Patterico's Pontifications

5/26/2010

What Libel Looks Like: New York Magazine Defames James O’Keefe

Filed under: ACORN/O'Keefe — Patterico @ 5:37 pm

New York Magazine has claimed:

When we read this morning that ACORN-sting videographer James O’Keefe pleaded guilty today to attempting to tamper with the phones in Louisiana senator Mary Landrieu’s office, we wondered how Andrew Breitbart would react.

That is an outright falsehood. O”Keefe entered a plea to the misdemeanor crime of entering a federal building under false pretenses. The government couldn’t prove that he attempted to tamper with the phones in Landrieu’s office — which is why the charges were reduced to the far less serious misdemeanor charge.

The story links to another story at New York Magazine bearing the headline: “Activist James O’Keefe Pleads Guilty to Tampering With Senator’s Phones.” Wow — all of a sudden he’s not just “attempting to” tamper with the phones (which he never did) . . . in the headline they claim he actually pled guilty to tampering with the phones (which he didn’t do and didn’t plead guilty to). Here is the text of their bogus and false story:

Andrew Breitbart acolyte and sorta ACORN stinger James O’Keefe pleaded guilty, along with three other conservative activists, of trying to tamper with the phones in Louisiana senator Mary Landrieu’s office. O’Keefe, 25, will get three years probation, 100 hours of community service, and a $1,500 fine, but will no longer, presumably, be grounded. [WP]

False.

Let’s get screenshots in case they try to do a stealth correction, shall we? We shall.

NY Mag Libels O'Keefe 1

NY Mag Libels O'Keefe 2

NY Mag Libels O'Keefe 3

Major retractions are in order.

37 Responses to “What Libel Looks Like: New York Magazine Defames James O’Keefe”

  1. Is this actionable?

    What is the likelihood that O’Keefe would be able to collect damages?

    Pious Agnostic (b2c3ab)

  2. Mr. Breitbart sure looks awful mean and scowly.

    happyfeet (c8caab)

  3. feets!

    I am shocked, shocked that the website defaming O’Keefe picked a scowly pic of Breitbart! Why, it’s almost as if NY Mag was not a huge fan of conservative media…

    Karl (5f0050)

  4. Once the media get a template they like, the facts don’t matter. It can be Breitbart, it can be the phony story that San Diego voted to boycott Arizona, all that matters is the template. (Limbaugh membership required to read link.)

    RUSH: Now, folks, let’s go to immigration here because this business in Arizona, there is a media template that has developed here. And remember, for many, many moons, I have been advising you how to spot a media narrative, a template, and then when it’s been spotted, understand that that’s exactly what it is. It is an attempt to shape the opinion around a news story. Media templates do not consist of any reporting. The template that is out there is that this Arizona immigration law is gonna ramp up the Democrat base, it is going to ramp up Obama support, it is going to revive the Democrats’ election chances in November. That’s the template, and I’ve seen it all over television, I’ve seen it in every website that I’ve looked at, AP, UPI, Reuters, it doesn’t matter. Here’s Reuters: “Arizona Immigrant Law Energizes Hispanics and Democrats — Hispanics and Democratic lawmakers furious over Arizona’s harsh crackdown on illegal immigrants expect huge weekend rallies across the United States, piling pressure on President Barack Obama to overhaul immigration laws in this election year.”

    Brother Bradley J. Fikes, C. O.R. (a18ddc)

  5. Hi Mr. Karl!

    The picture makes me think they didn’t wonder all too terribly hard how Mr. Breitbart would react.

    happyfeet (c8caab)

  6. Is this actionable?

    Anyone can sue but O’Keefe would probably be considered a public person so he would have to show the authors published the article with actual malice. That’s a tough hurdle.

    DRJ (d43dcd)

  7. three years probation is definitely malicious

    happyfeet (c8caab)

  8. The hilarious thing is that same article included BigJournalism’s call to arms to challenge the MSM on any inaccurate reporting on this story!

