Product Dispargement or Freedom of Speech?
Nelville Flynn's latest post brings up an interesting argument that is worth discussing -- namely, are the "obey the law" signs product dispargement or freedom of speech? Here's what he had to say:
Isn't Wendy McCaw a public figure? Why wouldn't this be freedom of speech? In my view, the News-Press is not like a commercial product like Tylenol because they shape opinion and have a responsibility to the community, no? Also, is it the product that is in question or the public figure?
Please Note: This kind of a comment from Nelville often brings out the toughest comments in our readers and makes it hard for me to moderate -- please, please try to take it easy. No matter what I think of his arguments, I have to say that he is, with an exception or two, civil in his argument. Let's do the same in responding to my post -- think of it as a shout out to the holidays.
Legally, the News-Press enjoys the same protections as any business in defending itself against illegal product disparagement as well as personal defamation of character of its executives. The News-Press is exercising such rights in the Paterno case, notably. For the ACLU to attempt to handcuff the News-Press is unconscionable, particularly given that it is a small business with many outside forces arrayed against it.
Isn't Wendy McCaw a public figure? Why wouldn't this be freedom of speech? In my view, the News-Press is not like a commercial product like Tylenol because they shape opinion and have a responsibility to the community, no? Also, is it the product that is in question or the public figure?
Please Note: This kind of a comment from Nelville often brings out the toughest comments in our readers and makes it hard for me to moderate -- please, please try to take it easy. No matter what I think of his arguments, I have to say that he is, with an exception or two, civil in his argument. Let's do the same in responding to my post -- think of it as a shout out to the holidays.
posted by Sara De la Guerra | 12/22/2006 06:43:00 PM
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16 Comments:
Nelville writes, "The vast majority of the Santa Barbara community continues to silently support the News-Press by subscribing to it, patronizing its advertisers and appreciating its journalism."
I do not appreciate its journalism, but I do appreciate its journalists. I wish the News-Press management could say the same.
The News-Press isn’t “any business.” It’s the only type of business given the protection of the U.S. Constitution, notably in the First Amendment of the Bill of Rights. If Neville is Nipper, it’s another example of being completely out of his depth, as five months of public relations, legal and management blunders show. And to claim that Wendy McCaw is the “conscience” of our community is ridiculous.
"McCaw, Obey the Law" is not about the News-Press as a product, produced by many employees who have worked in this town for decades. It is about the owner's actions in the ongoing labor dispute, with the signs first appearing when union advocate Melinda Burns was fired by Wendy McCaw.
The wonderful thing about Neville's Paterno case is that Wendy McCaw and her lightweight boyfriend will be forced to testify, under oath, in depositions and on the stand, in a public trial, about the events depicted in the AJR article, in detail, with the non-News-Press press covering it closely. Even the co-publishers’ pillow talk about the newspaper is up for grabs. An Orange County judge won't give a damn about who they are or what wild attacks they may make from the white tower in Santa Barbara during the trial. Paterno will undoubtedly have at her disposal defense assistance from about 20 past News-Press journalists, who, unlike McCaw, are excellant communicators. Paterno will also have the deep pockets of the University of Maryland to fund the litigation, as well as the high moral ground. To paraphrase Tom Wolfe in “The Right Stuff” and with apologies to Ms. McCaw’s very public animal sensibilities, she screwed the pooch in suing Paterno.
The problems with Nelville's assertions are multifold. First, it assumes there has been illegal product disparagement and personal defamation of its executives. Whether disparagement is illegal is dependent on a number of issues, including the truth or accuracy of the utterance, and the context of the utterance. The same goes for the alleged defamation. Frankly, Nelville's assumption that the unspecified disparagement and alleged defamation are untrue is part of what the Paterno response will no doubt cover. But beyond this, the First Amendment protections afforded Paterno as a member of the press, are the same ones the SBNP enjoys. Surely Nelville does not suggest the SBNP will forego these protections, and he offers no reason why Paterno should either. As for the ACLU's role in defending persons expressing their views re the SBNP and McCaw, surely Nelville is not suggesting all such persons should lay prostrate before the legal threats issued by SBNP attorneys without examination of their legal validity or defense. Given our legal system's reliance on justice being obtained through the representation of opposing views to a court, surely the validity of SBNP claims, of Nelville's claims, can best be achieved by proper representation of those Nelville and McCaw complain of so justice can be achieved. Nelville does want justice does he not?
And please Nelville, do not try to portray the SBNP as some small vulnerable business unable to defend itself against the broadly expressed criticism of it, McCaw et. al.. You have the only major journalistic voice in the city, a unparalleled megaphone in the SB context. You have all the money in the world to scare anybody who speaks against you regardless of the legitimacy of the threats issued to create that fear. The SBNP, McCaw et. al. are and have conducted yourselves as anything but the defenseless sorts worthy of compassion as you choice of words suggest.
Nelville, shut up!
How did that feel? That is what the News-Press is trying to do to everyone in the community that disagrees with it, including its employees, lawyers in town, rival publications and authors, the religious community, and most recently, the business community.
