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Editors, reporters, lawyers discuss journalism in the age of ‘Fake News’

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Law booksPresident Trump may label news coverage he doesn’t like as “fake” and claim to be at war with the media, but Washington Post Executive Editor Martin Baron swats down that conflict characterization between his paper and the president.

“On President Trump first day in office . . . he went to the CIA and said, ‘As many of you may know, I’m at war with the media.’ I’ve said since then we’re not at war with the president or with his administration. We’re not at war, we’re at work,” Baron told the “Fake News, The First Amendment and Defamation — The Power of the Pen” seminar June 27 at the Bar’s Annual Convention in Boca Raton.

The Presidential Showcase program was sponsored by the Bar’s Media & Communications Law Committee.

Baron, appearing via Skype and answering questions, continued, “We’re doing our job . . . under the First Amendment of the Constitution. [When] James Madison talked about that First Amendment — he was the principle author of it — he talked about the right of freely examining public character and measures” Baron said journalists we considered it their obligation “to do that sort of work” notwithstanding the attacks made upon them.

Baron said hostility toward the press and the Washington Post has not hampered the paper’s ability to obtain information.

“Our access is pretty good, we have a good relationship with people in the administration,” he said. “Aside from the public statements of the president and some people. . . we’re treated fine. People understand we’re trying to get the facts and get the information out there.”

And, perhaps ironically, he said, as the media has been attacked, public confidence in the press has increased overall, going up among Democrats and independents and declining among Republicans.

“It’s not a popularity contest we’re involved in here,” Baron said. “We have to do our job. What we’re trying to do is be accurate and honest in our reporting.”

Before heading the Post’s news operations, Baron held similar positions at the Boston Globe and the Miami Herald where the papers respectively won Pulitzer prizes for covering the Catholic Church sex abuse scandal and the Elian Gonzalez saga.

Aside from Baron’s appearance, other panels at the seminar looked at defamation with Palm Beach Post investigative reporter Pat Beall and media attorneys Rachel Fugate and Nathan Siegel; the First Amendment, censorship, and fake news with 11th Circuit Judge Jose M. Rodriguez, First Amendment attorney Richard Ovelmen, Paul Wright, founder and executive director of the Human Rights Defense Center which publishes Prison Legal News, and media attorney Dana McElroy; and a wide ranging discussion with Aminda Marques Gonzalez, president and publisher/executive editor of the Miami Herald Media Company, and Paul C. Tash, chair and CEO of the Times Publishing Company which operates the Tampa Bay Times.

The discussions ranged from public record access to possible changes in libel and defamation laws to the economic and other pressures facing traditional media — and the importance of what that media does.

Tash noted in 2006, the two newspapers in the Tampa Bay area had combined advertising revenues of $400 million. Now, the Tampa Bay Times has taken over the Tampa Tribune and the single paper’s ad revenues are $100 million. However, overall readership is about the same as the two older papers.

Gonzalez said the Miami Herald, because of its online presence, is reaching more people than ever. And it now reaches people outside the South Florida geographical area.

Newspapers and similar journalistic operations remain important, she said, because other alternatives — like lone “citizen journalists” with online publications — can’t marshal the resources for major stories. Gonzalez pointed to the Herald’s recent investigation of the federal prosecution in Florida of Jeffrey Epstein on charges of sex trafficking of underage girls, which resulted in a light sentence and which a federal judge has ruled violated the law. (Epstein was rearrested in New York a few days after the seminar.)

Tash related the Times recent exposé on a local prominent hospital reputed for cardiac care of children, but which in reality had a high rate of fatalities and injuries. (The hospital ceased handling such cases, and the Times won a Pulitzer prize for the its work.)

“Here’s the fundamental truth. Opinions are cheap, facts are expensive,” Tash said. “That why on cable news you see all these talking heads. It’s opinion.”

Beall, on the following panel, also said newspapers follow strict journalistic standards, such as when she “sits down with my editors and sometimes spend half an hour on a single sentence or a single phrase to make sure it is accurate.”

Much of that panel’s discussion focused on “deep fakes” and the responsibility of online platforms such as Facebook and Twitter.

While recognizing Beall’s frustration, Mansfield said determining what’s published online is complex. “I don’t want a corporate big brother determining what people can say to each other,” she said.

And while creators of “deep fake” videos are not protected by defamation and libel laws and precedents like New York Times v. Sullivan, the perpetrators can be difficult to identify, she said. Siegel added. “I don’t think we want the government or the courts to become the arbiter or taking things down because it’s demonstrably false.”

The panel also discussed U.S. Supreme Court Justice Clarence Thomas’ recent dissent where he called for reconsidering the Sullivan decision, considered the basis of modern libel law since it was decided in 1964, as well as President Trump’s criticism of the press and frequent threats to change laws or pursue legal action.

But as Siegel noted, “The irony is as much as President Trump has talked about libel laws, his actions have been to repeatedly invoke the First Amendment to protect himself from defamation suits.”

The final panel discussed fake news and the difficulty of disseminating information in a politically polarized society. Or as Ovelmen put it, “Belief has replaced knowledge.”

One solution, McElroy said, is “just have the value of transparency. That’s how to combat fake news. I think we must continue as a country and as a media bar to push for more and continued transparency.”

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