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HomeSpeech of David McCraw

Address of David McCraw, 2017 honoree

Dwyer is the worst client. The first time I worked with Jim was on a
high-profile FOIL suit we brought to get records from the FDNY about 9/11.
Now, Dwyer is one of those clients who know more about the judges than
you. He understands the law thoroughly, and he has a deft sense of how
you should make your argument. All of that makes him an annoying client,
but it doesn’t make him the worst client in the world.
Here is what does. When I finished my argument at the Court of
Appeals, I came out into the hallway. I had been pretty good. I had made a
winning argument. And what did I find in the hallway? Jim was
surrounded by all the people who had come to Albany to watch the
argument, the 9/11 families, the reporters, other lawyers. Seriously? I was
left to stand in the corner talking to some lawyer for the Fire Department.
You can’t upstage your own attorney. That’s just wrong.

And I have to thank JaneAnne Murray for her work in putting all the
details in place. Of course JaneAnne was not content to just recruit me
here to do this speech. She also wanted me to help her kid’s seventh grade
class with their homework. I’ve been invited to do lots of speeches but this
is the first one that was a package deal for homework help.
The kids were studying the Pentagon Papers case — that monumental
free-press decision involving The New York Times. How could I resist that?
And soon I was working with A. and S. Oh, man, cute kids. I am a sucker
for cute kids. I told A. and S. to send me their questions.
A few days later in came their email. Let me tell you: If you ever need
some help writing interrogatories, hire A. and S. No question was left
unasked. No nuance was left unexplored. No legal theory was left
untouched.

My favorite email came a few days later when they wrote: “Dear
Deputy General Counsel McCraw” – That is how they always addressed me.
Is there anyone better at making you feel like a total phony than a junior
high kid.? “Dear Deputy General McCraw, we know you are probably very
busy, but if you have time, it would be great if you could answer two more
questions for us. The deadline for our project is tonight, so it would be
awesome if you could get back to us soon.”

Yes, they had already mastered the most important skill of our
profession: The art of Last-Minute Lawyering. Hire them.
I titled my speech tonight “Two Facts Walk Into a bar…Truly True
Tales of Fake News in the Age of Twitter” for a couple of reasons. First, I
wanted a few people to show up, and I thought it best not to use my real
title “Paradigmatic Shifts in Concepts of Liberty in an Age of Political
Polarization.”

Second, I thought it captured the very nature of where we are today:
In a world where the boundary between fact and fiction, between wildly
fabricated stories and real news, is an open question day by day.
Here’s what I didn’t count on: When I told people the title, they would say
OK. I would say OK what? People wanted to know the joke. Excuse me?
You know, what’s the punch line…Two Facts Walk into A Bar and and and.
There was no joke. I just made it up. That was it. But they’re right.
You can’t use that title and not have the joke. So I spent about six weeks
asking everyone I knew to help me write the joke. And, yes, I am going to
do a “two facts walked into a bar” joke tonight. I warn you: It won’t be
pretty. Stay tuned.

It is ironic to talk about fake news at an event to honor James Joyce, a
man who understood how fiction could illuminate reality – in other words,
precisely the opposite of what is happening today. When Joyce died in
1941, it was reported that his last words were “does nobody
understand?” That may not have actually happened. That may be fake
news. But - in the spirit of our age - I don’t care. I am going with it. It so
captures how I feel about much of the strange and disorienting world we
live in these days as a cultural war over who to believe and what to believe
rages around us. Does nobody understand?

I noticed the other day that NPR’s slogan during its latest fund drive
was “support fact-based journalism.” Fact-based journalism? Is there
another kind? Do they really need to say that? Somewhere in America are
there people saying, “Nah, I think I will donate to the station doing
Fantasy-Based Journalism. Their stories are way more interesting and they
have better tote bags.”

And a milestone in fake news was reached not long ago. Maybe you
saw this story SLIDE: “Federal Judge Finds CNN Guilty of Fake News.” Well, it’s about
time. I work for a competitor of CNN, so I was pretty pleased that a federal
judge was finally settling that once and for all.

