Blake Lively- Jason Baldoni and NYT - False Light claims

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Anonymous wrote:In court, will the NYTimes have to reveal when they started working on the article? What other specific things can we expect to come to light?

If justin’s case survives a MTD, yes, they will. I suspect that the NYT might file an anti SLAPP motion, but I’m not sure. My guess is justin’s case will survive those early motions and discovery will begin. And yes, the NYT will have to show timing and the internal process that led to the story being published, what they did to corroborate her story, what they did and didn’t do and said about seeking the other side’s perspective, etc.

I’m fairly alone on this thread on thinking that Justin has a real case against the NYT. This was an explosive story. I don’t think it will be hard to show they had a real confirmation bias going in to this story, their MeToo journalist wanted to fit this into another metoo framework with a PR twist, and they ignored proper journalism standards… and there was significant harm to people, including people who are arguably private figures.

But it’s also been a very wise PR move as well, and I’m sure it’s unsettled the Times and that reporter.

I don’t disagree that this will beat a MTD unless the judge has a very restrictive take on the showing needed for actual malice. but “confirmation bias” isn’t a grounds to show actual bias, and it’s not clear that “proper journalism standards” even exist such to show that they were recklessly or intentionally violated.

Yes, there are journalistic standards that publications like the Times follow. They certainly have internal rules of the road that they are supposed to follow. The Times even used to have a ‘standards’ editor as a separate role. Things like getting comment, how many sources to use and what sort of info is needed to verify statements, whether they can run a story with only off the record sources, that sort of thing. I suspect they relaxed them here, hoping they could hide behind this being a published complaint (and therefore a ‘fair report’ which gives them some protections). That’s why they came out hard and fast in a statement to respond to the allegation that they had the complaint early and that this was collaborative with BL.

These aren’t legal standards, of course. But if this gets to a jury, the Plaintiffs will introduce evidence showing how sloppy and different from usual standards this journalistic process was, how they might have willfully ignored red flags in pursuit of a juicy angle, etc. All of this will be used to show state of mind- eg whether they were negligent or showed a reckless disregard for the truth.

it would take a LOT to prove those are hard & fast standards that the Times violated here, such that it constitutes recklessness. Because a) there are no clear standards on things like how long to give for comment and b) it’s not even clear the Times would have violated that.

The law makes this very hard for a good reason. If journalists can be sued by public figures too easily then their ability to report (and make mistakes) would be severely curtailed and the public would suffer.

It really wouldn’t be that hard to show…

of course it would be hard to show. It would be extremely hard to show and even if Baldoni puts 10 journalism professors on the record, there would still be a mountain of contradictory evidence. I’m not even sure he beats MTD on actual malice (although I have not combed through the latest.)

It really really won’t be that hard and this is to a jury. They aren’t super precise. And the NYT will likely have written parameters and there will likely be drafts, emails and other materials they are forced to turn over with questions or concerns set out. These are writers and media people- they tend to communicate and that can work against them in these types of cases. See the Fox Old Dominion case where texts sunk them to close to a billion dollar settlement. Fox also claimed that they were protected, they were going to fight it all the way, they were just reporting on a matter of public concern, blah blah.

this case is NOTHING like the Fox Dominion case. there’s zero evidence even alleged that is similar. I don’t know how much background you have in journalism or 1A but you really are off base. That of course doesn’t mean a jury could make a crazy decision but I’m not sure the verdict would stand and I’m not even sure this passes MTD.

Rolling my eyes hard at your repeated reference to ‘1A’. Sorry, no insider uses that expression which is showing me you don’t have nearly the knowledge base in this area of the law you think you do. OF COURSE this case isn’t exactly like the Fox case- in some ways, the Fox case was *better* for Fox- at the beginning at least bc voter fraud and the veracity of the election was clearly a significant matter of public interest for them to report on, including what other people were claiming about a matter of great import. Yet Old Dominion survived a MTD. Can’t really say that about a petty onset scrap between a B list actress and an unknown director. Why the heck was the Times reporting on this crap in the first place? It’s off brand, other than making it into a bigger metoo story.

But my point was that discovery can sink cases for media Defendants bc there tends to be a decent amount of written materials and chatter and internal debate on stories like this, and it typically doesn’t help defendants, especially when used by a crafty Ps attorney, which Bryan Freedman is showing himself to be.

So let’s play this out, and let’s say the jury decides for Ps- a ‘crazy decision’ as you said (which I don’t agree with necessarily but whatever). You think the NYT wants to appeal based on NYT v Sullivan and see what happens there? Have you not noticed the recent strange media settlements? Think about it. It’s a very weird time for the media, and because of some of these factors, including how skilled Bryan Freedman seems to be and how much PR and coverage there is, my belief is that this case has a decent chance.

True the first amendment has nothing to do with defamation lol.

Obviously the legal and media landscape are changing quickly but you keep on acting like there is likely to be ANYTHING similar to what Fox did - and I do not believe it has been alleged and nor will it come out in discovery.

The defamation defense bar does not refer to themselves as ‘1A’ attorneys. Thats my point. It is a fairly small world, which you clearly do not know well, yet you keep chiming in like you’re an expert.

And I never said Fox and the NYT are the same, rather that discovery often gets messy and risky for media defendants because they tend to WRITE everything down.

true, Floyd Abrams never discussed the First Amendment 🤡

anyway I never said I was a defamation defense attorney? I don’t believe you are either. If you are I invite you to write a long post showing how Baldoni will show the same types of facts as alleged in the Dominion cases. “maybe he will dig up a red flag that the jury maybe will construe against the NYT” is not really persuasive.

Sigh. You’re hopeless in digging in when you don’t know, and then trying to twist my words. Floyd Abrams hasn’t been on the defense scene in any real way for years. I get that you took a law class and know his name. Besides, I was making fun of your short hand, 1A. It’s just not an acronym that’s used.

true, only a member of the very small “defense scene” can competently analyze the case; and using an acronym you dislike shows that my opinion is worthless. Mmm hmm.

still waiting for your actual analysis of the dominion v Baldoni complaints. I don’t think Baldoni has even alleged enough to get to discovery.

Defense BAR. Not defense ‘scene’. And yes, your use of strange acronyms and reference to non practicing attorneys leads me to believe you don’t know this area of the law very well. Which is fine. I don’t know the SH side of things that well. The difference is that most people admit what they don’t know. You are amusing in that you act like you are an expert when you’re clearly not.

I think B will get discovery, but sure, let’s wait and see.

[Anonymous]

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Anonymous wrote:In court, will the NYTimes have to reveal when they started working on the article? What other specific things can we expect to come to light?

If justin’s case survives a MTD, yes, they will. I suspect that the NYT might file an anti SLAPP motion, but I’m not sure. My guess is justin’s case will survive those early motions and discovery will begin. And yes, the NYT will have to show timing and the internal process that led to the story being published, what they did to corroborate her story, what they did and didn’t do and said about seeking the other side’s perspective, etc.

I’m fairly alone on this thread on thinking that Justin has a real case against the NYT. This was an explosive story. I don’t think it will be hard to show they had a real confirmation bias going in to this story, their MeToo journalist wanted to fit this into another metoo framework with a PR twist, and they ignored proper journalism standards… and there was significant harm to people, including people who are arguably private figures.

But it’s also been a very wise PR move as well, and I’m sure it’s unsettled the Times and that reporter.

I don’t disagree that this will beat a MTD unless the judge has a very restrictive take on the showing needed for actual malice. but “confirmation bias” isn’t a grounds to show actual bias, and it’s not clear that “proper journalism standards” even exist such to show that they were recklessly or intentionally violated.

Yes, there are journalistic standards that publications like the Times follow. They certainly have internal rules of the road that they are supposed to follow. The Times even used to have a ‘standards’ editor as a separate role. Things like getting comment, how many sources to use and what sort of info is needed to verify statements, whether they can run a story with only off the record sources, that sort of thing. I suspect they relaxed them here, hoping they could hide behind this being a published complaint (and therefore a ‘fair report’ which gives them some protections). That’s why they came out hard and fast in a statement to respond to the allegation that they had the complaint early and that this was collaborative with BL.

