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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  May 2, 2007
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Duke Case: New York Times as a Big Loser

The New York Times treated the Hoax as true because it was what The Times wanted to do.

Unfortunately, being The New York Times, it led the Far Left in what United States Supreme Court Justice Clarence Thomas, a Times survivor himself, would call "a hi-tech lynching."

With the Hoax perpetrated by false accuser Crystal Gail Mangum and Durham County, North Carolina District Attorney Michael B. Nifong, aided and abetted, intentionally or unintentionally, by some members of the Durham Police Department and the Durham County District Attorney's Office as well as Duke University's notorious Group of 88, The New Black Panthers, the North Carolina NAACP and biased media, national and local, potbangers, duped voters and delighted black racists having been thoroughly exposed and only the malignant foolish and the mentally ill still claiming otherwise, it is fitting to focus on the Hoax's winners and the losers.

In this article, I focus, happily, on a "favorite" big loser, The New York Times.

The New York Times treated the Hoax as true because it was what The Times wanted to do.

Unfortunately, being The New York Times, it led the Far Left in what United States Supreme Court Justice Clarence Thomas, a Times survivor himself, would call "a hi-tech lynching."

First, full disclosure:

Criticizing The New York Times comes easily for me.

In 1971 I wrote an article on the Pentagon Papers case for the St. John’s Law Review. A case that arose as a result of the greatest leak of classified information in American history, in the midst of the Vietnam War, The New York Times ultimately prevailed, 6 to 3, in the United States Supreme Court, leaving it free to resume publication of the so-called Pentagon Papers. I agreed that “[f]reedom of the press is essential to the American way of life” and “reflects both the individual interest in expression and the societal interest in dissemination of information and opinion,” but warned against the danger of the press abusing its freedom in pursuing its political agenda.

In 1997 I joined with Emily Bass to form the law firm of Gaynor & Bass and Gaynor & Bass subsequently prevailed in both the United States Court of Appeals for the Second Circuit and the United States Supreme Court in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The United States Supreme Court affirmed the Second Circuit decision, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

The federal district court had granted the defendants’ motion for summary judgment on liability, thereby permitting The New York Times to make free electronic use of freelancer work without permission, for its own substantial economic benefit. (Shortly thereafter, The New York Times had urged, successfully, that the district court judge who ruled for it be elevated to the Second Circuit.

The New York Times claimed as always to be serving the public interest and warned of dire consequences for the American way of life if it did not have its way and was determined to be obligated to pay. But it lost in the Second Circuit,because it had never obtained the right to electronically use the work of freelancer plaintiffs (or many other freelancers).

In its United States Supreme Court brief, The Times literally castigated the Second Circuit for its “Luddite-like approach” in ruling for the freelancers and ridiculously proclaimed that “[t]he Second Circuit’s decision will have devastating real world effects if it is not reversed.” The Second Circuit decision was affirmed, as it should have been, without the consequences that The New York Times had self-servingly predicted in the hope of persuading the Supreme Court to engage in judicial activism and excuse its blatant copyright violations at the expense of freelancers.

In a subsequent case that I followed with great interest, Special Counsel Patrick Fitzgerald urged the court to enforce a grand jury subpoena, taking the position that not even New York Times or Time Magazinereporters may defy a grand jury subpoena. Mr. Fitzgerald: "Journalists are not entitled to promise complete confidentiality — no one in America is." The New York Times and then Times reporter Judith Miller argued that it is imperative for reporters to honor their commitments to conceal sources who say that they will only reveal important information if they are assured anonymity. The court ordered Ms. Miller to be jailed for refusing to divulge her source to a grand jury investigating the leak of undercover CIA operative Valerie Plame’s name. It held Ms. Miller and Time’s Matt Cooper in civil contempt of court. The Supreme Court refused to intervene.