Of course it was a little puzzling to me. Can someone sue a news
outlet for fake news? I mean, at The Times we have had our share of cases
from people who sue us on strange theories. There was the inmate who
sued for $7 million because he claimed the guard had beaten him with the
Sunday Times. There was the Trump supporter who sued us because our
coverage of Trump forced him to donate more time and money to the
Trump campaign. And there was the guy who had set a record for filing
lawsuits in New York who sued us for saying he was the guy who had set the
record for filing lawsuits in New York. But the tort of publishing fake news?
The truth, as you might imagine, was slightly different. CNN had
been sued for libel by a hospital administrator. CNN moved to dismiss.
The court dismissed part of the complaint but found that the administrator
had stated a legally sufficient claim in other parts of the complaint. That’s
all.

Yes, there it was: a fake news milestone: a fake news story about fake
news. To understand the corrosive effect of fake news, you need to see that
it is really two separate problems. The first is the problem of stories that
are truly fake news — stories that are intentionally fabricated and designed
to fool readers. Let’s hit some of the highlights from the last year.
Some of you may be lapsed Catholics and a little out of touch
with the Church, but, no, The Pope Did Not Endorse Trump during the
2016 Campaign (despite the 960,000 people who recommended this story
on Facebook last year).

Same deal for the 560,000 people who passed around this
story last year about the FBI Agent in the Hillary Clinton case.
And I have some sad news if you were among the hundreds of
thousands of people who circulated this story about “Ireland Taking Trump
Refugees from the United States.” Great idea, good place to live, and I

don’t need to tell this crowd that the Irish could put together a fine, fine
refugee camp, but, no, not true. While I am on a roll, let me set the record
straight about the other big stories. Obama did not ban the pledge of
allegiance in schools. Bill Clinton did not file for divorce.
The Jefferson Davis statue in New Orleans is not
being replaced with a statue of Barack Obama. Willy Nelson is not dead.
And, no, a woman was not arrested for defecating on her boss’s desk after
winning the lottery. Just not true, no matter how much that last
story has the ring of truth.

In January, Scott Shane of The Times did a fascinating story about
fake news. It was about Cameron Harris, a 23-year-old who sat at his
kitchen table and worked up a story headlined
“BREAKING: ‘Tens of thousands’ of fraudulent Clinton votes found in Ohio
warehouse.” He had purchased a website domain for a few dollars. He found
online a picture of election boxes from England. He pushed out the story.
It was viewed by 6 million people. It prompted an investigation by the local
election officials in Ohio. And Mr. Harris made $22,000 off advertising.

Of course, he was amateur compared to the guys in Macedonia and
other parts of Europe making hundreds of thousands of dollars fabricating
fake stories as an industry. Part of the problem is that there is so
much information out there — just incredible amounts of content,
produced with no editors, no
gatekeepers.

Sometimes that is a very good thing. Remember when United
Airlines decided to drag the guy off the overbooked flight. No one had to
call a reporter. No editor had to decide whether that was news. You didn’t
have to wait for tomorrow morning’s newspaper to read the story. It was
up instantaneously. And you can be sure that it had a very positive effect
on the airlines and how the treated people.
I was on an overbooked flight last month. American Airlines needed
one seat. The passengers got completely quiet as the flight attendant came

on the intercom asking for a volunteer. People began fingering the video
button on their iPhones. The flight attendant sounded like a professional
hostage negotiator. But in that hurly burly of endless content pouring
into your computer, it becomes harder and harder impossible to separate
the truth from the
factual.

Ev Williams, one of the founders of Twitter, was profiled recently in
The Times. He talked about how the Internet was “broken” and for one
simple reason: human nature. You are driving down the highway and there
is a car crash on the other side. You can’t help but look. And the same is
true on the Internet. Attention is rewarded. Not quality. Not truth.
Attention. And the car crash is going to get the clicks. So all the financial
incentives are lined up to fabricate the most outrageous stories.
We have seen Facebook and other social media platforms say they are
going to work to flag fake news stories. But there is a long way to go on
that.

