Monday, February 23, 2015

some more thoughts on what some call watchblogging, freedom of the press does not mean freedom from litigation (i.e. why you need to know what defamation is)

First, a link, HT to Phoenix Preacher:
http://www.courthousenews.com/2015/02/19/pastors-defamation-suit-against-son-advances.htm

Michael had a podcast late last year where he said 2014 was the year of the blogger.  He mentioned the work of, among others, Wenatchee The Hatchet.  The comments are appreciated.  Something Michael said in that late 2014 podcast was that it was important to articulate and appreciate HOW blogging about Mark Driscoll and Mars Hill was done, that it was actual journalistic work with carefully sourced and cited primary source documents. 

As watchblogging about churches and pastors as figures interacting with the public continues litigation must be taken as a given.  It's only a matter of when and not if a lawsuit will materialize.  It's a matter of when and not if defamation suits will emerge.  Christians who would undertake watchblogging on an occasional or vocational basis need to understand clearly what the freedom of the press does and does not entail.  You cannot expect to be protected from a defamation suit just because you're saying what you are certain is the truth about someone you think is a public figure.  As court discussions are revealing, what one person may construe as a public figure another judge may construe as not necessarily a public figure.  Watchbloggers need to have some understanding of theories of the press, defamation case precedents, and count the cost of what they can provably and journalistically discuss for the sake of public discourse. This has been more than just some pet project of Wenatchee The Hatchet over the last six years. 

Back in the old college days, Wenatchee The Hatchet took some courses in journalism.  One of the topics for discussion was what freedom of the press does and does not entail.  The First Amendment is colloquially known as ensuring freedom of the press and free speech but the reality is not all speech is protected.  There are whole swaths of unprotected speech. 

There's a way that xkcd put it  ... (go read it for yourself, it's short and sweet).

http://xkcd.com/1357/

The freedom of the press means the government (in theory, at least) can't arrest you for what you say.  It doesn't mean everyone else can't decide what you have to say isn't worth listening to.

More importantly, it doesn't mean someone can't decide they have a basis from which to sue you for defamation of character.  The First Amendment doesn't protect across the board in matters of defamation.  You can't just say what you will about anyone.  This is a detail that isn't very subtle and that watchbloggers have probably not adequately realized.  You get to say crazy or outrageous things about civil servants who are public figures.  The first amendment protects the liberty of people to say stuff about government officials as a way to encourage and preserve political discourse.  But not everyone is that kind of public figure.  Certainly your local or even regional megachurch pastor is not going to fit that category of public figure. 

So for private citizens, freedom of the press is no sure defense against a defamation suit.  You can't even necessarily rely on truth as the ultimate defense if the person we're discussing ISN'T a public figure.  If what you publish could be construed as permanently or significantly damaging the reputation of a person then even if what you published were factually true and the person is not a public figure (i.e. government employee for sake of this post) you can still be liable for, well, libel.  If you assert that someone did X and someone is a private citizen what you asserted could be libel.  Libel can, at least if memory serves, be the combination of disclosing a statement that harms the reputation of the person.  For public figures malicious intent would have to be established, but for private citizens not even this is necessarily the case depending on the state and the exigencies of the case.  If you were to say that a government official was guilty of embezzlement you'd have a free speech defense you wouldn't have if you said your neighbor was embezzling even if both might be true because the purpose of protecting speech is for the public good. 

For some reason Wenatchee The Hatchet has tended to be identified as a watchblog dealing with Mars Hill.  That has never been the case in intent or the sum of published work, but that's been how people have talked or written about the blog.  What needs to be stressed is that Wenatchee The Hatchet worked for years to stick with things that are public record and verifiable.  When Driscoll and Mars Hill sounded off on how some people made use of their intellectual property without giving proper credit, it was on the basis of that that Wenatchee The Hatchet broached the possibility that Driscoll himself had not adequately given credit to those whose writings and ideas influenced his approach to ministry (specifically, Dan Allender).  That the post-plagiarism controversy editions of Real Marriage gave Allender some credit can be cross referenced back to first-print editions of Real Marriage where you can see that was not what originally happened. It's not just that what was established was factually accurate, it was, how do we put this, redundantly verifiable, too.  It was a matter for public consideration.

What Wenatchee has not done is endorse or discuss allegations of what former MH leadership has allegedly said or done with respect to individuals, specifically certain long-since deleted allegations about individuals that could not be proven.  Defamation isn't protected speech and if a blogger makes a point of publicly expressing the sentiment that so-and-so's public career or ministry should die and makes claims about egregious moral offenses then, well, it's not hard to see how that could be construed as defamation.  The things alleged may even be true but the harsh reality is that if we're not talking about a public figure the truth defense alone won't cut it.  It's possible to be liable for defamation even if a person had made true statements that permanently damage a person's reputation. 

