Ackerman: Absence of malice?

On Journolist in 2008, Spencer Ackerman offered some disturbing advice to other list members in the wake of the Reverend Wright scandal that was starting to dominate the news cycle. Ackerman suggested,

"If the right forces us all to either defend Wright or tear him down, no matter what we choose, we lose the game they’ve put upon us. Instead, take one of them — Fred Barnes, Karl Rove, who cares — and call them racists."

This was reported last week in the Daily Caller and it has been getting a lot of play in the blogosphere and even in some mainstream media outlets.

Former Richard Viguerie attorney Mark J. Fitzgibbons claims today in the American Thinker that Ackerman's line shows libelous malice and could be grounds for legal action:

Ackerman skipped the intermediary suggestion of even asking loaded questions of Obama's conservative critics and proceeded directly to proposing false accusations against figures -- "who cares" -- on the right...

The malice exhibited in the e-mails is about more than journalistic ethics, and it may have legal consequences, with the immediate potential to cause jitters in the bars of Georgetown and Manhattan...

Malice is not designed to get to the truth. Quite the opposite: Malice is designed to harm without regard to the truth. Malicious libel against public figures is not a protected press freedom.

Conservative talking head (and Chapman University Law Professor) Hugh Hewitt says that Ackerman committed slander -- and that the other members of Journolist are complicit because they stood by in silence about the attack.

In a giant leap of logic, Hewitt compares the incident to a famous crime from the mid-1960s:

On March 13, 1964, New Yorker Kitty Genovese was attacked and killed near the entrance to her Queens home. The murder remains a much discussed incident because of the number of ordinary New Yorkers who are thought to have heard her cries for help or in some way to have observed all or part of the assault on her and yet to have done nothing.

Are Fitzgibbons and Hewitt on to something important?

To get at this, let's consider Fitzgibbons's initial point: Did Ackerman suggest labeling people as racists without reason? Few of the stories about the remark quote Ackerman's next line, which provides a justification for his claim:

Ask: why do they have such a deep-seated problem with a black politician who unites the country? What lurks behind those problems? This makes *them* sputter with rage, which in turn leads to overreaction and self-destruction.

For all I know, Ackerman had a particularly bad Barnes CSPAN appearance in mind when he wrote about him on J-list. As Ackerman's then-roommate reported,

"A right-wing caller to C-SPAN identifies himself as a big Fred Barnes fan and asks a question during the course of which he refers to Barack Obama as “monkey boy.” Barnes doesn’t bat an eye and just moves to answer the question."

Or maybe Ackerman recalled an unfortunate Barnes suggestion about racial profiling from 2001.

As for Karl Rove, you don't have to spend much time on Google to come up with a dubious pattern of words and deeds suggesting racial undertones.

Lay discussions of libel and slander generally say that the claim has to be false.

Additionally, both Fitzgibbons and Hewitt ignore the fact that these were private comments made on an off-the-record listserv. Can someone commit libel or slander under such circumstances? I don't know, but I'm not the lawyer breathlessly talking about libel or slander. Again, lay discussions of the law tend to emphasize the public (even published) nature of the malicous attack.

Finally, neither of these attorneys offer any examples of Ackerman or anyone else actually following the young scribe's advice on Journolist. Did J-listers try to distract attention from the Wright story by labeling conservatives as racists without cause? Where are the published claims from the Wright affair?


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