Thursday, February 10, 2022

The Times, Sarah Palin, libel law and the shaky foundations of the Fourth Estate

(Puts on media critic hat.)

I don’t think Sarah Palin will or necessarily should prevail in her libel suit against the New York Times, owing to the extremely high bar the law sets, saying one must prove  “actual malice” (a virtual impossibility) or reckless disregard for the truth.

But it’s a lot closer than most people care to admit.

Even as a once-and-kinda-still journalist and free speech maximalist – and, I should disclose, a former Times company employee who still holds a pension with them – I will commit the apostasy of opining that it might be time to rethink if, when and how media outlets should be held responsible for the false information they publish, whether with malice or in error.

Times defenders in the case point out they acknowledged the error and posted a correction. That’s well and good. (Though the old version of the editorial actually remained up on the website for some time after.)

The facts of the case, though, show that they did not take any pains to establish the authenticity of what they printed before they did. The editorial editor, James Bennett, inserted the clearly false and libelous assertion after it had been edited but right before it was published. By his own admission, he did not research or fact check it before doing so. Even though high-level Times colleagues pointed out the falsehood minutes after it was published, they waited to address it until the next morning. After some exchanges, the editor admitted, “I don’t know what the truth is here.”

Call me old-fashioned, but that sounds pretty reckless disregard-y to me.

Add to that, the Times itself had run stories some years earlier establishing the lack of any connection between the Giffords shooting and the Palin election graphic, and the editor had overseen similar pieces published at an earlier publication. The “I just didn’t know” defense becomes stretched further and further beyond the point of plausibility.

I don’t want to see U.S. libel laws swing so far as the British system, which puts the onus on the publisher rather than the subject to establish veracity. But under our current legal framework, essentially the worse a journalist you are, the thicker your armor grows.

(Let us not forget, NYT vs. Sullivan, the landmark case that forms the base of current American libel law, also involved an egregious error against an elected official – though it was actually in an advertisement, not editorial copy, something most people forget.)

As it stands now, journalists can f*ck up to infinity and never be held to account. All they have to do is wave the white flag of, “I’m really bad at this!!!” in the form of a correction, and it’s a get-out-of-jail-free card.

Oftentimes it takes the threat of a lawsuit like this one to evoke a correction at all. I don't know of any other industry where you can be terrible at your job and cause actual harm to others, and all you have to do is say "whoops" to be absolved of any duty to compensate.

The New York Times screwed up badly in their editorial, and unquestionably libeled Sarah Palin. She’s not a figure particularly beloved by me, but the day we start adjusting our standards over media responsibility based on the popularity of who they wrong is the day the moral foundation of the whole fourth estate goes out the window.

So when should media outlets pay – quite literally – when they commit egregious, easily preventable errors like this? I don’t know the answer to that. Maybe it depends on the speed and willingness with which they’re able to own up to and fix the mistake. In the old days, that might have been a few days, but now it’s probably hours.

James Bennett and the Times knew, or should have known, right away that they had published false and libelous information about the former Alaska governor and veep candidate. Rather than taking action, they literally slept on it.

All I do know is this whole episode does not reflect well on the modern state of journalism. All the big voices have come out to back the Times, partly because most mainstream platforms loathe Palin (and don’t even bother to hide this fact) but mostly because they're scared of the prospect of having to write hefty checks when they inevitably make mistakes, too.

Somewhere there’s a perfect middle where journalists aren’t hampered by a chilling effect of fearing being hauled into court by every sheriff or civil bureaucrat who doesn’t like what they wrote, but also have to pay the piper when their shoddy work causes harm to others. Hopefully not Gawker-destroying amounts for honest mistakes... but something. 

Every (good) media outlet has published countless stories about businesses, governments or individuals who commit foul deeds and escape any real responsibility for it, rightly holding these up as acts of injustice. Journalism should hold its own industry to the same standard.

Tuesday, September 7, 2021

Please join me at Substack


Hi everyone, especially long-time followers of this blog. When I started it in 2008, I had no idea that 13 years later I would still be posting here. Not many web-based endeavors last that long.

However, after much consideration, I've decided to stop posting new movie reviews here. After the Film Yap was started in 2009, that really became the primary "home" for my film writing. And now we're transitioning to Substack as our main platform. 

You've probably noticed that I've only been publishing preview versions of my reviews here lately with a link to the Substack. The idea was to nudge you that way. Now, continuing to post here seems redundant.

Please join me on to continue reading my film work. It's a great new platform combining new and old ideas, so you can read new articles on the site or have them emailed straight to your inbox the minute they're published.

