Now what?: A post-election appeal

I wrote a version of this story four months ago, the day before Joe Biden withdrew from the 2024 presidential race in a surprise posting on his personal Twitter account. The road was left to Kamala Harris to become better known and to reinforce the dangers of a Trump presidency.

It is now the day after a devastatingly convincing Trump victory in which he won the electoral college AND the popular vote. No Republican had won the popular vote since George W. Bush's 2004 reelection over John Kerry. Democrats regularly rail against the lopsided electoral college by invoking with pride that Hillary Clinton, who lost to Trump in 2016, had 2.8 million more popular votes than he did. In 2020, Trump was told by advisers that if he got more than 70 million votes, he'd be president. He exceeded it only to lose to Biden by more than 7 million votes. Trump's brain immediately ranted about stopping the steal. 

He kept ranting until the Tuesday election results unveiled his shocking popular vote victory. Early morning vote totals had Trump at 72 million votes, more than ever. Harris had secured five million fewer.

Before many of us woke up, Trump had bestowed on himself “an unprecedented and powerful mandate.” 

Click on photo to read Politico story

Now what? Come January, Trump will be our president. And me?

I have often wondered, what is the measure of this man, Jack Doppelt? Martin Luther King preached that the ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.” Plato is quoted as saying, it is what one does with power.

What would I do in times of war or in times when resistance to power is the challenge? I have never fought in a war. I did not enlist during the Vietnam War. My number was 335 when the draft lottery was held on Aug. 5, 1971. It would be the last draft lottery.

“the ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.” Plato is quoted as saying, it is what one does with powerWhat would I do in times of war or in times when resistance to power is the challenge? I have never fought in a war. I did not enlist during the Vietnam War. My number was 335 when the draft lottery was held on Aug. 5, 1971. It would be the last draft lottery.

Over the years, when discussions among friends have turned to what would you do at times of challenge and controversy, such as a Trump presidency, the recourse has been one of frustration. Move to Canada. Have your passport current and ready. 

From all indications, Trump's presidency will be more dire, draconian and autocratic than fathomable. Put aside the last few weeks of campaign rhetoric, which can be written off as strategic fulminations choreographed for short-term ballot return, what will the next four years really be like? Read Trump's lips. His words, as documented by Axios: 

• "Defund any school with a vaccine or mask mandate." 

• Impose the "largest domestic deportation operation." 

• "Protect innocent life." 

• "Investigate every radical out of control prosecutor." 

• Reimpose the "Trump travel ban." 

• End the "insane electric vehicle mandate." 

• Initiate "ideological screening on all immigrants." 

• Ensure "immunity for our law enforcement" 

• "Obliterate the deep state." 

He has pledged each of those measures, at least 5 times or more, again according to Axios. 

Or watch a handful of videos: 

• Trump on immigrants and deportations 
• Trump on climate change 
• Trump on Ukraine and NATO 
• Trump on Project 2025 

Project 2025, the transition report blueprint for Trump’s presidency that is spearheaded by The Heritage Foundation, as summarized by the Washington Post, would: 

“Remake the federal workforce to be political: Instead of nonpartisan civil servants implementing policies on everything including health, education and climate, the executive branch would be filled with Trump loyalists…Give Trump power to investigate his opponents: Project 2025 would move the Justice Department, and all of its law enforcement arms like the FBI, directly under presidential control….Crack down on even legal immigration: It would create a new ‘border patrol and immigration agency’ to resurrect Trump’s border wall, build camps to detain children and families at the border, and send out the military to deport millions of people who are already in the country illegally (including dreamers)….Slash climate change protections: Project 2025 calls for getting rid of the National Oceanic and Atmospheric Administration, which forecasts weather and tracks climate change, describing it as ‘one of the main drivers of the climate change alarm industry.’” 

Trump has distanced himself from the frightful specifics of Project 2025. He’s no dummy demagogue. Fascism for the people and the power of positive bullying go hand in hand with bluster mitigated by practiced denial and buoyed by drumbeats of propaganda. 

The Post’s summary tries to comfort the easily distracted public by noting that “some of these ideas are impractical or possibly illegal. Analysts are divided about whether Trump can politicize the civil workforce to fire them at will. And the plan calls for using the military to carry out mass deportations on a historic scale, which could be constitutionally iffy.” 

That is not how dictatorships work when the judiciary has already been coopted, and Republican voters, public officials and media platforms have fallen under a toxic spell. Trump is a master dogwhistler and MAGA supporters are obedient, angry companions. It is ironclad. 

Remember the titan. Trump has the bedrock support of  70 million voters.

Instead of shaking our heads in wonderment at how a deranged demagogue could have the support of millions and millions of Americans, do some basic math in assessing our fellow Americans. 

Despite the political cant that clings to American exceptionalism, that punishes political-speak for recognizing "deplorables" for what the stand for, that cringes at the "garbage" in our midst, whether they're on stage demonizing people and cultures or whether they're the "garbage" itself festering among 70 million people, we are now about to usher in a leader who slings putrid mud with the rousing support of millions. Interview after interview have MAGAs say Trump either doesn't really mean what he vents (it's just an attention getting act) or he's refreshingly welcome because he says what's on his mind. He's their führer, their generalissimo, their strong man. Why again is democracy preferable to patriotic authoritarianism? If it were only a self-evident truth. It's not. 

I try at this juncture to abide by Franklin Roosevelt's 1933 inaugural admonition that the only thing we have to fear is fear itself. If what that means, though, is that we don't have to fear fear-mongers, I'm not so sure. There appear to be millions of fear-mongers among us. They stand by deplorable instincts, they spew hateful garbage.  They can be entranced and mesmerized. They follow orders.

