When Truth Survives Free Speech

http://www.nytimes.com/2011/12/12/business/media/when-truth-survives-free-speech.html?pagewanted=1&src=dayp

266 48 15 years ago

droithomme• 15 years ago

Having, like the NYT journalist, read the decision and various information about the case, I take almost the opposite tack. It's not the ruling on whether she is a journalist that is irrelevant, that's actually the key point. The person probably did engage in defamation.

The problem is the judge used this case to make a wide ranging and unnecessary determination that bloggers are not journalists because they don't work for big traditional organizations like the NYT. Now the NYT, the employer of the author of this article, is, like many traditional media organizations, financially threatened by independent bloggers who have been gaining massive traction and readership over the last decade that draws away from traditional large media. The publisher and supporters of giant consolidated media are threatened by loss of consolidated points of media control which special interests can leverage. Completely independent journalists, including many bloggers, have been threatening the status quo for some time. Overreaching court rulings that only those working for corporate agencies are "legitimate" certainly serve the interests of those in power.

Whether the independent journalist/blogger in question was guilty of defamation didn't require such a finding about their status as a journalist so the decision is certainly overreaching.

On the issue of the Oregon Shield Law, the judge certainly misrepresented it since by stating (exact quote from ORS 44.510) "'Medium of communication' has its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.", it says INCLUDES BUT IS NOT LIMITED TO, in its definition of "Mediums of Communication". The definition of "medium of communication" is critical because in ORS 44.520 the law reads "No person connected with, employed by or engaged in any medium of communication to the public shall be required by a legislative, executive or judicial officer or body, or any other authority having power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise..." Not just employed by, but connected with or engaged in any medium of communication to the public. Any reasonable reading of this law will include independent journalists and bloggers.

Full text of Oregon Shield law: http://www.orenews.com/web/legal/shieldslaw.php

ChuckMcM• 15 years ago

If the NY Times has the right facts I'm wondering if the judge was trying to give Mr. Padrick some justice. Anyone know what Oregon's shield law has to say about magazines that are defamatory?

RyanMcGreal• 15 years ago

The shield law "do[es] not apply with respect to the content or source of allegedly defamatory information, in civil action for defamation wherein the defendant asserts a defense based on the content or source of such information."

andylei3• 15 years ago

how are shield laws relevant? shield laws protect journalists sources from subpoenas; they don't give blanket protection against defamation

_delirium• 15 years ago

That's the point, I think: the judge shouldn't have decided the question of whether the shield law applied to bloggers, because it wouldn't have provided a shield in this case anyway.

edit: Though come to think of it, maybe the judge though that was the easier question (wrongly, imo), and so looked at it in the other direction: since we can decide that bloggers aren't journalists, we don't need to unnecessarily decide the question of what behavior the Oregon Shield Law shields.

2arrs2ells• 15 years ago

"Oregon law provides special legal protections against defamation lawsuits to journalists associated with traditional media outlets. Such publications are immune from defamation suits unless the defamed individual first requests a retraction. Journalists at recognized media outlets are also protected from revealing confidential sources. Cox argued that she was eligible for protection under both provisions and asked the judge to set aside the verdict."

From http://arstechnica.com/tech-policy/news/2011/12/judge-blogge...

jxcole• 15 years ago

This is probably the most telling bit of information:

  The provisions of ORS 44.520 (1) do not apply with respect to the content or source of allegedly defamatory information, in civil action for defamation wherein the defendant asserts a defense based on the content or source of such information. [1973 c.22 ss.4,5; 1979 c.820 s.2]

So the case could have been won even if she had been ruled a "journalist". This is the problem with the ruling.

andylei3• 15 years ago

she's not a journalist. really.

the judge decided this based on the lack of "(1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting 'the other side' to get both sides of a story."

(2) is maybe questionable; but (3), (4), and (7) are legitimate reasons.

msg2• 15 years ago

3 and 7 disqualify many fair and balanced "journalism" organizations as well.

Accept that the judge was BSing and this part of the decision makes much more sense.

lywald2• 15 years ago

Legitimate? Unless it's in a text of law, it's not legitimate. I could argue that he's not a judge the same way.

danso3• 15 years ago

Carr ends with:

>> Then again, I’ve got some institutional muscle when it comes to how I’m perceived on the Web. All Mr. Padrick had was his good reputation. Too bad there’s no algorithm to measure truth.

I know he's a writer and needs to end with a real zinger, but it's a cheap shot against algorithms and their role in helping us make correct assessments.

1. There are algorithms which can gauge truth and accuracy. There's few modern psychological theories so consistently proven than how algorithms can outperform experts in making judgements.