Hero of the Hoax Bill Anderson's most recent article ("Duke, the New York Times, and the American Political Culture")traces the decline of The Times from "the gold standard" of newspapers and "Newspaper of Record" to Far Left propaganda sheet on the Duke case.

The members of the 2005-2006 Duke University Men's Lacrosse Team, especially Reade Seligmann, Collin Finnerty and David Evans, were vilified in The Times even though they were NOT guilty of crimes. The gang rape story fit The Times' political agenda perfectly, so its falsity was undesirable. The Times was unconcerned with false accuser Mangum's lack of credibility and mental, sexual and criminal history and preferred to present her as admirable and brave. District Attorney Nifong was behaving outrageously and playing the race card, obviously, but The Times was not trumpeting that, or due process and the presumption of innocence for any white college athlete from a well-to-do or wealthy family against of heinous crimes by a black female.

Dr. Anderson noted that even now The Times is loathe to correct obvious mistakes: "[T]he New York Times is the Newspaper of Walter Duranty, the Stalin apologist who won a Pulitzer Prize ostensibly for his 'coverage' of Stalin’s brutal collectivism in the Ukraine in the early 1930s. Historians note that about seven million people were starved to death; Duranty’s prize-winning coverage, however, painted a happy face on the whole ordeal and parroted the Party Line. Duranty’s picture still hangs in the lobby of the Times offices, a reminder that the Times is all-too-happy to glorify an out-and-out liar as long as his political ideology is in the 'right place.'"

Actually, the far left place.

Dr. Anderson's evaluation is realistic: "Today, the New York Times no longer is the standard-bearer of newspaper journalism; instead, it carries the standard of modern leftist political culture, and nowhere did that become more apparent than in its coverage of the infamous Duke Lacrosse Non-Rape, Non-Kidnapping, and Non-Sexual Assault Case. Like its saturation coverage of the story that it created – the refusal of Augusta National, home of golf’s Master’s Tournament, to admit women as members – the Times contributed numerous articles and columns to this story, and managed to become the 'gold standard' for biased and inaccurate coverage."

The Times' Duke case coverage was shameless. And, to his credit, now MSNBC General Manager Dan Abrams (son of famed Times First Amendment lawyer Floyd Abrams) blasted The Times, especially after it tried to throw Mr. Nifong a lifeline last August.

Dr. Anderson: "[T]he New York Times – with the possible exception of the Durham Herald-Sun – had the worst coverage of the case of any journalistic outlet in the country. Where others saw a case falling apart, the Times saw 'a body of evidence to support his (District Attorney Michael B. Nifong) decision to take the matter to a jury.'"

The Herald-Sun is a pathetic little paper that does its damage locally. The Times is the BIG one that sets the tone for many other newspapers as well as readers and people in other media. So sheer size and impact make its coverage the worst and The Herald-Sun will have to settle for dishonorable mention!

Dr. Anderson also emphasized that the same Times that sanctimoniously demands others publicly apologize for their mistakes (real or imagined) simply moves on: "Now that charges are dropped, the Times is taking a 'sort of' second look at its coverage in the case. Although the charges were dropped and the players exonerated, Times sports columnists Selena Roberts and Harvey Araton, both of whom wrote scathing attacks on the Duke lacrosse players over the past year, continue to attack them as though nothing has changed. Furthermore, the Times has not editorialized any mea culpa even though it rushed to judgment."

True, but NOT surprising (to me).

Not surprising to Dr. Anderson either.

Dr. Anderson:

"Perhaps, the most offense piece (out of many offensive pieces) done by the Times was its infamous August 25, 2006, piece that treated an obviously false police report as an Oracle of the Gods from Mount Olympus. Last summer, in debunking this article, I wrote:

While supporters of Nifong will claim that this article from the 'newspaper of record' sheds further light in favor of the prosecution, it actually does the opposite. First, and most important, it tells us that the most important 'mainstream' newspaper in the world does not ask serious questions when clear discrepancies are raised. Second, it also tells us that when an agent of the state lies, and uses the prosecutorial apparatus in a dishonest and abusive way, the agent can find refuge in the New York Times if the desired outcome can validate the Times’ politically-correct view of the world.

