Oliver Darcy here at 9:25pm ET on Friday, January 21, with the latest on Netflix, Twitter, OAN, Gettr, Google, Discovery, and more. Plus a weekend planner, longreads, and this Sunday's "Reliable Sources" guest list. But first...
Palin v. NYT goes to trial
The next two weeks will not be very enjoyable for The New York Times.
Monday marks the start of jury selection for a trial over Sarah Palin's defamation lawsuit against the newspaper. A quick recap: Palin sued the paper in 2017 over an editorial that incorrectly linked the 2011 shooting of Rep. Gabby Giffords to a map circulated by Palin's PAC that showed certain electoral districts under crosshairs. The Times corrected the error and apologized for it, and a judge initially dismissed the case. But a federal appeals court revived it and, as a result, a trial will now take place.
The case is, at its heart, about the limits of First Amendment protections and the standard set in the landmark New York Times vs. Sullivan case. Specifically, the standard that a public figure must prove an outlet operated with "actual malice" when it published defamatory information. Palin has argued The Times did, and The Times has said it made an honest error.
"At issue is the elasticity of the protections that allow news organizations to present tough coverage of public figures," WaPo’s Erik Wemple wrote on Friday. "Or, to put things a bit more sharply, the case will help demarcate the line between really bad journalism and libelous journalism."
Palin’s lawyers aren’t commenting ahead of the trial, but The Times is. A spokesperson for the paper told me on Friday that it hopes to "reaffirm a foundational principle of American law: public figures should not be permitted to use libel suits to punish unintentional errors by news organizations."
"We published an editorial about an important topic that contained an inaccuracy. We set the record straight with a correction," the spokesperson told me. "We are deeply committed to fairness and accuracy in our journalism, and when we fall short, we correct our errors publicly, as we did in this case."
Palin’s odds
I reached out to renowned First Amendment attorney Ted Boutrous (full disclosure: Boutrous has represented CNN in previous cases) to ask him for his legal opinion of the case. He told me that he believes Palin "faces an enormously steep uphill battle" and "is likely to lose."
Boutrous summarized his reading of the case like this: “I don’t think she can possibly prove that the newspaper or its journalists acted with actual malice or that she suffered any harm from the original version of the editorial, which was quickly clarified and corrected. This lawsuit has always seemed to me to be part of a disturbing trend in recent years of high-profile political figures misusing libel suits as political stunts intended to chill speech on matters of public concern — exactly what the First Amendment forbids."
"An excruciating experience"
Jeffrey Toobin, CNN’s chief legal analyst, also agreed that Palin is likely to lose in trial. But he stressed that doesn’t mean it’s going to be rainbows and unicorns for The Times in court. "Even though I expect The Times will ultimately win this case, the trial is likely to be an excruciating experience for everyone associated with it at The Times," Toobin told me. "Because the simple fact is the story was wrong. And no journalist wants to be in a position of defending a story that was wrong."
Who will be in that position for The Times? A spokesperson told me the newspaper intends to call former editorial page editor James Bennet and editorial board member Elizabeth Williamson, who wrote the draft of the Palin editorial, as its principal witnesses. "We anticipate that others from The Times will be called as well," the spokesperson added.
Toobin cautioned that a settlement at the eleven o’clock hour should not be ruled out. "Cases settle on the eve of the trial all the time," he pointed out. When I asked The Times if a settlement was on the table, the spokesperson replied, "We intend to take the case to verdict." Which is, of course, what one would say — just until a settlement is struck…
To the Supreme Court?
If Palin loses in district court, she can attempt to take her case all the way up to the Supreme Court. Diminishing press protections by overturning New York Times vs. Sullivan, after all, has been a stated goal for many on the right for some time. And, as Toobin pointed out, "Palin is the perfect plaintiff and The New York Times is the perfect defendant for the right to mobilize against First Amendment protections for the press."
