A media reckoning that may be very, very costly

It may be Spring according to the calendar, but America's dominant media outlets are heading toward a brutal winter season when it comes to accountability for the actions. Not just a reckoning for pushing a hoax about Russian collusion with a presumed treasonous Donald, but potentially gigantic judgments in courtrooms. Recently, two parties have filed notable defamation lawsuits against powerful press outlets. The most talked about has been the 2 (so far) filed on the behalf of Nicholas Sandmann, the young student from Covington Catholic High School. His attorney has filed in Kentucky. Given that the press is so unaware of the attitudes of potential fly-over country jurors that they failed to predict the election of President Trump and failure of the Mueller probe, they may not recognize the financial threat those suits pose to their future. Time will tell. The settlement prices are in the $250 million range.

But my personal interest is in the most complex and nuanced suit filed on behalf of Don Blankenship, the unsuccessful Republican candidate for the Senate seat now held by Democrat Joe Manchin. His suit asks for $12 billion! Talk about “the audacity of hope”! So, I spoke to one of his attorneys, Eric Early of Early, Sullivan, Wright, Gizer & McRae. We had a pleasant, but brief conversation. The core of his position is that they firmly believe that Mr. Blakenship has been defamed and that he will win at trial. He suggested that anyone with an interest in their position read their filing with the court.

I first became aware of the case in a story on  the Mediaite website, which provided a link to the actual document.

Here is how they described their conversation with Mr. Early.

“Fox News, CNN, MSNBC and the other defendants in this case, when they represent themselves as a news outlet or news source, the public’s reasonable expectation is that they are indeed a ‘credible’ news outlet,” Blankenship’s attorney Eric Early, a failed GOP candidate for California attorney general, said in a statement to Mediaite. “It’s beyond wrong when they lie about facts that are easily ‘google-ible.’ These news outlets are going to have to decide at some point whether they are actual news or entertainment channels.”

For “injuries Mr. Blankenship has suffered,” he is seeking “damages in an amount not less than $2 billion dollars,” the suit notes, before adding that he also “seeks substantial punitive damages in the amount of 10 billion dollars.”

Their description of Mr. Early as a “failed GOP candidate” suggests a certain lack of caution about the financial threat that losing the case might pose to the titans of the “Mainstream Media”. It may be a very low probability outcome, but it might also be a “Black Swan” event.

Taking Mr. Early’s advice to heart, I read the complaint. Given the present state of affairs, it seems that Mr. Early’s best approach would be to apply Saul Alinsky’s Rule 4, "Make the enemy live up to its own book of rules."

To that end, I note that one of the defendants is the Associated Press, which conveniently publishes its set of rules in  a book, The Associated Press Stylebook and Briefing on Media Law 2018, ISBN 978-1-5416-7238-3.

On page 485, they list five things a successful libel plaintiff must prove

  1. A defamatory statement was made.
  2. The defamatory statement is a matter of fact, not opinion.
  3. The defamatory statement is false.
  4. The defamatory statement is about (“of and concerning”) the plaintiff.
  5. The defamatory statement was published with the requisite degree of “fault.”

I am not a lawyer (nor a professional journalist either). But in my opinion, when a press account describes Mr. Blankenship as a “felon,” even though he was found not guilty on the felony counts filed against him and was convicted only on a misdemeanor charge with a one-year prison term, they may want to ask their own lawyers to negotiate with Mr. Early. When approached with proper respect, he seems to be a nice man in my experience.

There is an alternative, which would be to go to trial in Mingo County, West “By God” Virginia. To get there, they might take one of those “Country Roads” John Denver sang about. You know the tune, “Almost Heaven, West Virginia…”

File photo of a jury box (photo credit: Ammodramus)

Once they get to the courthouse, they might acquaint themselves with the potential jury pool including some Coal Miner’s Wives. You know, women like Loretta Lynn’s mother.

Daddy loved and raised eight kids on a miner’s pay

Mommy scrubbed our clothes on a washboard very day

Why I’ve seen her fingers bleed, but to complain there was no need

She smiled in Mommy’s understanding way

Don’t say you haven’t been properly warned. Give Mr. Early a call today!

