on everybody.

THE LEAD: Former UW La Crosse Chancellor and faculty member Joe Gow has filed a federal suit to undo his firing. Gow was fired from each of his positions after it came to light that he and his wife were doing porn and posting the videos online for public consumption.

The lawsuit argues the UW System’s decision to terminate Gow violated the First Amendment and flouted the UW System’s commitment to free expression.

“I think this is an important moment for free speech and I’d like to think this will result in a court saying you can’t fire someone for what they do on the internet on their own time,” Gow, 64, told the Milwaukee Journal Sentinel. “It sounds grandiose but maybe we can get people to rethink pornography.”

Milwaukee-based attorney Mark Leitner filed the lawsuit on Gow’s behalf on Monday, the first day of spring semester classes at UW-La Crosse.

 

BACKGROUND: As we previously outlined on the blog, Gow was removed as chancellor in late 2023 once the Board of Regents became aware of his hobby. However, as is the case with most faculty in administrative positions, Gow retained retreat rights that would have put him back in the classroom as a tenured faculty member of the communication department.

The regents apparently decided that the idea of Gow teaching students at a university he led for almost 17 years with few problems was going to be a bridge too far, so they stripped him of his tenure and fired him in 2024. At the time, Gow was in contact with the Foundation for Individual Rights and Expression (FIRE), which helped him find legal counsel for a potential suit.

 

BLOG FLASHBACK: In September, we did a Q and A with Zach Greenberg of FIRE, who was nice enough to walk through the issues associated with the case as well as why FIRE felt this was a First Amendment issue. You can give that a read here.

 

A  FEW UNPLEASANT REMINDERS ABOUT THE FIRST AMENDMENT:

  • The First Amendment is essentially content neutral. It’s not meant to protect expression people like. It’s meant to protect expression people DON’T like. As we explained when universities were trying to take sides on the Israel/Palestine situation, you can’t just defend free speech when you like the speech.
  • To overcome the protections afforded in that amendment, it requires some very specific things: Fighting words, true threats and child porn are among the most clear cut. Something making someone feel uncomfortable or what might happen at some distant point in the future doesn’t clear that bar.
  • The First Amendment is about governmental action, which includes public institutions. As part of the First Amendment to the Constitution, the government generally does not possess the right to curtail free speech or free press. If Gow were working at Marquette University when this happened, he’d be out on his ass, no questions asked.

DOCTOR OF PAPER HOT TAKE: Long story short, this is essentially a game of “chicken” and has been since Gow’s porn stuff first became public knowledge.

Gow almost HAD TO sue, as to let things sit as they were would essentially be saying, “The UW System was right and I shouldn’t have been doing the porn thing.” In the same way, the university system almost HAD TO fire him and then brace for impact, because it’s not like the folks at the State House and State Senate aren’t already looking for 10,002 reasons to cut higher-ed funding in Wisconsin. To let this go would have every fire-and-brimstone legislator screaming about how not a dime of state money should fund “the UW Porn System!”

I also think the idea of him doing porn just makes the regents and Gow’s colleagues feel awkward and icky, so they don’t want to have to deal with him any more. I get it, in that nobody with a half-dozen siblings likes looking at their parents and being forced to think, “Wow, Mom and Dad really got busy a lot…”

Let me be clear: I have no problem with two consenting adults doing whatever they want to do together, so long as it’s not breaking the law. I also wouldn’t want to think about my boss doing a Porn Hub channel, nor would I want to see it. However, just because I don’t like something, it doesn’t follow that it shouldn’t exist and the First Amendment serves to protect the rights of all people in that regard.

I understand that certain things can and should lead to people being fired, but I tend to think of most of those as legal matters. Felonies tend to reflect poorly on individuals and therefore the companies that employ them, so that makes sense. Misdemeanors? I guess it depends on what it is, but it is up for debate. If I fail to yield the right of way to a roaming cow out here, I could be fined, but I don’t think I should be fired. Public urination? Yeah, that doesn’t look so great, so maybe…

Gow’s hobby used to be illegal back in the late 1960s and early 1970s, when the possession, creation and dissemination of pornography was illegal. You know what also used to be illegal back then? My hobby: Pinball.

From the 1940s to the 1970s, laws prohibited the silver-ball games due to their influence of “juvenile delinquency” as well as fear that they were morally bankrupt and would lead to gambling and other vices. In fact, it wasn’t until 1974 that the Supreme Court ruled that pinball was fine and it took until 1976 for New York City to start acting right. That was after both the Stanley v. Georgia ruling and the Miller v. California rulings that made porn passable in the country.

Back then, both were criminal offenses. Today, it’s totally cool for me to tell my students, “Hey, I’m working on a pinball machine I just bought,” while it’s less acceptable for Gow to announce in a classroom, “Hey, I’m working on a new film for Only Fans!”