Whether it would ever make its way to the court, and whether it would side with Palin, is another story. "It very much remains to be seen whether the current judiciary is ready to cut back on First Amendment protections," Toobin told me. "Yes, [Justice Clarence Thomas] has spoken about it, but none of the other justices have and this issue is not like abortion where everyone knows where the battle lines are drawn."
Boutrous said if Palin loses her case in district court and attempts to get the Supreme Court to "use her case as a vehicle for overturning" the landmark case, she’ll still likely fail: "I don’t think the Court will do that because the Times decision is such a cornerstone of First Amendment jurisprudence and it has been endorsed over and over again by Justices across the political spectrum for many years, even though two Justices recently urged that it be revisited."
A potential to backfire against the right
The reporting from mainstream news sources tends to be a lot more buttoned up than reporting in right-wing media. Fox, for instance, is wrapping itself in the First Amendment as it defends itself from lawsuits against voting technology companies Dominion and Smartmatic.
Which is to say that the attempts to reduce press freedom on the right could backfire in enormous ways. "Fox needs those protections more than The New York Times at the moment," Toobin pointed out. "The New York Times made a single mistake and behaved responsibly. Fox was the gateway for a torrent of lies that nearly destroyed these companies and has never appropriately apologized."
FOR THE RECORD, PART ONE
-- On the topic of SCOTUS, Jane Mayer asks in a big Friday piece: "Is Ginni Thomas a threat to the Supreme Court?" Mayer points out Thomas' relationship with groups like Project Veritas and notes she "has held leadership positions at conservative pressure groups that have either been involved in cases before the Court or have had members engaged in such cases..." (New Yorker)
-- John Harris' must-read essay: "I led the revolution against journalistic institutions. Now I think we need to build them back up..." (Politico)
-- Philip Naughton writes about why some outlets and reporters "are having second thoughts about the Beijing Winter Games..." (Daily Beast)
-- Jon Allsop: "As Afghanistan starves, the pundit class turns away..." (CJR)
This Sunday on "Reliable Sources"
Brian Stelter writes: "The aforementioned John Harris will join me on Sunday's 'Reliable Sources,' along with Oliver Darcy, Catherine Rampell, Bob Costas, and Jeffrey Toobin. Plus: I'll show you my visit to a middle school in Queens, New York that is teaching news literacy to students. See you Sunday at 11am ET on CNN..."
WEEKEND PLANNER
First and foremost: Part one of the final season of "Ozark" streams on Netflix (scroll down for Lowry's review)...
The NFL playoffs continue with the Bengals taking on the Titans at 4:30pm ET on CBS and the 49ers facing off with the Packers at 8:15pm on Fox...
W. Kamau Bell’s docuseries "We Need to Talk About Cosby" premieres at (virtual) Sundance, in advance of Showtime...
Will Forte hosts "SNL" with musical guest Måneskin...
The Rams take on the Buccaneers Sunday at 3pm on NBC. Later, the Bills meet the Chiefs at 6:30pm on CBS...
The season premiere of "Billions" airs 9pm on Showtime...
The final episodes of "Reframed: Marilyn Monroe" start to air 9pm on CNN...
Five big headlines heading into the weekend
>> WaPo: "For Putin, many options on Ukraine..."
>> WSJ: "Nasdaq, S&P 500 suffer worst week since March 2020..."
>> NYT: "As Omicron crests, booster shots are keeping Americans out of hospitals..."
>> AP: "House panel obtains Trump records after Supreme Court ruling..."
>> CNN: "FBI: Brian Laundrie claimed responsibility for Gabby Petito's death..."