    And they still get the story wrong knowing O’Keefe supporters would be going over their reporting with a fine tooth comb.

    Breitbartfan77 (6bd10f)

  9. The hilarious thing is that same article included BigJournalism’s call to arms to challenge the MSM on any inaccurate reporting on this story!

    And they still get the story wrong knowing O’Keefe supporters would be going over their reporting with a fine tooth comb.

    Breitbartfan77 (6bd10f)

  10. Lot’s of people still calling it a “break-in” too, including huffpo.

    What is the legal definition of break-in? Pretty sure they didn’t.

    Breitbartfan77 (6bd10f)

  11. Retracto rides again!

    pdb (9cf098)

  12. “Anyone can sue but O’Keefe would probably be considered a public person so he would have to show the authors published the article with actual malice.”

    Of course, in practice, that means the media can splash your face all over the front page, thus making you a public figure…then proceed to defame you at their leisure.

    Dave Surls (703710)

  13. “New York Magazine” editor arrested in child-porn sting!

    AD - RtR/OS! (39b1d4)

  14. Unfortunately, we all assume that when he plea bargained to a misdemeanor, it was because he was guilty of something worse.

    “Entering a federal building under false pretenses”. What kind of a crime is that?

    If the security guard says “Good morning” and I echo that back, even if I’m having a crummy morning, am I in trouble? Am I OK if Patterico is prosecuting as opposed to one of the loonier prosecutors in the USA such as Elliot Spitzer or maybe the Vietnam marine service hero, Blumenthal, you know the one who assiduously prosecutes those who lie to the government.

    Fred Z (c1782b)

  15. #6 DRJ:

    have to show the authors published the article with actual malice. That’s a tough hurdle.

    Oh, I dunno. The story describes O’Keefe derogatorily as “sorta ACORN stinger O’Keefe.” Which would be enough to convince me that they aren’t going out of their way to strew petals and rosebuds under O’Keefe’s fuzzy bunny slippers.

    EW1(SG) (edc268)

  16. There won’t be any correction.

    This is the first salvo in the narrative and, tomorrow, it will be repeated far and wide to the point that it can’t be corrected. It’s a time-honored tactic.

    History will record O’Keefe as a liar and dissembler who was convicted of a crime he didn’t commit.

    Don’t believe me? Ask Scooter Libby. Or, on a lighter note, take a look at Tim Blair’s plastic turkey tracking.

    It’s funny, frustrating, interesting and sad to watch these deliberate distortions take place. The narrative will rule, despite the millions who know the truth.

    We all kind of pretend the MSM doesn’t matter any more, but it does. It sets the story and history follows it.

    Really, though, O’Keefe and Breibart should have been more prepared for it.

    Ag80 (b97c3e)

  17. She didn’t say it was an impassable hurdle. Just tough. And in New York City… good luck. Those folks elected Bloomberg.

    I think this is a serious problem with our libel laws. As someone said, the people doing the libel and inoculate against liability by making someone famous first. Frankly I think they should sue and be willing to lose. See them testify they really repeatedly reported something after being corrected repeatedly, but didn’t do it maliciously even though this crap always slimes the right.

    Every now and then, one of these suits will get the right jury.

    Dustin (b54cdc)

  18. The nice thing about filing a federal suit would be the discovery phase: it would be interesting to see the notes and drafts, as well as internal e-mails.

    great unknown (261470)

  19. Not holding my breath … even with government leaking lawyer-clent communications?

    htom (412a17)

  20. The best indicator of actual malice in this case is that the second story links to the WaPo, which reported the story correctly. NYM had the correct information and reported the false story. Even so, the NYM people involved would probably wriggle free by claiming they didn’t understand the legal nuances of the various charges.

    Karl (5f0050)

  21. Brad Friedman has a whiny comment in moderation. And there it will stay.

    I will say only this: he is really torn up about this. Unlike Boehlert, who is trying to turn this into some kind of victory, Friedman sees that O’Keefe got a slap on the wrist. The tears are almost visible on my computer screen.

