It does not feel like an exaggeration to say that even ardent media watchers were startled by the firepower that asserted itself against Jesse Ventura as his victory over “American Sniper” went before a federal appeals court last week.
The New York Times, the Washington Post, the Hearst Corp., the Newspaper Association of America, the Motion Picture Association of America, Gannett, Gawker Media, BuzzFeed, Hachette publishing, Cox Media, the Center for Investigative Reporting, the National Association of Broadcasters all lent their names and influence to a brief “expressing concern” over the $1,345,477.25 Ventura was awarded for “unjust enrichment” in his case against the estate of Chris Kyle, the now deceased ex-SEAL whose book showed only middling sales until Kyle identified Ventura as the key player in one of the most colorful anecdotes in “American Sniper.”
Despite the near impossibility of winning a defamation case against a public figure under American law, journalists and media organizations remain on high alert for anything with a whiff of precedent-setting. Especially a verdict.
Generally speaking, this is admirable, even necessary. Freedom to expose nefarious activity by influential characters is a vital facet of the First Amendment, and something regularly obstructed by the adroit application of money and political leverage. Quality journalism — and democracy — requires healthy, largely unfettered exercise of freedom of the press.
Or as eminent First Amendment attorney Floyd Abrams wrote in the aforementioned brief:
An award of profits has nothing to do with the harm suffered by the plaintiff; it is punishment, plain and simple. And given the lack of proportion between the offending passage and the book as a whole, in this case it is clear that it includes punishment of wholly protected speech…. The passage at issue in American Sniper ran no more than a page and a half in a 379-page autobiography. Yet the jury recommended an award of more than $1.3 million in supposed profits, a figure the district judge estimated to be 25 percent of what was received by the estate. Such an arbitrary award may not be sustained under the Constitution just as it cannot be countenanced under the common law.
Yet even with the Supreme Court having long ago ruled that entertainment is also protected speech, there’s an interesting discussion to be had over a distinction between the work of professional journalists, people making every reasonable effort to get their facts right and tell an important story accurately, and the far less disciplined variant of the celebrity biography/memoir.
The former is, constant partisan complaints to the contrary, rigorously self-moderated and disciplined, with profoundly negative consequences for those who screw up, whether from laziness or ineptitude. By contrast, the celebrity publishing industry, guided by the singleminded objective of selling books, all too frequently operates with a laissez faire attitude toward fact-checking and due skepticism in favor of anything that sustains a good story.
Is it possible to make a legal distinction between these two forms? As written (or, rather, ghost-written), Kyle’s book — though full of words and published on paper — seems more akin to merchandising than journalism: a novelty souvenir sold off of a famous name. In other words, should credible institutions like the Times, the Post and the Hearst corporation really be taking a principled stand in support of “American Sniper,” a purely commercial venture that includes several other dubious episodes — in addition to the business of All-American hero Kyle punching out “Scruff Face”?
Who decides what’s responsible journalism?
Twelve distinguished First Amendment scholars signed their names to another brief in the case, the “scholars’ brief,” arguing for reversal of the verdict. Among them was Jane Kirtley, the highly respected professor of media ethics and law at the University of Minnesota. In a story by Randy Furst in the Star Tribune, Kirtley was quoted saying, “What I worry about is setting a bad precedent that is going to make it difficult, not only for journalists to do investigative reporting, but for serious authors to write unauthorized biographies.”
With the phrases “journalists,” “investigative reporting” and “serious authors” rattling in my head, I called Kirtley asking for some amplification.
The punitive “unjust enrichment” award is the primary focus of Kirtley’s concern, as it is for the others on board in the two briefs. This, she argues, is the precedent that if left to stand presents the most peril to press freedom. The $500,000 defamation award, while both surprising and substantial, is a lesser concern.
If a public figure like Ventura succeeds in his argument that a book, even a cheesy book, enhanced its commercial value by defaming him, a Pandora’s Box of litigation could erupt, chilling the far more valuable work of real journalists, she said. Or so is the fear.
“We could have a long and interesting discussion about the ethics of biographies,” said Kirtley. “I’m not here to say ‘American Sniper’ is an exemplar of serious journalism, but that isn’t always the standard for cases that go up through the court system.”
“The problem people often have about libel cases is that they assume they are about telling the truth. Full stop. But it is always more complicated than that,” she said.
The law also protects all sorts of craziness, laziness and ineptitude in the context of public figures. The question of harm from “actual malice” places an enormous burden on the public figure, who, the thinking goes, long ago made his Faustian bargain to achieve the spotlight.
Kirtley recalls being present during the famous Supreme Court fight between televangelist Jerry Falwell and Larry Flynt’s Hustler magazine, two other problematic combatants. Chief Justice William Rehnquist, she says, remarked amid that fight that there was no clear legal standard for “outrageous comment,” because that’s the way the Constitution wants it. “What he said, essentially, is that you and I may have different ideas of responsible journalism, but it is not for us to decide,” Kirtley said.
So while a slapdash commodity item like a celebrity biography/memoir may strike some observers as reckless and outrageous, the rights of the publisher indifferent to accuracy are so tightly entwined with legitimate journalism that weakening one with punitive financial judgments imperils the work of the other.
Put another way, the idealized world in which a hefty judgment levied against the Kyle estate and the publisher of “American Sniper” injects an arguably beneficial effect on reckless “non-fiction” ain’t happening anytime soon.