Peter Jacobsen is a partner in Bersenas Jacobsen Chouest Thomson Blackburn LLP, a Toronto litigation firm. He regularly acts for The Globe and Mail. He is also a senior fellow at the Ryerson Centre for Free Expression and a director and chair of the Canadian Issues Committee of the Canadian Journalists for Free Expression.
David E. McCraw is deputy general counsel at The New York Times. He is the author of Truth in Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts, which was published in March.
They held their discussion over e-mail in April.
Peter Jacobsen: The allegation that certain outlets are purveyors of “fake news” is one of the most insidious tactics used by those who don’t like what is reported and seek to undermine – if not shoot – the messenger. What circumstances allow this tactic to flourish? What can the media do to counter this tactic and retain – or regain – the trust of its audience?
David E. McCraw: The dark genius behind labelling stories “fake news” is that it sounds like the search for truth when it is just the opposite. It’s an invitation to label and dismiss rather than to read and discern. The fact it’s been adopted as a tactic by the worst governments in the worst places means that both international reporters and local journalists are facing even greater obstacles. The reality is that there are two fake-news problems: the use of the term by people in power to sow doubt about the press and the harm that actual fake news does. Any solution to either problem is going to be imperfect. I don’t favour more government regulation. I do favour having the media cover both topics aggressively, and I do think we all need to encourage our fellow citizens to be critical consumers of the news and to stand up for press freedom.
Jacobsen: I agree. There is, however, another side to the fake-news misinformation tactic. Certain political leaders remain disingenuous in the face of inconvenient realities. In Ontario, for example, the provincial [Progressive] Conservative government is ideologically opposed to the federal Liberal government’s carbon-tax initiative, purportedly introduced to fight climate change. Fair enough. But its opposition has extended to requiring gas stations to display stickers on pumps that show the tax adds 4.4 cents per litre to the price of gas. The sticker neglects to tell the whole story, including the fact that while the carbon tax is expected to cost a typical household $258 this year, the federal government says a family of four in Ontario would receive a more than countervailing tax rebate of $307. Many see the imposition of fines up to $10,000 a day to be a form of forced speech designed to threaten private business owners for failing to post the [Progressive] Conservative government’s false message. When governments engage in these tactics, media outlets that have proven themselves to be objective in their news coverage may be the only credible source of exposing the lies.
McCraw: Organizations that play the traditional role of reporting the news impartially, rather than advancing a political agenda, are an important force for truth. Still, it’s worth remembering that the legal guarantees of press freedom arose at a time when newspapers were overtly biased, and those guarantees were designed to protect all speakers, not just fair ones. A poll last year in the U.S. showed that 26 per cent of the respondents thought the president should have the power to shut down news organizations that misbehave. I worry that large segments of the American people have lost sight of the fact that, first, the Constitution protects speech generally, even misguided or false speech, and, second, that we shouldn’t be looking to the government to address whatever failings the press may have.
Of course, that kind of poll invariably raises the question of what exactly is the press and who is a journalist – a hot-button issue now with the arrest of [Wikileaks founder] Julian Assange. It’s fascinating to see traditional defenders of press freedom struggling to figure out what to make of the indictment – whether the Assange case will set a dangerous precedent or is nothing more than a reminder that there are legal bounds to what a person can do in the pursuit of information. I fall into the “too soon to tell” category on that one.
Jacobsen: It’s also fascinating to see how carefully the indictment has been constructed. It walks a tight rope. He is not charged with disseminating the classified information – rather, the allegation is that in 2010, he assisted Chelsea Manning, a disgruntled Army private first class serving in Baghdad, with attempting to crack an administrative password to the military’s classified internet system. I wonder if the indictment was so carefully worded to attempt to blunt any whistle-blower defence? It is worth noting that the approximately 700,000 classified documents – including records on U.S. military operations in Iraq and Afghanistan – dumped into the public realm were not examined to attempt to ensure the release would not cause unintended collateral damage.
As we continue to advocate for effective whistle-blower legislation, it is important to emphasize that its cause is advanced when the information being released truly serves the public interest in the broadest sense. This means that the public dissemination of uncurated dumps of information is going to be much harder to justify both legally and in the court of public opinion. In the case of Edward Snowden, it is interesting to note he said he purposely chose to give the documents to journalists whose judgment he trusted about what should be public and what should remain concealed.
McCraw: It remains a little unsettling that the U.S., which has such broad protection for publishing information, has so little protection for those who leak information that is indisputably in the public interest. There is no public interest defence. That means a person like Mr. Snowden has no opportunity to argue that the greater good justified his activities. Meanwhile, the news organizations that obtained the information from him are free to publish it, even if it potentially causes damage, because of the strength of the First Amendment.