    By the way, the slap on the wrist is more punishment than he deserved, in my view; I think he should have had the charges dismissed. But I can live with a no-jail time misdemeanor, under the circumstances.

    Patterico (c218bd)

  22. The best indicator of actual malice in this case is that the second story links to the WaPo, which reported the story correctly.

    Another indicator of actual malice is that O’Keefe has written the authors to inform them of their error. The longer the story stays up uncorrected, the more it looks like actual malice to me.

    Patterico (c218bd)

  23. If the government was really leaking privileged material from laptops seized unlawfully as wiretap devices, he’s lucky he got this plea deal. Taking this case to court would be extremely expensive (exponentially+ more than the fine, for example).

    And he wants to get on with his work, I imagine. I somewhat hope he didn’t find that a Senator was tampering with phones to keep constituent voices out… our democracy is under enough strain as it is. But if he can show such a thing, the story to me is that a democrat in power can betray her oath and tamper with phones, and the citizen who exposes her is charged with that very crime he tried to thwart.

    Even if he found nothing, I think his treatment would make a very interesting story. The way Shuster gleefully trashed him was breathtaking. And people are comparing this to Richard Nixon’s behavior? They truly don’t get why watergate was wrong.

    It wasn’t wrong because a democrat politician was snooped on. It was wrong because our powerful executive betrayed his duty to the people, abused his office, and covered it up. I see a little Nixon in the eyes of the people trying to destroy O’Keefe.

    Dustin (b54cdc)

  24. Patterico:

    I’m not a lawyer, but actual malice is a tough hill to climb, especially in the case of a public figure.

    In my memory, the cases of actual malice involving a public figure centered around retraction, or lack of retraction, in the published or video record.

    As far as I know, there has not been a case of actual malice involving the internet.

    I doubt anything will happen in this case, but I can certainly see an interesting judgment regarding libel in the happenstance of scrubbing potentially damaging material from the ether.

    And, I certainly would be interested in seeing what real lawyers say about this.

    Ag80 (b97c3e)

  25. I see a little Nixon in the eyes of the people trying to destroy O’Keefe.

    they are all “Little Nixon’s”, but it’s okay because they, unlike Tricky Dick, are on the right side.

    just ask them.

    redc1c4 (fb8750)

  26. “Liberty cannot be preserved without a general knowledge among the people, who have…
    a right, an indisputable, unalienable,indefeasible, divine right to that most dreaded and envied kind of knowledge,
    I mean the characters and conduct of their rulers.”
    — John Adams
    (1735-1826) Founding Father, 2nd US President

    redc1c4 (fb8750)

  27. It’s hard, but not impossible, for public figures to win defamation cases, and there are always significant downsides to be weighed before filing defamation claims — chief among them that the plaintiff ends up having his whole life put under a microscope in pretrial discovery.

    “Actual malice” for purposes of the NYT v. Sullivan standard is defined in a peculiar way. Actual knowledge of the defamatory statement’s falsity can satisfy it, but so too can reckless disregard for the statement’s truth or falsity. As a practical matter, absent a confession by the defendant as to his mental intent, one can only prove he had actual knowledge of his statement’s falsity via circumstantial evidence, which is tough (but not impossible) to do. Most plaintiffs shoot for the lower bar, “reckless disregard.”

    Reports of criminal convictions are among the most positively determined sort of facts that can exist. Either a crime has been adjudged against the target or it hasn’t. There’s no room for opinion, no shades of gray, and no argument — ultimately, after the court records are produced — as to whether a statement that someone’s been convicted of a crime is true or not.

    Even before there was Google or an internet, it was the sort of fact that is incredibly easy for any publication to check. I think there are strong arguments that it’s impossible to get this kind of factual statement wrong without reckless disregard — i.e., there’s almost no “innocent middle ground” because it’s impossible to care at all about truth and get something so basic so wrong.