2. Despite a blanket dismissal of algorithms in general, Carr is of course taking issue with companies like Google. Ignoring that truth-judgement over a body of data as diverse as the web is going to be a very, very tricky problem for computers and humans... is the Google search engine's only directive to find "truth"? Ideally, the top search results contain the truth, but Google makes a philosophical judgment that other factors (such as link popularity and location) need to be considered when retrieving the most relevant results...because relevance is easier and safer to judge than truth.

In the same vein, the New York Times would like to say that the advertisements they run all contain truth. But truthiness is not the main criteria they use when deciding which ads to run: advertisements are printed because companies/interest groups/candidates put their money behind it.

byrneseyeview3• 15 years ago

Are there really algorithms for judging the truth? I think the closest we can get is heuristics for identifying whether or not something is being actively deceptive, but it's a big epistemological leap to say that we can definitely determine truth in an algorithmic way.

Google is very good in these situations, but Google has a hard time differentiating between a popular movement and a single determined astroturfer. I'm sure Google would rather display a commitment to good journalism ("You want to know about topic X? Here's what people are saying about it.") rather than a pursuit of the truth, at least when it comes to organic results.

danso3• 15 years ago

Sure, if the thing to be judged has a limited number of inputs and factors and outcomes...which is something that does not apply to the content of the Web, of course.

But in other cases where the answer is basically, "yes" or "no"...if an algorithm chooses the right answer, doesn't that count as truth? Take for example, the Apgar score, which consists of giving a newborn a score of 0 to 2 for five categories: complexion, pulse rate, reflex, muscle tone, and breathing. http://en.wikipedia.org/wiki/Apgar_score

A baby that scores 8 is considered to be doing well. A baby with just 5 merits additional examination.

This simple numerical score is credited with revolutionizing obstetric medicine and is still used today, even though it was first published in 1953. http://www.newyorker.com/archive/2006/10/09/061009fa_fact?cu...

I guess it's debatable whether this counts as an "algorithm"...but it involves the mechanical evaluation of a "score", with set guidelines for when such score is dangerously low. The fact that the scoring is done through human judgment is peripheral to the matter...it's not hard to imagine a machine being able to perform the same test (perhaps more accurately) were it cost-practical to build such a machine.

One more interesting note: The Apgar score was not developed by an expert. It was developed by a female doctor who had never delivered a baby (nor had a baby) herself, but felt that doctors were giving up too quickly on sick babies.

neilk• 15 years ago

I've been thinking a lot about this problem lately.

Perhaps in the era of the web, the right answer is to have a kind of error range for sourcing.

If you see the same fact quoted in three places on the web, you track that there are three instances, and the number of independent sources is anywhere from 1-3.

On the web, reshares and linkings far outnumber independent synoptic views of the same data. So in a way it's more accurate to take the opposite approach, assuming it's a single source.

You start upping the number of independent sources when you can prove it. Like, there are multiple camera views. Or, you somehow verify that the independent observers are real people, and you make some best guess about whether their accounts are independent (that's trickier though).

teyc• 15 years ago

    but it's a cheap shot against algorithms 
    and their role in helping us make correct
    assessments.

But what are we besides our heuristics? Do you remember the mongdb-gate debacle? We rely on people acting in good faith all the time, and rules are in-place to restrain those who have more time than sense.

Incidentally, the First Amendment is very much uniquely American, there is no such provision in Common Law.

Further - even with the first amendment - it doesn't protect some radical americans from being killed by US Government drones.

darksaga• 15 years ago

I think the more interesting part of this is why Google has allowed this woman to manipulate the SERP's in order to bash this guy for so long. They usually have an itchy trigger finger when it comes to burying sites like hers for using keyword stuffing and other questionable SEO techniques.

Likewise, I'm surprised Mr. Padrick never contacted Google to have these pages removed either.

Had either Google or Mr. Padrick done their due diligence, I hardly think this case would have gotten as far as it did.

drinkzima• 15 years ago

Google doesn't editorialize. What do you mean allowed?

MartinCron2• 15 years ago

Observing gratuitous link-stuffing and content farming as such isn't editorializing.

zem• 15 years ago

it's not a questionn of editorialisation; it's whether one person using bad-faith seo tactics can manipulate front-page results like cox did.

MortonL• 15 years ago

And this is why I stopped reading Mashable. They should have done research ( like the NYTimes did) before publishing their story. Pete, publishing first doesn't make you guys a news organization- unbiased writing, research, and accuracy do.

lisper• 15 years ago

"She didn’t so much report stories as use blogging, invective and search engine optimization to create an alternative reality."

