HANOVER — If “Critical Thinking for the Preservation of Our Democracy” sounds like a dry topic, it didn’t stop more than 550 people from filing into Dartmouth College’s Spaulding Auditorium on Thursday morning.
The crowd forsook sunny skies to listen to journalist-turned-constitutional scholar RonNell Andersen Jones and defamation lawyer Andy Phillips debate how much legal “breathing room” a free press needs or deserves during the fourth lecture of the Osher Lifelong Learning institute’s summer series. ProPublica president Richard Tofel moderated the session.
Andersen Jones cited a commentary in that morning’s Wall Street Journal opinion page that analyzed a federal judge’s dismissal last week of a Kentucky Catholic high school student’s $250 million lawsuit claiming that The Washington Post defamed him and his classmates in January.
Nathan Phillips, a member of the Omaha branch of the Lakota people, was singing and beating a drum during a demonstration at the Lincoln Memorial in Washington, and Nicholas Sandmann, wearing a “Make American Great Again” cap, stood silently in Phillips’ way. Meanwhile, Sandmann’s classmates egged him on with tomahawk chops and other gestures and yells appearing to mock Phillips.
After video footage of the encounter went viral on TV and social media, Sandmann came under intense criticism and sued the Post for repeating Phillips’ claim of feeling confronted by privileged white harassers.
“It was the tribal elder’s opinion that that was happening, and the Post simply reported that opinion,” said Andersen Jones. “It isn’t defamatory to report it.”
While Phillips didn’t dispute the Sandmann finding, he argued that current case law overall makes it difficult for otherwise private citizens, who feel their good names have been ruined by reckless or negligent reporting, to win lawsuits.
“I see people who have seen their reputations shredded,” Phillips said. “And I have to tell them there’s nothing I can do.”
Well, not always: Between 2015 and 2017 Phillips co-led the legal team that secured a $3 million jury verdict and, ultimately a settlement between University of Virginia administrator Nicole Eramo and Rolling Stone magazine, over a 2014 story about an alleged gang rape in a UVA fraternity house. Rolling Stone eventually retracted the story, admitting to irregularities and carelessness in the way it was reported, edited and fact-checked — including a depiction of Eramo as “indifferent” to the accuser.
Andersen Jones noted that the Rolling Stone case played out amid a whirlwind of “brewing concern” about sexual violence on college campuses, which continues to this day. Around the same time that Rolling Stone settled, the #MeToo movement was gaining momentum, leading to the dethroning, and in some cases the prosecutions, of prominent men in business, entertainment and government accused of sexually harassing and even raping women.
News reports on such cases, and on all issues of public concern and debate, deserve as much leeway as possible, Andersen Jones continued. In 1964, the U.S. Supreme Court issued a landmark ruling, in New York Times vs. Sullivan, that the First Amendment to the U.S. Constitution protects news outlets — mostly newspapers in those days — even when they print false statements about public figures, as long as the newspapers did not act with “actual malice” or “reckless disregard for the truth.”
Given President Donald Trump’s fulminations against the mainstream media as “enemies of the people” and purveyors of “fake news,” Andersen Jones said, “never has there been a more important moment for preserving those principles.”
Phillips said that his concern with Times vs. Sullivan, which current Supreme Court Associate Justice Clarence Thomas has openly expressed interest in dismantling as precedent in libel law, is that the 1964 idea of what constitutes a “public figure” has evolved. Where Sullivan involved an Alabama police commissioner aiming to quash publicity about mistreatment of civil-rights workers, almost anyone who takes part in a public debate becomes a target, he said.
“There is a tension between freedom of the press and the importance of one’s reputation,” Phillips said. “A balance needs to be struck.”
Phillips added that he prefers Thomas’ approach to libel law, taking such cases out from under the umbrella of the First Amendment.
“The states,” he said, “would still be free to adopt that (Sullivan) standard.”
Andersen Jones agreed that libel law has become more complicated in the era of cable news, the internet and social media, where, with some exceptions, pundits and bloggers can take on the mantle of “journalist” and say what they want, however untrue or hateful, with some exceptions.
Rather than sue first and ask questions later, Andersen Jones continued, people who feel wronged are better off using the various outlets to make their own cases in what the 1964 court in the Sullivan case referred to as “the marketplace of ideas.”
“Democracy is really, really messy,” she said, adding that she prefers to “err on the side of counter-speech on matters of public concern.”
Among the listeners, Kendal at Hanover resident Tim Thacher found the discussion eminently timely: During a break in the session, he opened the opinion section of his Wall Street Journal to find the commentary on the Sandmann case.
“I thought, ‘My Lord! This is the subject we’ve just been listening to!’ ” said Thacher, a retired money manager. “I commend Osher for the way they organized this year’s series as debates between very bright people on some of these issues where there’s no one, easy answer.”
David Corriveau can be reached at dcorriveau@vnews.com or 603-727-3304.