Tag: journalism

About That McCloskey Photo

There are a lot of posts going around lately about that photo. You know the one. It depicts St. Louis attorneys Mark and Patricia McCloskey standing locked and loaded—he with an AR15, she with a Bryco Model 38 handgun—in front of their large house on the afternoon of June 28th. That was the day when approximately 500 protestors, in response to the murder of George Floyd, entered a private, gated neighborhood and passed the McCloskeys’ house on their way to protest outside the home of St. Louis Mayor Lyda Krewson. According to one ABC News report, the couple grabbed their weapons “when two or three protesters — who were white — violently threatened the couple, and their property and that of their neighbors.”

While that factual allegation begs many questions, I shall avoid litigating the McCloskeys’ decision to brandish firearms in this instance other than to say that they made a conscious choice to do so with a very reasonable expectation that their actions would be recorded by a multitude of cameras. One of these was the camera of professional photographer William Greenblatt, who captured the image that truly made the McCloskeys famous, or infamous depending on one’s point of view.

The reason I’m writing about it on this blog is that headlines and comments report that the McCloskeys are suing Greenblatt for, among other things, the “copyright in the photograph.” Their complaint appears to be a counter-suit in response to the fact that Mr. Greenblatt sent the couple an invoice for $1,500 after they made unlicensed reproductions of the photo for this year’s McCloskey Christmas card (jolly, no?).

The named defendants in the suit include Greenblatt, United Press International (UPI), and a company called Redbubble, which apparently licensed Greenblatt’s image to reprint on merchandise that, as one might imagine, lampoons the couple. So, now we have a ballgame. But if we separate the volatile, emotional issues surrounding these events, what are the legal aspects in this little pissing match on the Mississippi? And before I go there, let me stipulate that despite my own impression of the McCloskeys as ridiculous figures, I acknowledge that photographs can be very deceptive storytellers, even images that appear to say precisely what Greenblatt’s photo appears to say in this instance.  

The McCloskeys filed a litany of right of publicity (ROP) complaints in Missouri State Court. Missouri recognizes common law rights of publicity as intertwined with the right of privacy, and the McCloskeys are suing the co-defendants for reputational harm and emotional distress stemming from the exploitation of the photo and the associated public ridicule. Among the forms of relief they ask for is “an order transferring ownership of the Photo and any other media captured while trespassing ….”

The complaint rests substantially on the allegation of trespassing, which is an invasion of privacy; and, as a technical matter, Greenblatt and the protestors were supposedly doing just that. The protestors reportedly broke down a gate and entered a private community—an accusation* that has given many gun rights advocates grounds to argue that the McCloskeys acted properly.

But regardless of the presumption that all 500 protestors were, strictly speaking, trespassing on a private road, Greenblatt was there as a photographer, documenting events as they happened. He has the right to follow a story almost anywhere it leads. And whether more Americans applaud or scorn the McCloskeys’ decision to bring out their guns, even if Greenblatt was standing on private property, doesn’t necessarily matter. What the McCloskeys did constituted a newsworthy event that Greenblatt captured, as did hundreds of other amateur photographers.

So, to the extent that an invasion of privacy could undermine the photographer’s right to capture the image in the first place, it strikes me that the trespassing would only be relevant if the protestors intentionally drew the McCloskeys from their home with the purpose of making them feel threatened and ridiculed, and that Greenblatt capitalized on that intent, as the complaint almost seems to imply. I am speculating here, as I am hardly versed in Missouri ROP case law, but I suspect that Greenblatt’s press right to capture a newsworthy moment will ultimately prevail (if this case even proceeds) over the allegation that he intentionally trespassed with the purpose of exploiting the McCloskeys for his own financial gain.

The facts as we know them support the narrative that the McCloskeys reacted to the protestors (a subgroup in a nationwide protest), who were walking past their home, and Greenblatt merely photographed the couple once they engaged in voluntary conduct in plain view of several hundred people. The McCloskeys’ decision, right or wrong, was no longer private. On the contrary, it was destined to be national and international news the moment they stepped outside, unless one can reasonably believe that they were somehow unaware that nearly every protestor would be carrying a camera.

That Greenblatt’s newsworthy photograph, among many others, went viral online—and inspired a whirlwind of ridicule—should not be a matter of Mr. Greenblatt’s liability or anybody else’s. Further, it strains reason to believe that the McCloskeys consider the image wholly damming if they really did use it to make a Christmas card. At best, this implies that they do not really mind the image itself, as long as they can try to control its interpretation in a flattering light. If that is their intent, this would be one reason why the couple would seek transfer of the copyrights in the image.

But aside from the fact that there is no controlling how the public will interpret any image, the negative perception of the McCloskeys was likely formed within minutes after their gun-toting images appeared online. Regardless, what the McCloskeys did was significant news. And even in most cases where the invasion of privacy is more aggressive, and the photograph taken is less newsworthy (e.g. paparazzi hounding certain celebrities), courts tend to favor the photographer’s right to capture and distribute the image. 