You can sign up for free, and if you like what you're reading by myself and nearly a dozen other contributors, please consider supporting our work with a modest subscription.

I appreciate your eyeballs and attention all these years. This blog isn't going to go away, as I now have an archive of thousands of articles, so they'll remain as long as Google lets me. And I may still use it for occasional personal essays and updates.

Until then...

Monday, September 6, 2021

Reeling Backward: "The Plainsman" (1936)


By any fair reckoning, "The Plainsman" is a pretty anachronistic example of Golden Age Hollywood filmmaking.

It's a rousing Western adventure movie that, other than accurately using the names of Wild Bill Hickock, Calamity Jane and Buffalo Bill Body, is pretty much a complete sham of the historical record, even by the mythological standards of Old West lore. Pretty much the only piece that seems to ring true is the death of Hickock, played by Gary Cooper, shot in the back by a gambler while holding the "Dead Man's Hand," aces and eights, that his last poker game would make legend.

And it's got a fairly typical attitude toward the depiction of American Indians for that time, showing them as murderous savages who must be conquered so the frontier can be, in the words of the film's ersatz Abraham Lincoln, "made safe" for the white man. And yes, most of the Indians are played by Caucasian actors in dusky makeup.

Still, it shows Hickock, a canny scout and sometimes-lawman, as having a sympathetic attitude toward at least one Indian chief, Yellow Hand (Paul Harvey), an old friend he used to hunt buffalo with. When Yellow Hand justifies his war by pointing out the white man broke his promise not to take their land, Bill acknowledges the truth of this. He doesn't even seem to hold a grudge that this campaign may include his own death by ritual burning.

But when you put it all together, "The Plainsman" still has a great deal of entertainment value and exciting gunplay, along with not a little glamor from Cooper and co-star Jean Arthur as Jane. 

Besides, as regular readers of this column know, I find the practice of discarding cultural artifacts because they don't accommodate modern sensibilities to be an unworthy endeavor. You cannot learn from history, even the cinematic kind, by dismissing it.

As a Cecil B. DeMille production, "The Plainsman" was not going to be a rough-and-tumble depiction of these characters like we would get decades later with the doggedly grimy show "Deadwood," or even the largely forgotten 1966 remake.

It's got top-notch production values and everybody's hair is always neatly combed into place. Calamity Jane wears pants and is shown to be a capable horse rider and coach driver, though we never see shoot anybody, relying on her handy whip when she wants to get her point across more forcefully.

And she's hopelessly in love with Wild Bill, impulsively kissing him a number of times and complaining when he rubs the back of his hand across his lips after. "You ain't wipin' it off -- you're rubbin' it in!" she teases.

Buffalo Bill, played by James Ellison, is relegated to third wheel here, disappearing for large stretches of the picture. As the story opens (screenplay by Waldemar Young, Harold Lamb and Lynn Riggs), Buffalo Bill has mustered out of the Union Army after the Civil War and promptly got himself hitched to a genteel lady from back East (Helen Burgess), while Wild Bill is determined to stay free of any yoke, be it military or womenfolk.

Of course, they soon find themselves roped into the coming Indian war, in which a number of tribes join forces against the U.S. government. The highlight is a battle where a few dozen soldiers bringing ammunition to beleaguered forts are themselves pinned down under sustained assault for six days. By the end the handful of survivors are nearly incoherent with PTSD except for the cool and collected Wild Bill, Coop displaying his usual taciturn, slow-spoken grit.

A 20-year-old Anthony Quinn makes one of his earliest screen appearances playing a rather fetching Cheyenne warrior who is captured by the Bills, Wild and Buffalo, and provides an enthusiastic description of Custer's Last Stand. Quinn was of Mexican, Irish and Indian (NOT American Indian) ancestry, and played virtually every ethnicity at some point in his varied career. 

The main villain is a fictitious gun dealer named John Lattimer (Charles Bickford) who is selling the advanced new repeating rifles to the Indians. An early scene shows the money-grubbing executives of some unnamed arms company conniving to use the new rules allowing for civilian oversight of the native tribes to choose profits over people. (Ever was it so...)

The first two-thirds of the picture are more or less taken up with the Indian wars, with the romance between Wild Bill and Calamity Jane fitting into the pauses, and the last act is the build-up and outcome of the confrontation with Lattimer. The rifle peddler proves to be wily and cowardly, recruiting a trio of army deserters to go after Bill, knowing that he will probably kill them but be labeled an outlaw himself as a result.

Indeed, this is just what happens, and Buffalo Bill is sent to bring him in, dead or alive. It appears they're angling toward a confrontation, sharing a campfire meal of coffee and jerky while eyeing their weapons, though it seems doubtful the old comrades would actually draw arms on each other. 

