A pair of pandemic-related developments regarding the law and the media bode badly for both. They consist of threatened lawsuits coming from opposite ends of the political spectrum.
One is an effort by President Donald Trump’s re-election campaign to shut down television ads for Joe Biden that use news clips of the president’s own misleading statements about the disease as it began to spread a month ago — describing it as a “hoax,” expecting it to rapidly vanish as a “miracle,” etc.
The other is a suggestion by some liberal pundits that the overly optimistic comments about the developing pandemic on Fox News merit legal action from afflicted viewers who may have been dissuaded from taking precautions.
While neither lawsuit has yet materialized, the spirit that stirs such threats adds censorship to the woes wrought by the COVID-19 calamity.
Political campaigns have often demanded that their rivals withdraw particular ads they deem improper, and they have occasionally managed to convince media outlets, primarily TV stations, not to run them. They also have used lawsuits or charges filed with administrative bodies against their opponents. I know because I have been on both ends of such fights, accusing others of political ad wrongdoing against my clients and also defending clients against such charges.
But it’s rare for campaigns to sue the media that has broadcast controversial ads and even more unusual for them to succeed. That is of no matter to the president and his supporters, who are threatening to sue CNN and other television outlets that have broadcast the pro-Biden ads. Nor are they inhibited even though the ads quote the president verbatim.
Even if the media resists, which they have so far, their pushback is of no moment to the Trump forces. Threatening or pursuing litigation is an old tactic from the Trump playbook, before and during his presidency.
Indeed, he recently sued the New York Times and Washington Post for their coverage of his 2016 campaign’s alleged involvement with Russian election meddling.
It matters not to the Trump crowd that such lawsuits have little likelihood of prevailing. The suits give him, his acolytes and his media spinners something to talk about and illustrate his victimization, and they bully media outlets, especially smaller ones, into self-censorship in order to avoid the costs of litigation.
Freedom of speech is equally threatened by the threatened litigation against Fox. While that potential is less likely to actually occur, that it is even being bandied around is malodorous.
Although Fox’s coverage of the COVID-19 calamity has been egregious and irresponsible, especially during its early stages, the notion that it could be sued for faulty coverage or misguided opinions of its pseudo-reporters, hosts and commentators creates a chilling effect not only for that outlet but other media that are less able to fend off potentially ruinous lawsuits.
It also sends an ill-advised message to others to use this litigation-type tactic in their local communities against less affluent media to try to shape, or suppress, their news coverage.
A recent ruling by the Minnesota Supreme Court, unrelated to the Trump-coronavirus scuffles, nonetheless raises this specter of self-censorship.
In a case decided in late February, Larson v. Gannett Company, the court ruled that a man regarded as a suspect in connection with the 2012 killing of a police officer in Cold Spring could pursue a defamation claim against a Twin Cities TV station and St. Cloud newspaper for their coverage of a law enforcement news conference after the arrest of the man — who was never formally charged.
Reversing a lower-court ruling throwing out the case, the high court reasoned that a jury should decide on the quality of the editing and reporting in the stories.
The disposition led some observers to fear that juries in Minnesota will now be empowered to second-guess whether news coverage is “fair and accurate,” a prospect that understandably sends a chill down spines in many newsrooms in this state.
The convergence of all these signs of diminishing respect for a free and independent press could have long-lasting and deleterious effects on the nation.
The writer is a Twin Cities constitutional law attorney and historian.