When “anticipatory obedience” becomes “autocratic capture”
Protect Democracy
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The ABC settlement, Disney, and the need for collective defense
For many press watchers, the ABC News settlement last weekend had serious Neville-Chamberlain-in-Munich energy.
Certainly, this is the most important development so far in the brewing existential struggle between the incoming Trump Administration and the free press.
The key point to understand is that this is a lot bigger than just a battle between Donald Trump and individual journalists like George Stephanopoulos.
Considering the deep interconnections between America’s media and its corporate sector, this is part of an effort to bring the private sector as a whole to heel. To enforce what Ian Bassin has termed “autocratic capture,” a pattern in backsliding countries around the world. Using government power to coerce political loyalty (and money too) from anyone with wealth, power, and influence.
And if corporate America and the media don’t collectively stand up — early and vigorously — they may all find themselves under the thumb. As will we all.
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A quick primer on “actual malice”
Before I go any further, the important context here is that the First Amendment is supposed to make this sort of bullying and silencing of the press by public officials extraordinarily difficult.
One of the ways it does so is the “actual malice” standard for defamation cases, which applies to statements about public officials and public figures. As John Langford, Rachel Goodman, and Rebecca Lullo explain, in an “actual malice” case, the plaintiff must prove that the defendant either knew that the statement was false at the time, or else demonstrated “reckless disregard” as to its falsity.
(This standard, by the way, was first articulated in a Supreme Court case over a defamation claim brought by a political figure against a newspaper in New York Times Company vs. Sullivan.)
Obviously, it’s quite difficult to prove in court that someone knew they were lying, which is why it’s so hard for public officials to win defamation cases — and why they seldom pursue them. This helps protect public debate and a free press. Per John, Rachel, and Rebecca:
In practice, the “actual malice” standard protects criticism; it protects the unfettered speech essential to democracy. And it’s fair: it ensures that only those who knowingly or recklessly lie about powerful people and matters of public concern are liable.
Read more: The “actual malice” standard, explained.
That’s why many legal observers expected ABC to win the case and were surprised by the decision to settle.
It came down to two factors: (1) ABC News is a subsidiary of the Walt Disney Company and (2) exactly a month from today, Donald Trump will be president.