Zuckerberg and Zenger

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Could Mark Zuckerberg go down in history as the next John Peter Zenger? We ask because of what the Associated Press calls the “bipartisan hostility against Facebook” that has “been building for months.” Democrats “especially,” the AP reckons, are homing in on Facebook’s “refusal to fact-check political ads and remove false ones.”

That would have brought a grimace of irony from old Zenger. The pesky printer was put on trial back in the day — 1735 — for libeling the governor of New York, William Cosby, whom Zenger accused of corruption. At the time, libel law was the opposite of what it is now. The doctrine then was “the greater the truth, the greater the libel.”

The idea was that it was not lies that were damaging. It was the blasted truth. So the judge in the Zenger trial, James De Lancey, instructed the jury that all it had to do was determine whether Zenger printed the libels against the governor. Zenger’s lawyer, Andrew Hamilton, then stunned the court by admitting his client had published the libels.

The jury was, in effect, forced to decide whether it believed Zenger’s confession. Hamilton argued that it wasn’t just a poor printer they were trying: “It is the cause of liberty!” The jury proceeded to nullify the precedent of British libel law, acquitting Zenger despite his confession. Eventually courts started allowing truth as a defense.

Enter Mr. Zuckerberg. The Democrats are up in arms because some of the ads Facebook has run have, they aver, contained falsehoods. Mr. Zuckerberg doesn’t want to police the advertising people pay him to publish. This is being ridiculed by the Democratic press, including in a column last week by the New York Times’ Thomas Friedman.

Mr. Friedman sided with Congresswoman Alexandria Ocasio-Cortez, who questioned the Facebook founder on why, as the Timesman put it, he thinks it’s okay for politicians to run ads that contain “obvious lies.” He reckons the Trump campaign has already done that in a Facebook ad about Vice President Biden.

“This is all about money for Zuckerberg,” Mr. Friedman sneers, adding that Mr. Zuckerberg “disguises his motives in some half-baked theory about freedom of the press.” Half-baked, indeed. In a devastating riposte, the Wall Street Journal cites in its “Notable & Quotable” feature Mr. Friedman’s column, followed by the Times’ own “Advertising Acceptability Manual.”

The Times’ manual declares that the “broad principles of freedom of the press confer on us an obligation to keep our advertising columns open to all points of view. Therefore, The New York Times accepts advertisements in which groups or individuals comment on public or controversial issues. We make no judgments on an advertiser’s arguments, factual assertions or conclusions. . .

“We do not verify, nor do we vouch for, statements of purported fact in advocacy/opinion advertisements,” the Times manual adds. “We reserve the right, however, to require documentation of factual claims when it is deemed necessary. . . . Our stance with regard to the acceptance of political advertisements is the same as it is for the acceptance of opinion advertisements.”

That stance, our Ira Stoll has pointed out, was tested in the landmark libel case known as Times v. Sullivan. The paper was sued by the Birmingham, Alabama, police commissioner for publishing an advertisement defending the Reverend Martin Luther King, Jr. The ad, a court concluded, contained a number of defamatory errors. It awarded Sullivan $500,000 in damages.

The Times won at the Supreme Court, establishing — in one of its proudest moments — the principle that for libel public figures have to prove that factual accuracies are made with actual malice. Why the Times’ premier columnist wants to roll back that principle is beyond us. Prenez garde, we say. After the left starts outlawing errors, we’re on the road back to before Zenger, when a publisher could be jailed for telling the truth.

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Image: Drawing by Elliott Banfield, courtesy of the artist.


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