A Few Notes on the Times Blockbuster - by Josh Marshall

[DonViejo]

By JOSH MARSHALL Published OCTOBER 2, 2016, 12:02 PM EDT

-snip-

First, a general point. At times like these, many people feel the temptation to impute hidden strategies to others when they see people flailing or doing stupid things. Did Trump maybe leak the documents on himself to get ahead of the tax story? Did he do it to distract from the Machado story? No. Of course not. All these ideas are preposterous. This is a deeply damaging story, both because of apparently not paying any income tax for many years while living a life of incomparable luxury and also because it puts hard numbers to the cataclysmic business failures that pushed Trump to the brink of personal bankruptcy in the early 1990s.

In itself the revelation is somewhere between very damaging and catastrophic. But that is almost a secondary question. The real issue is this: at the moment Donald Trump is clearly behind and there are little more than 30 days before the election. He needs a decisive shift in the race and he has very little time to accomplish that. Regardless of its specific impact, the tax story will probably take at least a week for the campaigns and the press to litigate. And that's a week Trump simply doesn't have to spare. In football terms it's like being down two touchdowns with only two or three minutes to go and you turn the ball over to the other team. If they score, its fatal. But even if they don't it's almost as bad because they'll run down time you don't have.

Others say, "Well, it doesn't matter. His supporters won't care." No, they probably won't. But that's not relevant. His supporters make up less than 40% of the electorate. Alone they get Trump a shattering defeat in Goldwater/Mondale territory. Right now Trump needs to hold wavering anti-Trump (but more anti-Hillary) Republicans and make serious gains with loosely-affiliated voters in swing demographics like suburban, married white women, college educated whites of both genders, etc. Saying he's 'smart' not to pay any taxes gives feral Trumpers something to yell about. It has very little traction outside the committed Trump camp.

An entirely separate point.

In the course of not denying the gist of the original Times story, Trump's campaign also threatened legal action against the Times. Is this a legit threat? Big picture: no.

This is actually a topic I know something about from years of running a news organization and working with media lawyers to do it. As a general matter, if documents fall from the sky into your lap, you are pretty much free to do anything with them you want - even if bad acts were involved as they made their way to you. It's a very different matter, or can be, if you were in communication with or working with the person who committed the bad acts prior to their commission. This is an area where journalists need to be very careful. You can easily get into a situation where the bad actor becomes your 'agent' and you become complicit in the bad acts. Your 1st amendment rights give you very, very little protection if you commit crimes in the process of getting your material. If we take the Times account at face value (and there's no obvious reason not to), this is clearly not the case. So if crimes or civil wrongs were committed in acquiring the documents, that's not the Times problem.

-snip-

http://talkingpointsmemo.com/edblog/a-few-notes-on-the-times-blockbuster

[marybourg]

1. Caveat

"As a general matter, if documents fall from the sky into your lap, you are pretty much free to do anything with them you want - even if bad acts were involved as they made their way to you."

Except for the fact that publishing them may be libel if they are not true. Low standard for libeling ordinary people. Much higher standard for libeling "public figures" like tRump, but there STILL IS a libel law. You can't just "do anything" because the " documents fall from the sky into your lap". (I'm in no way implying that these documents are untrue. Just correcting a misleading statement)

[localroger]

3. Actually, you are wrong

It is pretty much impossible for a public figure in the US to win a libel judgement. In the current situation, where the documents fell from the sky, it would almost certainly be protected under the 1st amendment. This was a deliberate choice by our founding fathers and makes our system very different from that of Great Britain, where even actual truth doesn't absolve you of a libel claim.

[marybourg]

4. For a "public figure"

the bar is high, as I said, but "actual malice" which has been defined in the leading case on the subject as "knowledge of falsity or reckless disregard for the truth" will do it.

[pnwmom]

6. Clearly the NYTimes acted neither with "knowledge of falsity or reckless disregard for the truth."

There have been no similar cases lost by a news organization. This won't be the first one.

[marybourg]

7. I didn't litigate the case, I just pointed out that the statement

" you are pretty much free to do anything with them you want" is incorrect."

[localroger]

9. That's pretty fine parsing

The fact is, you pretty much are free to do anything with them you want, as long as nobody can prove you know they're forgeries.

[Jade Fox]

2. "feral Trumpers".......

[RonniePudding]

5. Wait, so the hot new 11th dimensional chess meme on DU is bullshit?

Color me unsurprised.

[GreenPartyVoter]

8. He's been reading DU again.