To quote Buckaroo Banzai, the deuce you say! We should be shocked, shocked that a tabloid publication might have manipulated its reporting for a specific impact on an election, says, er … the New York Times:
Federal authorities examining the work President Trump’s former lawyer did to squelch embarrassing stories before the 2016 election have come to believe that an important ally in that effort, the tabloid company American Media Inc., at times acted more as a political supporter than as a news organization, according to people briefed on the investigation.
That determination has kept the publisher in the middle of an inquiry that could create legal and political challenges for the president as prosecutors investigate whether the lawyer, Michael D. Cohen, violated campaign finance law.
It could also spell trouble for the company, which publishes The National Enquirer, raising thorny questions about when coverage that is favorable to a candidate strays into overt political activity, and when First Amendment protections should apply.
We’ll get back to the First Amendment question in a moment. First, lest one think irony is dead, be sure to catch this premise to their argument:
From the beginning of the campaign, A.M.I. promoted Mr. Trump and savaged his opponents, sometimes with unsubstantiated stories alleging poor health, extramarital affairs and the use of prostitutes.
Ahem. Perhaps they learned that technique from none other than the Gray Lady itself. Ten years ago, not long after endorsing John McCain in the 2008 Republican presidential primary against Mitt Romney, the NYT ran a series of smears against him as he prepared to take on Barack Obama in the general election. Among the smears: poor physical health, extramarital affairs, and false implications of corruption, among others. The report on the Vicki Iseman “affair” got ripped by its own ombud at the time for reporting speculation as fact:
A newspaper cannot begin a story about the all-but-certain Republican presidential nominee with the suggestion of an extramarital affair with an attractive lobbyist 31 years his junior and expect readers to focus on anything other than what most of them did. And if a newspaper is going to suggest an improper sexual affair, whether editors think that is the central point or not, it owes readers more proof than The Times was able to provide.
Sounds kinda like … a tabloid story, no? And let’s not forget that the Times continued to beat most of these drums all the way down to Election Day, with the exception of the Iseman smear. The National Enquirer’s got nothing on the New York Times when it comes to weaponizing editorial choices.
With all this in mind, let’s return to the question of “when coverage that is favorable to a candidate strays into overt political activity, First Amendment protections should apply.” Put simply, there is no contradiction or boundary between those, not even at the New York Times. Its editorial board actively engages in “overt political activity” with its candidate endorsements by definition; should the First Amendment apply then? Yes! Even when its editors smear candidates through dishonest “reporting,” as so baldly demonstrated in 2008, the First Amendment applies.
To the extent that reporting runs afoul of libel laws, its victims have recourse through lawsuits. To the extent that such coverage might involve illegal payoffs and conspiracies, we have criminal laws to deal with such matters. But the reporting and non-reporting itself is entirely covered by the First Amendment, with the credibility for such antics left to the publication’s readership. The National Enquirer doesn’t enjoy a sterling reputation in that regard as it is, but perhaps the New York Times’ reputation is more than a little overblown already.
In fact, it’s a little surprising to see a newspaper argue (passive aggressively as they do here) for limitations on free speech and freedom of the press. Anyone truly shocked, shocked at this drawbridge-raising attempt by the NYT can take a share of this Captain Louis Renault Award that the Paper of Record gets for its hypocritical hyperventilation about editorial activism at the National Enquirer.