These aren’t legal standards, of course. But if this gets to a jury, the Plaintiffs will introduce evidence showing how sloppy and different from usual standards this journalistic process was, how they might have willfully ignored red flags in pursuit of a juicy angle, etc. All of this will be used to show state of mind- eg whether they were negligent or showed a reckless disregard for the truth.

it would take a LOT to prove those are hard & fast standards that the Times violated here, such that it constitutes recklessness. Because a) there are no clear standards on things like how long to give for comment and b) it’s not even clear the Times would have violated that.

The law makes this very hard for a good reason. If journalists can be sued by public figures too easily then their ability to report (and make mistakes) would be severely curtailed and the public would suffer.

It really wouldn’t be that hard to show…

of course it would be hard to show. It would be extremely hard to show and even if Baldoni puts 10 journalism professors on the record, there would still be a mountain of contradictory evidence. I’m not even sure he beats MTD on actual malice (although I have not combed through the latest.)

It really really won’t be that hard and this is to a jury. They aren’t super precise. And the NYT will likely have written parameters and there will likely be drafts, emails and other materials they are forced to turn over with questions or concerns set out. These are writers and media people- they tend to communicate and that can work against them in these types of cases. See the Fox Old Dominion case where texts sunk them to close to a billion dollar settlement. Fox also claimed that they were protected, they were going to fight it all the way, they were just reporting on a matter of public concern, blah blah.

this case is NOTHING like the Fox Dominion case. there’s zero evidence even alleged that is similar. I don’t know how much background you have in journalism or 1A but you really are off base. That of course doesn’t mean a jury could make a crazy decision but I’m not sure the verdict would stand and I’m not even sure this passes MTD.

+1, that comparison is bonkers. Everyone at Fox knew they were lying about Dominion, plus their reporting literally destroyed Dominion's entire business.

The only way Baldoni's case against NYT's could reach that level is if discovery reveals texts between the reporters and editors where they are like "yeah we know this guy is totally innocent, but we have to do what Lively says." And I'm sorry, but those don't exist. The NYT is a flawed entity but it's not Fox News and the people who work at NYT take the idea of their own journalistic integrity very seriously. Even if that's something they thought to themselves at the time, there is zero likelihood anyone ever admitted it in writing to one another.

That’s just not accurate at all. The P don’t have to show the NYT definitely knew she was lying, the P will just try to show there was a suggestion or question about digging more into Baldonis side before publishing that the NYT didn’t undertake. Something that should have been a red flag. That could be enough to get it to a jury to decide as a question of fact, and sorry, juries just aren’t they precise. You also seem to be forgetting that some of the Ps are possibly private figures, so the standard is negligence.

Baldoni will be deemed a public figure. The PR people might be considered private people, but Baldoni will be deemed a public figure, no question.

In which case, no, at least for his case, your analysis is wrong. They are going to have to show actual malice and there isn't any. Sorry.

Sorry, you’re just clearly not educated in this area of the law other than maybe knowing basic first amendment talking points. You really just can’t say at this stage that there is absolutely no way actual malice (or negligence) could be found. It’s impossible without seeing how discovery plays out.

The MTD will likely rise or fall on fair report, not AM.

Can you explain for those of us who don’t know much about this stuff how fair report could play out with something like this? Do you think the NYT was only reporting on the CRD complaint? From what I recall it seemed broader, like when they mentioned the interview with the Norwegian reporter but maybe that’s irrelevant.

[Anonymous]

Blake and Ryan sound like snakes. I assume Swift will never associate with them moving forward.

[Anonymous]

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Anonymous wrote:In court, will the NYTimes have to reveal when they started working on the article? What other specific things can we expect to come to light?

If justin’s case survives a MTD, yes, they will. I suspect that the NYT might file an anti SLAPP motion, but I’m not sure. My guess is justin’s case will survive those early motions and discovery will begin. And yes, the NYT will have to show timing and the internal process that led to the story being published, what they did to corroborate her story, what they did and didn’t do and said about seeking the other side’s perspective, etc.

I’m fairly alone on this thread on thinking that Justin has a real case against the NYT. This was an explosive story. I don’t think it will be hard to show they had a real confirmation bias going in to this story, their MeToo journalist wanted to fit this into another metoo framework with a PR twist, and they ignored proper journalism standards… and there was significant harm to people, including people who are arguably private figures.

But it’s also been a very wise PR move as well, and I’m sure it’s unsettled the Times and that reporter.

I don’t disagree that this will beat a MTD unless the judge has a very restrictive take on the showing needed for actual malice. but “confirmation bias” isn’t a grounds to show actual bias, and it’s not clear that “proper journalism standards” even exist such to show that they were recklessly or intentionally violated.

Yes, there are journalistic standards that publications like the Times follow. They certainly have internal rules of the road that they are supposed to follow. The Times even used to have a ‘standards’ editor as a separate role. Things like getting comment, how many sources to use and what sort of info is needed to verify statements, whether they can run a story with only off the record sources, that sort of thing. I suspect they relaxed them here, hoping they could hide behind this being a published complaint (and therefore a ‘fair report’ which gives them some protections). That’s why they came out hard and fast in a statement to respond to the allegation that they had the complaint early and that this was collaborative with BL.

These aren’t legal standards, of course. But if this gets to a jury, the Plaintiffs will introduce evidence showing how sloppy and different from usual standards this journalistic process was, how they might have willfully ignored red flags in pursuit of a juicy angle, etc. All of this will be used to show state of mind- eg whether they were negligent or showed a reckless disregard for the truth.

it would take a LOT to prove those are hard & fast standards that the Times violated here, such that it constitutes recklessness. Because a) there are no clear standards on things like how long to give for comment and b) it’s not even clear the Times would have violated that.

The law makes this very hard for a good reason. If journalists can be sued by public figures too easily then their ability to report (and make mistakes) would be severely curtailed and the public would suffer.

It really wouldn’t be that hard to show…

of course it would be hard to show. It would be extremely hard to show and even if Baldoni puts 10 journalism professors on the record, there would still be a mountain of contradictory evidence. I’m not even sure he beats MTD on actual malice (although I have not combed through the latest.)

It really really won’t be that hard and this is to a jury. They aren’t super precise. And the NYT will likely have written parameters and there will likely be drafts, emails and other materials they are forced to turn over with questions or concerns set out. These are writers and media people- they tend to communicate and that can work against them in these types of cases. See the Fox Old Dominion case where texts sunk them to close to a billion dollar settlement. Fox also claimed that they were protected, they were going to fight it all the way, they were just reporting on a matter of public concern, blah blah.

this case is NOTHING like the Fox Dominion case. there’s zero evidence even alleged that is similar. I don’t know how much background you have in journalism or 1A but you really are off base. That of course doesn’t mean a jury could make a crazy decision but I’m not sure the verdict would stand and I’m not even sure this passes MTD.

+1, that comparison is bonkers. Everyone at Fox knew they were lying about Dominion, plus their reporting literally destroyed Dominion's entire business.

The only way Baldoni's case against NYT's could reach that level is if discovery reveals texts between the reporters and editors where they are like "yeah we know this guy is totally innocent, but we have to do what Lively says." And I'm sorry, but those don't exist. The NYT is a flawed entity but it's not Fox News and the people who work at NYT take the idea of their own journalistic integrity very seriously. Even if that's something they thought to themselves at the time, there is zero likelihood anyone ever admitted it in writing to one another.

That’s just not accurate at all. The P don’t have to show the NYT definitely knew she was lying, the P will just try to show there was a suggestion or question about digging more into Baldonis side before publishing that the NYT didn’t undertake. Something that should have been a red flag. That could be enough to get it to a jury to decide as a question of fact, and sorry, juries just aren’t they precise. You also seem to be forgetting that some of the Ps are possibly private figures, so the standard is negligence.

Baldoni will be deemed a public figure. The PR people might be considered private people, but Baldoni will be deemed a public figure, no question.

In which case, no, at least for his case, your analysis is wrong. They are going to have to show actual malice and there isn't any. Sorry.

Sorry, you’re just clearly not educated in this area of the law other than maybe knowing basic first amendment talking points. You really just can’t say at this stage that there is absolutely no way actual malice (or negligence) could be found. It’s impossible without seeing how discovery plays out.

The MTD will likely rise or fall on fair report, not AM.