Among us are segregationists whose response to the end of slavery during the end of the 19th century and most of the 20th century was to impose Jim Crow laws and fight civil rights legislation and protests with seething anger, fists in the air and bulldogs. 

Count off the isolationists and Nazi sympathizers during the 1930s and World War II who linked arms to foment anti-Semitism. 

Add in the anti-Communists of the 1950s and ‘60s who were the thought police of that era. They cancelled culture through blacklisting that got people fired and rendered them unemployable. They burn books.

Don’t forget the White and Christian nationalists who use immigrant-phobia to keep the country from slipping into the clutches of the other. 

Toss in the anti-abortion activists whose beliefs and methods have spilled over to instill fear in women and doctors who aren’t even contemplating abortion. 

Hail to Huey Long, Bull Connor and Lester Maddox, hail to Charles Lindbergh and Father Charles Coughlan, hail to Joe McCarthy and hail to Donald Trump. Leaders with bullhorns and bully pulpits matter. 

So do the offspring of ardent segregationists, isolationists, Nazi sympathizers, anti-Communists, White and Christian nationalists, anti-abortion activists. Take out a ledger. Subtract the many, many offspring who have disassociated from their parents and their beliefs. On the other side of the ledger, account for the biblical fruitfulness and multiplication that has repopulated each generation with revitalized venom. 

If you do some simple math allowing for overlap in the millions and for margins of error, you’d still have 50 million + people who constitute the willing followers of Fascism Trump-style. It is intoxicating. Trump is not a stand-alone nemesis. His legions are legion. They have a push-pull relationship and they mean business. 

As Project 2025 sets out in its opening paragraph [emphasis theirs]:

“It is not enough for conservatives to win elections. If we are going to rescue the country from the grip of the radical Left, we need both a governing agenda and the right people in place, ready to carry this agenda out on Day One of the next conservative Administration.” 

Project 2025 is driven by a 180-day playbook. Whether it’s Trump’s agenda or Project 2025’s playbook or a marriage made in heaven forbid, there’s work to do now that Donald Trump is president-elect. 

As promised, the Trump administration will bolt out of the gate with a governing agenda and the right people in place.

I’m not moving to Canada, as fond as I am of the place. 

So what to do and how to go about it? In Kamala Harris' campaign closing argument the night before she lost, she pointed to communities and coalitions as a cornserstone of what would have characterized her administration. They're in place.

Robert Reich today published a blog, The Resistance Starts Now, in which the former Secretary of Labor suggests that "our first responsibility is to protect all those who are in harm’s way" - women and girls who may now fear that they’ll be forced to give birth or be denied life, trans people, anyone who faces prejudice and marginalization, people who've stood up to Trump, those who may be weeded out for deportation, political dissenters, and soldiers who may be asked to arm against demonstators.

As a Jew whose grandparents were slaughtered in a Nazi concentration camp, I’m sensitive to the direct consequences of the demonization of the other and to the Righteous role models whose selfless sacrifices in resistance saved Jews from capture and death. 

Resistance is a controversial concept and undertaking. Even Wikipedia recognizes that. 

It is not something I know how to engage in. I have no playbook. When I think about it, it seems like a dystopian fantasy or the musings of a savior complex. When it goes beyond organized peaceful protests or legal strategies, its actions can’t be publicly shared or disseminated. Texts, email and social media would be mostly off-limits. 

If peaceful protesters are arrested, would I and others join in to swell the ranks to make arrests less feasible?  If immigrants are rounded up for deportation, would I and others hide people in our homes? Would I and others seek out churches, synagogues and mosques for sanctuaries, solidarity and moral guidance? Do undergrounds form organically? 

I’m in uncharted territory here. For starters, if you have thoughts, answers or time to mobilize, please get in touch with me at j-doppelt@northwestern.edu.

 #####

We’re shocked, shocked to find out that Trump’s gambling with our future

Help me out. I’m a journalism sort by nature and profession. I’m used to Trump setting his cockeyed sights on the lamestream media. 

For months, though, I’ve found myself defending the news media, in particular The New York Times from attacks from the left. The most common complaint is letting Trump off the hook or failing to fact check him or to catch him in lies. 

Trump and politics itself in the NeanderTrumpian era is a rare species. Trump trades no more in facts or public service than chefs serve spaghetti by throwing it at a wall to see what sticks. Do we expect restaurant critics to squint at the mess to point out which of the pasta’s overcooked? Trump is on stage to tell us to pick it up if we don’t like it. 

Trump is and always has been a huckster with a hypnotic, Svengali-like hold on people. His con artistry has improved with age, even with creeping dementia, so that he now packages and sells it as a finely crafted weave. Some 70 million people are loyal customers. Their confidence is in his pocket. He can and does say whatever he wants. No wonder the Supreme Court has divined him with immunity. They are under his spell and have conjured up an enabler’s wand. He could stand in the middle of Fifth Avenue and shoot somebody, and he wouldn't lose any voters, OK? "It's, like, incredible” and it’s been incredible for more than eight years. 

[Click on photo to read the 2016 story]

We blame the news media. They should do something about it. Biden is too old and frail to campaign or govern. What about Trump? Is that fair that Trump gets a pass? 

Don’t we realize yet that we are way beyond comparing apples and oranges. The NeanderTrumpian era has us comparing apples and orangutans. Apples are about taste and sweetness. Orangutans are endangered, caged animals, with IQs of between 70 and 95. That’s high for orangutans. Probably high for apples too. Orangutans perform for us. 

For months, longer, reporters have been trying almost apoplectically to tame the orangutan, to ask questions, many of them gotcha variants, to get Trump to focus, to insert truth-telling disclaimers for his free-floating fulminations, or to spotlight his inanities. Far too many to hold onto. 

