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  • JournoList as Bait-and-Switch Fraud?

    Posted by Shannon Love on July 23rd, 2010 (All posts by )

    The apparent collusion between politicos, advocacy journalists and supposed objective journalists on the infamous JournoList forum raises an interesting legal question.

    Could some of the journalists participating in the list have committed legal fraud against their readers?

    We live in a world of implied contracts. When you buy any physical product there exists an implied contract that the product meets some vaguely defined level of acceptable risk. Every time you buy anything: food, gadgets, cars, houses, etc., you enter into an implied contract in which the manufacturer commits to the product meeting this fuzzy level of acceptable risk. Product “safety” trial lawyers make their considerable fortunes suing manufacturers for failing to meet this ambiguous level of “safety”.

    It would seem that a similar implied contract exists between those who sell “news” and those who buy it. In this implied contract, the information being purchased is supposed to be as objective as humanly possible. When you buy a news product you do so to get concrete information for your own needs. You don’t spend your own money so that someone else can manipulate you for their own ends.

    If a news-selling organization claims to sell objective information for the benefit of the buyer, but nevertheless knowingly employs reporters who secretly collude to manipulate the readers, hasn’t that organization defrauded its readership? If you offer one kind of product but deliver another, how is that not fraud?

    Just because the product is information should make very little difference. After all, if I sold a map that claimed to be accurate down to the meter but it was actually only accurate down to 10 meters, that would be a clear case of fraud. How is that any different from a reporter that claims to sell you an objective summation of events but who instead sells you a story fabricated specifically to manipulate you? If you pay for one thing but get another, that is fraud.

    Journalists have long lived in a legal environment of staggering irresponsibility. Virtually alone of all the businesses and individuals in the country, they operate completely free of legal consequence. Hell, journalism is the only field wherein a claim of incompetence is an actual defense in a lawsuit. Everyone else has to meet strict standards and fulfill explicit and implicit contractual obligations. Journalists, by contrast, are like kindergartners. They just have to try their best.

    Well, their “best” is no longer good enough. It is high time journalists grew up with the rest of us. We can start by holding them accountable when they intentionally sell propaganda deceitfully marketed as objective news.

    Note that I’m not talking about libel issues here. I’m talking news sellers advertising that they sell objective news while behind the scenes they are engaged in conscious collusion to push propaganda for the benefit of others without the knowledge of the buyer.

    It’s the plain fraud of the classic bait and switch.

    Perhaps some lawyers can weigh in on this but from my layperson’s perspective I smell a class-action lawsuit.

     

    12 Responses to “JournoList as Bait-and-Switch Fraud?”

    1. bgates Says:

      You’d have to find subscribers to the Washington Post or the New York Times who don’t want to be lied to. That’s a pretty small class.

    2. Retardo Says:

      Didn’t somebody on JournoList say much the same thing, in the conversation about getting the FCC to pull Fox News’s broadcast license [sic, sic, sic — they’re on cable]?

      I don’t much like what those creeps are doing, but you — and they — are talking about getting the government involved in limiting political speech, one way or another. And that’s just not acceptable.

      The public-reputation “system” we have now is pretty flaky. It would be nice if left-wing news hoaxes got the kind of public shaming coverage Breitbart’s going to get for dishonestly attaching Sherrod. But nobody said life was fair. And what you’re proposing is far worse, both practically and in principle.

    3. bgates Says:

      Do you have any evidence that Breitbart acted dishonestly?

    4. Shannon Love Says:

      Retardo,

      I was actually thinking in terms of a civil suit. It would prove embarrassing if nothing else.

    5. Robert Schwartz Says:

      The freedom of the press is protected by the First Amendment. It provides a weighty reason why a an action against the media would not get thrown out of court pronto. The constitution does not mention a freedom to sell dishwashers.

      Further, reliance on the falsehood is an element of fraud. No sane adult believes a word of the bilge that flows from the media. Liberals believe the media, and would not claim they are being defrauded.

    6. Shannon Love Says:

      Robert Schwartz,

      The freedom of the press is protected by the First Amendment. It provides a weighty reason why a an action against the media would not get thrown out of court pronto. The constitution does not mention a freedom to sell dishwashers.

      (1) You’re making the classic error of believing that the Constitution grants rights to the people instead of granting limited powers to the government. The freedom of the press is just an enumerated right. The 10th amendment makes it clear that enumerated rights are not the only rights but instead that all rights are reserved to the people. So, yes there is a freedom to sell dishwashers because the Constitution grants no power to the Federal government to prevent people from doing so.

      (2) The “press” in the first amendment is the actual device, not a profession or business entity. Journalism did not exist in 1792. “Freedom of the press” was a well understood term of art in the day meaning the right not to be censored. Freedom of the press means the right of individuals to communicate freely. It does not privilege one group of citizens over another.