I can tell you as someone who knows NYTs reporters and how their newsroom operates that there is absolutely no way that they will find actual malice here.

But sure, let's wait for discovery. And then I'll come back here and say "I told you so."

+1. The Sarah Palin case is probably the closest that a case will get - based on a reflexive animus towards Palin and careless editing.

But to pretend it is ANYWHERE similar to Dominion (either Baldoni or Palin) is absurd. In Dominion FOX’s fact-checking department literally sent memos saying the Dominion story was false and were overruled by execs who wanted market share.

Sigh. I keep saying- discovery is my point, not that it was an outright lie that everyone knew. It doesn’t have to be a LIE. It only has to be reckless for baldoni and merely negligent for the others.

Palin is a good case. That was a total mistake on the part of an editor and it was an OP ED, and the clearly very pro NYT judge did everything to shut that case down, including allowing for bizarre early discovery. And yet it continues.. and the NYT is looking to settle (very rare).

Discovery is *not going to show* anything CLOSE to the Dominion v FOX case. or even the Palin case. That’s the point. This is run of the mill celebrity reporting. FWIW I think BL is wrong.

I think you don’t know the Palin case if you are saying this right now. The discovery showed so little in Palin. It was a rushed OP ED piece that came together in less than a day after a shooting. This Baldoni story was likely in the works for awhile. Plenty of time for them to go to the other side and get more support, which they did not appear to do.

The trial judge in Palin did everything to lean it to the times, yet it is still going.

And you keep jumping to AM right now. Mostly premature. This is about fair report right now.

The NYTimes almost immediately retracted the Palin OP-ED. Totally totally different set of facts.

[Anonymous]

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Anonymous wrote:I don't really have an opinion yet about the case but what I do know from everything I have read and seen is that I really don't like either Blake or Justin as people. Both are obnoxious.

How is he obnoxious?

This story is exactly like Bad Art Friend. Smug mugs who came to it in December decided he’s guilty of stuff he quite evidently never ever did. His Dawn-like sincerity is a flaw against Lively’s polished like Sonya’s gross turd character. At least it explains to me why he can’t settle, and to be grateful from afar that his film partners have the money to push this hard.

I find him very fake, insincere, and smarmy in the documents. And then I saw his proposal video (that was all about him) and I decided smarmy, fake, and obnoxious.

There is nothing sincere or genuine about him. He says whatever he thinks people want to hear and is so over the top most of the time.

If you haven't seen the video where he proposes to his now wife, enjoy! https://www.youtube.com/watch?v=hVTr5MNa_8Y&t=377s

I see that video as totally tongue-in-cheek. They probably had some inside joke that sparked it. It made me think he would be a funny guest host on SNL.

Oh please, if that was Ryan Reynolds proposal video, you would be ripping it and him to shreds. The Baldoni fan club on here is strange.

+1, I get siding with Baldoni legally and I totally get disliking Lively and Reynolds. I find the desire to cast Baldoni as some kind of hero as bizarre. He's a middling actor and director with a super cringey personality and a desperate need for attention and validation.

One of the funny things to me about this case is that each time Baldoni comes out with texts or letters or video that exonerate him or show that Lively is a bad actor, they also tend to highlight the ways in which he's ridiculous -- a lot of it is him blatantly kissing a$$es (not just Lively's but also producers and others), him telling stories about his own life that make my eyes roll all the way back into my head, or him being super passive and wishy-washy in his role as director in a way that would have driven me absolutely crazy if I had to work with him. And everything I learn about his whole "man enough" narrative is so cringey.

I can't stand Ryan Reynolds but when I saw the clips of "Nicepool" from his movie, I felt like it was dead on in terms of sending up someone like Baldoni. Guys like that are incredibly annoying, sorry.

I think he’s an imperfect victim. I’m not sure if I’d want to be friends with him, but for whatever reason my empathy is with him. I guess because of the power imbalance and how she seemed to get her way at every turn. It feels like he was backed into a corner and made some poor decisions (and is clearly paying for that). But at the end of the day, people can make you uncomfortable (bc they’re clueless or annoying or just weird), but that doesn’t make them sexual harassers. It really just seems like BL was butthurt that he didn’t like her scene, and so she used his kinda awkward personality against him. Def not painting him as a hero—just a victim.

[Anonymous]

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Anonymous wrote:In court, will the NYTimes have to reveal when they started working on the article? What other specific things can we expect to come to light?

If justin’s case survives a MTD, yes, they will. I suspect that the NYT might file an anti SLAPP motion, but I’m not sure. My guess is justin’s case will survive those early motions and discovery will begin. And yes, the NYT will have to show timing and the internal process that led to the story being published, what they did to corroborate her story, what they did and didn’t do and said about seeking the other side’s perspective, etc.

I’m fairly alone on this thread on thinking that Justin has a real case against the NYT. This was an explosive story. I don’t think it will be hard to show they had a real confirmation bias going in to this story, their MeToo journalist wanted to fit this into another metoo framework with a PR twist, and they ignored proper journalism standards… and there was significant harm to people, including people who are arguably private figures.

But it’s also been a very wise PR move as well, and I’m sure it’s unsettled the Times and that reporter.

I don’t disagree that this will beat a MTD unless the judge has a very restrictive take on the showing needed for actual malice. but “confirmation bias” isn’t a grounds to show actual bias, and it’s not clear that “proper journalism standards” even exist such to show that they were recklessly or intentionally violated.

Yes, there are journalistic standards that publications like the Times follow. They certainly have internal rules of the road that they are supposed to follow. The Times even used to have a ‘standards’ editor as a separate role. Things like getting comment, how many sources to use and what sort of info is needed to verify statements, whether they can run a story with only off the record sources, that sort of thing. I suspect they relaxed them here, hoping they could hide behind this being a published complaint (and therefore a ‘fair report’ which gives them some protections). That’s why they came out hard and fast in a statement to respond to the allegation that they had the complaint early and that this was collaborative with BL.

These aren’t legal standards, of course. But if this gets to a jury, the Plaintiffs will introduce evidence showing how sloppy and different from usual standards this journalistic process was, how they might have willfully ignored red flags in pursuit of a juicy angle, etc. All of this will be used to show state of mind- eg whether they were negligent or showed a reckless disregard for the truth.

it would take a LOT to prove those are hard & fast standards that the Times violated here, such that it constitutes recklessness. Because a) there are no clear standards on things like how long to give for comment and b) it’s not even clear the Times would have violated that.

The law makes this very hard for a good reason. If journalists can be sued by public figures too easily then their ability to report (and make mistakes) would be severely curtailed and the public would suffer.

It really wouldn’t be that hard to show…

of course it would be hard to show. It would be extremely hard to show and even if Baldoni puts 10 journalism professors on the record, there would still be a mountain of contradictory evidence. I’m not even sure he beats MTD on actual malice (although I have not combed through the latest.)

It really really won’t be that hard and this is to a jury. They aren’t super precise. And the NYT will likely have written parameters and there will likely be drafts, emails and other materials they are forced to turn over with questions or concerns set out. These are writers and media people- they tend to communicate and that can work against them in these types of cases. See the Fox Old Dominion case where texts sunk them to close to a billion dollar settlement. Fox also claimed that they were protected, they were going to fight it all the way, they were just reporting on a matter of public concern, blah blah.

this case is NOTHING like the Fox Dominion case. there’s zero evidence even alleged that is similar. I don’t know how much background you have in journalism or 1A but you really are off base. That of course doesn’t mean a jury could make a crazy decision but I’m not sure the verdict would stand and I’m not even sure this passes MTD.

+1, that comparison is bonkers. Everyone at Fox knew they were lying about Dominion, plus their reporting literally destroyed Dominion's entire business.

The only way Baldoni's case against NYT's could reach that level is if discovery reveals texts between the reporters and editors where they are like "yeah we know this guy is totally innocent, but we have to do what Lively says." And I'm sorry, but those don't exist. The NYT is a flawed entity but it's not Fox News and the people who work at NYT take the idea of their own journalistic integrity very seriously. Even if that's something they thought to themselves at the time, there is zero likelihood anyone ever admitted it in writing to one another.

