Reply to Blake Lively- Jason Baldoni and NYT

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]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?[/quote]

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. [/quote]

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. [/quote]

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. [/quote]

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. [/quote]

It really wouldn’t be that hard to show… [/quote]

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.)[/quote]

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. [/quote]

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. [/quote]

+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.[/quote]

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. [/quote]

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.[/quote]

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. [/quote]

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."[/quote]

+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. [/quote]

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). [/quote]

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. [/quote]

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. [/quote]

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

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.

[/quote]

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

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