FOR THE RECORD, PART TWO
-- Dan Friedman and Ali Breland obtain leaked messages showing Gettr "in crisis mode" over Joe Rogan's criticism... (Mother Jones)
-- Speaking of Rogan: Shannon Bond reports on "what the Joe Rogan podcast controversy says about the online misinformation ecosystem..." (NPR)
-- Ja'han Jones with an important reminder: "It’s not just Tucker Carlson. The right’s soft spot for Putin is also well documented..." (MSNBC)
OAN urges viewers to contact TV carriers
OAN founder and owner Robert Herring, Sr. is finally weighing in on DirecTV's decision to cut his right-wing conspiracy channel from its lineup. In a video message, Herring described DirecTV's move as a "complete surprise" and said that the network doesn't "know exactly what we are going to do yet." But Herring teased "a lot of options" and urged viewers to contact TV companies. "We would also like to ask you, our viewers, to please reach out to the cable provider in your area -- whether it's Spectrum, Dish, or any of the other great providers -- and let them know that you would like for them to carry One America News," he said. "We only charge 10 cents per household per month." Bloomberg's Gerry Smith has details here...
>> Erik Wemple with a related Q: "Where’s Fox News’s outrage over One America News’s deplatforming?"
Making sense of Netflix
Brian Stelter writes: "CNBC.com's big headline right now is, 'Tech stocks just had their worst week since March 2020 as Peloton and Netflix scared investors.' Friday's severe Netflix sell-off following Thursday's disappointing earnings dragged down the entire Nasdaq index, the WSJ's Michael Wursthorn wrote: 'Other streamers followed, as investors sized up their growth prospects in the face of Netflix's news. Roku, fuboTV and ViacomCBS all retreated at least 7.4%. Even those outside of the Nasdaq fell, with Walt Disney Co. shedding nearly 7%.'"
>> Stelter adds: "So is this a drastic overreaction? A buying opportunity? Zak Shaikh, a VP at Magid, pointed out to CNN's Frank Pallotta that Netflix 'still added subs, and they still have the same high usage and viewing metrics.' Indeed, the fundamentals all still point toward streaming. Still, as Michael Nathanson told Pallotta, 'I think 2022 is going to be one of concern about growth and competition for Netflix...'"
FOR THE RECORD, PART THREE
-- Twitter "shook up the top ranks of its security team this week with the termination of the head of security and the exit of the chief information security officer," Mike Isaac and Kate Conger report... (NYT)
-- Google "has filed a motion to dismiss the antitrust complaint filed last week, which alleges it colluded with Facebook to manipulate programmatic ad markets," Kim Lyons reports... (The Verge)
-- "The climate is changing, but misinformation about it on the major social media platforms is not," Jessica Guynn reports. "Climate change falsehoods, hoaxes and conspiracy theories are still prevalent on Twitter, Facebook, TikTok and YouTube despite pledges to crack down..." (USA Today)
-- "Two anti-government extremists have been charged with the shooting death of Angela Underwood Jacobs' brother. But she says Facebook is also responsible..." (CBS News)
Three stories about "West Elm Caleb"
>> Vox's Rebecca Jennings writes about TikTok's "cancel culture problem." She asks: "What’s worse, ghosting someone you met on a dating app or calling up that guy’s workplace and demanding he be fired for ghosting someone on a dating app?"
>> BuzzFeed's Katie Notopoulos points out that "we haven't fully grasped exactly what the power of a TikTok mob, fueled by a For You page, can do..."
>> Rolling Stone's Brittany Spanos argues that "the backlash speaks volumes about the lives of the Very Online..."
FOR THE RECORD, PART FOUR
-- Bill Maher is back -- and talking how he's "over" Covid: "I feel like Covid is still the dominant issue of our lives right now and it should not be anymore," Maher tells Dominic Patten... (Deadline)
-- "Thousands of protesters are expected to descend on Washington this weekend for a rally against Covid-19 vaccine mandates, a sign that the anti-vaccination movement that gained traction on social media during the pandemic is spilling even further into politics and real life," Ben Collins reports... (NBC News)
-- "The 153 most influential anti-vaccine social media accounts and groups have accumulated 2.9 million net new followers since January 2020, according to the Center for Countering Digital Hate..." (WaPo)
Weekend reads
By Brian Stelter:
-- For Politico's 15th birthday, editors asked "16 future-minded thinkers" to predict "where journalism will be in 15 years..."
-- Donald Trump's fledgling social media company "faced widespread investor doubt before raising $1 billion," a team of NYT reporters found...