Can’t seem to be done. He’s nailed the perfect orangutan impersonation. It’s an uncanny version of the children’s taunt: “I’m rubber, you’re glue.” 

Retired Marine Gen. John Kelly, Trump’s former chief of staff, portends in all-too seriousness that Trump is and will be in office “a Fascist.” 

I’m not a Fascist, Kamala’s a Fascist, a Communist, a Marxist, a dumb woman who just recently realized she’s black. What are reporters to do with all that? Point out with numbing sincerity that Trump has no evidence that Harris is a Marxist, that Harris did well on her board scores.

I would think that showing videos of Trump, saying he "did not know [Harris] was Black until a couple of years ago when she happened to turn Black. And now she wants to be known as Black. Is she Indian, or is she Black?” would level any playing fields and both the news media and the Harris campaign have checked those boxes.

During Hurricane Dorian in 2019 when Trump was president, he updated the public on the direction of the hurricane by doctoring a map with a sharpie to make the case that the storm would hit Alabama. The media’s coverage had been wrong, he claimed. Only he could prevent or fix it.

[Click on photo to read the 2019 story]

When Hurricanes Helene and Milton recently hit Florida, Georgia, South Carolina, North Carolina, Tennessee and Virginia, Trump took after the media again while leading his acolytes to allege that the Federal Emergency Management Agency (FEMA) is channeling funds to illegal migrants and controlling the weather. The media did their tired duty, pointing out at every conceivable turn that Trump’s claims were baseless. Of course they’re baseless. They’re gunk. Yet they stick after bouncing off him. 

It's beneath me and any of us to need to bring up the Haitians of Springfield, Ohio eating the town’s pets, as if it were remotely plausible. Baseless, I tell you, and so do news outlets. All this does is allow Trump, Vance and the spineless to turn it into an ersatz lesson in immigration policy. 

A different pile of gunk will get heaved the next day and the next. Clean it up, news media, if you don’t like it. 

Another day passes and we get to the proverbial candidate closing arguments – Trump’s in Madison Square Garden and Harris’s on the Ellipse in Washington, DC. As The New York Times reported in “Trump at the Garden: A Closing Carnival of Grievances, Misogyny and Racism,” the inflammatory rally kicked off with a comedian describing Puerto Rico as a “floating island of garbage,” then mocking Hispanics for not using birth control, Jews for being cheap and Palestinians for being rock-throwers. 

The media hopped to it immediately, excoriating the event, pointing out that it’s not just Trump but his henchmen and his license to hate and divide. The media opined across the board that this one looks like it may stick. Even orangutans’ messes can sometimes smother their own.

Yet by morning, Trump had seized on a statement Biden made in a Tuesday eve video call with a Latin voting group that it was Trump’s supporters, not Puerto Rico, who are garbage. Sounded like a reprise from the deadly 2016 Hillary Clinton comment about the "basket of deplorables" supporting Trump. 

Doesn’t matter that I took Biden’s comment to refer to the cast of speakers at Trump’s rally. Trump knows garbage when he sniffs it. By his next public appearance, Biden (de facto Harris) was the villain, the divider of the nation, the threat to democracy. It’s front and center on the Trump-Vance campaign site. Trump manufactured the rubber. The garbage? It stuck to Harris. 

The news media is left dredging up Trump’s garbage, like Walter Matthau did in The Odd Couple. It’s a classic scene. 

"And now, it's garbage.

[Click on photo to watch the scene]

Another scene, even more classic, helps us realize how dumbfounded we pretend to be that Trump has such a stranglehold on the news media and on millions of people in the country. Maybe, they serve as garbage collectors.

As Casablanca showed us: Everybody’s having such a good time. Yes, much too good a time. It must be shut up. On what grounds? [Click on the url to watch the scene]        

We’re shocked, shocked to find out that Trump’s gambling with our future.                                                                         

                                                                                         #####

Will young people vote?: A college query

I recently retired from Northwestern University where I was a journalism prof. I get to campus regularly and find myself talking with students and becoming acquainted with the priorities of young people; some engaged in campaigns. Many more are turned off to politics. 

When I was in college, I was into politics. I went to school just across the border from Illinois. I was a Chicago guy, proud of my hometown, like young folks are now because of the TV show, The Bear. Yet for most of my four years, Chicago was out of sight, out of mind. 

I lived in a college bubble, so I get how students now can ignore the election and resent people trying to shame them for not paying attention to the debates, the candidates, and the avalanche of intrusive emails and texts. 

One student told me he has no intention of voting, despite issues that matter to him -- the economy, his ability to get a job, afford housing on his own, and abortion. 

A survey of college students earlier this year found that when asked “what they would do if they or their partner became pregnant while in college, most asserted they would seek abortion.” The student said it deeply matters to him that if his partner or a friend became pregnant, she’d be able to turn to abortion. 

An August CBS News poll found that 60% of voters believe abortion should be legal in all or most cases. 

Last month, People Magazine published a story identifying 56 celebrities who’ve shared their abortion stories. They were young women, not celebrities, when they sought an abortion. 

Democrats Harris and Waltz are dedicated to a woman’s right to decide. 

Republicans Trump and Vance treat abortion like a campaign shell game. Under one card, they put Trump’s appointment of Supreme Court justices who did his bidding to overturn a woman’s abortion rights, under another is Vance’s call for a national abortion ban, under another is their mantra to leave abortions to the states. 

I wonder if the student I talked with and others who consider the issue as important still won’t vote. 

