How to tell if the Washington Post has it right on Roy Moore

In assessing the reliability of the Washington Post's allegations against Judge Roy Moore, it is fair to ask whether the Post or its reporters have any skin in the game.  That is, will they suffer significantly if the story turns out to be false?

The answer is "no."  The story is a free shot.  If it succeeds in destroying Moore, the Post will be rewarded by its inside-the-Beltway significant others of both parties.  If the story goes down in flames, then those S.O.s, who understand perfectly that the Post is a partisan warrior, will write it off as a good try that did not work.  Who now remembers the paper's one-sided campaign against Senate candidate George Allen a decade ago?

One might assume that libel law would provide an incentive for the paper to get it right, especially when potential damages to a public figure are astronomical.

One would be wrong.  The courts have held, as in the case of Sarah Palin, that a news outlet is not liable for libel unless it is not only wrong, but guilty of "actual malice," which means that it published despite having substantial reasons to believe the story false.  Sloppy journalism, failure to investigate thoroughly, and the inherent improbability of a story are insufficient for a plaintiff to win.  In the Palin case, the district judge found for the New York Times even though an editor had taken a draft that was factually correct and, without investigation, converted it into something both erroneous and libelous.

Further, lawyers for the media believe that the precedents justify dismissal of a libel claim at a preliminary stage, before any discovery into the real-world processes that produced an article.  So even if the paper's internal emails reek of bad faith and tendentiousness, a plaintiff will never be given a chance to find out.

The bottom line is that the Post's lawyers can calculate that as long as the paper got a source on record with a tale that is not false on its face, they are bulletproof in court.

Given this incentive structure, the only reason to give credence to the story is the Post's reputation as a once good paper – a reputation to which the paper itself is indifferent.  As Obama staffer Ben Rhodes said, as quoted in the Washington Post, "[t]he average reporter we talk to is 27 years old, and their only reporting experience consists of being around political campaigns. That's a sea change. They literally know nothing."  This means they have little investment in the paper as an institution and no reason to protect its long-term credibility.

If the Post wants to convince us of its good faith, it needs to put up some stake – maybe it can promise to waive all its technical defenses about "actual malice" and pay Moore $100 million if the story is wrong, or Jeff Bezos can promise to cut off his left hand on national television.  Otherwise, my realpolitik assumption will remain that it did just enough investigation to cover itself but stopped short of anything that might call its conclusions into question.

Obviously, over the next couple of weeks, the story will intensify as partisans on both sides move mountains in the effort to find support.  Moore has just announced his intention to pursue legal action.  Attorney Gloria Allred has announced a NYC press conference with "a new accuser," but the accusation seems to be that Moore occasionally pulled her hair and complimented her.  

If Moore does sue for libel, the result could be a salutary rethinking of libel doctrine.  If a story of this importance and impact turns out to be wrong, it will show beyond question that the pendulum of protecting the press has swung way too far and that a restoration of responsibility is needed.

Indeed, the media themselves should welcome a stricter standard.  If the public thinks irresponsibility goes unpunished, it will assume, correctly, that the media are becoming steadily more irresponsible.  In the end, this is a "be careful what you ask for" story.  The media wanted to be free of the threat of libel actions, but by achieving this, they have substantially demolished their own credibility.

James V. DeLong is graduate of Harvard Law School.

In assessing the reliability of the Washington Post's allegations against Judge Roy Moore, it is fair to ask whether the Post or its reporters have any skin in the game.  That is, will they suffer significantly if the story turns out to be false?

The answer is "no."  The story is a free shot.  If it succeeds in destroying Moore, the Post will be rewarded by its inside-the-Beltway significant others of both parties.  If the story goes down in flames, then those S.O.s, who understand perfectly that the Post is a partisan warrior, will write it off as a good try that did not work.  Who now remembers the paper's one-sided campaign against Senate candidate George Allen a decade ago?

One might assume that libel law would provide an incentive for the paper to get it right, especially when potential damages to a public figure are astronomical.

One would be wrong.  The courts have held, as in the case of Sarah Palin, that a news outlet is not liable for libel unless it is not only wrong, but guilty of "actual malice," which means that it published despite having substantial reasons to believe the story false.  Sloppy journalism, failure to investigate thoroughly, and the inherent improbability of a story are insufficient for a plaintiff to win.  In the Palin case, the district judge found for the New York Times even though an editor had taken a draft that was factually correct and, without investigation, converted it into something both erroneous and libelous.

Further, lawyers for the media believe that the precedents justify dismissal of a libel claim at a preliminary stage, before any discovery into the real-world processes that produced an article.  So even if the paper's internal emails reek of bad faith and tendentiousness, a plaintiff will never be given a chance to find out.

The bottom line is that the Post's lawyers can calculate that as long as the paper got a source on record with a tale that is not false on its face, they are bulletproof in court.

Given this incentive structure, the only reason to give credence to the story is the Post's reputation as a once good paper – a reputation to which the paper itself is indifferent.  As Obama staffer Ben Rhodes said, as quoted in the Washington Post, "[t]he average reporter we talk to is 27 years old, and their only reporting experience consists of being around political campaigns. That's a sea change. They literally know nothing."  This means they have little investment in the paper as an institution and no reason to protect its long-term credibility.

If the Post wants to convince us of its good faith, it needs to put up some stake – maybe it can promise to waive all its technical defenses about "actual malice" and pay Moore $100 million if the story is wrong, or Jeff Bezos can promise to cut off his left hand on national television.  Otherwise, my realpolitik assumption will remain that it did just enough investigation to cover itself but stopped short of anything that might call its conclusions into question.

Obviously, over the next couple of weeks, the story will intensify as partisans on both sides move mountains in the effort to find support.  Moore has just announced his intention to pursue legal action.  Attorney Gloria Allred has announced a NYC press conference with "a new accuser," but the accusation seems to be that Moore occasionally pulled her hair and complimented her.  

If Moore does sue for libel, the result could be a salutary rethinking of libel doctrine.  If a story of this importance and impact turns out to be wrong, it will show beyond question that the pendulum of protecting the press has swung way too far and that a restoration of responsibility is needed.

Indeed, the media themselves should welcome a stricter standard.  If the public thinks irresponsibility goes unpunished, it will assume, correctly, that the media are becoming steadily more irresponsible.  In the end, this is a "be careful what you ask for" story.  The media wanted to be free of the threat of libel actions, but by achieving this, they have substantially demolished their own credibility.

James V. DeLong is graduate of Harvard Law School.

RECENT VIDEOS