It may be Spring according to the calendar, but America's dominant media outlets are heading toward a brutal winter season when it comes to accountability for the actions. Not just a reckoning for pushing a hoax about Russian collusion with a presumed treasonous Donald, but potentially gigantic judgments in courtrooms. Recently, two parties have filed notable defamation lawsuits against powerful press outlets. The most talked about has been the 2 (so far) filed on the behalf of Nicholas Sandmann, the young student from Covington Catholic High School. His attorney has filed in Kentucky. Given that the press is so unaware of the attitudes of potential fly-over country jurors that they failed to predict the election of President Trump and failure of the Mueller probe, they may not recognize the financial threat those suits pose to their future. Time will tell. The settlement prices are in the $250 million range.

But my personal interest is in the most complex and nuanced suit filed on behalf of Don Blankenship, the unsuccessful Republican candidate for the Senate seat now held by Democrat Joe Manchin. His suit asks for $12 billion! Talk about “the audacity of hope”! So, I spoke to one of his attorneys, Eric Early of Early, Sullivan, Wright, Gizer & McRae. We had a pleasant, but brief conversation. The core of his position is that they firmly believe that Mr. Blakenship has been defamed and that he will win at trial. He suggested that anyone with an interest in their position read their filing with the court.

I first became aware of the case in a story on  the Mediaite website, which provided a link to the actual document.

Here is how they described their conversation with Mr. Early.

“Fox News, CNN, MSNBC and the other defendants in this case, when they represent themselves as a news outlet or news source, the public’s reasonable expectation is that they are indeed a ‘credible’ news outlet,” Blankenship’s attorney Eric Early, a failed GOP candidate for California attorney general, said in a statement to Mediaite. “It’s beyond wrong when they lie about facts that are easily ‘google-ible.’ These news outlets are going to have to decide at some point whether they are actual news or entertainment channels.”

For “injuries Mr. Blankenship has suffered,” he is seeking “damages in an amount not less than $2 billion dollars,” the suit notes, before adding that he also “seeks substantial punitive damages in the amount of 10 billion dollars.”

Their description of Mr. Early as a “failed GOP candidate” suggests a certain lack of caution about the financial threat that losing the case might pose to the titans of the “Mainstream Media”. It may be a very low probability outcome, but it might also be a “Black Swan” event.

Taking Mr. Early’s advice to heart, I read the complaint. Given the present state of affairs, it seems that Mr. Early’s best approach would be to apply Saul Alinsky’s Rule 4, "Make the enemy live up to its own book of rules."

To that end, I note that one of the defendants is the Associated Press, which conveniently publishes its set of rules in  a book, The Associated Press Stylebook and Briefing on Media Law 2018, ISBN 978-1-5416-7238-3.

On page 485, they list five things a successful libel plaintiff must prove

  1. A defamatory statement was made.
  2. The defamatory statement is a matter of fact, not opinion.
  3. The defamatory statement is false.
  4. The defamatory statement is about (“of and concerning”) the plaintiff.
  5. The defamatory statement was published with the requisite degree of “fault.”

I am not a lawyer (nor a professional journalist either). But in my opinion, when a press account describes Mr. Blankenship as a “felon,” even though he was found not guilty on the felony counts filed against him and was convicted only on a misdemeanor charge with a one-year prison term, they may want to ask their own lawyers to negotiate with Mr. Early. When approached with proper respect, he seems to be a nice man in my experience.

There is an alternative, which would be to go to trial in Mingo County, West “By God” Virginia. To get there, they might take one of those “Country Roads” John Denver sang about. You know the tune, “Almost Heaven, West Virginia…”

File photo of a jury box (photo credit: Ammodramus)

Once they get to the courthouse, they might acquaint themselves with the potential jury pool including some Coal Miner’s Wives. You know, women like Loretta Lynn’s mother.

Daddy loved and raised eight kids on a miner’s pay

Mommy scrubbed our clothes on a washboard very day

Why I’ve seen her fingers bleed, but to complain there was no need

She smiled in Mommy’s understanding way

Don’t say you haven’t been properly warned. Give Mr. Early a call today!