The one thing I’m constantly left wondering in situations like this one, and the Sam Kuffel case we discussed Monday, is this: Exactly how much of my life does my employer have a right to control and who draws those lines?

The Sam Kuffel Kerfuffle: CBS58 in Milwaukee “Parts Ways” with a Meteorologist Who Complained about the “Elon Musk Nazi/Not-A-Nazi Salute” on Social Media

Sam Kuffel, meteorologist for CBS 58 in MilwaukeeSam Kuffel via the station’s old Facebook post.

THE LEAD: CBS58 in the Milwaukee TV market “parted ways” with meteorologist Sam Kuffel after the weather caster posted her displeasure about Elon Musk’s “hand gestures” on her social media account.

The 31-year-old graduate of UWM had been doing TV weather reporting around the state of Wisconsin since about 2016. The posts she made after the inauguration were being lambasted on Milwaukee conservative talk radio.

In one post on her personal Instagram account, Kuffel posted a picture of Musk at the podium, saying, “Dude Nazi saluted twice. TWICE. During the inauguration.”

She added, “You (expletive) with this and this man, I don’t (expletive) with you. Full stop.”

Kuffel then posted a GIF from “It’s Always Sunny in Philadelphia” on Instagram along with the saying, “Screw that old (expletive). He’s a Nazi.”

By late Tuesday, she had made her Instagram account private.

Kuffel told the Milwaukee Journal-Sentinel on Friday that she was, in fact, fired for the posts. She noted that she was “just voicing my personal opinion” on her private Instagram account, adding she was still processing the situation and weighing her options.

BACKGROUND: In case you were on Mars or one of the other planets Musk is apparently planning to conquer and missed it, Musk spoke after President Donald Trump’s swearing in and made two sweeping arm gestures.

For the sake of bending over backwards to provide a benefit of the doubt, let’s just say that those gestures had the same movement, angle, finger-stretch and general stridency associated with the “Sieg Heil” salute used during the Nazi Regime.

Musk repeatedly makes gesture likened to 'Nazi salute' at Trump rally

Unless there is a guy out of frame getting ready to hi-five Musk for an “and one” play during the NBA playoffs, this doesn’t look all that great.

The Anti-Defamation League asked everyone to take a breath and relax after the “awkward gesture,” noting that we should all be giving each other some grace in this time of transition. The ADL later condemned Musk, grace period be damned,  after he took to Twitter/X and made some Nazi jokes about the situation.

Musk previously took heat for the antisemitism he allowed to foment on his Twitter/X platform, as well as his retweeting (or whatever we’re calling it now) of antisemitism. In 2023-24, as part of his “apology tour,” he ended up visiting Israel as well as taking a tour of the Auschwitz death camp.

In addition, he has endorsed the AfD, the far-right wing of German politics, and recently told an AfD rally audience that they need to “move past” the history they have related to the Nazi movement and get over “past guilt.”

A FEW BASIC (POSSIBLY UNPLEASANT) REMINDERS ABOUT FREE SPEECH: When a situation like Sam Kuffel’s hits the public eye, comments related to free speech, free press and other similar “rights” start flying all over the web and social media. To better deal with the situation, it’s important to keep a few basic rules of the game in mind:

The First Amendment is about the government: As part of the First Amendment to the Constitution, the government generally does not possess the right to curtail free speech or free press. What we’re talking about in the Kuffel case is a private enterprise making a decision about the activities of one of its employees. That’s different.

Law and ethics are completely different things: People have complained in various forums that the station should have stuck up for one of its own and kept Kuffel on the air. The question of if the news station SHOULD have fired her is one of ethics. The question of CAN the station fire her is one of the law. (See point one)

SOME ADDITIONAL UNPLEASANT REMINDERS: This situation mixes several key reminders I have to give my students each semester. These include:

  • Free speech (even when properly understood vis a vis the First Amendment) does not mean consequence-free speech. You can publish without fear of government intervention, but many other things can happen to you in court or the court of public opinion in terms of consequences for what you say.
  • Despite Kuffel’s contention that it was a “private” account, there is no such thing as private social media. Just ask this person. Or this person. Social media is available to EVERYONE and even if you have your settings locked on “double-super-secret-private pinky swear,” there is still a good chance it’s not going to remain “just among friends.”
  • In most cases, where you work has a social media policy in place that is meant to keep your posts as sanitized as a bleach bath and as sharp as a bag of cotton balls. Know what it says before you violate it and find yourself looking for work.
  • Think before you post.

DOCTOR OF PAPER HOT TAKE: Getting rid of Kuffel probably did a lot more harm than good in a number of obvious and oblique ways. I could do this for days, but let’s pick out a few key ones:

The optics are bad: Nothing says, “We are a proud member of the Fourth Estate,” like tossing the WEATHER PERSON under the bus after she made a stupid social media post. What? Were the higher-ups at the station worried that her disdain for Musk might lead to inaccurate forecasts over the next few months? (Spoiler Alert: She’s doing the weather in Wisconsin. It’s cold, colder and “holy crap, are your nostrils freezing together?” frigid.)