It can seem as though this or that story might be worth running if you're doing some kind of watchblog but you have to ask yourself if publishing that material would be worth going to court over and if you'd be willing to stake your reputation in a court setting on the veracity of what you publish.  It can seem as though too few watchbloggers have approached the discipline in this way.  While it is valuable that courts have upheld that bloggers have some first amendment protections there are journalistic responsibilities that must be upheld.  You have to acquaint yourself to the basics of what speech ISN'T protected and have some awareness that things you publish can damage people's lives.  You may at some point have to weigh the benefits of sharing information against the cost that may accrue to a person if information is made known.  There are stories and incidents and allegations Wenatchee The Hatchet doesn't plan to disclose because private citizens (even if they "seem" public) are (and should be) afforded protections and considerations that public figures don't have. 

And if you've read this blog for years you've probably already seen that this is a place where things are carefully and meticulously documented.  When things have been inaccurate (it happens, mere mortals, after all), corrections get made in a postscript or in comments at the relevant post.  As often or more, stuff has just not been discussed or in some cases comments have been deleted because some people who would sound off in blogs about this or that person either don't know or don't care to know what defamation is.  Christians toss around the word "slander" when they should probably use "gossip", and yet Christians have no problem slandering or libeling each other while thinking they are speaking up for the truth. 

So let's take a case like Mark Driscoll and Mars Hill. When Mars Hill lamented that people infringed upon their intellectual property it was on that basis that it was possible and legitimate to discuss whether or not Driscoll's books had adequately cited and credited the work of other authors.  Since Driscoll and Mars Hill had deigned to make a public statement about intellectual property infringements there was a warrant, based on their public engagement of that topic, to ask whether or not they met the standards they asked others to comply with. 

Since the Bible is a document anyone can discuss with respect to historicity and interpretation whatever Mark Driscoll presented for public consideration and consumption was fair game.  It wasn't unfair to raise questions about the basic competency Mark Driscoll displays in biblical languages when he interpreted Song of Songs.  That Mark Driscoll in some way encouraged his daughter Ashley to be a blogger and have a public voice was a matter for discussion, too.  That Mark Driscoll leaned heavily on an anecdotal conversation with his daughter for a defense of a tendentious reading of Esther was also a matter for public consideration.  But beyond that, there was (and is) no compelling reason to discuss what relationship Mark Driscoll may or may not have with any of his children, by and large. 

Back in school I remember hearing the advice that you should avoid relying on anonymous sources.  You can't be certain they aren't lying to you.  You can't be certain they aren't blowing the whistle on an organization that may have even terminated them with cause.  Conversely, you may have to ask yourself whether what you might report is worth damaging someone's reputation or career over.  It also matters a great deal what sort of figure we're dealing with.  Is it a private citizen or a public figure?  What level of public figure?  A failure to engage with the significance of these definitions makes the difference between being able to speak or write things that are controversial but within the realm of legally acceptable speech on the one hand, and being the subject of a judicially accepted defamation suit on the other. 

Watchblogging has its perils and though there are encouraging indications that watchblogs can be taken seriously we should not lose sight of the grim reality that if we're going to do this kind of thing there are ethical and journalistic considerations at play.  We need to know what speech is and isn't protected.  We can't hide behind "free speech" as a defense in every case.  The First Amendment protects you from being arrested but not from becoming subject to a defamation suit. 

I've deleted a handful of comments made at this blog over the years that were libelous.  Some people with old scores to settle with other people insisted on making allegations that, if they had any merit, merited a legal filing rather than some comment on a blog.  The court of public opinion is not the same as legal standing.  The court of public opinion and popular sentiment is not the same as what can be shown to have actually been said and done.  For years people insisted Mark Driscoll claimed Gayle Haggard let herself go and that's why Ted Haggard strayed with drugs and a male escort.  It didn't matter how many times Wenatchee proved that's not what Mark Driscoll ever said, the court of popular sentiment had made up its mind.  That feedback loop reinforced loyalties. There may yet be people who sincerely believe Mark Driscoll was somehow "taken out" by the "media", as if the majority of media outlets had any idea who Mark Driscoll is or why he might matter. 

This blog is not a watchblog and even if it somehow is taken to be a watchblog let's clear the air, it's not a vocational watchblog but an occasional watchblog.  When the mainstream and independent press failed to keep up with what was going on in the history of Mars Hill Wenatchee The Hatchet kept tabs on Mars Hill and the teaching of Mark Driscoll.  When the press started to catch up WtH stayed on task.  Now that the corporation is moving toward formal expiration and dissolution there's lots of other things Wenatchee The Hatchet is looking forward to discussing INSTEAD of Mars Hill.

But there are things that still need to be said.  With respect to anyone who would consider being a watchblogger, let alone a vocational watchblogger, you can't afford to be ignorant of defamation.  You can't afford to lean on the idea that free speech means you somehow shouldn't or can't or won't get sued for defamation.  At the risk of overstating things a bit, if you're not willing to stand by what you publish at a blog in a court you may want to avoid saying what you think would be great or clever or powerful to say.  If Brian Williams can't afford to just say anything without losing time from his job how much less do you think you'll get away with saying something you think is clever or true that may be construed as the basis for a defamation suit? 

Stuff to consider. 

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