For background on how America came to have the inadequate defamation laws now in place, please see Part One of this discussion here.
It now has been more than half a century since the liberal Warren Court handed down its many rulings. So much has changed. It used to be that an honest effort at a true story could cause a publication to find itself sued into instant bankruptcy. Not everyone easily could access a copy of the Sunday New York Times or even of a copy of a Time magazine issue two or three weeks after the thing appeared. Even if one did access a copy, one had to know where and what to look for. Defamation law certainly existed, and people certainly could be hurt, but the balance between the press and its targets arguably was somewhat equal. Times have changed enormously.
Today we have cable TV news that is vicious, incendiary, and polarizing. It is no longer James Earl Jones musically intoning “This Is CNN,” followed by some Paula Zahn interview or Barbara De Angelis, married at least five times and holding a degree from a non-accredited institution, offering advice to CNN viewers on how to maintain a good marriage. MSNBC is even worse. Facebook and Twitter have become vehicles not merely for posting that one is bored at work and intends to eat spaghetti and ketchup tonight at home but also for destroying people in coordinated social media Twitter storms and Facebook campaigns. Instagram likewise generates hate, mockery, and even induces cases of suicide. Although Google/YouTube will censor conservatives and take down a Dennis Prager video about the Ten Commandments (alternately known by Orthodox Jews as the “Ten Pronouncements”), it will not take down the most vicious and destructive of personal character assassination unless sued at plaintiff’s great financial cost. Some people post hateful reviews on Yelp! or Amazon not because they believe their criticisms to be true but because they want to destroy people they hate.
Beyond that, we now are subject to the most disturbing efforts by certain agenda-driven haters at MSNBC and CNN to tear apart our broader American society. With access to television, even their embarrassingly low ratings do reach a few hundred thousand among 300,000,000 Americans. They falsely promote a narrative about “systemic racism” that actually does not exist, distorting reportage on police relations with Blacks to twist numbers in a way that conveys the opposite of the truth, and they go after people, whether public or private, to destroy them and to assure further race hate, cities on fire, businesses burned, inner-city entrepreneurial lives ruined, and worse. They reported wrongly on George Zimmerman in the Trayvon Martin matter, even doctoring an audio recording of his to the police as Zimmerman sought assistance. They took Jussie Smollett and made him into a victim of the worst imaginable race hate — and it was a 100 percent lie. In the case of Michael Brown of Ferguson, Missouri, they initially persuaded a nation — wrongly, as a grand jury determined — that Brown demonstratively had offered no resistance to Officer Darren Wilson, meekly saying only “Hands up — Don’t Shoot!” They produced a lying narrative about six Baltimore policemen in whose custody Freddie Gray had died, but a highly experienced and regarded Black judge ultimately dismissed all charges, officer by officer. They went after Nick Sandmann, an innocent pro-life kid at a northeast Kentucky Catholic high school, and they so distorted who he is and what he is that his own diocese attacked the students and school and apologized for disgusting behavior that never happened; it took the likes of me, an Orthodox rabbi, to rush to Sandmann’s defense. Ultimately, the diocese found itself apologizing for apologizing. Most recently, the same Left Media lied about Kyle Rittenhouse and crucified him for months as a White racist vigilante member who illegally transported a firearm across state lines to “execute” Black people. All lies and trash. Still, a man hears what he wants to hear and disregards the rest. And CNN and MSNBC feed the woke hunger for distorted reporting and commentary.
These cable TV lies and social media storms erupt and reach millions, leaving a private person in particular — but public people, too — with almost no legal recourse to restore their names. With the internet, things from years earlier can be found instantly, including stories published before corrections and time clarified the truth. Thus, those lies never go away; they are statues that cannot be toppled. Tens, then hundreds, then thousands, then hundreds of thousands, then millions get tweets and links, whether by Facebook or Instagram or email, and many of these lies cannot be overcome. They live forever in the national consciousness. Think: “Duke lacrosse.” Think: “University of Virginia rape case.” Think: “Steele Dossier.” One innocent found he needed to spend four years and $3 million in litigation until he finally could clear his name from an online defamation campaign aimed at destroying his business, his personal name, his reputation. This is beyond awful. This is not the First Amendment that made America great.
The balance has shifted in our society to make it far too easy for the Defamation Mob to destroy innocent people like Nick Sandmann and Kyle Rittenhouse. Section 230 of the Communications Decency Act of 1996 is a quarter-century old, dating to a time when the internet was very new, people used email mostly to forward dirty jokes because they saw no other purpose for it, when no one even contemplated social media or its benefits or its dangers, and when such companies would not yet have had the technology anyway to monitor or patrol abusive text posted on its platforms. Congress correctly believed then that this burgeoning new phenomenon could greatly enhance lives and magnify the strengths of free speech, and the federal legislature therefore wanted to maximize legal protections that would allow the internet to take root and expand worldwide as a vehicle for free and compelling speech.