-- Thomas Edsall's latest for the NYT: "Why Millions Think It Is Trump Who Cannot Tell a Lie..."
-- MSNBC's Mehdi Hasan (who filled in for Rachel Maddow for the first time on Friday) talked with Slate's Aymann Ismail about his approach to cable news and his desire to debate "non-crazy Republicans..."
-- Are GIFs turning uncool? "The humble image file was once everywhere, but it's increasingly falling out of favour among young internet users," Vice's Amelia Tait says...
-- Jon Caramanica's latest is about "the Morgan Wallen conundrum:" Is he "on a redemption tour, or just on tour?"
AND A WEEKEND LISTEN...
On this week's "Reliable" podcast: Insights about Gen Z
Harvard Kennedy School IOP polling director John Della Volpe, who is author of a new book, "Fight: How Gen Z Is Channeling Their Fear and Passion to Save America," is Brian's guest on this week's "Reliable Sources" podcast. The two talked about what the media gets wrong about the teens and young adults of Generation Z. Listen in via Apple Podcasts, Spotify, Stitcher, TuneIn, or your favorite app...
FOR THE RECORD, PART FIVE
-- Brian Steinberg and Jennifer Maas report on how Discovery (which is in the process of merging with CNN parent WarnerMedia) is mulling "different upfront concepts" as its deal with AT&T looms... (Variety)
-- "Just three days after the news broke that Microsoft will buy Activision Blizzard, workers at a developer owned by the video game holdings company, Raven Software, announced that they were forming a union," Katie Kilkenny reports... (THR)
-- Former Warner Bros. comms exec Scott Rowe has started a PR firm... (Deadline)
Two tragic deaths
Much of Friday was spent remembering two icons. The day started with coverage of Meat Loaf's death. The singer died at the age of 74, prompting a flood of tributes from across the world. Unfortunately, that news cycle had to be interrupted to cover another tragic death: that of comic legend Louie Anderson, who died at the age of 68 from cancer complications. RIP to two great entertainers...
Streaming standouts
Brian Lowry writes: "The weekend brings a pair of A-level premieres: The fourth season of Netflix’s 'Ozark,' kicking off a bifurcated finishing run in strong fashion; and 'As We See It,' a touching and bittersweet coming-of-age Amazon series from 'Friday Night Lights' producer Jason Katims, adapting an Israeli show about 20-somethings on the autism spectrum sharing an apartment, seeking independence and 'normal' lives..."
Multiple Oscars hosts?
Brian Lowry writes: "Remember when ABC said the Oscars would have a host for the first time in several years? It's now looking more like multiple hosts, according to new reporting from Variety's Clayton Davis and Elizabeth Wagmeister. Their story rattles off some of the names being considered – the stars of sister network Hulu’s 'Only Murders in the Building' apparently tops among them – and others out of the running..."
FOR THE RECORD, PART SIX
-- Bad news for "Mission Impossible" fans. "Both the seventh and eighth installments in the blockbuster movie franchise will be delayed due to the ongoing pandemic," Sarah Whitten reports... (CNBC)
-- "Knives Out 2" will hit Netflix later this year. Clayton Davis reports it "is expected to release in theaters and the streaming platform in the last quarter of 2022..." (Variety)
-- Johnny Depp is "set to portray French King Louis XV in an untitled historical drama," Tom Grater writes, citing reports in French media... (Deadline)
-- Christina P. is "returning to Netflix with her third comedy special for the streamer," Denise Petski reports... (Deadline)
-- Whoopi Goldberg is heading back to the "Star Trek" universe. A new trailer for "Star Trek: Picard" shows her return as Guinan, James Hibberd writes... (THR)
SAVING THE BEST FOR LAST...
Pet of the day!
Reader Anthony Detzi emails: "Benny, my 10 yr old golden is ready for the cold weather today in NYC. We are up from PA visiting our daughter in Manhattan..."
Thank you for reading! Email your feedback anytime. Brian and I will see you on 📺 Sunday morning...
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