______________________

Jack Doppelt is Emeritus Professor of Journalism, Medill School of Journalism, Northwestern University and co-author of Nonvoters: America’s No-Shows

Kamala Harris Campaign Anthem: Never Going Back Again

Trump broke down and let chaos in 

We could see what he had done 

Been down with Trump one time 

Been down two time 

We're never going back again 

 [guitar solo] 

 You gotta know what it means to win 

So get down, vote and then 

Took down Trump one time 

Will take down Trump two time 

Yah 

Took down Trump one time 

Will take down Trump two time 

And there won’t be three time 

We're never going back again 

Yah 

Written and played by Lindsey Buckingham/Fleetwood Mac 

With deep thanks 

Watch and listen to his virtuoso version here - https://lnkd.in/gWsmYmR7

 Anthem words by Jack Doppelt

Update: Sarah Palin and The New York Times to go at it again

Neither we nor the New York Times has seen the public passing of Sarah Palin. We may have thought we had in Nov. 2022 when she lost an election bid for Congress in Alaska under a pathfinding ranked choice voting system, depicted in the new documentary, Majority Rules. Not so fast. Her potential blockbuster libel suit, that I wrote about 1-1/2 years ago before it was dismissed, is back. A federal appeals court, in a 56-page decision, remanded the case for re-trial. 

Click here to read the NYT story

Its significance rests on it being a vessel for the U.S. Supreme Court to get the case and overturn the landmark 1st Amendment decision in NY Times v. Sullivan. That 1964 ruling has made it much harder for public figures like Palin to win libel lawsuits. The Court's conservative justices have signalled an urge to overturn it, as they've done with Roe v. Wade, and Donald Trump pledged on the campaign trail in 2016, “We’re going to open up those libel laws...So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.” 

To appreciate the stakes involved, read my original story below that concerned me so deeply that I recommended that the Times throw the case.     

The New York Times has a way out of its lawsuit with Sarah Palin. Throw the case.

Originally published on Feb. 8, 2023 

The New York Times is locked in courtroom battle with Sarah Palin. It might be framed as the titanic clash between the newspaper of record and the Alaskan Russia watchdog. At stake is a bedrock foundation for the First Amendment, through the landmark 1964 case of NYT v. Sullivan. 

The Times appears to be caught between the proverbial rock and a hard place. It can lose the case, with Palin conceivably being awarded millions in punitive damages. It can win, in which case Palin will appeal all the way to a salivating Supreme Court, risking the rarified preferred position the press has held since 1964. 

I offer an unorthodox third option. From where I sit in the city of the 1919 Chicago Black Sox scandal, I’m rooting for the New York Times to throw the case. Unheard of, so hear me out. 

I can find no mention in the press or public record of an attempt to settle the case as the customary way out for both sides. Maybe it’s out there, but if not, it’s not unusual. Settlement negotiations tend to be closely held secrets from the public and from the jury. 

It’s possible Palin has offered to settle. I doubt it. She’s crusading for the political right that understandably knows a windfall when it drops not far from the fake news tree. The Times may have, and certainly should have, tried to settle. Possibly blocking the way, though, are the paper’s hubristic century-old memory that its publisher chided the paper’s lawyer “to never settle a libel lawsuit to save a little money” entrenched by the paper’s claim to an uninterrupted 50-year-old streak of libel wins. In any event, had the Times tried to settle, there isn’t a chance in this hellish case that Palin would have agreed. 

What’s left? Throw the case. That’s not easy. As the Wicked Witch of the West said in planning how to dispense with Dorothy to capture the ruby slippers: “These things must be done delicately.” Here’s why. 

On a good day, if there were such a thing with this Trump-infused Supreme Court, I’d worry about the Court’s impartiality in a case featuring an iconic GOP standard bearer vs. the paragon of the ENEMY OF THE PEOPLE!, as Donald Trump has referred to America’s media. 

And libel is its own kettle of fish. There are two distinct and overlapping strains of vocal Supreme Court logic on libel that have been floated uncharacteristically from the Court as trial balloons. 

In a case from 2019 in which a rape victim had accused Bill Cosby’s attorney of defaming her, Justice Clarence Thomas concurred with the Court’s decision to not take the case. He chose to elaborate. Classifying the rape victim as a “limited purpose public figure” needing to prove by clear and convincing evidence, like public officials must, that Cosby’s lawyer had acted with reckless disregard was not, according to Thomas, grounded in the original meaning of the 1st Amendment. 

Thomas, who has become the Court’s most unrepentant cherry picker of strict construction obstructionism, sees the seminal 1964 case of NYT v. Sullivan and the Court’s decisions extending it as “policy-driven decisions masquerading as constitutional law.” In his concurrence, Thomas listed a carefully selected catalogue of the nation’s years of historical antecedents. They left him unconvinced that the 1st and 14th Amendments should be interpreted to mean that Congress and the states shall make no laws abridging freedom of the press even if those laws allow public officials to financially shut down the press so the officials can continue to use their badges of honored service to beat the dickens out of protesters in the South. As Thomas wrote, “We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified.” 

Justice Neil Gorsuch released his own libel trial balloon last July in a case in which the son of a former Albanian prime minister was implicated in a U.S. defense contract to supply ammunition to the Afghan military by procuring weapons from stockpiles in Albania. The case was dismissed because the lower courts concluded that such a public figure couldn’t possibly prove that the book publisher had acted with reckless disregard by contriving to manufacture the truth. 

Gorsuch’s reservations about NYT v. Sullivan differ from Thomas’. Gorsuch’s stem from the out of control evolution of media in a digital age. "Not only has the doctrine evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come to leave far more people without redress than anyone could have predicted," Gorsuch wrote. Now, "virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world." The Supreme Court didn’t take that libel case either. 

