More activism, less credibility: What CNN's defamation loss says about journalism today

"Your credibility with me ... is about none.”

Those words to CNN counsel by Judge William Henry also clearly spoke for the Florida jury which, on Friday, awarded $5 million for Navy veteran Zachary Young and approved an additional amount, still to be determined, for punitive damages.

The CNN loss is only the latest in a series of media cases that have reversed decades of case law where the media largely prevailed under highly protective legal standards. It says a great deal about the state of modern journalism and its unrelenting efforts at self-destruction.

In "The Indispensable Right," I discuss the radical shift in American journalism that occurred with the rejection of neutrality and objectivity in favor of advocacy journalism. J-schools now teach that objectivity is a dated concept. As former New York Times writer (and now Howard University journalism professor) Nikole Hannah-Jones has explained, “All journalism is activism.”

After interviewing more than 75 media leaders, Leonard Downie Jr., former Washington Post executive editor, and Andrew Heyward, former CBS News president, detailed how media leaders view neutrality and objectivity as dated concepts that inhibit social and political agendas.

The public's response to this trend has been both predictable and pronounced. The famous "Let's Go, Brandon" incident after a NASCAR race, after all, was more of a criticism of the media than of Joe Biden — a "Yankee Doodling" of the press for its distortion of facts.

Revenue and ratings for media outlets have plummeted, although there are other contributing factors. During the trial, CNN host Jake Tapper was challenged for his testimony that he “doesn’t pay attention to ratings.” That does not appear to be the case at the network, which is cratering and desperately trying to reverse the ratings plunge. CNN has reportedly lost half of its viewership, hitting lows not seen in three decades.

The jury clearly believed, as the network's slogan claims, that "This is CNN." That is probably the reason it will soon award punitive damages. However, this is not just CNN. The case itself highlighted everything wrong with modern media.

The segment aired on CNN’s “The Lead with Jake Tapper” on Nov. 11, 2021, and trashed Young in a story about Afghans being preyed upon by groups promising to get them out of the country amid the disastrous withdrawal of U.S. forces. Tapper told his audience ominously how CNN correspondent Alex Marquardt discovered that “Afghans trying to get out of the country face a black market full of promises, demands of exorbitant fees, and no guarantee of safety or success.”

Marquardt detailed how “desperate Afghans are being exploited” and need to pay “exorbitant, often impossible amounts” and then named Young and his company as examples.

The trial revealed internal messages from Marquardt that he wanted to “nail this Zachary Young motherf-----” and thought the story would be Young’s “funeral.” After promising to "nail" Young, CNN editor Matthew Philips responded that he was “gonna hold you to that cowboy!” CNN senior editor Fuzz Hogan described Young as “a s---.”

As often occurs today, CNN allegedly gave Young only two hours to respond before the story ran. It is a typical ploy of the press to claim that they gave someone a chance to respond. The call often comes at the end of the day to create the appearance of fairness. Nevertheless, Young did respond to the chagrin of CNN producers and made clear that key elements of the story were untrue.

CNN's defense in court was a case study in how not to defend a defamation lawsuit. It included a series of self-inflicted wounds, delivered in front of the jury. However, it is only the latest loss for major media, given recent courthouse setbacks for the New York Times, NBC, and Deadspin. ABC News recently settled its own defamation case out of court, and previously Fox News paid a massive settlement.

Nevertheless, some outlets appear to be doubling down in the hope that they can ride anti-Trump coverage back to robust ratings. Last week, NBC announced that it was bringing Yamiche Alcindor to the White House press corps. Alcindon, who also worked for PBS, was widely criticized for often preceding questions with attacks on conservatives or over-the-top praise for Joe Biden or Democrats. While others saw raw political bias, Alcindor explained that it was her job to use journalism to bend the "moral arc toward justice."

For decades, the media found ample protection within the protective shell created by the Supreme Court after New York Times v. Sullivan. The Court sought to create “breathing space” for the media by articulating a standard that now applies to both public officials and public figures. The demanding standard requires a showing of “actual malice,” where the media had actual knowledge of a statement's falsity or showed reckless disregard for whether it was true or false.

The string of media losses reflects a change not in the law but in the media itself. As the press increasingly engages in advocacy journalism, reckless disregard for the truth is becoming the norm, as shown in the CNN case. It could get worse.

Some have questioned the extension of this protective standard to cases involving public figures, which encompasses anyone who has achieved a modicum of fame in business, sports, or other pursuits. A couple of justices have also expressed skepticism about why non-public figures should shoulder such a burden when people lie about them.

Meanwhile, the public is abandoning legacy media at a run, turning to new media in the form of blogs and citizen journalists. Recently, the Supreme Court ruled in favor of such a citizen journalist in a criminal case — a woman known as La Gordiloca (loosely translated as “fat, crazy lady”). Describing her as a “swearing muckraker who is upending border journalism,” the New York Times admitted that La Gordiloca “reflects how many people on the border now prefer to get their news.”

The rise in citizen journalists in new media and advocacy journalism in legacy media will only likely increase the number of such cases in the coming years. For mainstream media, the skepticism that they are facing in society is now becoming equally evident in courts. To paraphrase Judge Henry, their credibility with the public is about none.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

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