That’s just not accurate at all. The P don’t have to show the NYT definitely knew she was lying, the P will just try to show there was a suggestion or question about digging more into Baldonis side before publishing that the NYT didn’t undertake. Something that should have been a red flag. That could be enough to get it to a jury to decide as a question of fact, and sorry, juries just aren’t they precise. You also seem to be forgetting that some of the Ps are possibly private figures, so the standard is negligence.

Baldoni will be deemed a public figure. The PR people might be considered private people, but Baldoni will be deemed a public figure, no question.

In which case, no, at least for his case, your analysis is wrong. They are going to have to show actual malice and there isn't any. Sorry.

Sorry, you’re just clearly not educated in this area of the law other than maybe knowing basic first amendment talking points. You really just can’t say at this stage that there is absolutely no way actual malice (or negligence) could be found. It’s impossible without seeing how discovery plays out.

The MTD will likely rise or fall on fair report, not AM.

I can tell you as someone who knows NYTs reporters and how their newsroom operates that there is absolutely no way that they will find actual malice here.

But sure, let's wait for discovery. And then I'll come back here and say "I told you so."

The NYT had a great reputation years ago, it has been going downhill ever since. There are absolutely problems at the NYT. Here's one example: Their newsroom used a someone who was part of a terrorist group, Hamas, to explain the Israel-Hamas war. That's integrity?

https://www.thefp.com/p/new-york-times-the-daily-source-gaza-war-hamas-ties/comments

[Anonymous]

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Anonymous wrote:I don't really have an opinion yet about the case but what I do know from everything I have read and seen is that I really don't like either Blake or Justin as people. Both are obnoxious.

How is he obnoxious?

This story is exactly like Bad Art Friend. Smug mugs who came to it in December decided he’s guilty of stuff he quite evidently never ever did. His Dawn-like sincerity is a flaw against Lively’s polished like Sonya’s gross turd character. At least it explains to me why he can’t settle, and to be grateful from afar that his film partners have the money to push this hard.

I find him very fake, insincere, and smarmy in the documents. And then I saw his proposal video (that was all about him) and I decided smarmy, fake, and obnoxious.

There is nothing sincere or genuine about him. He says whatever he thinks people want to hear and is so over the top most of the time.

If you haven't seen the video where he proposes to his now wife, enjoy! https://www.youtube.com/watch?v=hVTr5MNa_8Y&t=377s

I see that video as totally tongue-in-cheek. They probably had some inside joke that sparked it. It made me think he would be a funny guest host on SNL.

Oh please, if that was Ryan Reynolds proposal video, you would be ripping it and him to shreds. The Baldoni fan club on here is strange.

+1, I get siding with Baldoni legally and I totally get disliking Lively and Reynolds. I find the desire to cast Baldoni as some kind of hero as bizarre. He's a middling actor and director with a super cringey personality and a desperate need for attention and validation.

One of the funny things to me about this case is that each time Baldoni comes out with texts or letters or video that exonerate him or show that Lively is a bad actor, they also tend to highlight the ways in which he's ridiculous -- a lot of it is him blatantly kissing a$$es (not just Lively's but also producers and others), him telling stories about his own life that make my eyes roll all the way back into my head, or him being super passive and wishy-washy in his role as director in a way that would have driven me absolutely crazy if I had to work with him. And everything I learn about his whole "man enough" narrative is so cringey.

I can't stand Ryan Reynolds but when I saw the clips of "Nicepool" from his movie, I felt like it was dead on in terms of sending up someone like Baldoni. Guys like that are incredibly annoying, sorry.

I think he’s an imperfect victim. I’m not sure if I’d want to be friends with him, but for whatever reason my empathy is with him. I guess because of the power imbalance and how she seemed to get her way at every turn. It feels like he was backed into a corner and made some poor decisions (and is clearly paying for that). But at the end of the day, people can make you uncomfortable (bc they’re clueless or annoying or just weird), but that doesn’t make them sexual harassers. It really just seems like BL was butthurt that he didn’t like her scene, and so she used his kinda awkward personality against him. Def not painting him as a hero—just a victim.

Totally agree. I think his biggest problem is being a little earnest and kinda cringey. But I also think he was completely steamrolled by BL and RR.

[Anonymous]

I just read the apology letter that Blake and Ryan wanted Baldoni to publish (People magazine to story). Wow. I was starting to get sick of this case but the level of entitlement is something else.

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Anonymous wrote:In court, will the NYTimes have to reveal when they started working on the article? What other specific things can we expect to come to light?

If justin’s case survives a MTD, yes, they will. I suspect that the NYT might file an anti SLAPP motion, but I’m not sure. My guess is justin’s case will survive those early motions and discovery will begin. And yes, the NYT will have to show timing and the internal process that led to the story being published, what they did to corroborate her story, what they did and didn’t do and said about seeking the other side’s perspective, etc.

I’m fairly alone on this thread on thinking that Justin has a real case against the NYT. This was an explosive story. I don’t think it will be hard to show they had a real confirmation bias going in to this story, their MeToo journalist wanted to fit this into another metoo framework with a PR twist, and they ignored proper journalism standards… and there was significant harm to people, including people who are arguably private figures.

But it’s also been a very wise PR move as well, and I’m sure it’s unsettled the Times and that reporter.

I don’t disagree that this will beat a MTD unless the judge has a very restrictive take on the showing needed for actual malice. but “confirmation bias” isn’t a grounds to show actual bias, and it’s not clear that “proper journalism standards” even exist such to show that they were recklessly or intentionally violated.

Yes, there are journalistic standards that publications like the Times follow. They certainly have internal rules of the road that they are supposed to follow. The Times even used to have a ‘standards’ editor as a separate role. Things like getting comment, how many sources to use and what sort of info is needed to verify statements, whether they can run a story with only off the record sources, that sort of thing. I suspect they relaxed them here, hoping they could hide behind this being a published complaint (and therefore a ‘fair report’ which gives them some protections). That’s why they came out hard and fast in a statement to respond to the allegation that they had the complaint early and that this was collaborative with BL.

These aren’t legal standards, of course. But if this gets to a jury, the Plaintiffs will introduce evidence showing how sloppy and different from usual standards this journalistic process was, how they might have willfully ignored red flags in pursuit of a juicy angle, etc. All of this will be used to show state of mind- eg whether they were negligent or showed a reckless disregard for the truth.

it would take a LOT to prove those are hard & fast standards that the Times violated here, such that it constitutes recklessness. Because a) there are no clear standards on things like how long to give for comment and b) it’s not even clear the Times would have violated that.

The law makes this very hard for a good reason. If journalists can be sued by public figures too easily then their ability to report (and make mistakes) would be severely curtailed and the public would suffer.

It really wouldn’t be that hard to show…

of course it would be hard to show. It would be extremely hard to show and even if Baldoni puts 10 journalism professors on the record, there would still be a mountain of contradictory evidence. I’m not even sure he beats MTD on actual malice (although I have not combed through the latest.)

It really really won’t be that hard and this is to a jury. They aren’t super precise. And the NYT will likely have written parameters and there will likely be drafts, emails and other materials they are forced to turn over with questions or concerns set out. These are writers and media people- they tend to communicate and that can work against them in these types of cases. See the Fox Old Dominion case where texts sunk them to close to a billion dollar settlement. Fox also claimed that they were protected, they were going to fight it all the way, they were just reporting on a matter of public concern, blah blah.

this case is NOTHING like the Fox Dominion case. there’s zero evidence even alleged that is similar. I don’t know how much background you have in journalism or 1A but you really are off base. That of course doesn’t mean a jury could make a crazy decision but I’m not sure the verdict would stand and I’m not even sure this passes MTD.

+1, that comparison is bonkers. Everyone at Fox knew they were lying about Dominion, plus their reporting literally destroyed Dominion's entire business.

The only way Baldoni's case against NYT's could reach that level is if discovery reveals texts between the reporters and editors where they are like "yeah we know this guy is totally innocent, but we have to do what Lively says." And I'm sorry, but those don't exist. The NYT is a flawed entity but it's not Fox News and the people who work at NYT take the idea of their own journalistic integrity very seriously. Even if that's something they thought to themselves at the time, there is zero likelihood anyone ever admitted it in writing to one another.