Overall, I suspect the St. Louis couple is about to learn that the subjects of photographs very rarely have any right to control the use of those photos, and that the prospect of obtaining the rights to Greenblatt’s photo as a remedy to their ROP complaints is quite low. That said, there may be a legal path forward on the merchandise aspect vis-à-vis Redbubble because the merch in this case implies extended public ridicule for commercial gain, a subject that may deserve deeper consideration in principle.

After all, if instead of ridiculing the McCloskeys for engaging in conduct that many people find absurd, we were talking about selling merchandise with an embarrassing Emma Watson photo to consumers who hate her for her outspoken feminism, we begin to see how this kind of image exploitation can be rather disquieting.

It was inevitable, living in an age of self-surveillance with a networked camera in every hand, that we would increasingly see stories that convoke the common law rights of publicity and privacy with the federal rights of press freedom and copyright. And while the McCloskey lawsuit may prove fairly straightforward for the reasons stated—and it barely has anything to do with copyright—some of this story’s themes are reprised in a much more complex narrative unfolding with regard to celebrities and photographers whose pursuit of their image push the boundaries of stalking. I will try to make that the subject of a post in the near future.

*Originally published as “a fact that has given…” Thanks to reader David Carson, photographer at the St. Louis Post-Dispatch for sharing this video link showing the manner in which the protestors entered the community.

Social (Media) Distancing

Between the headline and the Share button.

Access to credible, useful information could not be more essential than it is in the present moment. But as we are all presumably more attentive than ever to our social media feeds, we are correspondingly bombarded with more garbage content. This crisis is a perfect opportunity for trolls to ply their trade. Whether it’s idiots having a laugh, professional mischief-makers working for foreign agencies, or any number of vested interests, there is no shortage of intentionally misleading material online. But that may not be the greatest concern.

Unfortunately, the expansion of the news market—from the earliest days of cable TV to the breadth of Facebook’s role as a virtual newsstand—has forced even venerable sources to take a more slapdash approach to their reporting. In order to remain relevant (i.e. extant), organizations with distinguished pedigrees are chronically guilty of publishing stories designed to grab, terrify, and outrage more than they are to inform or promote thoughtful dialogue. Almost worse than that, even if the reportage is soundly crafted, the headlines are too often screaming at us because they are designed to promote (mostly negative) social media interaction. And far too many of us are guilty of reacting to and/or sharing only the headlines, where the distinctions between accurate and inflammatory can be rather subtle.

For instance, while acknowledging that we are justified in distrusting Attorney General William Barr on the grounds that he shows little respect for constitutional principles, let’s compare two headlines in which the Rolling Stone follows up on a story first reported by Politico: 

Politico: DOJ seeks new emergency powers amid coronavirus pandemic. 

Rolling Stone: DOJ Wants to Suspend Constitutional Rights During Coronavirus Emergency

To be clear, the actual story is cause for concern, or at least awareness. Assuming the central reports are accurate, the DOJ apparently wants Congress to draft new legislation that would empower courts to detain arrested individuals indefinitely while the courts are shut down or delayed during this crisis. The problem is that this infringes rights protected by the Sixth Amendment, and, as mentioned, one can be forgiven for assuming that AG Barr might not give a damn. Both Rolling Stone and Politico do acknowledge that legislation of this nature is unlikely to find any purchase in the current House of Representatives, but it is not the story itself that prompted me to write this post.

I wanted to call attention to the psychological effect of the Rolling Stone headline. With a constant awareness that we have a president who is ignorant about the Constitution and an AG who has shown contempt for the Constitution, that headline almost immediately provokes dystopian mental montages. Before one even chooses which emoji to click, one cannot help but conjure images of smashed presses and jackbooted thugs suppressing speech as Barr takes an Orwellian Sharpie to pesky items like the establishment clause. The whole proto-fascist narrative plays out in the time it takes to share the headline with a comment like, “This is what these guys have wanted all along.” But who reads the story?

Ascribing authoritarian motives to this administration is at least half true, which is one reason why sensational headlines can be so dangerous—because we need to know who is trying to cross which lines and why. We are at a very precarious moment in history—not only because we are deeply concerned for our safety, but because American institutions have been under assault since long before we collided with the vector of Covid-19—and long before Trump and his acolytes brought their own sledgehammers to the party. 

As with the harm to journalism, the abandonment of institutions and the devaluation of expertise is a dire consequence of “democratizing” information through digital platforms. We exacerbate the problem by sharing fragments and impressions that feed anxieties that—perhaps because they are plausible—are the concerns most in need of informed skepticism. 

Now that most of us have segregated in an effort to mitigate the spread of a literal virus, those of us fortunate enough to have the time and ability to keep up with the feeds, might also do what we can to mitigate the spread of viral misinformation. To that end, it would probably help to put some distance (i.e. time) between encountering a headline and clicking Share. There is no urgency to respond to a story or to share it immediately. That urgency is an illusion fostered by the medium itself, and our responses to the stimuli principally serves the platform company’s interest in data-harvesting. 