Seriously, you’re talking about a person best known for a weird weather beef with Erin Andrews. Her most recent piece for the station was about “pancake ice.” If you really worry about bias on the staff, start by getting Lance Allen to ask harder questions at the Packers press conferences.

If the theory is that if anyone at the station does something bad, then everyone at the station comes into question, OK. However, how is it that the station was totally cool hiring a journalist who got arrested at a Brewers game after a fistfight with another reporter? (Side note: Don’t include the phrase “is no stranger to Milwaukee, though” in his official station bio.)

Also, if you’re willing to dump the weather person, what happens when a news reporter wants to do a story that might lead to some upset people? If I worked there, I’d be asking for the “puppy and kitten beat” for the next few years.

You essentially killed a fly with a sledgehammer: Most of the experts that the news reports tried to find a balance in their comments. That said, they tended to agree that a) if there’s a policy that says “don’t call someone a Nazi on social media, even if they are a Nazi or we will fire you,” Kuffel likely had no cover and b) firing her seemed like overkill.

On point a, it’s likely not a policy like that. It’s probably some mushy “morals and standards” thing that the lawyers built into everyone’s contract to give them the right to fire anyone that the station felt did the company dirty. In those cases, it’s “fire her and let’s see if she’ll fight it.”

On point b, the station really did try to kill a fly with a sledgehammer. Kuffel was essentially saying what a lot of people were saying, although she used some “saltier” language to do it. It wasn’t on air, it wasn’t on the station’s social media and it probably wouldn’t have been a huge deal if we hadn’t suddenly become “Snitch Nation.” (More on that later.)

When local conservative radio host Jay Weber called Tim Walz’s neurodivergent son, Gus, “a blubbering bitch boy,” on his social media account, he got a two-week suspension. Greg Doyel of the Indy Star received a similar “time out” after a press conference exchange in which he awkwardly requested Caitlin Clark to flash him a “love sign” after each game. The Washington Post’s Dave Weigel only got a month suspension for a retweet  that noted “Every girl is bi. You just have to figure out if it’s polar or sexual.”

The last instance I can find of a media outlet firing a journalist in a way that drew public attention is when New York Magazine cut Olivia Nuzzi loose. In that case, she’d profiled RFK Jr. but also had been sexting him and sending him nudes, according to media reports.

Google “reporter suspended” and “reporter fired” and you’ll a good number of examples to decide which category Kuffel’s situation best mirrors.

 

You embolden Snitch Nation: This is the kind of thing that probably wouldn’t have gotten much traction, if not for the amplification of outrage that is local talk radio. Conservative media host Dan O’Donnell basically lit the “Bat Signal” in this case, criticizing Kuffel’s posts and working his audience into a lather over it. At that point, the station decided it had to do something to move out of the crosshairs of O’Donnell and crew, so they canned Kuffel.

This sets a precedent that any decent third-grade teacher will tell you is bad: Someone does something that’s maybe not all that great and a giant tattletale starts yelling “OOOHHHH! MS. SMITH! MS. SMITH! MS. SMITH! DID YOU SEE WHAT SAM DID?????,” thus getting everyone else to start yelling, “OOOOHHH!!! SAM’S IN TROUBLE!!!” Thus, rather than apply grown-up logic, you overreact and whip out the punishment stick to get the noise to stop.

What that does is a) make everyone afraid of the loud tattletale and b) make it seem like being a tattletale is how everyone should act. Not a great idea. I can’t wait to find out what happens if O’Donnell gets a whiff of this blog post…

(SIDE NOTE: You’d think a guy with high honors at a top-flight law school and a background in media himself would have better things to do than bullying a local meteorologist, but maybe that’s just my take…)

Letting loud idiots dictate your behavior doesn’t eliminate the problem. It literally leads to much bigger ones.

A MODEST PROPOSAL: As I was talking to Mom last night, she asked when the blog would be coming back and if I’d be covering this. After I assured her it was already half written, she asked what I thought would happen next on this. My answer is probably too logical and easy to make happen, but here it is:

If I had control of Weigel Broadcasting Co., CBS 58’s parent company, I’d quietly approach Kuffel and offer her another job at one of the other affiliates in the network, with the promise that Kuffel won’t sue for wrongful termination. This takes a potentially ugly legal battle off the table, gives Kuffel essentially a “suspension” instead of the death penalty and the company gets to keep a solid broadcast meteorologist.

I would also review the social media policies for the entire company and make sure a) they’re air tight, b) everyone gets a refresher course and c) the penalties for whatever will happen get spelled out clearly. This might also be a good time to let the news staff know where the network stands on backing its reporters if things get dicey or if anyone throws up a hissy fit. Or a Nazi salute.

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