New York Times anonymous op-ed: criminal if fabricated?

The New York Times recently ran an op-ed attributed to an unnamed “senior official in the Trump administration whose identity is known to us”. The author claims that they and other senior officials are covertly working together to thwart the president’s activities.

Assume, purely for the sake of argument, that the op-ed was knowingly fabricated by the Times to sow discord in the administration and to further turn public opinion against the president.* The “senior official” is not a real person and the conspiracy story is made up out of whole cloth. In that case, have they committed any crimes? Or does the First Amendment absolutely insulate them from legal wrongdoing? If it is possibly criminal, what law(s) might they arguably have broken?

*To reiterate, this is only a hypothetical premise. I don’t really believe this premise; I am just interested in the legal question that arises from it.

The First Ad says no.

If it were, the National Enquirer would have been shut down decades ago.

No, it’s not illegal. Reprehensible journalism, as they claim to have confirmed the identity of the source, but not illegal. And being reprehensible “journalists” has done precisely nothing to slow down hacks like those on Faux News - especially during the Obama years… so… welcome to the new age?

It’s not a crime to print a fabricated story.

It could result in civil damages. If you print a true story and it damages someone’s reputation, you’re protected. If you print a false story that materially damages someone’s reputation you could be held liable for whatever damage you caused to their reputation.

It’s also bad business practice for a news organization to get caught fabricating a story, advertisers don’t like it. It could be different for other media organizations that aren’t really “news”.

Still not a crime.

There’s also the matter that this appeared in the Opinion section rather than presented as a result of investigative journalism with the usual vetting, meaning even if the Times ultimately made the decision to publish it, the content is still on the author.

I don’t see how this would be a crime. Lies are covered by the first amendment. Unless there were something illegal in the piece (such as a call to use violence to overthrow the government), the NY Times would be protected.

Moderator Note

Let’s refrain from political jabs in GQ. No warning issued, but stick to the specific legal question in the OP.

Colibri
General Questions Moderator

Well, some of them are, but not all of them—falsely shouting fire in a crowded theatre being the proverbial example. I was kind of wondering if this might somehow be an analogue.

You should look up the story behind that line… Justice Holmes I believe called it the worst decision of his career, pretty much reversed with later opinions on the First Amendment.

The biggest problem if the article turned out to be false would be the damage to the reputation of the NY Times.

I think you’re conflating Holmes’s written opinion on the trial (which was about pamphlets opposing the draft) with an example of unprotected speech that he used in that opinion. Holmes regretted drawing an analogy between the speech in the example and the speech on trial. But as far as I know he never wavered from the notion that the example was valid in and of itself (i.e., that falsely shouting fire was illegal).

There’s a difference between speech as an expression of an idea (true or false), and speech as an act. There are many crimes that can involve speech; for instance, it’s a crime to make a credible threat to kill someone. The first amendment doesn’t give protection for this type of speech. But to simply claim something to be true (even if it’s a lie) is protected by the first amendment.

The op-ed piece is an expression of an idea. It can’t fall into the category of an illegal action because all it does is claim something to be true.

There are situations where lying can be a crime. Perjury is the most obvious example. Lying to the police in a criminal investigation is another. The op-ed piece is not a sworn statement, nor is it a statement to the police.

You could maybe make an argument for some kind of fraud, The paper arguably lied about what exactly they were selling, and if that lie induced the person to pay for it, that probably fits some kind of crime, depending on the jurisdiction.

I’m not saying this is a slam-dunk winning argument, but at least kind of somewhat plausible.

IANAL but that doesn’t seem “somewhat plausible” but rather a huge stretch.

Yeah, then how about this?

There have been a gazillion such articles written over the years. Any successful fraud cases that you know of?

Not illegal, but they would open themselves up to a civil suit.

This landmark case established the “actual malice” standard. If the author published this statement knowing it was false, then that would certainly qualify as actual malice.

Would the same standard apply to an Op Ed?

Supposing the NYT did fabricate this, but claimed it was based on a composite character from Woodward’s new book?

I think it’s practically pretty implausible. But various investigations by the govt have involved stretching the principal of fraud and particularly ‘wire fraud’ (because of the stiff penalties) pretty far, in situations where the debate would not be that different than your theory. Did the organization deceive its buyers? Yes. But whoa, it’s journalists and the 1st amendment! But the fraud statute itself doesn’t have that carve out. It’s what is assumed courts would invoke in overturning the conviction (assuming it got that far). Granted, more typically the push back to the feds stretching the wire fraud and other statutes to get scalps they are determined to get is a more general ‘but lots of other people were never wrung up for pretty much the same thing’.

The reality is, it’s a system of people and norms, not just of written laws. Whether a given political leadership would ever take on a given target, whether they’d get ‘professional non-partisan’ staff to go along, whether they ever get a jury to go along, that depends and is very unlikely in this hypothetical case as of now IMO, to the point of a jury conviction, not to mention appeals all the way up to USSC.

But again strictly hypothetically if the Times could be shown to have done that, would the current political leadership at least make noises about pursuing a fraud case? That’s not a stretch IMO. Getting all the way to winning the final appeal at USSC would be a different story, seems very unlikely in the current state of things. In some more advanced state of the way things seem to be going in terms of polarization, who knows?

Not a crime, but the NYT reputation would likely sink to that of the National Enquirer. And I agree that they would probably end up paying a lot in civil damages.