Thomas and Gorsuch have thrown down the gauntlet. The Court is primed to take on the New York Times and to drag down with it the all too often overlooked role of an indispensable free press in a country teetering on the brink of a frayed democracy if not autocracy. A recent empirical study of “The U.S. Supreme Court's Characterizations of the Press” by a University of Utah professor found “a substantial correlation between ideology and the Justices’ attitudes toward the press” that “reveal troubling trends at the Court, with widespread implications for any discussion of contemporary press freedom.” 

Here’s why Palin v. NYT is just the right trojan horse at the right’s time. 

NYT v. Sullivan cannot be appreciated without some recall of the Civil Rights movement in the South in the ‘60s. In taking laws into their own hands, lawmakers from legislators to sheriffs imposed their will on blacks and on protesters. The whole world was watching thanks to the free press, local and national, that is until lawmakers filed smothering libel suits. To win, the lawmakers needed to prove to a local jury only that something reported was false even in the most negligible way, like reporting that protesters marching to the state capitol were singing My Country Tis of Thee, not the Star Spangled Banner, and that the stories referring to the lawmakers put them in a worse light to some people after reading the stories. That’s it. Not even financial damages were needed. That’s what state laws could and did allow until the Supreme Court began “meddling in this area” in 1964, nearly 175 years after the First Amendment was ratified,” as Justice Thomas wrote. 

In contrast to Thomas’ predetermined reading of history, the Court’s unanimous opinion in Sullivan, which was issued when Thomas was 16 years old, addressed posterity in framing the case “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. 

In concurring, Justice William O’ Douglas, often the ornery conscience of the Court in such matters, combined with Justice Hugo Black, a former member of the Ku Klux Klan, in writing: “This Nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials.” 

”It was a majestic opinion,’ summarized Floyd Abrams, a prominent 1st Amendment lawyer who’s represented the Times. “It had a command of American history that is rare in a judicial opinion. It reminded us of how young we are as a country.” 

NYT v. Sullivan has often been regarded as one of the most enduring exports of American democracy. 

Or you can value Thomas’ veneration for justice and American history. 

A critical and at the time heralded historical misdirection came later in the ‘60s and in the ‘70s when a series of Supreme Court decisions extended NYT v. Sullivan’s carefully circumscribed applicability of the protective 1st Amendment freedom that liberated breathing room to cover the actions and misdeeds of “public officials. The opinions applied the same rigorous “reckless disregard for truth or falsity” standard to the bottomless public arena that tracks in “public figures” whose special sauce is that they can commandeer microphones and sound systems that resemble the social media influencers of today. Trouble is that has allowed all breeds of media, often as crude as the self-serving celebs they cover, to have a preferred, almost exalted, position when they cover the territory with bravado and one-upmanship that relegates truth to a commodity indistinguishable from clickbait or promotional loss leaders. That is more to Judge Gorsuch’s point and it’s a nettlesome one at that.

Once the province of vigilant watchdogs of governments, public officials and democracy devolved into the hobnobbers with public figures and into the makers and breakers of celebrities, it’s a slithery slope to get to Donald Trump, the real estate mogul, but not yet ignominious public official. No wonder that the pre-public official Trump emerged from his real estate-TV Apprenticeship period into the political arena already committed publicly to eviscerating the 1st Amendment. At about that time, public figure and Trump’s wife Melania pursued a lucratively successful series of libel suits that stemmed from stories brazenly reporting of rumors of her involvement in a high end escort service. She reaped a huge, though undisclosed, settlement, because the lead case targeted the British press, which is unprotected by NYT v. Sullivan and the 1st Amendment. 

Just as Trump has set the table for the public to distrust election results and fake news, he descended the escalator into electoral politics in June 2015 toting a resolute agenda to undermine NYT v. Sullivan, the 1st Amendment and libel. “We’re going to open up those libel laws,” Trump pledged on the campaign trail. “So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.” 

******

So here we are now back in Manhattan in week 2 of Palin v. NYT. If you were to follow the American press and its naïve, complacent, even blind, over-reliance on the onerous reckless disregard standard appended to the 1st Amendment, you might think, I believe potentially disastrously, that Palin and her lawyers’ admission to an “uphill fight,” as the Politico headline read last week, means that the Times has the upper hand as is typical in libel cases. Or as the Times’ own coverage reported Jan. 23, “Though defenders of broad First Amendment protections for the media have said Ms. Palin’s evidence is weak, they also acknowledged that a jury could decide otherwise.” 

The basis for the complacency has been pierced. More than five years ago, in Aug. 2017, the trial judge in the case dismissed Palin’s suit, ruling that under no set of facts could Palin meet the high burden of proving by clear and convincing evidence that the Times had published the facts in the editorial with reckless disregard for their truth. Palin appealed. It took two years for the appeals court in 2019 to reverse and send the case back to the trial court where it is now. 

In issuing its opinion, the unanimous appeals panel provided an unusual sneak peek at some of the evidence. 

The dispute is over an editorial published by the Times on June 14, 2017, the same day that a gunman opened fire at a baseball field in Virginia where Republican congressmen were practicing. GOP Congressman Steve Scalise of Louisiana was among those injured. The editorial, headlined “America’s Lethal Politics,” asked whether the Virginia shooting was evidence of how vicious American politics had become. It recounted another incident from six years earlier when in 2011 Democratic Congresswoman Gabby Gifford of Arizona suffered severe brain damage and partial paralysis during an attempted assassination in which six others were killed by the gunman. 