      (3) By centuries old precedent, freedom of speech does not protect against fraudulent claims. No one has the right to take money, goods or services from another person based on lies. For over a century the Federal government has regulated the speech of both business and individuals when it comes to commercial transaction. The FTC and the FDA are both organization largely concerned with regulating the speech of businesses.

      In this case, we have clearly fraudulent claims. Journalists are claiming to sell information that is as objective as humanly possible when in fact they are conspiring behind the scenes to sell political propaganda instead. How is that different from using fraudulent claims to sell anything else?

      No sane adult believes a word of the bilge that flows from the media. Liberals believe the media, and would not claim they are being defrauded.

      Yes, that would be their only defense. “It’s okay because everyone knows we’re liars so no one was defrauded!”

    7. Robert Schwartz Says:

      Shannon: I am so sorry to say this, your arguments are very reasonable, but as I recall the case law (although I have not researched it recently) the courts do indeed mention the First Amendment as being a weighty policy reason for rejecting product liability actions for books. The Supreme Court did the same in rewriting the country’s defamation laws.

      If I wanted to be more cynical, I would also add that the judiciary does not want to get into a slagging match with people who buy ink by the barrel.

    8. mishu Says:

      Bgates,

      The narrative has gotten ahead of Breitbart’s intent. It’s now out that Breitbart wanted to get Sherrod fired for not doing all she could for the white farmer in financial trouble. It doesn’t matter if he wrote on his blog or went on ABC to state that he wanted to highlight the positive oral feedback from the NAACP audience over Sherrod’s lack of enthusiasm to help a white farmer. The narrative state’s he cut off the video before the rest of the story was told or if he didn’t cut off the video, he didn’t follow up. And that’s what is so easy about this game of telephone that’s out there. BP had no cut off device. Sarah Palin never reads a newspaper so she’s uninformed. All Americans are fat and they killing the planet with CO2. And on and on.

    9. zenpundit Says:

      I have to wonder if this coordination with an intent to influence the election is in violation of our byzantine campaign finance laws, either as an undeclared donation in kind, donations in kind from ineligible foreigners or under McCain-Feingold. If this was an illegal act ( I don’t know if it is, I am not an attorney)then conspiracy charges also apply whether or not any actions were taken.

      If the shoe was on the other foot, if there was a “ConservoList” coordinating a hoax/smear campaign by the WSJ, Rush, Instapundit, Hannity, Beck, Malkin, The Weekly Standard, Coulter, NRO etc. against leftwing figures specifically and with the acknowledged intent to influence coverage of the 2008 election, what are the chances the FEC and DOJ would be investigating, calling grand juries and putting prominent conservatives through the financial wringer of unending legal fees even if chances for a conviction were dim?

    10. Joseph Somsel Says:

      Mr. Love’s explanation of the Constitution and the Bill of Rights is correct. Hamilton and the Federalists argued against a bill of rights by saying that “of course” the proposed constitution only gave specific, select, and limited duties to the federal government. Going beyond those duties and powers would be obviously inconstitutional.

      I think this was one of the later articles in the Federalist Papers.

      They conceded the argument as a compromise to get the Constitution ratified.

      In a civil suit, I think that purchasers of information generated by Journo-List people might have a case but I’d expect that the individual amounts would be trivial.

      Of course, class action lawsuits could make some lawyers very wealthy.

      Still, I don’t expect it to happen. Better to let the NYT go bankrupt by themselves.

    11. JVDeLong Says:

      There is an interesting parallel to the SEC case against Goldman Sachs, which was based on a similar misrepresentation. GS told the prospective buyer that the securities in the package had been vetted by a hedge fund that was going to be on the long side, and thus had incentives that were congruent with those of the prospect, when in fact the selection was made by a hedge fund that was going short, with interests the opposite to those of the buyer.

      In the news context, it is hard to think of any actionable harm that a reader of the newspaper endured, but I am sure that the misrepresentation about the incentives of the reporters would allow a subscriber to rescind his contract of subscription.

    12. Michael Kennedy Says:

      the kind of public shaming coverage Breitbart’s going to get for dishonestly attaching Sherrod.

      I’m, afraid I don’t see Breitbart “attacking” Sherrod but he has done a great job of puncturing the planned campaign tactic of race baiting, which is all the Democrats have for the fall campaign. He posted a video of her making statements. There has a large kerfuffel about the fact that the video was incomplete (not edited or doctored). However, the people who “attacked” Sherrod were the NAACP and Tom Vilsak, not Breitbart. The panic by the administration shows just how much they were planning to attack tea parties on racism charges.

      Breitbart is a very sharp guy and I believe he has more tapes. By the way, those who attack Breitbart, have you seen the rest of the video and her subsequent statements ? You might want to look before sawing any more through that branch you are sitting on.