That’s just not accurate at all. The P don’t have to show the NYT definitely knew she was lying, the P will just try to show there was a suggestion or question about digging more into Baldonis side before publishing that the NYT didn’t undertake. Something that should have been a red flag. That could be enough to get it to a jury to decide as a question of fact, and sorry, juries just aren’t they precise. You also seem to be forgetting that some of the Ps are possibly private figures, so the standard is negligence.

Baldoni will be deemed a public figure. The PR people might be considered private people, but Baldoni will be deemed a public figure, no question.

In which case, no, at least for his case, your analysis is wrong. They are going to have to show actual malice and there isn't any. Sorry.

Sorry, you’re just clearly not educated in this area of the law other than maybe knowing basic first amendment talking points. You really just can’t say at this stage that there is absolutely no way actual malice (or negligence) could be found. It’s impossible without seeing how discovery plays out.

The MTD will likely rise or fall on fair report, not AM.

Can you explain for those of us who don’t know much about this stuff how fair report could play out with something like this? Do you think the NYT was only reporting on the CRD complaint? From what I recall it seemed broader, like when they mentioned the interview with the Norwegian reporter but maybe that’s irrelevant.

Yes, totally agree that the article seemed broader (and this case is hardly a matter of important public interest that one would think the illustrious NYT would care to cover) so that’s their problem and why I think this case could move forward and survive a MTD. My hunch is they came to a comfort level by telling themselves that the defamatory aspects of the article were all from the complaint (and therefore safe to report on) and that everything else was either factual (like the Norwegian reporters coverage being re-released) or based on the text messages they reviewed.

But even with all that, I think they have a defamation by implication issue or possibly a false light problem, but we shall see how it plays out.

[Anonymous]

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Anonymous wrote:In court, will the NYTimes have to reveal when they started working on the article? What other specific things can we expect to come to light?

If justin’s case survives a MTD, yes, they will. I suspect that the NYT might file an anti SLAPP motion, but I’m not sure. My guess is justin’s case will survive those early motions and discovery will begin. And yes, the NYT will have to show timing and the internal process that led to the story being published, what they did to corroborate her story, what they did and didn’t do and said about seeking the other side’s perspective, etc.

I’m fairly alone on this thread on thinking that Justin has a real case against the NYT. This was an explosive story. I don’t think it will be hard to show they had a real confirmation bias going in to this story, their MeToo journalist wanted to fit this into another metoo framework with a PR twist, and they ignored proper journalism standards… and there was significant harm to people, including people who are arguably private figures.

But it’s also been a very wise PR move as well, and I’m sure it’s unsettled the Times and that reporter.

I don’t disagree that this will beat a MTD unless the judge has a very restrictive take on the showing needed for actual malice. but “confirmation bias” isn’t a grounds to show actual bias, and it’s not clear that “proper journalism standards” even exist such to show that they were recklessly or intentionally violated.

Yes, there are journalistic standards that publications like the Times follow. They certainly have internal rules of the road that they are supposed to follow. The Times even used to have a ‘standards’ editor as a separate role. Things like getting comment, how many sources to use and what sort of info is needed to verify statements, whether they can run a story with only off the record sources, that sort of thing. I suspect they relaxed them here, hoping they could hide behind this being a published complaint (and therefore a ‘fair report’ which gives them some protections). That’s why they came out hard and fast in a statement to respond to the allegation that they had the complaint early and that this was collaborative with BL.

These aren’t legal standards, of course. But if this gets to a jury, the Plaintiffs will introduce evidence showing how sloppy and different from usual standards this journalistic process was, how they might have willfully ignored red flags in pursuit of a juicy angle, etc. All of this will be used to show state of mind- eg whether they were negligent or showed a reckless disregard for the truth.

it would take a LOT to prove those are hard & fast standards that the Times violated here, such that it constitutes recklessness. Because a) there are no clear standards on things like how long to give for comment and b) it’s not even clear the Times would have violated that.

The law makes this very hard for a good reason. If journalists can be sued by public figures too easily then their ability to report (and make mistakes) would be severely curtailed and the public would suffer.

It really wouldn’t be that hard to show…

of course it would be hard to show. It would be extremely hard to show and even if Baldoni puts 10 journalism professors on the record, there would still be a mountain of contradictory evidence. I’m not even sure he beats MTD on actual malice (although I have not combed through the latest.)

It really really won’t be that hard and this is to a jury. They aren’t super precise. And the NYT will likely have written parameters and there will likely be drafts, emails and other materials they are forced to turn over with questions or concerns set out. These are writers and media people- they tend to communicate and that can work against them in these types of cases. See the Fox Old Dominion case where texts sunk them to close to a billion dollar settlement. Fox also claimed that they were protected, they were going to fight it all the way, they were just reporting on a matter of public concern, blah blah.

this case is NOTHING like the Fox Dominion case. there’s zero evidence even alleged that is similar. I don’t know how much background you have in journalism or 1A but you really are off base. That of course doesn’t mean a jury could make a crazy decision but I’m not sure the verdict would stand and I’m not even sure this passes MTD.

Rolling my eyes hard at your repeated reference to ‘1A’. Sorry, no insider uses that expression which is showing me you don’t have nearly the knowledge base in this area of the law you think you do. OF COURSE this case isn’t exactly like the Fox case- in some ways, the Fox case was *better* for Fox- at the beginning at least bc voter fraud and the veracity of the election was clearly a significant matter of public interest for them to report on, including what other people were claiming about a matter of great import. Yet Old Dominion survived a MTD. Can’t really say that about a petty onset scrap between a B list actress and an unknown director. Why the heck was the Times reporting on this crap in the first place? It’s off brand, other than making it into a bigger metoo story.

But my point was that discovery can sink cases for media Defendants bc there tends to be a decent amount of written materials and chatter and internal debate on stories like this, and it typically doesn’t help defendants, especially when used by a crafty Ps attorney, which Bryan Freedman is showing himself to be.

So let’s play this out, and let’s say the jury decides for Ps- a ‘crazy decision’ as you said (which I don’t agree with necessarily but whatever). You think the NYT wants to appeal based on NYT v Sullivan and see what happens there? Have you not noticed the recent strange media settlements? Think about it. It’s a very weird time for the media, and because of some of these factors, including how skilled Bryan Freedman seems to be and how much PR and coverage there is, my belief is that this case has a decent chance.

True the first amendment has nothing to do with defamation lol.

Obviously the legal and media landscape are changing quickly but you keep on acting like there is likely to be ANYTHING similar to what Fox did - and I do not believe it has been alleged and nor will it come out in discovery.

The defamation defense bar does not refer to themselves as ‘1A’ attorneys. Thats my point. It is a fairly small world, which you clearly do not know well, yet you keep chiming in like you’re an expert.

And I never said Fox and the NYT are the same, rather that discovery often gets messy and risky for media defendants because they tend to WRITE everything down.

true, Floyd Abrams never discussed the First Amendment 🤡

anyway I never said I was a defamation defense attorney? I don’t believe you are either. If you are I invite you to write a long post showing how Baldoni will show the same types of facts as alleged in the Dominion cases. “maybe he will dig up a red flag that the jury maybe will construe against the NYT” is not really persuasive.

Sigh. You’re hopeless in digging in when you don’t know, and then trying to twist my words. Floyd Abrams hasn’t been on the defense scene in any real way for years. I get that you took a law class and know his name. Besides, I was making fun of your short hand, 1A. It’s just not an acronym that’s used.

true, only a member of the very small “defense scene” can competently analyze the case; and using an acronym you dislike shows that my opinion is worthless. Mmm hmm.

still waiting for your actual analysis of the dominion v Baldoni complaints. I don’t think Baldoni has even alleged enough to get to discovery.

Defense BAR. Not defense ‘scene’. And yes, your use of strange acronyms and reference to non practicing attorneys leads me to believe you don’t know this area of the law very well. Which is fine. I don’t know the SH side of things that well. The difference is that most people admit what they don’t know. You are amusing in that you act like you are an expert when you’re clearly not.

I think B will get discovery, but sure, let’s wait and see.

Sweetie you were the one who said “defense scene,” not me. And despite your claim to be a member of the elite corps of the defense BAR, you still have done zero to actually detail what in the Baldoni complaint parallels Dominion or even Palin, and what plausibly pleads all the necessary elements especially actual malice.

