What do you do when you screw up?
Back in early 2016, I joined the ranks of those who found the spoof Twitter account run by the Popehat guys all too plausible and wrote a Corner post expressing amazement that North Korea’s state news agency had issued a furious statement about National Review’s “Against Trump” issue. After learning that I’d been duped, I wiped the egg off my face and rewrote the post to emphasize that the account was a parody.
In November, New York magazine excitedly reported on the claims of computer scientists that “results in Wisconsin, Michigan, and Pennsylvania may have been manipulated or hacked.” No credible evidence of hacking was ever presented.
In December, Politico reported that the bank of Treasury Secretary Steven Mnuchin had “foreclosed on a 90-year-old woman after a 27-cent payment error,” a claim widely repeated in publications such as Vanity Fair. As the Competitive Enterprise Institute’s Ted Frank pointed out, the “widow was never foreclosed on and never lost her home, and it wasn’t Mnuchin’s bank that brought the suit.”
Do members of the media feel bad when they get facts wrong or gullibly repeat implausible claims? Guilty? Angry at themselves? Do they resolve to do better next time?
Some major media figures get things glaringly wrong, even in their areas of expertise, which is perhaps even worse than credulously accepting rumors and claims that seem too good to to be true.
CNN anchor Chris Cuomo is not a dumb guy. He graduated from Yale, got a J.D. from Fordham, and spent many years as ABC News’ chief law and justice correspondent. But somehow he repeatedly botched some basic legal and constitutional concepts, and made contentions that most legal experts dispute strongly.
Some major media figures get things glaringly wrong, even in their areas of expertise.
In 2015, Cuomo received a lot of public criticism when he tweeted, “Hate speech is excluded from protection. Don’t just say you love the Constitution . . . read it,” in reaction to an Islamist shooting in Garland, Texas. It was subsequently pointed out that hate speech isn’t mentioned in the Constitution and the First Amendment doesn’t include any specific limitations or exceptions. After getting a lot of grief for his initial statement, Cuomo clarified that he had meant to refer to the 1941 Supreme Court ruling in Chaplinsky v. New Hampshire, which excluded “fighting words” from the First Amendment, rather than to the Constitution itself.
There’s a lot of legal debate about whether today’s Supreme Court would uphold the Chaplinsky precedent, and subsequent cases have made clear that an action such as cross-burning can be banned or prosecuted for being threatening, but not merely for being hateful. It may seem like a fine distinction, but the court precedents indicate that an American can be prosecuted for his speech only if it is likely to bring physical harm to others; merely “hateful” speech cannot be proscribed.
During the public debate about WikiLeaks’s revelations last fall, Cuomo said on-air, “Remember, it’s illegal to possess these stolen documents. It’s different for the media.” After getting some pushback on Twitter, he muddied the waters further on Twitter, declaring, “hacking is a felony. POSSESSING wiki stolen info could be construed as a crime. Media gets an exception.”
Could downloading one of the documents from WikiLeaks and possessing it be “construed” as a crime? Just about anything can be “construed” as a crime if a prosecutor wishes to construe it that way. Judge Sol Wachtler famously said that district attorneys could “indict a ham sandwich.”
A better question is whether the criminal-justice system would treat possessing information from WikiLeaks as a crime, and the answer is almost certainly not. Law professor Jonathan Turley pointed out that hacking or stealing information is a crime but looking at it or publishing it is not.
“Just downloading and reading publicly-available material is unlikely to be viewed as a crime unless you use material to steal someone’s identity or commit a collateral crime,” Turley wrote on his blog. “Otherwise, possession of the Pentagon Papers would lead to the arrest of tens of thousands of citizens. More importantly, most people do not download these documents but read them online and there is no actionable crime in reading the material from any of the myriad of sites featuring the Wikileaks documents.”
I point this out not to pick on Cuomo, just to observe that you wouldn’t expect a guy who’s clearly educated in the law and the Constitution to make these kinds of errors. This is his area of expertise, and his errors would be easier to forgive if it weren’t.
Has the media gotten too comfortable with making the same mistake twice? It’s a fair question, judging from the increasing frequency of reporters accidentally (or perhaps not so accidentally) relaying “fake news” to the public or just getting basic facts and concepts flat wrong. If the answer is “yes,” the public’s already diminished trust in reporters will only continue to wane.
— Jim Geraghty is National Review’s senior political correspondent.