The editorial page editor assigned the editorial to an established editorial page writer. After the draft was written, it went back to the editorial page editor who inserted a reference dating back to the 2011 massacre that added the context that the earlier shooting occurred after Palin’s fundraising political action committee had circulated a map putting Gifford and 19 other Democrats under “stylized cross hairs.” 

The revised editorial made a distinction between the two shootings. In the earlier shooting, “the link to political incitement was clear.” No one reviewed the editorial after the revisions and it was published. 

Almost immediately that day it became apparent that the gunman in 2011 had no access to the Palin committee map putting Gifford and 19 other Democrats under “stylized cross hairs.” Therefore there was no “link to political incitement.” Moreover, the claim of a link to political incitement had been debunked years earlier. 

The Times changed the editorial text online by deleting “the link to political incitement was clear” and toning it down to: “But no connection” to the shooting and Palin’s PAC’s map “was ever established.” 

By morning with a firestorm gathering even within the paper, The Times published two separate corrections. 

From basically those facts, the trial judge had concluded that no matter what other facts might be introduced at trial, the actions of the Times and its staffers would at most amount to an unintentional screw up of a severity rising merely to negligence, as the law calls it, insufficient for the higher threshold of “reckless disregard” for arriving at the truth. 

The appeals court must have used a more refined lens than the trial judge. Among the facts the panel summoned in sending the case back for trial, it noted that a jury might see “reckless disregard,” knowing that: 

1. The editorial page editor who single-handedly inserted the revisions that brought Palin into the story and linked her committee to political incitement, was James Bennet. 

2. Bennet had previously been editor-in-chief at The Atlantic during which time the magazine had published a number of stories about the Gabby Gifford shooting, including one entitled, “Ten Days That Defined 2011,” which read in part, “the bad thing to come out of this already terrible story was a round of blame hurling, with people rushing to point at Sarah Palin’s infamous target map.” That story clarified that the gunman was clinically insane and the atrocity was “not really about politics at all.” 

3. Bennet has staked out the position under oath that he has no recollection of the content of the story in The Atlantic. The appeals panel considered two options a jury might conclude from that; either he was reckless when he published the editorial without reacquainting himself with the contrary articles published in The Atlantic six years earlier, or he’s lying. 

4. Bennet resigned from the Times in June 2020 under a cloud because of “a significant breakdown in our editing processes” relating to the publication of an op-ed entitled “Send In the Troops” by a GOP senator from Arkansas who was advocating for a military response to civic unrest. 

 

5. Bennet’s brother, Michael, has served as a Democratic Senator from Colorado since 2009 and is a strong proponent of gun reform legislation. The appeals panel wrote that the Bennet brothers are both “outspoken advocate[s] for gun control” and raised the possibility that a jury might find that Bennet had “reason to be personally hostile toward Palin, her political party, and her pro-gun stance. 

6. The appeals panel gave weight to the Times’ argument that the paper couldn’t have acted with reckless disregard for the story’s truth in that it published corrections the day after the editorial ran. Yet the panel concluded that it’s also “plausible that the correction was issued after a calculus that standing by the editorial was not worth the cost of the public backlash.” 

 

7. Part of the backlash came from The Times itself. One of the paper’s opinion columnists, Ross Douthat, emailed Bennet at about 10:30 the night story posted: “I would be remiss if I didn’t express my bafflement at the editorial we just ran…There was not, and continues to be so far as I can tell, no evidence that (the gunman) was incited by Sarah Palin or anyone else, given his extreme mental illness and lack of any tangential connection to that crosshair map.” Bennet responded about a half-hour later that he’d look into it in the morning. 

In case you’re curious as I was, the three-judge panel was composed of two judges who were appointed to the federal bench by Ronald Reagan and one by Barack Obama. The trial judge was appointed by Bill Clinton. 

*****

 

The trial is in New York City. The New York Times has home field advantage over Palin. If you are of the left, as New York culture is, you may regard Palin as a joke, the butt of spot-on Saturday Night Live skits by Tina Fey, the albatross running mate around the neck of John McCain’s 2008 presidential bid, and as having finally gone away as Paul Waldman wrote recently in The American Prospect. 

Palin’s legal team are no one’s fools. To get the multi-million dollar jury verdict they covet, they need to neutralize the home field advantage. The “uphill fight” they cop to publicly and in front of the jury is scripted in bold letters suitable for a Times Square marquee: Super soaker celeb vs. big bad media. 

Some of you may recall a similar headliner event, Hulk Hogan (or should I say alter ego Terry Bollea) v. Gawker, that resulted in a 2016 jury verdict against the media for $115 million in compensatory damages and $25 million more in punitive damages, all for the unauthorized release of a sex tape. 

The implicit question for the Palin juror is to whom do they want to teach a lesson? A much maligned, media-bashed celeb or the big bad media, keeping in mind that since the 2016 Hogan verdict, Trump and the right wing have fumigated the landscape with toxic fake news mantras so repellent that millions of people won’t touch the stuff or their information, vaccines, masks, or climate changes. 

The jury is obliged to color within the lines. It must conclude by clear and convincing evidence that the Times and its employees acted with “reckless disregard” for whether the facts included in the editorial were true when they were published. The states of mind of the players matter. 

When I teach libel law, I tend to deploy a gutteral device to get the point across to avoid, for instance, the diametrical interpretations used in this case by the trial judge and the ones enumerated by the three-judge appeals panel. 

Being Jack, I use the “Jack spit test.” If in publishing a story, you don’t really "give Jack spit" if the facts are true or false, then you’re acting with reckless disregard for their truth. Then for effect, I turn to the right (my favored direction) and let out a spitless chock-tooey. 