Meanwhile I have yet to see a single article covering this story that quotes any lawyer saying the claim is strong. Maybe you saw one?

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Anonymous wrote:In court, will the NYTimes have to reveal when they started working on the article? What other specific things can we expect to come to light?

If justin’s case survives a MTD, yes, they will. I suspect that the NYT might file an anti SLAPP motion, but I’m not sure. My guess is justin’s case will survive those early motions and discovery will begin. And yes, the NYT will have to show timing and the internal process that led to the story being published, what they did to corroborate her story, what they did and didn’t do and said about seeking the other side’s perspective, etc.

I’m fairly alone on this thread on thinking that Justin has a real case against the NYT. This was an explosive story. I don’t think it will be hard to show they had a real confirmation bias going in to this story, their MeToo journalist wanted to fit this into another metoo framework with a PR twist, and they ignored proper journalism standards… and there was significant harm to people, including people who are arguably private figures.

But it’s also been a very wise PR move as well, and I’m sure it’s unsettled the Times and that reporter.

I don’t disagree that this will beat a MTD unless the judge has a very restrictive take on the showing needed for actual malice. but “confirmation bias” isn’t a grounds to show actual bias, and it’s not clear that “proper journalism standards” even exist such to show that they were recklessly or intentionally violated.

Yes, there are journalistic standards that publications like the Times follow. They certainly have internal rules of the road that they are supposed to follow. The Times even used to have a ‘standards’ editor as a separate role. Things like getting comment, how many sources to use and what sort of info is needed to verify statements, whether they can run a story with only off the record sources, that sort of thing. I suspect they relaxed them here, hoping they could hide behind this being a published complaint (and therefore a ‘fair report’ which gives them some protections). That’s why they came out hard and fast in a statement to respond to the allegation that they had the complaint early and that this was collaborative with BL.

These aren’t legal standards, of course. But if this gets to a jury, the Plaintiffs will introduce evidence showing how sloppy and different from usual standards this journalistic process was, how they might have willfully ignored red flags in pursuit of a juicy angle, etc. All of this will be used to show state of mind- eg whether they were negligent or showed a reckless disregard for the truth.

it would take a LOT to prove those are hard & fast standards that the Times violated here, such that it constitutes recklessness. Because a) there are no clear standards on things like how long to give for comment and b) it’s not even clear the Times would have violated that.

The law makes this very hard for a good reason. If journalists can be sued by public figures too easily then their ability to report (and make mistakes) would be severely curtailed and the public would suffer.

It really wouldn’t be that hard to show…

of course it would be hard to show. It would be extremely hard to show and even if Baldoni puts 10 journalism professors on the record, there would still be a mountain of contradictory evidence. I’m not even sure he beats MTD on actual malice (although I have not combed through the latest.)

It really really won’t be that hard and this is to a jury. They aren’t super precise. And the NYT will likely have written parameters and there will likely be drafts, emails and other materials they are forced to turn over with questions or concerns set out. These are writers and media people- they tend to communicate and that can work against them in these types of cases. See the Fox Old Dominion case where texts sunk them to close to a billion dollar settlement. Fox also claimed that they were protected, they were going to fight it all the way, they were just reporting on a matter of public concern, blah blah.

this case is NOTHING like the Fox Dominion case. there’s zero evidence even alleged that is similar. I don’t know how much background you have in journalism or 1A but you really are off base. That of course doesn’t mean a jury could make a crazy decision but I’m not sure the verdict would stand and I’m not even sure this passes MTD.

+1, that comparison is bonkers. Everyone at Fox knew they were lying about Dominion, plus their reporting literally destroyed Dominion's entire business.

The only way Baldoni's case against NYT's could reach that level is if discovery reveals texts between the reporters and editors where they are like "yeah we know this guy is totally innocent, but we have to do what Lively says." And I'm sorry, but those don't exist. The NYT is a flawed entity but it's not Fox News and the people who work at NYT take the idea of their own journalistic integrity very seriously. Even if that's something they thought to themselves at the time, there is zero likelihood anyone ever admitted it in writing to one another.

That’s just not accurate at all. The P don’t have to show the NYT definitely knew she was lying, the P will just try to show there was a suggestion or question about digging more into Baldonis side before publishing that the NYT didn’t undertake. Something that should have been a red flag. That could be enough to get it to a jury to decide as a question of fact, and sorry, juries just aren’t they precise. You also seem to be forgetting that some of the Ps are possibly private figures, so the standard is negligence.

Baldoni will be deemed a public figure. The PR people might be considered private people, but Baldoni will be deemed a public figure, no question.

In which case, no, at least for his case, your analysis is wrong. They are going to have to show actual malice and there isn't any. Sorry.

Sorry, you’re just clearly not educated in this area of the law other than maybe knowing basic first amendment talking points. You really just can’t say at this stage that there is absolutely no way actual malice (or negligence) could be found. It’s impossible without seeing how discovery plays out.

The MTD will likely rise or fall on fair report, not AM.

I can tell you as someone who knows NYTs reporters and how their newsroom operates that there is absolutely no way that they will find actual malice here.

But sure, let's wait for discovery. And then I'll come back here and say "I told you so."

+1. The Sarah Palin case is probably the closest that a case will get - based on a reflexive animus towards Palin and careless editing.

But to pretend it is ANYWHERE similar to Dominion (either Baldoni or Palin) is absurd. In Dominion FOX’s fact-checking department literally sent memos saying the Dominion story was false and were overruled by execs who wanted market share.

Sigh. I keep saying- discovery is my point, not that it was an outright lie that everyone knew. It doesn’t have to be a LIE. It only has to be reckless for baldoni and merely negligent for the others.

Palin is a good case. That was a total mistake on the part of an editor and it was an OP ED, and the clearly very pro NYT judge did everything to shut that case down, including allowing for bizarre early discovery. And yet it continues.. and the NYT is looking to settle (very rare).

Discovery is *not going to show* anything CLOSE to the Dominion v FOX case. or even the Palin case. That’s the point. This is run of the mill celebrity reporting. FWIW I think BL is wrong.

I think you don’t know the Palin case if you are saying this right now. The discovery showed so little in Palin. It was a rushed OP ED piece that came together in less than a day after a shooting. This Baldoni story was likely in the works for awhile. Plenty of time for them to go to the other side and get more support, which they did not appear to do.

The trial judge in Palin did everything to lean it to the times, yet it is still going.

And you keep jumping to AM right now. Mostly premature. This is about fair report right now.

The NYTimes almost immediately retracted the Palin OP-ED. Totally totally different set of facts.

Yeah, you’re arguing my point although you don’t seem to realize it…. the fact they retracted actually shows there was no malice and that it was one of those minor journalistic mistakes that the law should protect. Palin was a very public figure, yet the case moved forward even though it was clearly a fairly minor mistake in a loose OPINION piece (eg, no one should take it as fact). This present case is actually much worse on the facts for the Times in a way, other than fair report, which I’ve explained may not fully protect them.

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Anonymous wrote:I don't really have an opinion yet about the case but what I do know from everything I have read and seen is that I really don't like either Blake or Justin as people. Both are obnoxious.

+1, I am surprised by the posts on here defending Justin like he's some wronged innocent. He sounds like an opportunist who found a nice niche for himself ("I'm a *sensitive* guy who really gets it") and capitalized on it, but it all comes off as very disingenuous to me. Also his book, podcast, and this movie sound like garbage so I can't help but roll my eyes about the comments talking earnestly about how he just want to address toxic masculinity or tell stories of abuse. GMAFB.

But I've also never liked Lively and am totally unsurprised that she's a diva on set and impossible to work with, or that she goes running to her husband to fix things for her when she doesn't get her way. I have also encountered dysfunctional couples like this twice in real life, both in semi-professional contexts where the women would pout and play the victim and then their husbands would come down hard on people but justify it as "protecting" their wives. It's equally annoying as Justin's schtick, and probably ultimately more consequential.

Ugh. I have zero interest in ever paying money to see anything any of these people ever make again. There are lots of talented artists out there who aren't like this.

