21st: Drudging admiration

How Matt Drudge may win his court battle -- but lose the war for media respectability.


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Mike Godwin
February 3, 1998 1:00AM (UTC)

As the media furor about the president's alleged sexual adventures rages, the scandal has created a fascinating sideshow: the rehabilitation of Internet gossip columnist Matt Drudge. In a matter of days, Drudge went from scorned purveyor of unsubstantiated rumor to honored talk-show authority.

But the shift in the mainstream press's attitude toward Drudge -- from snooty disdain to cautious respect -- is unlikely to last, given that few mainstream journalists are willing to acknowledge that the nature of Drudge's work is scarcely different from that of their own. And if "Tailgate" fizzles as a scandal, you can bet that the press, eager to find someone else to blame for the media frenzy, will seize upon Drudge as a convenient scapegoat.

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A number of media pundits -- notably Howard Kurtz, the Washington Post's media critic -- were all too ready last fall to proclaim Drudge's demise as a media force after White House aide Sidney Blumenthal filed a $30 million lawsuit against Drudge and America Online, which carries his trademark mix of political and Hollywood dish. (Drudge reported correctly that Blumenthal was rumored in right-wing circles to have a history of spousal abuse, but erred in failing to determine that there was no evidence to support that charge.)

But now that Drudge has played a key role in igniting the media firestorm surrounding President Clinton and his supposed affair with a White House intern, the 30-year-old columnist is once again being treated as a serious player by leading media institutions.

The shift in Drudge's treatment by broadcasters has been extraordinary. Shortly before the Monica Lewinsky story broke, the Blumenthal-Drudge case was the subject of an installment of Ted Koppel's "Nightline." Koppel's primary guest was Kurtz, whose eagerness to slam Drudge led to his making claims about the reliability and probity of the traditional press that are demonstrably untrue. Kurtz argued that a newspaper's editorial hierarchy is what prevents a paper from publishing defamatory material -- a revelation that must be rather startling to Richard Jewell, whom the traditional press wrongly presumed to be behind the bombing at the '96 Olympic games in Atlanta. And Kurtz asserted that a mistake like Drudge's would get him fired from any reputable newspaper -- an assertion that even Koppel felt compelled to dispute.

Following the first week of the Lewinsky story, however, it was hard to watch any TV account of the scandal without hearing a reference to Drudge's having "broken the story." And, in fact, Drudge did break some parts of the story, including the fact that Newsweek opted at the last minute to delay publication of its own coverage. (Spurred by Drudge's report and the resultant frenzy, Newsweek used its America Online site to get its version into circulation, but felt constrained in the following week's magazine edition to emphasize that its reporter, Michael Isikoff, had uncovered parts of the story that Drudge didn't know about.) On Jan. 25, a week after publishing his major Lewinsky piece, Drudge appeared both on CNN's "Reliable Sources" (whose very name imposes the CNN imprimatur on any guest) and on NBC's venerable "Meet the Press." And in the next few days he appeared on shows ranging from "Talkback Live" to "Leeza."

But this shouldn't be taken as proof that the journalistic establishment has embraced Matt Drudge; what it really illustrates is the profound ambivalence with which that establishment regards him. You can see this ambivalence in Michael Kinsley's essay "In Defense of Drudge," which was a part of Time's package dealing with the Lewinsky affair, and in John Schwartz's essay in the Jan. 26 Washington Post. Kinsley feels compelled to distinguish between what Drudge does and what the really good journalists -- like Kinsley -- do, but then proceeds to defend Drudge as meeting a sort of allowable substandard. Schwartz is more straightforward: He begins by admitting his "powerful feeling" that if he ever met Drudge he wouldn't like the guy.