Just because the News-Press has a lot of ink and paper and money and a beautiful building and a history in this community, doesn't mean it can reach out and silence everyone else. Nelville mistakes criticism for "deprivation of legal protection."
The "McCaw Obey the Law" signs are aimed at a public figure. As the ACLU letter says, as long as there is a legal dispute about whether McCaw/Ampersand has violated the law, then suggesting maybe she isn't obeying is not libel. It's the usual story about being able to dish it out but not take it.
Since the Teamsters started organizing, the News-Press must have published a dozen repetitious fraudulent screeds on its editorial page dumping on the Teamsters. Does the union sue, or threaten to? Does it file one of those bogus unfair labor practice charges like the News-Press has to challenge peaceful expression? No, because despite the use of scurrilous rhetoric like "Strong-arm" and "extortion", the Teamsters know in a labor dispute the law encourages, or at least tolerates, fiery and heated rhetoric. When even mild rhetoric is aimed at Ampersand and McCaw, however, she lashes out. She sends threatening letters to small businesses exercising their own First Amendment rights, she unlawfully fires and threatens to impose discipline upon her employees who are exercising protected legal rights, she sends out "cease and desist" letters, she sues a reporter, in unprecedented fashion for writing a "one-sided" article, when her p.r. flack refused to offer the other side, despite repeated requests.
Yes, the News-Press enjoys the same protections as any business, but also the same restrictions. That's the part that Nelville/Millstein forgets. Businesses are incorporated as a privilege bestowed by the state of California, and/or wherever Ampersand is incorporated, and libertarians are supposed to respect others' freedoms, not just exalt their own. The News-Press is going to get its corporate rear end kicked in the Paterno case, and hopefully, will end up paying not only its own lawyers, but Paterno's as well.
Nelville and company continually play the victim being haunted by an ever-changing band of conspirators, which is hard to pull off with so much cash on hand and lawyers in harness. Gilded circled wagons aren't so bad, eh Nelville/David?
How did the ACLU's letter "handcuff" the NP? What do you call Cappello's threatening letters to business owners in Santa Barbara? Exercising freedom? Why is that a one-way street? Is the News-Press the only business that gets to enjoy freedom?
It may be this hair salon episode that really shows the NP's true colors. Up to now, perhaps there were people who didn't care about journalistic integrity and unionization. Perhaps there are people in this community who, along with Laura Schlessinger and Nelville think, "Screw the employees. If they aren't sufficiently grateful, they can always quit." But up to the Cappello threat on a small business, the NP could have said it was the champion of business, keeping the Teamster hordes out of town. But even that phony mask is off now, Nelville. It's not about protecting business, it's not about the NP's perverse myopic and hypocritical version of journalistic ethics, it's not even about saving money; it's about scorching the earth and carpet-bombing every enemy -- real or perceived -- that might even consider voicing dissent. That includes all comers from all walks of life, and there is no category of people who are safe, except those who kiss the McCaw ring.
The "obey the law" sign is opinion. I My opinion is that Wendy is violating the law by not recognizing the newsroom votes. The final determination will probably be determined in the courts.....until then, essentially, it is opinion and if I am not mistaken opinion is protected.
Assertions that the votes for union representation were somehow invalid are, in my opinion, an effort, to defame and disparage the union as well as that "small band of troublemakers." Again to be determined in the courts.
Legal proceedings could prehaps result in subpoenas which could require the appearance of Nellyville, on the stand and on record, stating as to why accustions of "sucrrilous attacks" were indeed "scurrilous."
I my opinion, it is immoral for Nellyville to post the "moral argument" that the "vast majority of the Santa Barbara "community" continues to support the News-Press by subscribing to it."
Nellyville's seems to suggest that the "majority" would take a stand is absurd. History is full of moments where the majority failed to take a "moral" stand. Nellyville, selling a product, such as a newspaper, does not equal justice!
"particularly given that it is a small business with many outside forces arrayed against it" Huh? How many small businesses have the nearly unlimited financial resources that McCaw/Von Cheeseburger Combo platter has to bully, intimidate and
threaten other local business owners, I thought the threats against the Barbershop were such a great example of Nelville's obvious concern for the rights of small business owners everywhere.
Calling for any person to obey the law is not technically disparagement. True, the statement carries with it an implication of possible law breaking, but the statement does not make any specific allegation. In fact, one could argue that an admonishment to obey the law is simply a reminder, such as a speed limit sign on the freeway (which, by the way, few obey). Whether or not the owner of the News-Press has indeed obeyed the law with regard its relationship with its organized employees is an open question at this point, i.e., arguments for either proposition could be made in a court of law and considered by judge or jury. Therefore, since the legality of the labor relations actions of the News-Press owner may or may not be legal, it is perfectly valid to post a sign that reminds Ms. McCaw that her relations with her employees should meet both the spirit and the letter of the law. Finally, time and again throughout the course of our grand experiment with liberty in this nation, the decision has been to err on the side of free speech. Such a policy does is not always the most comfortable one, but it has traditionally resulted in the most liberty for the greatest number.