That was then. This is now. Few have laid out as eloquently the need for revisiting American defamation law as did Senior Circuit Judge Laurence Silberman in his recent widely disseminated and debated dissent in Tah v. Global Witness Publishing, Inc.:
The increased power of the press is so dangerous today because we are very close to one-party control of these institutions.… [¶] Although the bias against the Republican Party — not just controversial individuals — is rather shocking today, this is not new; it is a long-term, secular trend going back at least to the ’70s. Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets. And the news section of The Wall Street Journal leans in the same direction. The orientation of these three papers is followed by The Associated Press and most large papers across the country (such as the Los Angeles Times, Miami Herald, and Boston Globe). Nearly all television — network and cable — is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.… Silicon Valley also has an enormous influence over the distribution of news. And it similarly filters news delivery in ways favorable to the Democratic Party.
Judge Silberman proceeded to note how the New York Post’s pre-election Hunter Biden scandal was suppressed by Twitter, Facebook, and Google. “There can be little question that the overwhelming uniformity of news bias in the United States has an enormous political impact.” He cited a 2011 book by Prof. Tim Groseclose at George Mason University, in which the author found media bias “aiding Democratic Party candidates by 8–10% in the typical election.”
Even after a jury solemnly heard testimony for some two weeks and, rather than rush to judgment, allowed themselves several days to contemplate and review evidence before ultimately finding Kyle Rittenhouse not guilty on all counts, certain biased media and other observers continued to foment hate by distorting the unanimous judgment. Someone named Amber Ruffin said on HBO Max:
Because I have my own show, I have a responsibility to say things that people need to know.… [J]ust a few minutes before we started taping this show, Kyle Rittenhouse, the man accused of shooting three people during a Black Lives Matter protest, was declared not guilty on all charges. So I can’t believe I have to say this, but it’s not ok for a man to grab a rifle, travel across state lines, and shoot three people and then walk free. It’s not ok for the judicial system to be blatantly and obviously stacked against people of color. It’s not ok for there to be an entirely different set of rules for white people. But I don’t care about Kyle Rittenhouse. I don’t care about that racist judge. And I don’t care how f—ed up that jury must be. White people have been getting away with murder since time began.
Again, remember that the rifle was stored in Kenosha at the home of Rittenhouse’s best friend’s stepfather and was not transported across state lines. Remember that the three who were shot all were Caucasian. There is not a whit of basis to call the judge racist. The jury took several days to contemplate and deliberate methodically. Meanwhile, Derek Chauvin, a White man, recently was found guilty on all charges and sentenced to 22.5 years in prison. He is White and did not “get away” with anything.
In another, a student posted on an official Virginia university web page: “We scream Black Lives Matter but it doesn’t matter enough for these people who are in power, the jury, the judge, anybody, to charge this man with murdering and taking away two beautiful Black lives at the ripe ages of 26 and 36. It’s disgusting.” Again, the deceased lives in fact were White. One of them had a record as a multiple violent child rapist and had just been released from a mental hospital that same day; the other had a record of domestic violence and criminal convictions, even pleading guilty in a strangulation case. Two beautiful lives indeed.
An official at a major University of California campus, writing in his official capacity as a university administrator, sent a formal message to students after the verdict, saying in pertinent part:
The trial of Kyle Rittenhouse versus the State of Wisconsin concluded earlier today. The jury returned not guilty on all five counts of the original indictment (a sixth count was previously dismissed by the judge), including the murder of two people.… The conclusion of this trial does not end the reckoning about systemic racism in the United States. If anything, it has simply made it more legible. Kyle Rittenhouse did not live in Wisconsin, but in Antioch, Illinois.… [T]he verdict conveys a chilling message: Neither Black lives nor those of their allies’ matter.… [This UC school] will continue its whole university approach to recognizing and responding to anti-Blackness as an existential threat to our mission as a public research university.… Perhaps Rittenhouse should have nonetheless been convicted.
Again, remember: A “not guilty” verdict means that the two shootings were “killings,” not “murders.” Rittenhouse worked in Kenosha and has family — including his father, grandmother, aunt, uncle, cousins, and best friend — in Kenosha. Kenosha is just fifteen miles, less than half an hour’s drive, from Antioch. The trial and verdict centered on Rittenhouse’s claim of self-defense and had nothing whatsoever to do with Black lives nor with “anti-Blackness.” The jury studied the evidence presented before them in the courtroom and deliberated for several days before arriving at their verdict; yet the university administrator in California opines “perhaps” otherwise.
Cori Bush, Squad member of Missouri, tweeted: “The judge. The jury. The defendant. It’s white supremacy in action. This system isn’t built to hold white supremacists accountable. It’s why Black and brown folks are brutalized and put in cages while white supremacist murderers walk free.”
In the aftermath of the extraordinary two-week Rittenhouse trial, the compelling open-court televising of a case that saw one mendacious year-long media “truth” after another shattered, and a complete unequivocal jury exoneration of “not guilty on all counts” within days of the trial’s conclusion, something has to be done in the law to increase the stakes and liabilities confronting people empowered with mass-media access and control but who still enjoy disproportionate protections from responsibility attendant to their words. Their mistakes, exaggerations, and outright lies contribute perilously to street riots, cities in flame, lives ruined forever, and are tearing our country apart. In the wake of Rittenhouse, we must do something substantively meaningful about our defamation laws to restore them to be tools of justice, not shields for abuse and criminality that protect those who would destroy innocent lives and tear down America.