I don't care for his male feminist schtick and his Man Enough book sounds boring. But I do believe he was railroaded by two powerful people and that he has very credible rebuttals for all of Blake's sexual harassment claims. I think you're conflating the comments here with a Justin Baldoni subreddit or something, because I haven't seen anything here really indicating we're legitimate fans of his. It's really more anti-Lively here than pro-Justin.

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Anonymous wrote:I don't really have an opinion yet about the case but what I do know from everything I have read and seen is that I really don't like either Blake or Justin as people. Both are obnoxious.

+1, I am surprised by the posts on here defending Justin like he's some wronged innocent. He sounds like an opportunist who found a nice niche for himself ("I'm a *sensitive* guy who really gets it") and capitalized on it, but it all comes off as very disingenuous to me. Also his book, podcast, and this movie sound like garbage so I can't help but roll my eyes about the comments talking earnestly about how he just want to address toxic masculinity or tell stories of abuse. GMAFB.

But I've also never liked Lively and am totally unsurprised that she's a diva on set and impossible to work with, or that she goes running to her husband to fix things for her when she doesn't get her way. I have also encountered dysfunctional couples like this twice in real life, both in semi-professional contexts where the women would pout and play the victim and then their husbands would come down hard on people but justify it as "protecting" their wives. It's equally annoying as Justin's schtick, and probably ultimately more consequential.

Ugh. I have zero interest in ever paying money to see anything any of these people ever make again. There are lots of talented artists out there who aren't like this.

I don't care for his male feminist schtick and his Man Enough book sounds boring. But I do believe he was railroaded by two powerful people and that he has very credible rebuttals for all of Blake's sexual harassment claims. I think you're conflating the comments here with a Justin Baldoni subreddit or something, because I haven't seen anything here really indicating we're legitimate fans of his. It's really more anti-Lively here than pro-Justin.

+ 1.

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Anonymous wrote:In court, will the NYTimes have to reveal when they started working on the article? What other specific things can we expect to come to light?

If justin’s case survives a MTD, yes, they will. I suspect that the NYT might file an anti SLAPP motion, but I’m not sure. My guess is justin’s case will survive those early motions and discovery will begin. And yes, the NYT will have to show timing and the internal process that led to the story being published, what they did to corroborate her story, what they did and didn’t do and said about seeking the other side’s perspective, etc.

I’m fairly alone on this thread on thinking that Justin has a real case against the NYT. This was an explosive story. I don’t think it will be hard to show they had a real confirmation bias going in to this story, their MeToo journalist wanted to fit this into another metoo framework with a PR twist, and they ignored proper journalism standards… and there was significant harm to people, including people who are arguably private figures.

But it’s also been a very wise PR move as well, and I’m sure it’s unsettled the Times and that reporter.

I don’t disagree that this will beat a MTD unless the judge has a very restrictive take on the showing needed for actual malice. but “confirmation bias” isn’t a grounds to show actual bias, and it’s not clear that “proper journalism standards” even exist such to show that they were recklessly or intentionally violated.

Yes, there are journalistic standards that publications like the Times follow. They certainly have internal rules of the road that they are supposed to follow. The Times even used to have a ‘standards’ editor as a separate role. Things like getting comment, how many sources to use and what sort of info is needed to verify statements, whether they can run a story with only off the record sources, that sort of thing. I suspect they relaxed them here, hoping they could hide behind this being a published complaint (and therefore a ‘fair report’ which gives them some protections). That’s why they came out hard and fast in a statement to respond to the allegation that they had the complaint early and that this was collaborative with BL.

These aren’t legal standards, of course. But if this gets to a jury, the Plaintiffs will introduce evidence showing how sloppy and different from usual standards this journalistic process was, how they might have willfully ignored red flags in pursuit of a juicy angle, etc. All of this will be used to show state of mind- eg whether they were negligent or showed a reckless disregard for the truth.

it would take a LOT to prove those are hard & fast standards that the Times violated here, such that it constitutes recklessness. Because a) there are no clear standards on things like how long to give for comment and b) it’s not even clear the Times would have violated that.

The law makes this very hard for a good reason. If journalists can be sued by public figures too easily then their ability to report (and make mistakes) would be severely curtailed and the public would suffer.

It really wouldn’t be that hard to show…

of course it would be hard to show. It would be extremely hard to show and even if Baldoni puts 10 journalism professors on the record, there would still be a mountain of contradictory evidence. I’m not even sure he beats MTD on actual malice (although I have not combed through the latest.)

It really really won’t be that hard and this is to a jury. They aren’t super precise. And the NYT will likely have written parameters and there will likely be drafts, emails and other materials they are forced to turn over with questions or concerns set out. These are writers and media people- they tend to communicate and that can work against them in these types of cases. See the Fox Old Dominion case where texts sunk them to close to a billion dollar settlement. Fox also claimed that they were protected, they were going to fight it all the way, they were just reporting on a matter of public concern, blah blah.

this case is NOTHING like the Fox Dominion case. there’s zero evidence even alleged that is similar. I don’t know how much background you have in journalism or 1A but you really are off base. That of course doesn’t mean a jury could make a crazy decision but I’m not sure the verdict would stand and I’m not even sure this passes MTD.

+1, that comparison is bonkers. Everyone at Fox knew they were lying about Dominion, plus their reporting literally destroyed Dominion's entire business.

The only way Baldoni's case against NYT's could reach that level is if discovery reveals texts between the reporters and editors where they are like "yeah we know this guy is totally innocent, but we have to do what Lively says." And I'm sorry, but those don't exist. The NYT is a flawed entity but it's not Fox News and the people who work at NYT take the idea of their own journalistic integrity very seriously. Even if that's something they thought to themselves at the time, there is zero likelihood anyone ever admitted it in writing to one another.

That’s just not accurate at all. The P don’t have to show the NYT definitely knew she was lying, the P will just try to show there was a suggestion or question about digging more into Baldonis side before publishing that the NYT didn’t undertake. Something that should have been a red flag. That could be enough to get it to a jury to decide as a question of fact, and sorry, juries just aren’t they precise. You also seem to be forgetting that some of the Ps are possibly private figures, so the standard is negligence.

Baldoni will be deemed a public figure. The PR people might be considered private people, but Baldoni will be deemed a public figure, no question.

In which case, no, at least for his case, your analysis is wrong. They are going to have to show actual malice and there isn't any. Sorry.

Sorry, you’re just clearly not educated in this area of the law other than maybe knowing basic first amendment talking points. You really just can’t say at this stage that there is absolutely no way actual malice (or negligence) could be found. It’s impossible without seeing how discovery plays out.

The MTD will likely rise or fall on fair report, not AM.

I can tell you as someone who knows NYTs reporters and how their newsroom operates that there is absolutely no way that they will find actual malice here.

But sure, let's wait for discovery. And then I'll come back here and say "I told you so."

+1. The Sarah Palin case is probably the closest that a case will get - based on a reflexive animus towards Palin and careless editing.

But to pretend it is ANYWHERE similar to Dominion (either Baldoni or Palin) is absurd. In Dominion FOX’s fact-checking department literally sent memos saying the Dominion story was false and were overruled by execs who wanted market share.

Sigh. I keep saying- discovery is my point, not that it was an outright lie that everyone knew. It doesn’t have to be a LIE. It only has to be reckless for baldoni and merely negligent for the others.

Palin is a good case. That was a total mistake on the part of an editor and it was an OP ED, and the clearly very pro NYT judge did everything to shut that case down, including allowing for bizarre early discovery. And yet it continues.. and the NYT is looking to settle (very rare).

Discovery is *not going to show* anything CLOSE to the Dominion v FOX case. or even the Palin case. That’s the point. This is run of the mill celebrity reporting. FWIW I think BL is wrong.

I think you don’t know the Palin case if you are saying this right now. The discovery showed so little in Palin. It was a rushed OP ED piece that came together in less than a day after a shooting. This Baldoni story was likely in the works for awhile. Plenty of time for them to go to the other side and get more support, which they did not appear to do.

The trial judge in Palin did everything to lean it to the times, yet it is still going.

And you keep jumping to AM right now. Mostly premature. This is about fair report right now.

The NYTimes almost immediately retracted the Palin OP-ED. Totally totally different set of facts.

