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

[chappachula]

@Enola_Gay

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.

There was an actual real-life case that is very similar to the OP’s hypothetical.Instead of the NYTimes, it involved people just a reputable: America’s most well-known reporter, Dan Rather and CBS News.

Remember the scandal over GW Bush and his military service?
Dan Rather and CBS news publicized documents defaming G.W. Bush, at a very sensitive moment during the election campaign.
The documents turned out to be a complete forgery.
Rather and his newsagency did not verify the documents before publishing them.
It’s not quite the same as the OP’s hypothetical about intentional forgery. Dan Rather published the forgery unintentionally, but then continued to insist that the documents were real (until eventually the truth was unavoidable.) So it was a case of complete failure of professional responsibility by a reputable news agency.
The results: Dan Rather resigned in disgrace. CBS news issued an apology. And life went on as usual.

[Whack-a-Mole]

@Lemur866

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.

Bit of a side note:

There is a special kind of libel called libel per se where you do not need to prove damages. The damage is presumed.

A defamatory statement that is communicated in a fixed medium and is considered to be so harmful on its face that the plaintiff need not prove special damages. Examples of libel per se are statements that: (i) relate to the person’s business or profession to the person’s detriment; (ii) falsely claim that the person committed a crime of moral turpitude; (iii) imputes unchastity on the person; or (iv) claim that the person suffers from a loathsome disease.

SOURCE: https://www.law.cornell.edu/wex/libel_per_se

Carry on!

[Voyager]

@John_Mace

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?

Even if they didn’t do that, the independent evidence for White House officials doing what is claimed to be done in the piece would I think make it difficult to prove actual malice in the Sullivan sense.
Any criminal trial would require depositions under oath from people working there about the situation. I doubt that would go over very well.

[psychonaut]

@Jeff_Lichtman

There’s a difference between speech as an expression of an idea (true or false), and speech as an act.

Yes, but this was sort of what I was getting at by including a motivation for the act in my OP. Consider the following two scenarios:

[ol]
[li]I knowingly post a false but credible report about a bomb hidden in the White House, with the intention of disrupting activities there.*[/li][li]I knowingly post a false but credible report about a political saboteur in the White House, with the intention of disrupting activities there.[/li][/ol]
I think most people would agree that the first scenario is criminal. (I know that people have been charged and convicted for making such false reports.) The second scenario shares a lot in common with the first—at least, it seems to me that it’s somewhere along the same continuum between criminal and non-criminal. Obviously there is a point, or at least a grey area, along that continuum beyond which disruptive speech unequivocally becomes a crime, and on the other side of which the speech is protected by the First Amendment. I was wondering where on that continuum that second scenario lies.

N.B. — This scenario is distinct from making a bomb threat, where I claim that I myself planted the bomb with the intent of hurting people or to extort something from the victims.

[Lord_Feldon]

@Enola_Gay

And I agree that they would probably end up paying a lot in civil damages.

Would they? Wouldn’t a lawsuit open the entire administration up to discovery? If so, it would seem like a pretty disastrous idea for any administration.

[Northern_Piper]

People have commented in this thread that the NYTimes would be civilly liable if the op-ed piece is a fabrication.

Why? What civil action would lie? What individual have they defamed?

So the piece criticises Trump as being completely unfit for the job. And so? That’s a political opinion, at the core of what the First Amendment is supposed to protect. We’ve seen way worse right here on the SDMB. Plus, it’s opinion, not really fact.

So, who’s been defamed? Who could bring this civil action, and on what grounds?

[Voyager]

@psychonaut

Yes, but this was sort of what I was getting at by including a motivation for the act in my OP. Consider the following two scenarios:

[ol]
[li]I knowingly post a false but credible report about a bomb hidden in the White House, with the intention of disrupting activities there.*[/li][li]I knowingly post a false but credible report about a political saboteur in the White House, with the intention of disrupting activities there.[/li][/ol]
I think most people would agree that the first scenario is criminal. (I know that people have been charged and convicted for making such false reports.) The second scenario shares a lot in common with the first—at least, it seems to me that it’s somewhere along the same continuum between criminal and non-criminal. Obviously there is a point, or at least a grey area, along that continuum beyond which disruptive speech unequivocally becomes a crime, and on the other side of which the speech is protected by the First Amendment. I was wondering where on that continuum that second scenario lies.

N.B. — This scenario is distinct from making a bomb threat, where I claim that I myself planted the bomb with the intent of hurting people or to extort something from the victims.

The second scenario does not have to come from an Op-ed. A reporter describing this situation - like Woodward does - would be pretty much equivalent. News reports about infighting have come from pretty much all administrations, and I suspect they were all pretty much denied, true or false. Any evidence this has ever led to civil or criminal charges?
Also, a bomb is guaranteed to disrupt activities because of the safety concerns. You second case only disrupts things if the president or chief of staff believes in them enough to disrupt them. Say someone made up a story like this about the Obama Administration. Do you think it would disrupt anything? I doubt it, because they’d all know it was bull. The disruption in this case (if the disruption actually increased) is not inevitable.

[Measure_for_Measure]

Related to the OP, Chuck Todd of NBC news asked a Trump admin spokesperson, “Was there a law broken with NYT op-ed that Pres. Trump wants DOJ to investigate?”

On Meet the Press, Kellyanne Conway replied, “It depends. There could be and there could not be. You don’t know that and I don’t know that”. https://twitter.com/chucktodd/status/1038777849782706177

I’m guessing that if there was a specific law that the NYT could conceivably have broken, that the Trump admin spokesperson would have been made aware of it.