There are many silly and contradictory arguments in Nelville's last missive, but this one is the most glaring:
For "product disparagement" to exist, Nelville and the News-Press would have to demonstrate in court that Ampersand Publications suffered pecuniary damage caused by outside forces such as Susan Paterno and Does 1 through 100. Yet Nelville also contends that a vast silent majority of Santa Barbarans still subscribe to and support the News-Press, thus implying that little if any pecuniary damage has occurred.
So which one is it?
Norville (shaggy) rogers, my vote for Neville’s silliest and most contradictory statement is this:
The News-Press is like “any business” (say, a porkburger stand) yet somehow is our community’s elevated “conscience.” The News-Press once may have been the latter but now through bullying and loss of quality is strictly the former.
“Like any respected newspaper” is just Neville dreaming about what once was … and what will never be again with he and his girlfriend at the helm.
Though I disagree whole-heartedyly with the way Wendy McCaw has been handling business. I also disagree with the moderators final stanza about the News-Press having some sort public responsibility. As much as myself and many others would like to think newspapers have some responsibility - they don't. Papers, unfortunately, like TeeVee and radio news, entertain the same mass conglomeration, big business or small business interests based on the bottom line (sometimes agenda)as any other corporation, LLC., whatever. Unfortunate? I think so. But that's the market responding to the world's unyielding lust for growth at any cost (capitalism). By the journalism, moral, romantic textbook (true in my opinion), Wendy does have a responsibility to uphold some greater cause. But by the micro/macroeconomic model of a $150 million investment made by a person who doesn't know dick about dick - I don't have much faith left in anybody, especially the likes of McCaw, Murdoch, Singleton . . . and on and on and on. When it's about money, like it is, what hope does anybody really have?
Joe, while technically you are right -- morality aside, businesses' duties and responsibilities are quite limited in America -- there are laws enacted in this country and this state to rein in some of the worst corporate and market practices, and to encourage better treatment of the environment and of workers. Hence, we have workplace health and safety laws, anti-discrimination laws, antitrust laws, basic laws against fraud, consumer safety laws, and laws that actually encourage -- yes, encourage -- the advent of collective bargaining in the workplace. As a libertarian, McCaw should know well that her right to do as she pleases with her business ends with harm to the rights of others, but that obviously hasn't stopped her from threatening current and former employees and representatives of those employees, suing a reporter who wrote a critical (but non-defamatory) article about the NP, threatening shopkeepers for trying to exercise their First Amendment rights, filing bogus legal actions of all types, and stalling her legally-compelled duty to negotiate a collective bargaining agreement with her employees' union by interposing frivolous legal objections. There can be countervailing forces to scads of money, like community pressure, precisely-aimed legal and other actions, and other lawful peaceful tactics that will ultimately win the day.
Dear anonymous,
While I wish I agreed with you, I cannot believe safeguards exist to protect against corporate crime. Rarely are the powers that be punished for their idocy and arrogance. Our government is set up with as many "checks and balances" as anything, yet the congress, senate and even the judiciary regularly fall under the heavy hand of money and corruption. Media, though extremely important to sustain a democracy, is and has been tainted for years, since I believe the dictionary term of democracy does not exist in these United States, nor anywhere in the world. I think the U.S., and every country we promote "democracy" in, are either plutocracy's, or brutal dictatorships, which far better represent our desire for the spread of capitalism first and foremost everywhere especially here. We are doomed. And the so-called safeguards cannot save stop the wheels of action. It will take a whole hell of a lot more.
Joe, I don't think we're so far apart on this. In your earlier post, you said you doubted corporations like the NP had responsibility, and my response was there are laws in place (morality aside) that do, in theory, restrain them. I thought you were talking about whether there was even a theoretical way to rein them in. There are corporations that believe in being good citizens (re: the environment, their workers, their communities) and act upon that belief. But I have to agree with you generally that the media has fallen down on the job of reining in the government and corporations -- the chief abusers of large accumulations of wealth and power -- and in that sense, I worry that newspapers' decline will only make that worse. I don't think the blogosphere is a good place for investigative journalism. It doesn't have that ability to act and inquire in a sustained (as opposed to instant) way, so corporations and the government will be that much more free to abuse power and wealth. And yes, generally corporate power is 'way ahead of the government's ability to regulate, or the private sector's competitive ability to point it in decent directions, or the media's ability to expose and therefore contain (especially when so much of it is dedicated to entertainment). On top of that, corporations are constantly railing against the relatively miniscule regulation they do encounter, and threaten to leave the state or the counry (or at least outsource jobs) if government dares to impose environmental, workplace or governance controls. What has to happen, and I don't know how it would, is that people need to rise up, pay attention to these matters in far greater numbers, and not let the power vacuum be filled by the plutocrats.
Seems to me the owners of the paper are confusing the product with themselves. Criticizing Management isn't the same as criticizing the product.
And therein lies the entire problem with the paper. It's not supposed to be about the Management, but that is what it has become, which is why we no longer subscribe.
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