If Facebook users, for instance, committed to not sharing anything until they’ve read it, this might help slow the rate of misinformation. Better yet, before sharing, why not take a moment to provide friends with a summary of what the story actually says, or fails to say? Doing this would emphasize how often stories are out of synch with their headlines. In a time when we have plenty of reasons to be worried and plenty of reasons to be angry, it is especially important that we worry about, and are angry about, things that are actually true. 

This seems like a very good time to step outside the whirlwind of what scholar Alice Marwick calls our deep stories and apply some critical thinking, even if this means taking a moment to look for counterfactuals in a story about some party or entity who deserves some measure (or a whole truckload) of our scorn. There has never been a time when accurate information matters more than it does right now. Social media, in many ways not always visible, is designed to frustrate that need. If we have the time, and take the time, to provide badly needed context for one another, a social platform can be a wonderful source of useful information; but absent that context, the deluge of images and headlines alone can be a steady flow of gasoline on an already smoldering fire. 

Also see:  Reducing the Spread of Misinformation Online from the Markkula Center for Applied Ethics at Santa Clara University. 

Virus art by: Kateryna_Kon

Google Down-Ranks Real News

Photo by enriscapes

As alluded to in yesterday’s post, the 2016 shock to what we might politely call political orthodoxy provided a boost to mainstream news subscriptions. “The [New York Times] added 276,000 net digital-only subscriptions in the final three months of 2016, the best showing since it implemented its paywall in 2011. In the weeks immediately following Mr. Trump’s election in November, subscriptions increased tenfold compared with the previous year,” wrote Shannon Bond for Financial Times in February.  Similar spikes occurred at The Washington Post and other traditional news sources. So, if nothing else, the bizarre theater of obfuscation and Twitter rants coming out of the new administration seemed at least to rekindle millions of Americans’ desire for credible reportage.

But get this…

Gerry Smith for Bloomberg reports that when The Wall Street Journal blocked Google users from reading its articles for free, its subscription business “soared” only to see this gain countered by a 44% drop in traffic from Google search.  It turns out, according to Smith, that Google’s algorithm prioritizes free content over paid content.  Assuming this is true, there’s a whole lot wrong with it, beginning with the fact that this belies Google’s boastful raison d’etre to “organize the world’s information” and deliver search results based on quality and relevance.

If the algorithm looks for free content first, this suggests that fake news and other junk content will be consistently prioritized over the WSJ, The New York Times, The Washington Post, The Daily Beast, and so on. Not only does Google’s policy in this case stifle these organizations’ flexibility to choose their own strategies for financial survival, but for the general public, it exacerbates the already toxic brew of bad information that is, at this point, literally threatening democracy itself.  And for what?

Money of course.  Google makes money by serving ads to content that users can more readily access without going through paywalls.  Consequently, ConspiracyIdiots.com makes it into the top results instead of, y’know, news—at least according to what Bloomberg is reporting. “The Journal’s experience could have implications across the news industry, where publishers are relying more on convincing readers to pay for their articles because tech giants like Google and Facebook are vacuuming up the lion’s share of online advertising,” writes Smith.

I’ve gone so far as to assert that we’ve actually lost the “information revolution.” The promise of a more enlightened society through digital technology has hardly been fulfilled, but we do have some very funny memes to stick on the fridge of history.  Given the extent to which the current narrative has been hijacked by a strange confluence of bored trolls and professional data manipulators, a sane person can be forgiven for deciding that it’s about time to unplug.  A recent report by the Data & Society Research Institute on the influence of—I guess we can call it “troll culture”—on even the mainstream media says the following:

“Mass media has greatly profited off the appeal of conspiracy theories despite their potential for harm. Network news channels feature ‘documentaries’ investigating theories without fully refuting them. In 2011, when Donald Trump began promoting the “Birther” conspiracy theory, claiming President Obama was born outside of the United States, mainstream news outlets like CNN and Fox News covered these claims extensively. Out of this environment, an entire industry of conspiracy and fringe theory has emerged.”

The report delves into the intricate network of internet subcultures described as “an amalgam of conspiracy theorists, techno-libertarians, white nationalists, Men’s Rights advocates, trolls, anti-feminists, anti-immigration activists, and bored young people,” who are directly influencing the narrative that many citizens around the world think of as the truth.  And this is bad enough.  “Google says its ‘first click free’ policy is good for both consumers and publishers. People want to get the news quickly and don’t want to immediately encounter a paywall,” writes Smith.

Sound familiar?  What’s good for Google is invariably “good for consumers.” And consumers invariably buy the pitch for a while.  Free?  Yeah, free sounds good.  Until it turns out that free actually a cost. Sometimes a very dire cost—like millions of voters who would sooner believe in alien abduction than climate science. And the point of the above quote about television news creating entertainment out of nonsense is that sensationalism will be the only thing left, if business models no longer support investigation, travel, research, fact checking, and other expensive human labor required to deliver quality journalism.  Add to all this that Google search will apparently down-rank legitimate news because it isn’t free?  Damn.