Florida Takes Aim at The New York Times’ Editorial Independence

Florida AG Seeks Greater Board of Directors Involvement Into the Times' Newsroom

Even though just in the last few weeks there have been a number of new and awful threats and attacks on the media coming out of Washington, it’s important not to lose sight of the similar, but sometimes more heinous, assaults on a free and independent press arising in the states. This column focuses on a new and dangerous action undertaken by the Attorney General of Florida – Government’s leveraging stockholders’ rights to attack the press, and involve a media company’s Board of Directors in so doing. But before detailing the rather outrageous Florida action, it is worth noting some of the federal offensives in just the last few weeks which set the stage environmentally for the anti-media activities of state officials.

In the last few days the President has asked the FCC to rebuke or punish NBC’s Meet the Press moderator Kristen Welker for her political analysis in a news interview (on top of his quest to fire Jimmy Kimmel a few months earlier); called a New York Times female journalist a “third rate reporter who is ugly” (following terming a Bloomberg reporter a “piggy”); changed the name of Lake Ontario to Lake America leading to the fear that he will restrict access to the White House to media who don’t follow that prescription (just as he restricted access for the AP which didn’t follow his name change of the Gulf of Mexico to the Gulf of America) (Note with this change, the Great Lakes mnemonic changes from “HOMES” to “SHAME” or one letter off “HAMAS”); and just last week his Treasury Department, without explanation, denied credentials to a few specific reporters of the New York Times, Wall Street Journal and Bloomberg to attend a finance meeting of the G20. (Only slightly worse than requiring journalists to have escorts when newsgathering at the Pentagon).

His attacks on the media as “Enemy of the People” and his repeated rhetoric of their content as “Fake News” make the Nixon/Agnew nomenclature of the press as the “nattering nabobs of negativism” classy by comparison.

Because the focus of this column is on Florida, not the White House, I won’t belabor the point. I will recommend instead a Poynter report “What 100-plus federal actions reveal about the Trump administration’s campaign against the press,” based on the tracking performed by the Press Freedom Watch project. To be fair, I would just note that the 100 examples do not include verbal attacks or threats against journalists – comments which have fomented hatred toward and distrust of the media – or examples of self-censorship on the part of the press.

The Florida example, which to my mind has been surprisingly underreported, is one of the most nefarious attacks on the media. It involves a putative investigation, begun by a 28-page letter demanding documents, into The New York Times Board of Directors oversight of the Times’ news product. Whether it was concocted by Florida Attorney General James Uthmeier, who signed the letter, or was done at the behest of his boss Governor Ron DeSantis is unknown.

The letter states “This Demand arises from the Company’s repeated publication of factually unsupported content and from the perceived absence of any control and required supervision by the Company’s Board of Directors.” The AG’s interest stems from Times stock which the Florida Retirement System Trust Fund holds. While the letter concedes “editorial judgment belongs to its editors and what it chooses to publish is protected by the First Amendment” (ominously modifying that by adding “under current Supreme Court precedent”), the letter proceeds to undercut and negate those very values. It contends that while New York law permits directors to rely on the Company’s officers, counsel and professional advisors, that only pertains where the reliance is “reasonable and in good faith”, but never where the director “has knowledge concerning the matter in question that would cause such reliance to be unwarranted”.

Indeed, the letter avers the Board should be learning whether the newsroom’s own standards are being followed, and complains that there is no procedure formalizing such monitoring; that appears to suggest that the Board ought to be getting involved pre-publication – so as to avoid and protect the Company from the costs and list of horribles it warns of. The state’s desire that the Board ought to be involved pre-publication is made clear later in the letter: “Whether the Board evaluated that exposure {Prime Minister Netanyahu’s complaint about Pulitzer Prize winner Nick Kristof’s column asserting that Israeli prison guards sexually assaulted Palestinian detainees} – and what it was told about the column’s sourcing before or after publication – is not ascertainable from public sources” (emphasis added).

Ultimately, the letter and Demand strongly suggest that since there is no direct reporting process from the newsroom to the Board and because there have been a few loud critiques – unproven, I might add – about Times pieces, the Board and the Times have abdicated their duty to their stockholders. And the damage they claim seems mainly to be the legal fees that the Company must therefore expend to defend itself from the ensuing attacks. Another putative damage cited, that these “sustained editorial failures” without Board oversight will make the Times become “a newspaper the public comes to regard as untrustworthy” is rather belied by the Times’ recent increase to over 13 million readers.

