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But the strongest evidence of this ambivalence is the failure of mainstream journalists, in their coverage of the Blumenthal-Drudge suit, to report that it's likely Blumenthal will lose the case. The professional journalistic establishment tends to assume Drudge will lose -- partly because Drudge genuinely did err, but also because it believes this lawsuit illustrates that the journalism game is not one for amateurs and upstarts. The establishment couldn't be more wrong -- Drudge and AOL are likely to win (or at least not lose) because of three basic libel-law principles that almost every working journalist knows: 1. Public-figure doctrine. No one (except maybe Blumenthal's lawyer) seriously disputes that White House aide and former journalist Blumenthal is a "public figure" as that term is used by the courts. This means that Blumenthal can't win against Drudge unless he can show that Drudge published his story with "actual malice" -- that is, he either knew for certain it was false, or simply didn't care whether it was true or not. Unfortunately for the plaintiff, there's no evidence that Drudge ran the piece with "actual malice," and plenty of evidence that he did not. To be counted in the latter is Drudge's inclusion, in the original piece, of a White House source's assertion that the spousal-abuse claims were (in Drudge's words) "pure fiction," although (in the source's words) "This story about Blumenthal has been in circulation for years." At worst, the evidence tells us, Drudge was negligent -- he tried to make his story accurate, but he didn't try hard enough -- and it's a long-standing principle in American libel law that public-figure plaintiffs cannot recover libel damages for merely negligent reporting. 2. Vicarious liability. Blumenthal's lawyer argued in a filing Wednesday that America Online should be held legally responsible for Drudge's mistake, since the online service pays Drudge for the content. Sorry, Sidney, but libel law doesn't work that way in this country, and it hasn't since the 1960s. To hold a distributor of information liable for defamatory content, a plaintiff has to show that the service either "adopted" or reviewed the content in some way -- but AOL quite deliberately acts as a channel, not as an editor, for most of the content it carries, including the Drudge Report. (AOL also pays the New York Times and Newsweek for content; does anyone think it should be held liable when these august institutions goof?) What's worse for Blumenthal is that one of the provisions of the Communications Decency Act that was not struck down last year by the Supreme Court seems to bar anyone from recovering damages from a provider for content it did not originate. 3. Repairing reputational damage. Ask yourself this question -- if you know that Drudge retracted and apologized for his report on Blumenthal, how has Blumenthal's reputation with you been damaged by the report? The obvious answer: It hasn't. Every working journalist knows that libel law isn't about fixing someone's hurt feelings; it's about remedying damage to public reputation. In this case, the mainstream media's eagerness to report Drudge's goof ensured that the story of the retraction outpaced (by orders of magnitude) the scope of the original item. What's more, while Drudge pulled the original item from his archives, his retraction has remained posted on his AOL site for about five months -- meaning that, even if you exclude all the other media coverage from the equation, Drudge has made the retraction available about 150 times as much as the original item ever was. Worst-case scenario under these facts (even if you assume I'm wrong in my arguments above) -- Blumenthal wins the case and is awarded damages of $1. This is all old hat, of course, to our cadres of professional journalists; they learned this stuff in J-school or on the job. But their blind spots about Matt Drudge -- a sort of "don't try this journalism stuff at home" attitude -- prevents them from seeing not only that Drudge will likely be successful in his libel lawsuit defense, but also that Drudge has spotlighted a new niche in the mass-media ecology: the one-man operation that can break a national story whenever it wants to. It's this last factor -- and not Drudge's politics (which I find distasteful) or his journalistic acumen (uneven) -- that has made him so much of a player that he had to be included on that "Meet the Press" panel. But don't expect Drudge's centrality in the breaking of the Lewinsky story to insulate him from the backlash that's already brewing -- and that's certain to intensify if the scandal fades or implodes. If "Tailgate" collapses, Drudge, and by extension the Internet, will become the "paparazzi" of the story -- the guys who do the same thing we journalists do, but from whom we feel compelled to distance ourselves.
Mike Godwin is staff counsel for the Electronic Frontier Foundation and a fellow at the Media Studies Center. He was one of the lawyers for the plaintiffs in Reno v. ACLU, and his book, "Cyber Rights: Defending Free Speech in a Digital Age," will be published by Times Books in June 1998. What do you think of Matt Drudge? Come to Table Talk's Media discussion area and post your views. |
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