Wild Bill's final gunfight with Lattimer is rather abrupt and anticlimactic, Bill easily outgunning Lattimer and then, for some reason, taking his henchmen hostage and forcing them to play poker until the army arrives to arrest them. This gives an opening for Jack McCall (Porter Hall), a nervous little twerp who is usually seen smoking one of the effete new "cig-a-reets" from back East, to do Bill in.

This is, of course, not how Wild Bill died, or at least not the reason. The day before he'd offered charity to McCall after he lost badly at poker, and the man apparently took offense. The real McCall was actually found not guilty in his initial trial -- in a semi-formal "miners' court" -- but bragged so much about being the man who killed Wild Bill that he invited a second trial leading to his conviction and hanging.  

I didn't expect to like "The Plainsman." It's a very outmoded way of making movies, and certainly the mores of the time don't line up with ours. But DeMille & Co. knew exactly what audiences of that era liked, and kept them reliably fed with tasty fare. 

Eighty-five years on, it's still a satisfying cinematic meal.


Thursday, September 2, 2021

Review: "Who You Think I Am"


"There is no greater rival than the one that does not exist."

"Who You Think I Am" is a good movie, but also an interesting one. Don't laugh; they're rarer than you think. A few films are interesting but not very good, while many others are good yet the experience is like buying your favorite drive-through meal: you know what you're going to get. (Many more just aren't very good.)

This French drama starring Juliette Binoche presents us with a compelling character and story, but then layers in deeper meanings and gives us uncomfortable questions to contemplate. Instead of fast food, this film is like an eclectic meal of seemingly different tastes that don't seem like they would go together, but offer some intriguing combinations and contrasts.

Binoche plays Claire, a 50-year-old divorced high school teacher of French literature who, after being dumped by her much-younger boyfriend, creates a fake Facebook profile of a 24-year-old beauty. She then lures the ex's roommate into a virtual relationship that provides her with countless thrills, but leads down some very dark pathways.

Read the rest on Substack!

Wednesday, September 1, 2021

Review: "Worth"


A movie that's basically a two-hour exploration of actuarial tables and intricate legal compensation rules may not sound very compelling. But "Worth," the new Netflix feature starring Michael Keaton as the man in charge of determining compensation for the victims of 9/11, is just that.

In this based-on-true tale, Keaton plays Ken Feinberg, a bigwig attorney focusing on a very specialized area: victim compensation funds. This is where an entity sets up a pile of money to give to victims and their families after a catastrophic event in exchange for not suing. It's a form of mediation, with the carrot of getting a hassle-free check right away and the stick that you might spend years, even decades, litigating in court and lose anyway.

Cantankerous and old-school, Feinberg's mantra is there is no such thing as fair or making people happy; he's trying to make them just happy enough to walk away.

When the Sept. 11 attacks happen and it becomes clear that mass lawsuits against the airlines and others could wreak havoc on the entire economy, Congress passes a compensation fund and gives broad latitude to the attorney, called a special master, in charge of coming up with a formula to distribute the dough. Feinberg enthusiastically volunteers and fights for the job, even though he's literally the only guy in the country who wants the gig.

Read the rest on Substack!



Review: "We Need to Do Something"


The idea for "We Need to Do Something" is better than the movie they made. This tense horror/psychological thriller has a family trapped in their bathroom while sheltering from a massive storm. They can't get out and their emotional fault lines, already amazingly fractured, grow to yawning chasms. 

Blood starts to flow and fears spike to the redline, especially as it becomes apparent there are supernatural forces at play.

With just five people, a movie needs distinctive, sharply drawn characters who we can relate to. But the family falls into fairly typical horror stereotypes -- the odd teen girl, the abusive dad, the innocent younger sibling, the harried mom who is fiercely protective of her kids. 

They behave more like puppets in a street show, performing the same old tropes and tricks we're used to.

Read the rest on Substack!


Wednesday, August 25, 2021

Review: "Flag Day"


What a small, lovely and exquisitely human film.

Most people will go into "Flag Day" knowing that it was directed by Sean Penn, who stars alongside his own kid, Dylan Penn, as they play a real-life father and daughter with a fraught relationship. Penn's son, Hopper, also appears in a smaller role playing the son. You don't often see parent-child acting combinations in movies, but when you do ("On Golden Pond") they tend to be indelible. 

This one certainly is.

When I say the movie is small, that is not meant as diminishment. Little movies can often have the biggest impacts. By small I mean it doesn't look or feel like a big Hollywooded-up production. 

Read the rest on Substack!