    Beldar (82ed3c)

  28. At best (at BEST!) this is just shoddy fact-gathering — making the assuption that what he was accused of doing is the same as what he pleaded guilty to doing.

    But that’s being too charitable. The person(s) responsible should be fired, and a substantive retraction posted.

    Icy Texan (d2b0bb)

  29. How does this compare with Sandy Berger? You know, the guy who had top secret clearance and the top secret docs hidden in his underwear! Wasn’t that treason pled down to “nothing”?

    Den (fdffa8)

  30. I’m not a lawyer, but actual malice is a tough hill to climb, especially in the case of a public figure.

    True, but at the very least a lawsuit will force a correction.

    Brother Bradley J. Fikes, C.O.R. (9eb641)

  31. It’s hard, but not impossible, for public figures to win defamation cases

    What makes somebody a public figure?

    Subotai (b86117)

  32. Uh, they’re in the news, multiple times, and have generated controversy.

    AD - RtR/OS! (fce032)

  33. they’re in the news, multiple times, and have generated controversy

    It’s impossible to defame somebody if that’s the definition. By definition somebody who has been defamed by the media has been in the news.

    Subotai (b86117)

  34. I think you, the aggrieved party, have to interject yourself into the news.
    If the media just picks some name out of the phone-book, and writes a hit piece on them, they aren’t a public figure.
    But, if you’re the Salahi’s (for instance), everything is fair game.

    AD - RtR/OS! (fce032)

  35. Originally NYT v. Sullivan only applied to public officials, but it’s been expanded to private parties who are nevertheless “household names.” And thus, there are “public figures,” there are “limited-purpose public figures” — who may have to prove actual malice if the defamatory statement relates to a controversy over a specific subject-matter or a limited-time controversy into which they’ve injected themselves — and there are “mere private parties.” (An example of a limited-purpose public figure might be a climate scientist who’s lectured on global warming; if he’s defamed by someone who falsely accuses him of faking global warming data, he might have to prove “actual malice,” but if he’s falsely accused of something unrelated, such as shoplifting, he might still be considered a private party.)

    Drawing the line among them can be difficult, and the that process itself invites a lot of litigation. However, one’s “public figure” status is generally considered a question for courts to determine as a threshold matter, rather than as an ultimate question of fact for the factfinder (the jury or, in a bench trial, the judge acting in lieu of a jury) to decide. That’s important for defamation defendants because it gives them a vastly better chance of getting a defamation case thrown out at a comparatively early stage of the litigation via a motion for summary judgment.

    In general, though, it’s true that you’re much more likely to be found to be a public figure or a limited-purpose public figure if you’ve purposefully thrust yourself into public debate and discussion — or if (regardless of your subjective intention) you’ve taken actions that a reasonable person would expected to have that same result — than if you’re merely caught up in circumstances beyond your control.

    As an alternative indicator of public-figure status, courts also sometimes look to the degree to which someone has ready access to, and influence over, the press and/or other means of countering allegedly false and defamatory statements made about them. The better positioned you are to be able to hold your own in a mud-slinging battle, in other words, the less the law deems you to be needful of the full reputational protection of the common-law defamation remedies traditionally available to private parties.

    Wherever the line might be drawn in close cases, however, I don’t think there’s any serious doubt that O’Keefe has become a public figure — he and Breitbart have deliberately turned O’Keefe into a public crusader, which is a public figure on steroids — or that he would have to satisfy the “actual malice” standard of NYT v. Sullivan (i.e., he definitely would).

    Beldar (90d315)

  36. Comment by Beldar — 5/28/2010 @ 8:27 am

    Thanks to Beldar (seriously) for explaining in five paragraphs what I broke down to three sentences…
    Ain’t law wonderful!

    AD - RtR/OS! (58f7b4)

  37. James O’Keefe is the one who said that James O’Keefe wanted accesss to the phones.

    A liar with dirty hands can’t cry libel simply because some people believed him.

    You people are hilarious.

    Billy (b29048)


Powered by WordPress.

Page loaded in: 0.5533 secs.