That will be the jury’s charge. Under the facts as I fear them now, with Bennet now testifying, I think the odds for journalism are painfully prohibitive. If the jury were to side with the Times, Palin will appeal and appeal again until the Supreme Court gets its crack at deciding that such jury instructions on reckless disregard should no longer be given involving public figures, maybe even public officials. The Court would then likely return the case to be retried, using a jury instruction more favorable to Palin and in the future, less favorable to well-meaning and industrious new outlets. 

With the facts as treacherous for the Times as they are in this case anyway, I counsel: Throw the case, if your liability insurance company lets you. You still have time to protect your flanks as you play out your trial strategy. Keep Palin from being portrayed either so sympathetically that she emerges as a victim indefensible to the rapacious powers of the big, bad media or villainously that you make her out to be a gold digger who needs this to revive her political career. As for how to present the Times, of course be remorseful but don’t go so far as to dig in your editorial heels that it was obviously an honest mistake because The New York Times never has libeled anyone and never will. 

If in the process, with James Bennet’s almost singular culpability for the edits in the Palin piece, it may appear that you’re throwing a fellow journalist under the bus. That’s always unseemly. If it comes to pass in throwing the case, I suggest a modest re-calibration of the saying that will reveal an ethical imperative. It’s revoking the license of a runaway bus driver. Ralph Cramden would approve. 

#####

Jack Doppelt is an emeritus professor of journalism at Northwestern University, who regularly taught Media Law & Ethics in which he characterized NYT v. Sullivan as one of the two most seminal cases for journalists to learn. He is a perennial subscriber to, and trusting reader of, the New York Times.

Resistance: Who Am I?

Update: July 22, 2024 Evanston RoundTable Good Monday morning, Evanston.

Someone apparently reacted quickly to Joe Biden stepping down from the presidential race and endorsing Vice President Kamala Harris for the nomination on Sunday, rearranging a yard sign on Asbury Avenue south of Greenleaf Street that previously spelled out "RESIST." (Picturing Evanston photo by Joerg Metzner.)

I have often wondered, what is the measure of this man, Jack Doppelt? Martin Luther King preached that “the ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.” Plato is quoted as saying, it is what one does with power.

What would I do in times of war or in times when resistance to power is the challenge? I have never fought in a war. I did not enlist during the Vietnam War. My number was 335 when the draft lottery was held on Aug. 5, 1971. It would be the last draft lottery.

Over the years, when discussions among friends have turned to what would you do at times of challenge and controversy, such as a Trump presidency, the recourse has been one of frustration. Move to Canada. Have your passport current and ready. 

It is conceivable, if not likelier than not, that Trump will become president again. From all indications, if that comes to pass, his presidency will be more dire, draconian and autocratic than fathomable. Read his lips. His words, as documented by Axios: 

• "Defund any school with a vaccine or mask mandate." • Impose the "largest domestic deportation operation." 

• "Protect innocent life." 

• "Investigate every radical out of control prosecutor." 

• Reimpose the "Trump travel ban." 

• End the "insane electric vehicle mandate." 

• Initiate "ideological screening on all immigrants." 

• Ensure "immunity for our law enforcement" 

• "Obliterate the deep state." 

He has pledged each of those measures, at least 5 times or more, again according to Axios. 

Or watch a handful of videos: 

• Trump on immigrants and deportations 
• Trump on climate change 
• Trump on Ukraine and NATO 
• Trump on Project 2025 
• 
  

Project 2025, the transition report blueprint for Trump’s presidency that is spearheaded by The Heritage Foundation, as summarized by the Washington Post, would: 

“Remake the federal workforce to be political: Instead of nonpartisan civil servants implementing policies on everything including health, education and climate, the executive branch would be filled with Trump loyalists…Give Trump power to investigate his opponents: Project 2025 would move the Justice Department, and all of its law enforcement arms like the FBI, directly under presidential control….Crack down on even legal immigration: It would create a new ‘border patrol and immigration agency’ to resurrect Trump’s border wall, build camps to detain children and families at the border, and send out the military to deport millions of people who are already in the country illegally (including dreamers)….Slash climate change protections: Project 2025 calls for getting rid of the National Oceanic and Atmospheric Administration, which forecasts weather and tracks climate change, describing it as ‘one of the main drivers of the climate change alarm industry.’” 

Trump is distancing himself from the frightful specifics of Project 2025. He’s no dummy demagogue. Fascism for the people and the power of positive bullying go hand in hand with bluster mitigated by practiced denial and buoyed by drumbeats of propaganda. 

The Post’s summary tries to comfort the easily distracted public by noting that “some of these ideas are impractical or possibly illegal. Analysts are divided about whether Trump can politicize the civil workforce to fire them at will. And the plan calls for using the military to carry out mass deportations on a historic scale, which could be constitutionally iffy.” 

That is not how dictatorships work when the judiciary has already been coopted, and Republican voters, public officials and media platforms have fallen under a toxic spell. Trump is a master dogwhistler and MAGA supporters are obedient, angry companions. It is ironclad. 

Remember the titan. Trump got the votes of more than 62 million people when he defeated Hillary Clinton for president in 2016; he got more than 74 million votes when he lost to Joe Biden in 2020. 

Instead of shaking our heads in wonderment at how a deranged demagogue could have the support of millions and millions of Americans, do some basic math in assessing your fellow Americans. 

Among us are segregationists whose response to the end of slavery during the end of the 19th century and most of the 20th century was to impose Jim Crow laws and fight civil rights legislation and protests with seething anger, fists in the air and bulldogs. 

Count off the isolationists and Nazi sympathizers during the 1930s and World War II who linked arms to foment anti-Semitism. 

Add in the anti-Communists of the 1950s and ‘60s who were the thought police of that era. They cancelled culture through blacklisting that got people fired and rendered them unemployable. 