Before getting into the details, on its face the AG’s position seems wholly problematic. First, the Times has prided itself on its “Ethical Wall” for close to a century, that the business side of the paper does not get involved and does not influence the newsroom. When I was there I was taught that the only exception to that rule was in the case of a major airplane crash, the advertising department would be notified so that it could avoid placing airline ads on pages near the crash coverage. One could argue about whether the Board is or should be considered the business side of the paper, but in any case, I believe to some degree the Board does get informed about newsroom issues by the Publisher, by counsel and occasionally by the top editors themselves. And they certainly can and do reasonably rely on the Executive Editor and his or her staff, who are unarguably among the best and most respected journalists in the country.

But the AG’s position is even more specious in its repeated plaint that all this Times content in the end results in high legal fees, and that is what hurts the stockholders. By that rather absurd theory, the Washington Post should not have done an investigation into Watergate, because it clearly would have engendered criticism and complaints from high government officials, which, in turn, would have resulted in retention of lawyers to respond – all at a cost to the shareholder. I guess the AG would rather the Times and the Post stick to filling their pages with recipes and high school football scores.

Again, it’s not inappropriate to seek review of whether a company’s Board is properly overseeing the ethics, standards and maybe even the judgments of its business. But in a nation whose ruling document touts an independent press, it seems quite a different thing for a government official to be inquiring about the production and contents of a news report, particularly at a paper which for a century has successfully kept its business side apart from its newsroom. The letter does take pains to say the AG’s office won’t get into editorial decisions, but rather only into whether the Times has proper processes and standards, and whether the Board has satisfactorily overseen those. Call me a cynic, but sadly in today’s polarized nation, I would not take the letter’s verbiage at face value. Not where half the letter is taken up with criticisms of specific articles, especially complaints, such as from Israel’s Prime Minister Netanyahu, which have not been substantiated and despite threats, haven’t even been sued over.

If the competing values at play here conflict, and their weights are balanced, shouldn’t the tiebreaker be the past record – that is to say, the facts. One would think that the Times’ record of not having lost or settled a libel case in Florida, or indeed in the United States, in over 60 years as of the time the letter was written would indicate that the incursion into the company’s procedures and into the newsroom itself is wholly unnecessary and inappropriate. (The letter was delivered before the Times’ recent loss in a libel case in Alabama, which verdict will surely be appealed.)

It is perhaps to skirt that unfavorable fact that the AG focuses on the money spent on controversial and criticized articles. But that seems backwards. As we well know, good journalism and strong investigative pieces will inevitably bring criticism, controversy and cost money to defend. The willingness to undergo those costs should be applauded rather than be the cause of a government investigation.

Looked at another way, the letter focuses on the last five years and finds that “the same failure…recurs across the Company’s coverage”. Somewhat unbelievably, it refers to “sustained editorial failure” and “editorial malpractice” requiring a legal bill. To attempt to prove the point, it omits the Times’ record of 135 Pulitzer Prizes, but specifies 6 articles of such recurrence. But very roughly speaking, during those years the Times probably averaged about 100 articles a day, many more on Sundays. And say each article contained about 40 facts. That’s 4,000 facts a day or 1,460,000 published facts a year, or 7,300,000 facts over the 5 year period. So I’m not a mathematician, but it seems that the basis for the 28-page screed against the Times is a purported error that occurs .00000082 of the time. The letter alleges that “four concessions in six years…describe a pattern rather than a series of unrelated accidents”. I would submit the numbers show quite the opposite.

Finally, none of this is to denigrate the Times’ Board of Directors. I am sure in the main they are excellent businesspersons and professionals. Indeed I was in front of them once, on antitrust cases involving massive changes in our distribution system, and a question that was asked by a director, the then-President of IBM, was deeper and cleverer than any I had to deal with in the three prior years I was working on the case.

But to get the Board more involved in the newsroom’s journalism would be a disaster. First, the journalists would take it as an affront to their independence and an attack on the most vaunted of Times traditions. While the directors know a lot about finance and business they have no background or experience in journalism. But beyond that, they are business people, many of whom have been under the gun of press coverage, probably not always favorable, themselves. And many of the people Times articles are about are similarly situated business folks, and many of the articles are hard stories. It’s not hard to guess as to what their instinctive response would be to tough investigative stories.

Charitably, the letter seeks assurances that Times stockholders are appropriately protected by Board oversight. But journalistic tradition – and the Times’ fairly incredible record – does not warrant the kind of interference Florida posits. More realistically, in the context of our polarized environment and Florida politics, this looks like a totally unsupported infringement by government into the independent press.

The views expressed are those of the author and not the MLRC. Feedback welcome at gfreeman@medialaw.org.