Israel May Sue the New York Times for Defamation

Justice may finally be served against the New York Times due to their efforts to smear Israel with an outrageous lie. Richard Epstein, in his recent Libertarian podcast and in his article at Civitas explains his understanding of the basis of the lawsuit. The most egregious act was their false portrayal of what was supposed to be a starving child:

The story’s print read: ‘Young, Old and Sick Starve to Death in Gaza: ‘There Is Nothing.’ The Times story continued that the child’s mother said that the child 'was born healthy but was recently diagnosed with severe malnutrition.’ The global message was that his perilous condition was a direct consequence of an Israeli campaign to starve out Gaza as part of the plan to remove Hamas from Gaza. The catch, by the investigative reporter David Collier, was that the boy had suffered from birth from rare genetic disorders, including both cerebral palsy and chronic low-level diseases, which are profound in themselves, but which present additional challenges during wartime. The impact of this picture caused massive public outcry worldwide which generated large amounts of anti-Israel sentiment.

Instead of a correction or retraction, the Times added a note in a smaller venue to justify their decision:

These reputational losses are involved in many defamation cases, where they are hard to quantify in monetary terms. Indeed, they are all too real whenever defamation can lead to a loss of business customers, an election, a marriage, and massive political repercussions. But here the stakes are far higher as these messages can lead to acts of violence against Israel, its citizens, and indeed Jews all around the world. Given this background, the New York Times knew that it could not defend that damning picture on the merits and several days later this statement on X:

We have appended an Editors’ Note to a story about Mohammed Zakaria al-Mutawaq, a child in Gaza who was diagnosed with severe malnutrition. After publication, The Times learned that he also had pre-existing health problems.

Epstein explains that these comments are his opinion, and he did not spend time in the courtroom litigating cases. But he explains why he thinks this case in particular has merit:

It does not help the Times that it has long been for biased reporting in Gaza, but the real risk to the New York Times lies elsewhere. The absolute malice standard works wonders for defendants in the ordinary cases of sloppy reporting. They can properly plead that they were merely negligent because they did not know of the falsehood. But in a routine defamation case, if the plaintiff can establish malice, it has the opposite effect. It shows that the case should not be treated as one of inadvertence but of deliberate falsehood, which increases the potential award for actual damages, opens the door to punitive damages, and necessarily the plaintiffs to gain access to the defendant’s files to gather the evidence needed to either establish or bolster the claim of malice. In this case, given the sensitivity of the story, opening its books and records could only hurt the Times further. In cases of this sort, malice operates as a multiplier of liability, not as a defendant’s bulwark.

It's long past time that the Times is called out for its deceptive actions. Newspapers nationally and worldwide have used them as the bastion of reporting. We all know, however, that they have been far from stellar, particularly over the last several years. If Israel wins this lawsuit, maybe other newspapers and media will realize the danger they invite when they distort and manipulate the facts.

Or maybe not.