Don’t forget the White and Christian nationalists who use immigrant-phobia to keep the country from slipping into the clutches of the other. 

Toss in the anti-abortion activists whose beliefs and methods have spilled over to instill fear in women and doctors who aren’t even contemplating abortion. 

Hail to Huey Long, Bull Connor and Lester Maddox, hail to Charles Lindbergh and Father Charles Coughlan, hail to Joe McCarthy and hail to Donald Trump. Leaders with bullhorns and bully pulpits matter. 

So do the offspring of ardent segregationists, isolationists, Nazi sympathizers, anti-Communists, White and Christian nationalists, anti-abortion activists. Take out a ledger. Subtract the many, many offspring who have disassociated from their parents and their beliefs. On the other side of the ledger, account for the biblical fruitfulness and multiplication that has repopulated each generation with revitalized venom. 

If you did some simple addition allowing for overlap in the millions and margins of error, you’d still have 50 million + people who constitute the willing followers of Fascism Trump-style. It is intoxicating. 

Trump is not a stand-alone nemesis. His legions are legion. They have a push-pull relationship and they mean business. 

As Project 2025 sets out in its opening paragraph [emphasis theirs]:

“It is not enough for conservatives to win elections. If we are going to rescue the country from the grip of the radical Left, we need both a governing agenda and the right people in place, ready to carry this agenda out on Day One of the next conservative Administration.” 

Project 2025 is driven by a 180-day playbook. Whether it’s Trump’s agenda or Project 2025’s playbook or a marriage made in heaven forbid, there’s work to do over the next four months to defeat Donald Trump. 

There’s also work to do to organize for the resistance if he were to win. I’m not moving to Canada, as fond as I am of the place. 

So what to do and how to go about it? 

As a Jew whose grandparents were slaughtered in a Nazi concentration camp, I’m sensitive to the direct consequences of the demonization of the other and to the Righteous role models whose selfless sacrifices in resistance saved Jews from capture and death. 

Resistance is a controversial concept and undertaking. Even Wikipedia recognizes that. 

It is not something I know how to engage in. I have no playbook. When I think about it, it seems like a dystopian fantasy or the musings of a savior complex. When it goes beyond organized peaceful protests or legal strategies, its actions can’t be publicly shared or disseminated. Texts, email and social media would be mostly off-limits. 

If peaceful protesters are arrested, would I and others join in to swell the ranks to make arrests less feasible?  If immigrants are rounded up for deportation, would I and others hide people in our homes? Would I and others seek out churches, synagogues and mosques for sanctuaries, solidarity and moral guidance? Do undergrounds form organically? 

I’m in uncharted territory here. 

 #####

Preparing the 2024 Haggadah is not the dilemma I feared

Jack C. Doppelt 

April 2024 

This year’s Haggadah seemed destined to be different in large part because of the complexities of the struggles throbbing in the Middle East. Surprisingly and poignantly, not much changing is needed. The places, the terms (Holy Land, Promised Land, Bible, exodus, desert, plagues), the themes, the introspection, even the jarring lessons of being the oppressed and the oppressors have been in our Haggadah all along. All that’s needed is to listen more intently, be more aware of suffering and of empathy, and truly recognize how the history of humanity and inhumanity keeps resonating. 

In 2014, I was teaching in the West Bank and wrote these reflections: Because We Can? Pondering Oppressor and Oppressed. We incorporated it into our Haggadah. 

The driving force of any Passover is the telling and retelling of stories so memories are more likely to be preserved. Take this one with you, whether you celebrate, respect Jewish traditions or not: 

Elijah the Prophet: A child’s view of plagues, miracles and the open door 

As I was putting this year's updates to bed, a friend discovered a story in Washington Monthly, called "From The Edges of a Broken World: The article Guernica retracted, and the translator who tried to tread the line of empathy." It's worth reading. 

In it, Joanna Chen, the author, quotes from poetry lines that others have written over the years. Many are translated from Hebrew or Arabic. They help bottle the empathy Passover needs to preserve. 

Joanna Chen

"The tree lost its mythical powers, horses huddled at the edge of the earth. The sniping light turned cold, winter came, we continued, faces sealed. Only at night did we sit down with our own names. How can I mourn the distance of years, of waste, of your silence seeping into the earth."

--“The End of Naivete” by Yonatan Berg in Frayed Light 

"You hand me a clean handkerchief, Ripe figs. I have been moving away For years"

--“Remembrance” by Yonatan Berg in Frayed Light 

"By the time the knock at the door came, I was dead. Who’s there? asked the photo in the frame. It is me, I said. I came back to wipe the dust off you." 

--“To My Mother” by Yonatan Berg in Frayed Light 

"Your morning is the morning of others. Your evening is the evening of others And we frequently set traps for birds."

--untitled, by Nasser Rabah, in Arrowsmith (translated collectively by Joanna Chen, Julie Yelle, and Mosab Abu Toha)

"No flag flutters for me, No bird alights upon the window. I am a clock on the wall." 

--“The Evening of Others,” published in Chen's 2017 blog in the Los Angeles Review of Books

"I want to be your foliage, Dense and cool against the heat, But I am dry thorns on a hilltop" 

--“Hebron” in Frayed Light 

"I want to be innocent of every line I ever wrote, I want to cry on every hand that ever hovered over the cover of a book. A flock of vocabulary jostles at my window, hammers at my heart." 

--untitled, by Nasser Rabah, Los Angeles Review of Books 

"The hand still moves across the page and on the balcony plants lean forward, long-necked, into the sun." 

--“Report from a Free City” by Yonatan Berg in Frayed Light 

 #####