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But the strongest evidence of this ambivalence is the failure of mainstream journalists, in their coverage of the Blumenthal-Drudge suit, to report that it's likely Blumenthal will lose the case. The professional journalistic establishment tends to assume Drudge will lose -- partly because Drudge genuinely did err, but also because it believes this lawsuit illustrates that the journalism game is not one for amateurs and upstarts. The establishment couldn't be more wrong -- Drudge and AOL are likely to win (or at least not lose) because of three basic libel-law principles that almost every working journalist knows:

1. Public-figure doctrine. No one (except maybe Blumenthal's lawyer) seriously disputes that White House aide and former journalist Blumenthal is a "public figure" as that term is used by the courts. This means that Blumenthal can't win against Drudge unless he can show that Drudge published his story with "actual malice" -- that is, he either knew for certain it was false, or simply didn't care whether it was true or not. Unfortunately for the plaintiff, there's no evidence that Drudge ran the piece with "actual malice," and plenty of evidence that he did not. To be counted in the latter is Drudge's inclusion, in the original piece, of a White House source's assertion that the spousal-abuse claims were (in Drudge's words) "pure fiction," although (in the source's words) "This story about Blumenthal has been in circulation for years." At worst, the evidence tells us, Drudge was negligent -- he tried to make his story accurate, but he didn't try hard enough -- and it's a long-standing principle in American libel law that public-figure plaintiffs cannot recover libel damages for merely negligent reporting.

2. Vicarious liability. Blumenthal's lawyer argued in a filing Wednesday that America Online should be held legally responsible for Drudge's mistake, since the online service pays Drudge for the content. Sorry, Sidney, but libel law doesn't work that way in this country, and it hasn't since the 1960s. To hold a distributor of information liable for defamatory content, a plaintiff has to show that the service either "adopted" or reviewed the content in some way -- but AOL quite deliberately acts as a channel, not as an editor, for most of the content it carries, including the Drudge Report. (AOL also pays the New York Times and Newsweek for content; does anyone think it should be held liable when these august institutions goof?) What's worse for Blumenthal is that one of the provisions of the Communications Decency Act that was not struck down last year by the Supreme Court seems to bar anyone from recovering damages from a provider for content it did not originate.

3. Repairing reputational damage. Ask yourself this question -- if you know that Drudge retracted and apologized for his report on Blumenthal, how has Blumenthal's reputation with you been damaged by the report? The obvious answer: It hasn't. Every working journalist knows that libel law isn't about fixing someone's hurt feelings; it's about remedying damage to public reputation. In this case, the mainstream media's eagerness to report Drudge's goof ensured that the story of the retraction outpaced (by orders of magnitude) the scope of the original item. What's more, while Drudge pulled the original item from his archives, his retraction has remained posted on his AOL site for about five months -- meaning that, even if you exclude all the other media coverage from the equation, Drudge has made the retraction available about 150 times as much as the original item ever was. Worst-case scenario under these facts (even if you assume I'm wrong in my arguments above) -- Blumenthal wins the case and is awarded damages of $1.

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This is all old hat, of course, to our cadres of professional journalists; they learned this stuff in J-school or on the job. But their blind spots about Matt Drudge -- a sort of "don't try this journalism stuff at home" attitude -- prevents them from seeing not only that Drudge will likely be successful in his libel lawsuit defense, but also that Drudge has spotlighted a new niche in the mass-media ecology: the one-man operation that can break a national story whenever it wants to. It's this last factor -- and not Drudge's politics (which I find distasteful) or his journalistic acumen (uneven) -- that has made him so much of a player that he had to be included on that "Meet the Press" panel.

But don't expect Drudge's centrality in the breaking of the Lewinsky story to insulate him from the backlash that's already brewing -- and that's certain to intensify if the scandal fades or implodes. If "Tailgate" collapses, Drudge, and by extension the Internet, will become the "paparazzi" of the story -- the guys who do the same thing we journalists do, but from whom we feel compelled to distance ourselves.


Mike Godwin

Mike Godwin is staff counsel for the Electronic Frontier Foundation and a fellow at the Media Studies Center. His book, "Cyber Rights: Defending Free Speech in a Digital Age," will be published by Times Books this summer.

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