NYT Covers Bill Maher CNN Censorship Story; Won’t Name Mehlman

The New York Times covers CNN’s censorship of Bill Maher on Larry King Live and his “speculation about some politicians’ sex lives” but refuses to name RNC Chairman Ken Mehlman as the figure that Maher singled out on the show.

A spokesman for Larry King Live told the paper: “When someone says something potentially defamatory that we don’t expect them to say live on the air, we typically won’t be liable for it. However, if we continue to rebroadcast it, without any reporting of our own or any comment from the subject of the accusation, we could be legally responsible for what that guest said.”

Apparently the Times feels the “cautious interpretation of the law” observed by CNN extends to them as well.

Some Names Were Named, but Not for Long [nyt]

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  1. tominsf says

    I was watching CNN Tuesday night in SF, but via DirecTV, and the Mehlman reference made it through – so CNN didn’t succeed entirely in blacking out the west coast.

    Maher promised in that broadcast that he was going to name more names on his HBO program on Friday. Did that happen, and if so, whom did he name?

  2. mark m says

    No, Tominsf, he didn’t, which leads me to believe that there were some serious threats of legal action for Maher to remove any mention of it from his own show.

    I’m with you Christian. The problem is that some people can successfully use the word “gay” as a defamatory term. Tom Cruise stopped using the gay thing as reason to sue but instead adopted the position that it claims he is a liar and unfaithful to his (then) wife, Nicole.

    As for liable, I may be wrong but doesn’t it have to prove to be 1)false 2) malicious AND 3) harmful to the individual?

    My communications law is rusty but can someone confirm/correct this?

  3. Peter B says

    How incredibly offensive the CNN spokesman is in describing someone as gay as being “defamatory.” How the heck is this acceptable? Imagine suggesting that being black or Jewish is denigrating or defamatory, and the backlash that would ensue.

  4. Glenn says

    There was at least one case recently, from a federal court in Boston (I think), where the judge threw out a defamation suit because she ruled that being called “gay” was, as a matter of law, not defamatory. Not sure you’d get the same ruling everywhere, but I think the chance of a successful suit in such a situation is getting less and less.

    And certainly a public figure like Mehlman would have a more difficult time. Given that the GOP believes sexual orientation is a valid subject of public political discussion, he would have a difficult time arguing that his own sexual orientation was not a matter of legitimate public interest. As such, he would have to demonstrate that the statement that he’s gay was made with “actual malice” — i.e., knowledge of its falsity or reckless disregard for whether it was true or not. Very very difficult standard; Mehlman would never be able to meet it, IMO.

    Mark M, the falsity of the statement would not, I believe, have to be proved by Mehlman. The truth of the statement is an affirmative defense, and it would be (in this case) Maher and or CNN’s burden to prove that Mehlman was, in fact gay, if they wanted to raise that defense.

  5. Leland says

    More homophobic horseshit from the Cooper News Network. Younger readers note that, relatively speaking, it wasn’t all that long ago that “The New York Times” finally agreed to stop writing gay as “gay.” The most stereotypical “liberal” paper in the US has come a long way from their earlier days of defending the homophobic status quo, and have tons of out gay staff members, but they deserve to have subscriptions cancelled and, along with CNN, their phones ringing off the hook about this just as much as the NYC paper that prints the homobashing cartoons.

  6. Buster says

    You can’t completely blame the shows…

    It is still the law in many parts of the US that saying that someone is a homosexual is defamation PER SE, i.e. the statement (if false) is PRESUMED to be harmful… just like saying untruthfully that someone is a felon or a traitor. (The opposite example would be, perhaps, saying that someone is a Republican or can make a decent cup of coffee, which even if false, you would have to prove that it DAMAGED you in some way — ’cause you’re runing for office as a Democrat or because you make your living as a barista — in order to receive damages in a lawsuit.) This is true whether it is slander (spoken) or libel (written).

    This fact is, of course, a ridiculous state of affairs in this day and age. BUT, it is the law and if I were the production attorney for Maher or King’s shows or for one their networks, I would advise the business execs making the call that to broadcast such a statement about someone who denies his homosexuality would expose the company to a substantial risk of substantial damages. And, at the end of the day, these are all businesses, responsible to shareholders and they have to carefully weigh how much legal liability (and litigation costs) they are going to take on and for what purpose. You might be more willing to run the risk over a important story about an allegedly gay Congressperson sexually harassing teenage pages than you would for the Mehlman story which is, to be realistic, not a vital news item and at least 30% just gossip and irony.

  7. Leland says

    Sorry, Buster, I’m no attorney but I’m confidant you overstate reality. Where in the US is it explicity written into legal statute that saying someone is gay is defamation, e.g., “It is a violation of _____ to state that a person is a homosexual.”

    Even if your broadbrush were correct, is not the burden to prove that the statement is false upon the plaintiff? And, even if not, I trust that CNN’s pockets and the NYT’s pockets are FAR deeper than Mehlman’s and they know and he knows they could use those resources to find and force to testify friends and family members who know he’s gay [assuming he is], tricks, bar tenders, ad infinitum.

    In the absence of any evidence to the contrary, I still insist that the actions by CNN and NYT are less about legal jeopardy than embracing that being gay is sick, wrong, ick-making, shameful, disgusting, fill in the blank. Fuck ’em; fuck ’em all and not in the good way.

  8. Anon says

    I think we are missing the point. The real reason that CNN and other networks don’t want guests saying X or Y is gay is because they won’t be able to book X or Y on future shows, or others who might be in the spotlight like Clay A. They have to play nicey-nice to these celebs and bigwigs to get them to come on the air.

    Slander is a bit different from defamation.

  9. Glenn says

    Leland: In answer to your question, no, it is normally not the plaintiff’s burden to prove the falsity of a statement. And while I don’t know if Buster is right or not (although I suspect he might be right in some jurisdictions), this sort of thing wouldn’t typically be in a statute. “Per se” defamation is a common-law construct; judges would have, over the years, said that certain things are per se defamatory or not.

  10. Glenn says

    I’m going to withdraw that last comment to Leland. After further review, as they say, it appears that under some circumstances the falsity of the statement is the plaintiff’s burden to prove, so I’m not sure whether Mehlman would have to prove it was false or not.

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