Update (5/22/2020): This post has been updated to reflect Ed Butowsky’s characterization of his involvement in the retention of Rod Wheeler as an investigator for the Rich family.
COVID-19 poses unprecedented challenges for journalism and the First Amendment. Federal, state, and local governments are limiting access to public records and government proceedings; local newsrooms are furloughing or firing reporters and many are closing altogether; disinformation is spreading, at the same time public officials erode press credibility through cries of “fake news”; and public health interventions like social distancing and pandemic surveillance are likely to have profound and lasting effects on how news is gathered and reported.
Press freedom advocates have been scrambling to wrap their heads around the crisis, and, consequently, one profound non-COVID First Amendment threat has flown under the radar. It arises in a hard case that could, as the maxim goes, make truly bad law, and it deserves attention, including from national security reporters and their lawyers.
In July 2016, unknown assailants shot Seth Rich, a 27-year-old data director at the Democratic National Committee, blocks from his apartment in the Bloomingdale neighborhood of Washington, D.C. The murder remains unsolved, but police suspect it was a botched robbery. The killing occurred in the middle of the 2016 presidential election and conspiracy theories began to circulate involving the false claim that Rich was part of the leak of hacked DNC emails to WikiLeaks.
On May 16, 2017, Fox News published a story by reporter Malia Zimmerman that quoted Rod Wheeler, a retired D.C. homicide detective and Fox News contributor who was investigating the case for the Rich family, as saying that his inquiry showed “some degree of email exchange” between Rich and WikiLeaks. Zimmerman wrote that she had corroborated that detail through an unnamed “federal investigator.” Sources, including the D.C. Metropolitan Police Department, the FBI, and the D.C. mayor’s office disputed Wheeler’s statement, and, within 24 hours, Wheeler said he had no evidence to back his claim.
On May 23, 2017, Fox retracted the story, writing that the article “was not initially subjected to the high degree of editorial scrutiny we require for all our reporting.”
The Fox reporting spawned several lawsuits, including one by Rich’s parents against Fox News for intentional infliction of emotional distress, which the Second Circuit ruled last September could proceed; a defamation claim by Texas businessman Ed Butowsky against National Public Radio (Butowsky, who has ties to the White House, has said that he contacted Wheeler to see if he would be interested in investigating the Rich case and offered to finance his hire by the Rich family); and, finally, a defamation suit by Aaron Rich, Seth’s older brother, against Butowksy, Matthew Couch, and Couch’s organization, known as America First Media. Aaron Rich alleges that the defendants in his lawsuit defamed him by reporting that, among other things, he worked with his brother to leak the emails, and was paid by WikiLeaks to do so.
This third lawsuit is where this largely (though not entirely) unnoticed First Amendment issue has arisen. While there’s a lot going on in the case, here’s the rub: In January 2020, Rich served a third-party subpoena to depose Zimmerman, the Fox News reporter, about Fox’s decision to retract the May 2017 story.
Fox News and Zimmerman filed a motion for a protective order barring Zimmerman’s deposition, arguing, in part, that the discussions concerning the retraction are part of the editorial process and are protected by the First Amendment and the (expansive) New York state newsgathering privilege.
In April, Judge Richard Leon on the U.S. District Court for the District of Columbia denied Fox and Zimmerman’s motion on several grounds, including, crucially, that discussions around the retraction of a story “do not involve ‘newsgathering.’”
The district court’s holding that internal discussions on whether to retract a story are not part of the newsgathering process and therefore unprotected under the First Amendment or the reporter’s privilege is deeply troubling and could, if widely adopted, lead to serious consequences.
First, it’s important to understand precisely what “retraction” means in the industry. As the late William Safire explained in a 2005 “On Language” column dedicated to the word “retraction,” to retract a story is to go further than a clarification, correction, or a withdrawal and apology. All of these mechanisms are used regularly to address factual errors in reporting — in ascending order of seriousness. A retraction, by contrast, means that the underlying story, in whole or in part, is itself beyond saving:
[T]he current meaning of retract goes well beyond “we’re not sure of this, so we’re withdrawing it with our apologies,” which is a mild form of reputation reparation; instead, retract means “we made a mistake and we take back what we published or broadcast so you can see we weren’t being malicious.”
Indeed, many states have “retraction statutes,” which can limit damages from a libel suit if a speaker retracts a defamatory statement. In California, for instance, there is a legal process whereby an individual who believes she was libeled can formally request a retraction of the allegedly libelous statement. If the outlet publishes a timely retraction and is found guilty of defamation, the plaintiff can only recover special (economic) damages, not non-economic reputational or punitive damages.
In other words, “retraction” is, as Safire explained, “a weighty word … asserting that the report was mistaken and forthrightly attempting to mitigate the great damage done.”
Second, it’s also crucial to understand that, while mistakes are not great, retractions when mistakes inevitably happen are desirable. The whole point of the First Amendment is to prioritize truth over all — to create checks on government action that encourage an independent press to report truthfully and to self-correct when it does not. (Conspicuous self-correction also serves a consumer protection function: Media outlets that quickly and aggressively self-correct ought to engender greater public trust.)
As noted, while the district court’s ruling, if not pulled back, could endanger protected newsgathering in all kinds of garden-variety litigation against the press, the Aaron Rich case is important in the national security context, for several reasons. First, the secrecy surrounding the military, law enforcement, and the intelligence agencies necessarily means that reporters will occasionally err because they have to rely on incomplete, inconsistent, or confusing information. Second, because national security stories involve matters of life and limb, the stakes are higher. True stories — like the Pentagon Papers or Watergate — can have historic repercussions and lead to lasting improvements in public policy. Mistaken stories can take on a life of their own.
