Capybara Watch

Go on over to Glenn's to catch a round up of the latest. Suffice to say, CBS is chin-deep in the water and surrounded by piranhas. Very hungry ones. Wearing pajamas, apparently.

"Piranhas in Pajamas" would be a great name for a rock band (pace Dave Barry).

I keep going back and forth on all this. Assuming (as I more or less do now) that the docs were faked, there are two possibilities:

1. CBS and Dan Rather knew they were fake and ran with them anyway; or
2. CBS and Rather got duped.

(I'm using "CBS" and "Dan Rather" interchangibly here. That might have to be revised soon.)

I'm still not comfortable believing the first possibility. Dan Rather is no friend of Dubya, but to pull a stunt like this - deliberately using forged docs to impune him, especially given the stakes of this election - would be an evil of such breath-taking proportion that I would think even Texas Dan would shy away from it. Then again, the they-can't-possibly-catch-this arrogance of the Old Media might well have been enough of a spur to make him believe he could get away with it. Or perhaps it was a matter of desparation. I just don't know.
I still believe that CBS got duped as a result of a combination of sloppiness and institutional prejudice. But I can't help thinking that I might change my mind about it some time this week.

The other interesting thing to watch is the possibility of a libel charge. Under the NY Times v. Sullivan actual malice standard, public figures almost never win libel suits. To do so, they would have to prove, among other things, that the writer had knowledge of falsity or else acted with a reckless disregard for the truth. However, sometimes such public figures do win. If things pan out as they might here, I believe a case might very well lie.

The other thing to watch in a libel situation is what one might call the Institutional Embarrassment Factor. In law school, I worked on a project that examined the central paradox of the Sullivan decision - that it actually resulted in the creation of judicial standards of journalism which can jeopardize the "breathing space" that Sullivan was supposed to create for the press. The basic problem (well, one of them) with Sullivan was that while the Supremes created an actual malice standard, they never articulated how a lower court was supposed to go about applying it. In this void, the lower courts started stepping in and creating their own norms of acceptable journalistic conduct at all three stages of news gathering (research, writing and editing). If you go through the cases, you will see courts getting into a tremendous amount of detail about media quality control procedures - fact checking protocols, number and reliability of sources, etc.

Now if nothing else, were Bush to go after CBS (or the Boston Globe or whomever) on a libel charge, CBS would find its news-gathering and editorial procedures exposed to a whole lot more publicity than I would imagine it might want. Remember those piranhas in pajamas? Still there. And still hungry.

UPDATE: Extremely hungry and (we happen to know) wearing bright mauve p.j.'s with little Krusty the Clowns all over them: King Piranha INDC Bill. Go read his latest chomp on the Boston Globe right now.