One of the things all news websites have in common is bylines, this NewsBusters piece even has one. It’s how news outlets let you know who wrote a particular article; it could have one or multiple authors and/or contributors. But during a defamation hearing against The Associated Press on Thursday, their lawyer argued that punitive damages couldn't be sought because there were no records of who authored or even edited the allegedly defamatory article about Navy veteran Zachary Young.
As NewsBusters previously reported, Young accused the AP of defamation stemming from a report they did covering his victory over CNN in a defamation trial earlier this year. Young took issue with how the AP reported that he “helped smuggle people out of Afghanistan;” and later pointed to the AP Stylebook to argue that it accused him of the crime of human smuggling.
According to the argument put forward by the AP’s co-counsel Paul Safier to Judge William Henry of Florida’s 14th Judicial Circuit, they don’t know how the word “smuggle” made it into their article:
Actual malice, as your Honor’s aware, revolves around the state of mind of those responsible for the publication. The question is: what did they know and when did they know it? Here, we have no record of about who did what.
The whole case is based on the use of the word ‘smuggle,’ or, you know, the one sentence that contained the word smuggle. We don’t know who wrote that sentence. We don’t know who approved that sentence. We don’t know what the people who wrote and approved that sentence thought they were conveying about Mr. Young. And we don’t know what they knew about the evidence as it came out in the CNN case.
In response to AP’s suggestion they didn’t know who was responsible for the content of the article, Judge Henry pressed Safier:
HENRY: Well, I mean, it’s either it’s published knowing it was false or with reckless disregard as to its truth or falsity.
SAFIER: Correct. Yeah.
HENRY: I mean, at least Mr. Bauder’s name is on the piece. So, we know who supposedly composed the piece. Right?
SAFIER: Right. But we don’t know who composed the sentence at issue. We don’t know – even if we assume it was Mr. Bauder or that he was sufficiently, sort of, intertwined with it that he participated. We don’t know what he knew about the CNN trial. And then the more crucial point here is, we don’t know what he understood himself to be saying as he wrote that sentence. Right? And that’s the crucial point. For something to be an intentional falsehood, it has to be the case that you knew that the thing you intended to say was false.
Judge Henry promptly pointed out that “the other person who potentially could be at least contributable fault of including that in there would be Curt Anderson, who – he’s a correspondent who contributed to this report.”
NewsBusters was in attendance at the hearing, which was conducted via a Zoom call, and we witnessed that David Bauder was actually sitting in on the call (pictured above).
On Young’s motion to amend his complain to seek punitive damages, Safier argued: “So, the big picture issue is, there simply isn’t anything on this incredibly sparce record that could get Young to the many burdens he faces in order to be entitled to assert punitive damages claims.”
“There is just no evidence bearing on the process of researching, drafting, approving for publication, publishing the article, which his claims are based,” proclaimed Safier. “There is not any record bearing on those facts other than the fact that the article identified David Bauder as the author. Beyond that, we don’t know who did what or why.”
The hearing was also meant to hear arguments for and against the AP’s motion to dismiss the case before discovery could reveal anything.
Despite the deeper facts not being uncovered yet, the AP argued that there’s no evidence that the “conduct at the corporate level that amounted to either participation in the alleged misconduct, approval or ratification of it, or gross negligence that contributed to it.” They pointed to how, so far, we didn’t know if the AP’s editors were involved in approving what got published (like with the CNN case and their editorial triad board).
“Maybe, if there’s discovery, facts could emerge, but certainly on this record, there’s nothing about anyone who would qualify as a managing agent of the corporation doing any of the conduct giving rise to the underlining cause of action,” Safier said.
