Reporters Who Test Privacy Limits Are on Thin Ice
In late March, Washington Post senior editor Marc Fisher wrote an article headlined, “He urged saving the economy over protecting those who are ‘not productive’ from the coronavirus. Then he faced America’s wrath.” In so doing, Fisher instantly thrust himself into a long-running journalistic controversy.
That’s because the “He” in the headline was not some well-known public figure. Fisher’s entire story revolved around a single tweet by Scott McMillan, an almost-unknown California lawyer with a few hundred followers. McMillan had written something about the coronavirus response that a lot of people found objectionable, to wit: “The fundamental problem is whether we are going to tank the entire economy to save 2.5% of the population which is (1) generally expensive to maintain, and (2) not productive.”
Saying that this engendered “America’s wrath” is probably a gross overstatement – a few thousand people tweeted their dislike of McMillan’s insensitive comment. Hundreds of such flare-ups happen on Twitter every day. Opinions are like Internet connections – everyone’s got one.
In Internet parlance, there’s a specific derogatory term for what Fisher had done: “Nutpicking.” Definitionally, it’s somewhere between cherry-picking and nitpicking. Nutpicking is a kind of fallacy where you select an obviously extreme opinion and act as if it’s representative of the sentiment of a broad group of people.
The reaction to Fisher’s story didn’t stop at nutpicking, though. He did something else that irritated some readers: he hyped his own story on Twitter: “Scott McMillan, a 56-year-old lawyer, tweeted that it's more vital to revive the economy than to save people who are ‘not productive,’ like the elderly and infirm. So I called his parents.”
The idea that a Washington Post journalist would object to a random opinion on the Internet and call that person’s parents to humiliate him set people off. The top reply to Fisher is a tweet calling him a “[expletive] vampire piece of [expletive]” that has 7,000 likes, and there are thousands more people approving of additional criticisms. It turns out Fisher’s own tweet was far more disliked than the tweet that allegedly stirred “America’s wrath.”
Unfortunately, few people bothered to actually read his story. His well-crafted and sensitively written piece explored the point of McMillan’s tweet – and he interviewed McMillan as well as his parents in a way that didn’t make the subject of the story unsympathetic. The story is almost case study in the frustration John Q. Public is feeling while coming to terms with the astronomical costs and deadly risks of the government’s coronavirus response.
Emphasis on almost – it’s impossible to wave away the divisive political angle, given that McMillan is conservative, and the media rarely highlight liberal extremism. Further, there’s a legitimate question to be asked about if national journalists should ever elevate the political opinions of private citizens on social media.
This isn’t 30 years ago, when after a few weeks, any trace of a critical news story about someone would recede into archives only accessible by microfiche. Is it fair that any perspective employer or client of McMillan’s will now confront this story as top Google result? The tweet that inspired the story may not even prove representative of McMillan’s own thoughts. Living through a global pandemic has made more than a few normally responsible people act a little crazy and start thinking the unthinkable.
And while those who object to the press subjecting private citizens to needless scrutiny should be doing something more constructive than hurling profanity, their anger is not entirely misplaced. There have been some truly egregious examples of journalists targeting private citizens over their social media activity – with harmful effects.
In 2014, Elizabeth Lauten made some on remarks on Facebook criticizing the appearance and behavior of Sasha and Malia Obama. The children of political figures are generally off-limits for very good reasons, but the fact that the then-unknown Lauten worked as a congressional aide made the story only marginally newsworthy. Lauten quickly apologized and even resigned from her job in Congress.
Yet, the Washington Post combed through the columns Lauten wrote for her college newspaper and dredged up the fact she had been charged with shoplifting at a department store 14 years earlier – even though the charges were dismissed. All three network news broadcasts covered Lauten’s errant remarks, as did “Good Morning America” and NBC's “Today Show.” Two news trucks parked in front of her parents’ house. Lauten’s behavior was much more forgivable than what the media did to her.
Last year, 24-year-old Carson King went viral online when ESPN aired footage of him holding up a sign asking people online to Venmo him beer money. Cash started pouring in and King decided to turn his notoriety into a fundraiser for Iowa Children’s Hospital. Anheuser-Busch soon joined his fundraising efforts. In the process of profiling King, the Des Moines Register decided that two racist jokes King made on Twitter when he was 16 years old were newsworthy. King held a press conference to apologize for the tweets, but by then Anheuser-Busch had stopped backing King’s fundraising efforts. In this case, the public reaction was decidedly in favor of King, who raised over $3 million for sick kids. The Des Moines Register ended up firing the reporter who wrote the story, after people started combing through his life – yet another intrusive overreach.
Examples of media overreaction abound, and angering the public isn’t the only reason the press should be more cautious when broaching the topic of random Internet opinions. Last February, Supreme Court Justice Clarence Thomas was publicly musing about the need to reevaluate libel laws. These remarks did not come in a vacuum.
Thomas was speaking shortly after the furor over a teenager from Kentucky’s Covington High School was defamed by an embarrassingly large swath of the journalism establishment, who reported that he harassed a Native American man during a demonstration in the nation’s capital. The reports were based on frenzied Internet activity, some of it by deliberately misleading, all based on the fact the student was wearing a Make America Great Again hat. The lawsuits against media outlets still ongoing, but CNN has already settled.
As I’ve explained elsewhere, decades of legal precedents chipping away at the libel standards set forth in 1964’s landmark New York Times vs. Sullivan Supreme Court case are coming to a head. When it comes to media interactions, judges and juries have routinely come down on the side of the right to privacy over press freedom. (Don’t just take my word for it – Tulane law professor Amy Gajda has written a book, “The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press,” on the subject.)
Violations of privacy already destroyed the online tabloid Gawker in a case involved reporting on the sexual exploits of Hulk Hogan, a well-known public figure. Libel standards for reporting on private citizens are far less forgiving.