We also see concerned consumers demanding that advertisers not
advertise on sites that traffic in fake news. But the ad-sale system is
complicated. Much online advertising is sold programmatically –
essentially, a high-speed electronic exchange – so advertisers don’t know
where their ads will end up and websites don’t know what’s coming. The
Times ran an editorial a few months ago denouncing fake news. In the
middle of it popped up an advertisement for a fake news site that had been
sold to us programmatically. Awkward.
So the question I get asked is what can the law do about this? We’re
lawyers. Can it really be that we just sit around and watch democracy go
down the drain of fake news?
That is where this man, Xavier Alvarez, enters the picture. SLIDE He
was the defendant in a 2012 Supreme Court case. The decision in his case
begins with a classic line: “Lying was his habit.”
He told people he played hockey for the Detroit Red Wings. Not true.
He said he had once been married to a famous actress. Not true. And then
he announced he had won the Congressional Medal of Honor. For that, he

was charged with a federal crime – lying about his military honors under
the Stolen Valor Act of 2005. The Supreme Court decided that the
government shouldn’t be in the business of policing lying.
We don’t need a ministry of truth, Justice Kennedy wrote.

He is right. What we need is better readers and viewers and social
media users. We need more Americans to have the critical thinking skills
needed to separate fact from truth, the real from the fabricated. That is not
a particularly satisfying answer. It will be hard and long and frustrating at
times. We will be quoting over and over again James Joyce — Does
Nobody Understand? It’s not even clear how we can get to where we
need to be. But could there be anything more important for us to do?
I know what some of you are thinking: Those friggin’ millennials.
Always on their iPhones. Always on Facebook or Twitter or who-knowswhat.
com. But here are the sad facts. This is Real news: Baby boomers –
people over 50 -- spend, on average, 10% more time on social media than
millennials. And baby boomers are significantly more likely to share news
stories with their networks of social media friends. It appears that
millienials, having grown up with the Internet, are actually better able than
older people at recognizing fake news and fake news sites.
Let me put too fine a point on it: If you’re old enough to have kids in
college, you’re more likely to be a fake news menace than they are. No, the
Pope did not endorse Donald Trump.

But the proliferation of fake news sites is just half the problem. The
rest of the problem is the corrosive effect of the use of the term “fake news”
to condemn mainstream media when people don’t like what is being said.
When people ask me about the problems facing press freedom, that is the
point I keep coming back to – not changes in law, not changes in our
interpretation of the First Amendment, but the steady drum beat of a
campaign to delegitimize a free press in the eyes of the public.
I know, I know the president says he wants to tighten up the libel
laws. SLIDE. The law of torts does not seem to be his strong suit. None of
that worries me. The law is not going to change.

What worries me is the “hearts and minds” problem — the campaign
by the administration to discredit the press by branding as “fake news” any
story the administration doesn’t like. The problem is not the criticism of the
news media. Criticism of the media, like criticism of any powerful institution, is
essential, part of the life blood of democracy. The problem is the nature of
the criticism.

Denouncing a story on CNN or in The Times as “fake news” is not
embracing the truth. It is just the opposite. It is asking people to skip over
the analytical step of weighing what is true and what is not and instead
prodding them to simply dismiss what they don’t like hearing. More than
70 years ago, the philosopher Hannah Arendt wrote about the “vacuum of
unthinkingness.” Think about that term for a while.
Truth exists in the world. It gets proved to the best of our ability. OK,
this is an audience of lawyers. I can get away with this line here, but I’ll
deny it if you ever quote me: Life is a lot like a summary judgment motion.
We offer up evidence. We don’t need to believe the evidence. We can
challenge it. But we don’t get to respond by looking at the other side’s Rule
56.1 statement and dismissing it as “fake.”