Yeah, you’re arguing my point although you don’t seem to realize it…. the fact they retracted actually shows there was no malice and that it was one of those minor journalistic mistakes that the law should protect. Palin was a very public figure, yet the case moved forward even though it was clearly a fairly minor mistake in a loose OPINION piece (eg, no one should take it as fact). This present case is actually much worse on the facts for the Times in a way, other than fair report, which I’ve explained may not fully protect them.

no, the retraction meant it was a MAJOR mistake. you think stating that Palin’s ad incited political violence was “minor”? come on.

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Anonymous wrote:In court, will the NYTimes have to reveal when they started working on the article? What other specific things can we expect to come to light?

If justin’s case survives a MTD, yes, they will. I suspect that the NYT might file an anti SLAPP motion, but I’m not sure. My guess is justin’s case will survive those early motions and discovery will begin. And yes, the NYT will have to show timing and the internal process that led to the story being published, what they did to corroborate her story, what they did and didn’t do and said about seeking the other side’s perspective, etc.

I’m fairly alone on this thread on thinking that Justin has a real case against the NYT. This was an explosive story. I don’t think it will be hard to show they had a real confirmation bias going in to this story, their MeToo journalist wanted to fit this into another metoo framework with a PR twist, and they ignored proper journalism standards… and there was significant harm to people, including people who are arguably private figures.

But it’s also been a very wise PR move as well, and I’m sure it’s unsettled the Times and that reporter.

I don’t disagree that this will beat a MTD unless the judge has a very restrictive take on the showing needed for actual malice. but “confirmation bias” isn’t a grounds to show actual bias, and it’s not clear that “proper journalism standards” even exist such to show that they were recklessly or intentionally violated.

Yes, there are journalistic standards that publications like the Times follow. They certainly have internal rules of the road that they are supposed to follow. The Times even used to have a ‘standards’ editor as a separate role. Things like getting comment, how many sources to use and what sort of info is needed to verify statements, whether they can run a story with only off the record sources, that sort of thing. I suspect they relaxed them here, hoping they could hide behind this being a published complaint (and therefore a ‘fair report’ which gives them some protections). That’s why they came out hard and fast in a statement to respond to the allegation that they had the complaint early and that this was collaborative with BL.

These aren’t legal standards, of course. But if this gets to a jury, the Plaintiffs will introduce evidence showing how sloppy and different from usual standards this journalistic process was, how they might have willfully ignored red flags in pursuit of a juicy angle, etc. All of this will be used to show state of mind- eg whether they were negligent or showed a reckless disregard for the truth.

it would take a LOT to prove those are hard & fast standards that the Times violated here, such that it constitutes recklessness. Because a) there are no clear standards on things like how long to give for comment and b) it’s not even clear the Times would have violated that.

The law makes this very hard for a good reason. If journalists can be sued by public figures too easily then their ability to report (and make mistakes) would be severely curtailed and the public would suffer.

It really wouldn’t be that hard to show…

of course it would be hard to show. It would be extremely hard to show and even if Baldoni puts 10 journalism professors on the record, there would still be a mountain of contradictory evidence. I’m not even sure he beats MTD on actual malice (although I have not combed through the latest.)

It really really won’t be that hard and this is to a jury. They aren’t super precise. And the NYT will likely have written parameters and there will likely be drafts, emails and other materials they are forced to turn over with questions or concerns set out. These are writers and media people- they tend to communicate and that can work against them in these types of cases. See the Fox Old Dominion case where texts sunk them to close to a billion dollar settlement. Fox also claimed that they were protected, they were going to fight it all the way, they were just reporting on a matter of public concern, blah blah.

this case is NOTHING like the Fox Dominion case. there’s zero evidence even alleged that is similar. I don’t know how much background you have in journalism or 1A but you really are off base. That of course doesn’t mean a jury could make a crazy decision but I’m not sure the verdict would stand and I’m not even sure this passes MTD.

Rolling my eyes hard at your repeated reference to ‘1A’. Sorry, no insider uses that expression which is showing me you don’t have nearly the knowledge base in this area of the law you think you do. OF COURSE this case isn’t exactly like the Fox case- in some ways, the Fox case was *better* for Fox- at the beginning at least bc voter fraud and the veracity of the election was clearly a significant matter of public interest for them to report on, including what other people were claiming about a matter of great import. Yet Old Dominion survived a MTD. Can’t really say that about a petty onset scrap between a B list actress and an unknown director. Why the heck was the Times reporting on this crap in the first place? It’s off brand, other than making it into a bigger metoo story.

But my point was that discovery can sink cases for media Defendants bc there tends to be a decent amount of written materials and chatter and internal debate on stories like this, and it typically doesn’t help defendants, especially when used by a crafty Ps attorney, which Bryan Freedman is showing himself to be.

So let’s play this out, and let’s say the jury decides for Ps- a ‘crazy decision’ as you said (which I don’t agree with necessarily but whatever). You think the NYT wants to appeal based on NYT v Sullivan and see what happens there? Have you not noticed the recent strange media settlements? Think about it. It’s a very weird time for the media, and because of some of these factors, including how skilled Bryan Freedman seems to be and how much PR and coverage there is, my belief is that this case has a decent chance.

True the first amendment has nothing to do with defamation lol.

Obviously the legal and media landscape are changing quickly but you keep on acting like there is likely to be ANYTHING similar to what Fox did - and I do not believe it has been alleged and nor will it come out in discovery.

The defamation defense bar does not refer to themselves as ‘1A’ attorneys. Thats my point. It is a fairly small world, which you clearly do not know well, yet you keep chiming in like you’re an expert.

And I never said Fox and the NYT are the same, rather that discovery often gets messy and risky for media defendants because they tend to WRITE everything down.

true, Floyd Abrams never discussed the First Amendment 🤡

anyway I never said I was a defamation defense attorney? I don’t believe you are either. If you are I invite you to write a long post showing how Baldoni will show the same types of facts as alleged in the Dominion cases. “maybe he will dig up a red flag that the jury maybe will construe against the NYT” is not really persuasive.

Sigh. You’re hopeless in digging in when you don’t know, and then trying to twist my words. Floyd Abrams hasn’t been on the defense scene in any real way for years. I get that you took a law class and know his name. Besides, I was making fun of your short hand, 1A. It’s just not an acronym that’s used.

true, only a member of the very small “defense scene” can competently analyze the case; and using an acronym you dislike shows that my opinion is worthless. Mmm hmm.

still waiting for your actual analysis of the dominion v Baldoni complaints. I don’t think Baldoni has even alleged enough to get to discovery.

Defense BAR. Not defense ‘scene’. And yes, your use of strange acronyms and reference to non practicing attorneys leads me to believe you don’t know this area of the law very well. Which is fine. I don’t know the SH side of things that well. The difference is that most people admit what they don’t know. You are amusing in that you act like you are an expert when you’re clearly not.

I think B will get discovery, but sure, let’s wait and see.

Sweetie you were the one who said “defense scene,” not me. And despite your claim to be a member of the elite corps of the defense BAR, you still have done zero to actually detail what in the Baldoni complaint parallels Dominion or even Palin, and what plausibly pleads all the necessary elements especially actual malice.

Meanwhile I have yet to see a single article covering this story that quotes any lawyer saying the claim is strong. Maybe you saw one?

Why are you calling me sweetie? Are you a man? Do you assume I’m a woman?

It’s defense bar, and why would I go through those other complaints for you? The facts are different in each of them, as they are in every case like this. You can’t make direct comparisons at this point without more info, and even if I tried to, you’d still obviously argue about AM although as I’ve mentioned repeatedly, that’s not the hurdle they’ll need to worry too much about right now. But yes, my bet is that a skilled lawyer can argue the AM issue past a MTD and a SJ motion (and there is bound to be info that comes out during discovery that shows something the NYT did that wasn’t perfect- there almost always is in situations like this) and this judge will have pressures to let it go to a jury. And again, some of the Ps aren’t even public figures most likely. And once the analysis goes to a jury, all bets are off and it’s really a Ps game.

Both Palin and Depp got past the AM standard to get to a jury despite very watered down statements at issue, arguably truth (in Depps case) and little to no showing there was intentionality.

I think if you went back to what was actually said in both those articles you’d be surprised at how mild the alleged defamatory statements actually were, and yet both went to juries.