I do wonder whether the Trump administration will be willing at some point to challenge the right to publish classified information. No administration has wanted to find out whether the First Amendment protects a publisher against charges of violating the Espionage Act. There was a time when it was much easier to make the case that the First Amendment should prevail. In the era of the Pentagon Papers, The New York Times and The Washington Post acted as gatekeepers. The government may not have loved the decisions they made, but they acted with professional responsibility in deciding what should be published. Now, in a time when anyone can be a publisher, it’s much harder to embrace the idea that every blogger and every website should have the same right to publish. The same First Amendment that protects national security reporters at The Times protects equally the blogger who makes the call that secret information should no longer be secret. The U.S. courts have shown no appetite for treating mainstream organizations differently from individual speakers and publishers when it comes to deciding the scope of the First Amendment. Most citizens probably think that is a little crazy. Shouldn’t a news organization like The Times stand in a different place, legally, from the guy with a Facebook page when it comes to the legal right to publish classified information?
Jacobsen: I am not sure. As I see it, the difference between the guy with the Facebook page and the Times is that the Times is more likely, and able, to effect responsible editing and curation. But I would argue that both are entitled to publish what is in the public interest.
In my view, merely dumping information into the public realm is not journalism and those that do it without first evaluating the providence, public interest and impact of what they are disseminating are not functioning as journalists.
McCraw: Speaking of the public interest, we should talk about one of those areas where Canadian law and U.S. law head in different directions: gag orders issued by courts in criminal cases. American reporters, who are used to covering criminal proceedings aggressively and openly, are stunned when they run up against publication bans in courts in Commonwealth countries. The most notorious recent example was in Australia, where Cardinal George Pell was convicted of sexual abuse charges. The press was banned from reporting it because the judge thought that coverage might prejudice a second trial he faced. That would never happen in the U.S. Do you think you’d ever see anything like that in Canada?
Jacobsen: Yes, we have publication bans meant to protect fair trial rights in jury trials. And yes, the Cardinal Pell publication ban was outrageous and would not be repeated in Canada. In my view, they are overused. Plus, I think these bans are increasingly ineffective in the internet age and vastly underestimate the jury pool.
McCraw: There is, of course, one other big area where press law diverges at the border, and that’s libel. The American press has been protected for more than 50 years by Times v. Sullivan, the Supreme Court decision that required public officials (and later public figures) to prove that the publisher acted with reckless disregard to win a libel case. It has worked as intended. The Sullivan rule has made libel suits by well-known figures rare in the U.S. But now, Supreme Court Justice Clarence Thomas has suggested the court should go back and overturn Sullivan. That strikes me as a big step in a very wrong direction. But what is the outlook on libel in Canada?
Jacobsen: In Canada, we do not require public figures to prove the media knew what was being published was wrong or was reckless. However, we do have the defence of “responsible communication,” which will defeat a libel action even when the media gets it wrong. This defence succeeds when the court concludes the media has taken journalistically responsible steps in developing and presenting the story.
Another major difference in libel matters is the size of potential awards. In Canada, the awards are much more modest. That’s not to say if a case comes along where a plaintiff can prove a defamatory statement has cost them a huge sum they won’t get compensated, but we have a very different approach to compensating for damage to reputation where no specific pecuniary loss can be substantiated.
We do, however, still suffer from libel chill. How chilly is it in the U.S.?
McCraw: It’s not so chilly, at least not on the libel front, at least not for large news organizations. At The Times, we have, on average, two libel suits a year, and they are often brought by minor players in a story. We’ve not paid damages in decades, and we haven’t paid plaintiffs to settle. But you are right about damages. The system in the U.S. operates like a casino – few winners, but big winnings for those who prevail.
I suspect the legal situation is very different for our many small and financially strapped news organizations. I fear that threat letters work to stop stories at newspapers and broadcasters that can't really afford the legal costs of a motion to dismiss.
But one interesting thing here: After Hulk Hogan successfully sued for invasion of privacy and put Gawker out of business, there was great concern that we would all be facing an explosion of privacy suits. It hasn’t happened.
Jacobsen: Both countries purport to have an overwhelming interest in freedom of expression and say it’s a vital cornerstone of our democracies. At the same time we are witnessing an increasingly challenging landscape for journalists and their employers. Clicks rule while the inhabitants of both countries seem to often be standing helplessly by as they allow themselves to be manipulated into believing whatever news that confirms their prejudices.
The media has been under siege before but today the advent of fake news and alternate facts makes the media’s job all the more challenging and crucial.
McCraw: In my class this week at Harvard Law School, we discussed whether the law could do anything about fake news and Twitter mobs that use speech to silence others. Was the same First Amendment that made democracy possible powerless to deal with speech that was designed to undermine democracy and quash free expression? It was a smart and concerned class but no one was particularly enamoured with the idea that we should change the law and curtail harmful speech. Maybe it really is up to the people in the end, for better or worse.