All of this tossing around of the term “fake news” dovetails with a
related and serious, serious problem. Think about Sean Spicer barring
from a press conference news organizations that he doesn’t like. Or Donald
Trump refusing to take a question from CNN. Or the White House proposal
that there not be any more press briefings. Or the Secretary of State
deciding he doesn’t really want reporters traveling with him to Asia.
We depend on a system of democratic norms and traditions. There
are no laws that say the president has to answer a reporter’s question or
hold a news conference. That is probably a good thing. Those sorts of
things are not easily solved by legal claims and lawsuits and judges. But
there are norms and traditions about how the press and the government
interact. Those norms and traditions make democracy work. They are
what allow the press to serve as a check on government power.
Fake news, unchecked by a free press, may be a problem when it’s a
23-year-old kid sitting at his kitchen table cranking out made-up stories. It

becomes a problem of a different magnitude when the fake news,
unchecked by a free press, is coming from a government telling us how the
economy is doing, where our tax dollars have disappeared to, or how the
next foreign war is going.
That is not a laughing matter.
And speaking of not a laughing matter…We are back to Two Facts Walked
into a Bar. I know, I know I foolishly promised…
So six weeks ago I started asking everyone I know to help me write a
joke “Two Guys Walked Into A Bar”. This was a mistake. Most of the
people I know are lawyers. They are not stand-up comedians. So their
answer, being lawyers, was to start doing research. They started searching
Lexis for “two guys” within 5 of “Bar.” They went online and they came
back with really stupid “two guys” jokes. You know what I am talking about
Two jumper cables walk into a bar…I’ll serve you but I don’t want you
starting anything.

Two musical notes walk into a bar….Sorry I can’t help you. We don’t
serve minors. Two guys walk into a bar when this older fellow walks up to the one of
them and says, “Hey, I slept with your mother last night…” No, I can’t tell
that one here. But I and my team of humor-impaired lawyers labored on. So here
goes… Two facts walk into a bar. What could I do for you? the bartender
asks. We’re looking for the truth, one of the facts says. She been in here?
She ain’t been around, the bartender says. I haven’t seen her for
weeks. That don’t sound right, the other fact says. She was always in here, a
real regular.

OK, OK, I didn’t want to hurt you guys’ feelings. She was in here the
other night. She took off with a couple of alternative facts. And, jeez, she
looked like she was having a good time. Since when did you start serving
alternative facts in here? Hey, pal, this is a modern joint. Nearby a table of
fake news explodes in laughter. “hey, you factoids,”
one of them yells. “Don’t call me a TOID, you little SHAT,” one of the facts
shouts back. The bartender leans in close. Let me tell you guys something.
You don’t stand a chance with a girl like the truth. Look at you two: the suits,
the narrow ties, the short hair, the nerd glasses. Those alternate facts are
very snazzy, they’re colorful and fun and they have great stories.
The facts shake their heads. No, no, no. We’re going to get the truth
in the end, just the way we are. You know, it’s the old story of the tortoise
beating the hare.

The bartender smirks. What are you talking about? Don’t you guys
read nothing? The hare won. I just saw it on the Internet the other day.
The facts are stunned. Come on. The tortoise won. Everybody knows
that. No, no, no, the bartender says. It wasn’t even close. It was the
biggest victory ever. It was so great. Sure, the tortoise cheated, got some
help from some illegal Chihuahuas or something but the hare..He was the
bigliest winner ever. I think it was an orange hare, now that you mention it.
The facts had heard enough. They drain their pints and storm out.
A lady down the bar looks up. Who were those guys?
The bartender shrugs. “Just the facts, ma’am.”
An old-timer down the bar suddenly screams out, “Hey the bartender
just cracked a Dragnet Joke.”

What’s a Dragnet Joke? asks the young guy next to him.
The old guy can’t believe it. “Don’t nobody understand?” he
asks. The bartender shakes his head. “Just what need around here:
Another Friggin’ James Joyce.” OK, OK, I know what you’re thinking.
That’s not funny. Yeah? Says you. Look what I just found on the Internet.