Media reporter Joe Concha, of The Hill, published a story last week quoting an “exclusive statement” from Breitbart News in which the far-right website said it was “preparing a multi-million dollar lawsuit against a major media company for claiming that Breitbart News is a ‘white nationalist’” outlet. Other parts of the statement read:
Breitbart News cannot allow such vicious racial lies to go unchallenged, especially by cynical, politically motivated competitors seeking to diminish its 42 million monthly readers and its number one in the world political Facebook page. Breitbart News rejects racism in all its varied and ugly forms. Always has, always will.
The diversity of the company’s news coverage and its staff continue to embody Andrew Breitbart’s colorblind, distinctly American commitment to “E pluribus unum”—out of many, one.
On the subject of diversity, Breitbart has published stories steeped in misogyny (“Birth Control Makes Women Unattractive and Crazy”), in anti-Semitism (“Bill Kristol: Republican Spoiler, Renegade Jew”), and in transphobia (“World Health Organization Report: Trannies 49 Xs Higher HIV Rate”). If that’s not the diversity trifecta, then I’m not the princess of Genovia.
Concha reported that Breitbart, whose chairman, Stephen Bannon, was recently named chief White House strategist for Trump, would not reveal which “major media company” it planned to sue or when the complaint would be filed. And when I tweeted the link to Concha’s story, many reacted by saying they’d welcome the suit because it would require Breitbart to submit to discovery—but others wondered about how we should cover such threats or the wisdom of repeating them. For example, CNN media reporter Dylan Byers tweeted: “I learned this the hard way: It’s not a lawsuit til they file it, and folks should be wary about reporting on threats aimed to intimidate.” KPCC’s John Rabe responded, “You’re making it complicated to RT this.”
Those are legitimate concerns, and they’re certainly not limited to Breitbart. During the campaign, Trump threatened legal actions against The New York Times, The Washington Post, The Associated Press, and others. He hasn’t filed complaints in connection with any of them, and as First Amendment lawyer Susan Seager wrote last month, “Trump and his companies have been involved in . . . 4,000 lawsuits over the last 30 years and sent countless threatening cease-and-desist letters to journalists and critics. But [he] and his companies have never won a single speech-related case filed in a public court.”
In this environment, then, should the press report on legal threats against news organizations that seem capable of chilling the public discourse? Yes, the threat itself, when made by a prominent person or organization, is newsworthy. And such people and organizations should be held accountable for the threats they make. But the key is to address a threat’s merits—to put it in context and to help the reader understand its implications.
Concha simply reported on the threat’s existence and provided some background on Breitbart News and Bannon, with the observation, again, that the site refused to reveal the expected filing date and defendant. At the very least, Concha should have included a line about the significance of that vagueness, which complicates any assessment of the threat’s merits and seriousness.
More generally, here are some things to keep in mind when reporting on threats against the press that might chill speech on public issues:
- A case begins when a complaint is filed and a summons has been served on the party being sued. A complaint is a document written by the suing party that recites the facts and legal claims, and requests a remedy. A summons is a notice to the defendant that s/he is being sued, with a command to appear in court to defend against the claims or else lose by default. Note whether a threat is just that, a threat, or if a lawsuit has been initiated.
- Either way, you want to know who made the threat (the party and/or its legal counsel) and who is being threatened. If the threat comes from legal counsel, s/he is bound by professional rules in making the threat. You also want to know where the parties are located to get a sense of the jurisdiction for any suit—and what statement, specifically, is at issue and when/where it was made. This information will be essential to your analysis of the threat’s merits.
- With that background, you can take the WebMD approach and try to teach yourself the law and do the analysis yourself, or you can call a media law scholar or practitioner to discuss the threat’s factual and legal basis as you understand it. You can find these experts at places like the Media Law Resource Center, the Reporters Committee for Freedom of the Press, the American Bar Association’s Forum on Communications Law, and the Law & Policy Division of the Association for Education in Journalism and Mass Communication. Ask the expert to speak to the threat’s merits in general terms, recognizing that you may not have all of the facts you need for a comprehensive analysis. Acknowledge as much to the reader.
- Consider the possibility that the threat is a forerunner to a Strategic Lawsuit Against Public Participation (SLAPP), which can be based on various legal claims, including libel. A SLAPP’s intent or effect is to restrict constitutionally protected expressive activities. Often, plaintiffs don’t file SLAPPs to achieve a favorable resolution on the merits—they file them to intimidate the target and others. The corresponding chilling effect undermines the public discourse. It’s important to identify and call out these actions because 28 states have passed anti-SLAPP statutes allowing courts immediately to dismiss putative SLAPPs. In those states, if the threat were a forerunner to a SLAPP, it would be dead on arrival as a filed complaint.
Covering these bases would improve reporting on threats against the press that stand to chill speech on public issues. It would illuminate such a threat’s existence and newsworthiness and its merits—to give the reader an informative, straightforward appraisal of the threat’s factual and legal basis. This kind of reporting would address the concern at the heart of Byers’s and Rabe’s tweets, neutralizing any chilling effect by making clear when a threat has little or no chance of success. Indeed, if a threat seems to lack merit, that’s the lede. Rigorous and analytical reporting can take away a threat’s power.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.