The takeaway is that, far from not being part of the editorial process in newsgathering, as the district court found, the decision to retract a story is perhaps the most “weighty” exercise of editorial judgment there is — and constitutional or statutory protections that allow news outlets to self-correct without fear that doing so will lead to legal liability or, in this case, scrutiny into the decision-making processes, are important for an independent press.
One salient example of why retractions matter and, indeed, how the process is intertwined with newsgathering and the exercise of editorial judgement, is ProPublica’s decision to retract parts of a story on current CIA director Gina Haspel. The story in question reported that Haspel oversaw a secret CIA prison in Thailand when interrogators waterboarded Al Qaeda leader Abu Zubaydah and that she “mocked” Zubaydah’s suffering in a private conversation. Though Haspel did take over the base after Zubaydah’s interrogation, neither of these assertions were true.
ProPublica’s initial report relied on several sound newsgathering practices that ultimately, in part because of the secrecy surrounding the CIA’s post-9/11 interrogation practices, led to the wrong answer.
Reporters relied on declassified CIA cables and books that had been reviewed by the agency that referred to the person who oversaw Zubaydah’s interrogation as “chief of base.” Following the Trump administration’s decision to appoint Haspel as CIA deputy director in 2017, three former government officials told ProPublica that Haspel was chief of base at the time of Zubaydah’s waterboarding. ProPublica also found an online posting by former CIA officer John Kiriakou to the same effect.
In March 2018, the Trump administration appointed Haspel to replace now-Secretary of State Mike Pompeo in the top spot at the agency. Some critics of the appointment pointed to the 2017 ProPublica story to support their charges. That led former colleagues to state publicly that, while Haspel was chief of base at the black site (called “Cat’s Eye”), she arrived after Zubaydah’s interrogation.
James Mitchell, the psychologist and CIA contractor who helped direct the waterboarding and whose book was the source of the “mocking” detail, also stated publicly for the first time that the chief of base referred to in the book as mocking Zubaydah was not Haspel. ProPublica had assumed that the use of the male and female pronoun in the book (he referred to the chief of base as both a “he” and a “she”) was an effort to obfuscate the identity of the person, when, in fact, Mitchell was referring to two different people.
Finally, in light of what at the time appeared to be solid reporting, including source corroboration, ProPublica failed to credit a statement by the CIA’s public affairs office in 2017 that “nearly every piece of reporting that you are seeking comment on is incorrect in whole or in part.”
Faced with criticism in 2018, ProPublica then reviewed its reporting, identified each instance where the newsgathering process went awry, and conspicuously posted a correction, which it later described as a retraction, above the original story.
The district court’s holding in the Aaron Rich case that retraction discussions are not protected by testimonial privileges designed to insulate, and thus improve, newsgathering would create a significant disincentive for news organizations to engage in this kind of searching and responsible self-correction.
Additionally, sticking with the national security context, that insulation is particularly important given that news media disclosures by anonymous sources have been routinely treated as criminal matters over the past decade. If deliberations and follow up reporting that are part of the decision to retract a story are wholly unprotected, investigators could target their efforts at those deliberations, which would further create a perverse incentive for news organizations not to correct mistakes in national security reporting. And, while that incentive is troubling in the context of national security journalism because of the difficulty of reporting and publishing, and the stakes involved, the district court’s opinion would also seriously impair newsgathering and the ability of news organizations to both investigate and admit mistakes in a broad range of areas.
Moreover, separate from the policy considerations, the jurisprudential grounds cited by the district court on the retraction question are also creaky. The primary case cited by the court on the retraction question does not stand for the proposition that editorial deliberations around a retraction are unprotected; in fact, a close reading suggests the opposite — that internal self-evaluation at a news organization would be protected.
In 1982, CBS broadcast a documentary that included claims by his subordinates that Gen. William Westmoreland, the commander of U.S. forces in Vietnam during the 1968 Tet offensive, had withheld intelligence reports on enemy troop strength from Washington for political reasons. Westmoreland sued for defamation in federal court in New York. CBS asked a senior investigative producer to review the documentary. That producer, Burton Benjamin, made a written report to CBS president Van Gordon Sauter, which found lapses in journalistic standards but that the ultimate reporting in the documentary was sound.
Sauter then released a public memorandum expressly relying on the Benjamin report. The Sauter memorandum criticized certain aspects of the documentary, but stated that “CBS News stands by this broadcast.” Westmoreland requested a copy of the Benjamin report in discovery. The district court refused to enter a protective order, not because internal reviews of news reporting are unprotected by the reporter’s privilege, but because CBS had publicly cited the report in its decision not to retract the broadcast. In other words, CBS had actively used the Benjamin memorandum in its public defense, and was not treating it as “a confidential internal matter.”
While the New York court’s decision was itself controversial (as evidenced by the multiple news organizations that came in as amicus curiae to support CBS), one thing is certainly clear: It cannot be read for the sweeping proposition that internal discussions concerning whether to retract a story are categorically unprotected by the First Amendment or state reporter shield laws. The district court in D.C. is doing exactly that.
Following the April order in the Aaron Rich lawsuit permitting the deposition to proceed, Fox News and Zimmerman filed a motion for reconsideration. The district court thus could limit its holding with respect to this discrete issue: whether discussions concerning a retraction are wholly outside the scope of the reporter’s privilege or the First Amendment. To allow that holding to stand would discourage all news organizations from having these discussions, which would harm newsgathering and the free flow of true information to the public.
Seth Rich’s murder is a tragedy and the politicization of that murder in conspiratorial circles compounds that tragedy. But this case threatens to set a precedent with ramifications that go far beyond its facts and that would discourage all news organizations from self-evaluation and correction — a threat to the cause of truth itself. While First Amendment protections are crucial when the press gets it right, they are, as here, perhaps more important when it gets it wrong and tries to make it right.
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.