And "real" media outlets NEVER do that. Oh, wait...

wingo2• 15 years ago

It may well be defamation. The courts should definitely look at it, after they examine the case of the NYT selling the U.S. a war. (Which one? All of them, actually.)

I know this sounds facile, but it does indicate the kind of journalism cases that the court is interested in.

MartinCron2• 15 years ago

The court is interested in cases that are brought to them. It's hard for anyone to have standing in suing the NYT for not doing enough due diligence leading up to the war(s).

wingo2• 15 years ago

Point granted, though it is also true that financial investors are interested in bringing cases. I'm still left with a bad taste in my mouth; maybe it's a gut reaction to side with the weaker party.

Or perhaps I'm just being contrarian.

lywald2• 15 years ago

I don't think it surprises anyone, and it didn't require a 2-pages analysis. After reading one line on her blog everybody realized she's either crazy or trying to scam. But I don't think it justifies a $2M fine...

smoyer• 15 years ago

I don't believe that journalists are shielded from defamation and libel laws either ... So the judge's ruling must just mean she's a lousy writer?

spodek• 15 years ago

Perhaps beside the point, but part of journalism is good writing and the topic of the article includes writing quality.

"... turned out to be a MacGuffin, a detail that was very much beside the point..." -- is the reporter showing off he knows the word MacGuffin? He simply defines it immediately afterward making the word needless.

As Strunk and White says, "Avoid fancy words: Avoid the elaborate, the pretentious, the coy, and the cute. Do not be tempted by a twenty-dollar word when there is a ten-center handy, ready and able.

Then "Even a broken clock is right twice a day, but there is nothing in Mr. Padrick’s professional history or the public record that I found to suggest he is any of those things..." ... using old cliches doesn't help either. It just adds words with no meaning.

mcantor• 15 years ago

I honestly do not understand this constant back-and-forth about credibility and validity between "real journalists" and "bloggers". It's as if "real journalists" are some kind of supernatural entity that descend from the universe of Platonic truths to dispense objective information which we can internalize and process without further judgment.

Journalists and bloggers share a fatal flaw: They're human. Someone signs their paychecks. They have goals, dreams, and motives. Who cares whether they're a "journalist" or not? What difference does it make?

brc• 15 years ago

Exactly.

I see so many journalists complaining about blogs. And I ask : if you're so underappreciated, why not start your own blog?

Journalists insist they have the training and wave memberships and credentials around as if they mean anything more than paying dues and agreeing with other people. When any cursory examination of media will find it riddled with errors, not only of the typographical kind, but of the completely-incorrect-facts kind.

It's just like any other industry that starts to get threatened by disruption from new technology - all the new people coming in are 'unworthy' 'wrong' and 'bad for the industry'.

If you ever want to hear a tale of woe, talk to an old-school photographer about digital cameras and the explosion of part-time hobbyists who do a little bit of work on the side with their $500 SLR.

In reality they are all people just trying to make their way in the world using whatever means they can.

AndyKelley• 15 years ago

This may sound a bit radical, but I'm not even sure I want the government stepping in and doing anything about libel. It's already true that you can't trust everything you read, and this includes articles from "official" journalism institutions. It does hurt to have your reputation damaged, though. That's a tradeoff that is a bit disconcerting, but may be worth it in order to have a more strict, black-and-white definition of what the government can and cannot censor. The more things that the government is legally able to censor, the more subjective freedom of speech becomes, and the more it gets in danger.

Lukeas14• 15 years ago

Defamation has always been an exception to free speech. It is also not a criminal offense so the government doesn't have the ability to use it for censorship. Cox is still free to write what she wants without repercussions from the government. Being a civil case all the plaintiff had to do was prove the defendant maliciously inflicted significant harm to his reputation in order to be awarded a monetary judgement.

forensic• 15 years ago

The real issue here is not so much the defamation, which happens all the time, but the nature of Google, which gives this lady a giant amplifier for no good reason.

curiouskat• 15 years ago

How is that different that Glenn Beck going after Google in "unaccountable ways"? (http://www.huffingtonpost.com/2011/02/17/glenn-beck-google-s..., http://www.foxnews.com/on-air/glenn-beck/transcript/beck-thr...)

mathattack• 15 years ago

It's a tangent, but David Carr is an interesting bird, spanning both old and post-Twitter journalism. You can get some insights on him in the recent NY Times documentary -> http://en.wikipedia.org/wiki/Page_One:_Inside_the_New_York_T...

niels_olson• 15 years ago

So, my ears pick up every few days while listening to NPR on the way to work when reputation.com assures me as a physician that they can "delete unwanted information from the internet". Has anyone had any experience with this or another company?

When Truth Survives Free Speech

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