Troubling Times for the Good Guys

By Jack Greiner

To clarify the headline, this is not a blog post about the Notre Dame Fighting Irish.  True, I consider them good guys, and true this has been a tough season, but that today is not my focus.  I write instead about some other people I consider good guys – journalists.  I know many people in this industry and in my experience they tend to be dedicated, hardworking and underpaid.  And without them, we’d have to essentially take the word of politicians and elected officials.  That is a truly frightening thought.

But I may be in the minority on this point.  Recent verdicts suggest jurors don’t think too highly of the media.  Hulk Hogan recovered a $115 million verdict from Gawker based on Gawker’s posting a grainy sex video of Hogan and his friend’s wife.  The jury seemed unpersuaded by the fact that Hogan had for years bragged about his sex life anytime someone stuck a microphone in his face.  So the video exposed nothing that Hogan had divulged time and again.

More recently, a jury in North Carolina hit the Raleigh News & Observer with a libel verdict totaling $9 million.  Of that total, $1.5 million represented the plaintiff’s actual damages.  The balance — $7.5 million – was a punitive award.  And this case did not involve a fake wrestler’s sex life.  It was an investigative piece concerning allegations that an agent with the North Carolina State Bureau of Investigation was incompetent and had falsified evidence in a 2006 criminal trial to help obtain a conviction.    The story was based on standard investigative reporting – sources provided information about a matter of great public interest.

But at trial, the sources, apparently under political pressure, started backing off their stories.  And newsroom e-mails, which the plaintiff obtained in discovery,  when presented out of context, made the reporters appear to have a vendetta.  The paper continues to stand by its reporting and may prevail on appeal.  But $9 million dollars is a big hit.

There are two lessons I think.  The first one is similar to the advice to floss regularly. It’s so obvious, it seems like a cliché.  But e-mails can cause problems once litigation ensues.  And what the e-mails meant versus what a plaintiff lawyers says they meant may be two very different things.  One of the e-mails the plaintiff highlighted came from the lead reporter who wrote that she’d narrowed her focus to a few agents “we’re bearing down on.”  I suspect the reporter was simply noting that the evidence of wrongdoing pointed to certain agents, not all.  That’s typical.  And of course, the focus would be on the agents who were the subject of that evidence.  And of course, the reporter would “bear down” on them in the sense of focusing her reporting there.  But while I can make that dispassionate analysis, I can also envision the contingent fee motivated plaintiff lawyer calling for God’s wrath on this biased journalist.

So, floss regularly and be very careful about communicating via e-mail.  I any profession.

But journalism isn’t “any profession.”  It seems to be the focus of increasingly aggressive attacks these days.    I Googled “corrupt media” and got 63,700,000 results.  Included on the first results page were headings like “Corrupt Lester holt Shows Why Americans are Sick of Media” and “Without the media, Clinton wouldn’t have a chance.”   A Google search of “media at Trump rallies” fetches 43,800,000 results.  And these show our country’s divide on this subject.  The results include a New York Times headline:  “Partisan Crowds at Trump Rallies Menace and Frighten News Media.”  But that is countered by a Breitbart headline:  “Journalist Snowflakes Scared Trump Supporters are ‘Turning on the Media.’”   The results also include a headline from CNN that a Swastika sign was left on a press table following a Trump rally.

When portions of our society openly disparage “the media” it’s got to make it tough to find sympathetic jurors.  When a presidential candidate stokes those emotions it’s got to be tougher still.  And of course it is a reliable tool for hate mongers to paint with a broad brush.  It’s a lot easier to hate a faceless entity – “the media” – than it is to hate the individuals who make up that entity.  Let’s hope that reason prevails and investigative journalism is not shut down by angry voices – at political rallies or in jury rooms.  We will all be worse off if it is.