Tawana Brawley disappointed the editors of the Times , who obviously were hoping that the girl’s story was true. Having been burned once, the editors this time apparently have decided that they will continue to press the lie no matter what the truth may be. They will stand by their man, Michael Nifong, and stand by him to the bitter end. But they will stand by him.

Indeed, no paper of stature presented a more positive view of Nifong than did the Times, and even now the paper is loathe to admit that this entire case was a piece of fiction that Nifong and the police hatched – and was aided and abetted by false coverage from the 'Newspaper of Record.'"

For those who don't want to take his word for it, Dr. Anderson compiled scathing comments of others:

"Daniel Okrent, the first Times public editor: 'I think The Times’ coverage was heartbreaking. I understand why they jumped on the story when they did, but it showed everything that’s wrong with American journalism.'

"Jack Shafer, Slate editor at large and author of the Slate press box column: 'Here was a story that fit a template that they recognized and thought was a productive one... a story about privilege, a story about town and gown, a story about how race is handled in America.' Now that their original analysis had proved wrong, 'How do you elegantly say, "Whoops, we erred here?" I still think The Times has not acknowledged the role it played in sensationalizing its story.... You don’t need to put on the hairshirt and run around and get everyone to accept an apology – I’m talking about correcting the record and getting the story better, righter, straighter.'

"Stuart Taylor, senior writer at National Journal: The August 25 Times article 'was the worst single piece of journalism I’ve ever seen in long form in a newspaper.' Yet its impact was substantial: 'A lot of people think The New York Times is a bible of what really happened. I think an awful lot of people have been misled by The New York Times coverage and either didn’t pay attention to what critics were saying or shrugged it off – "Who am I going to believe, The New York Times or some no-name critic in the blogosphere?"'"

Certainly not The New York Times!

What is astonishing is not Times arrogance and bias, but its presumption that it can continue to fool people.

Dr. Anderson explained it exquisitely, in skewering The Times' current public editor, Bryan Calame:

"Calame’s scarcely credible thesis: 'I found that the past year’s articles generally reported both sides, and that most flaws flowed from journalistic lapses rather than ideological bias.'

"Who does Calame think he’s fooling? Imagine the following scenario: three African-American college students are charged with a crime for which almost no evidence exists. One has an air-tight, public, unimpeachable alibi. Their accuser is a white woman with a criminal record and major psychological problems. They are prosecuted by a race-baiting district attorney who violates myriad procedures while seizing upon the case amidst an election campaign in a racially divided county.

"Does anyone believe that the Times would have covered the story outlined above with articles that bent over backwards to give the district attorney the benefit of the doubt, played down questions about his motivations, and regularly concluded with 'shout-outs' regarding the accuser’s willingness to hang tough – coupled with sports columnists who compared the accused students to gangsters and drug dealers?

"Calame, in short, appears unable or unwilling to consider how the Times’ failure in the lacrosse case – and having the thesis of a paper’s major article publicly dismissed as untrue surely constitutes a failure – was attributable to reporters and editors allowing their worldviews to distort the facts.

"Indeed, if we want to get a sense of the real attitude of the Times toward this case, all one has to do is to read its columnists, who from the start have treated the Duke lacrosse players as the second coming of the Ku Klux Klan. Araton could not believe that members of Duke’s women’s lacrosse team last year would wear blue bracelets with the numbers of Reade Seligmann, Collin Finnerty, and David Evans and the word 'innocent' written on them. After all, these young men were charged with rape, so the mere accusation should be a reminder to all women that these are evil men.

"(Araton told me in an email that he was willing to consider the possibility that the charges were untrue. I reminded him that these women were close friends of the accused, and they knew that the facts were not adding up, and that there was no rape, kidnapping, or sexual assault. Araton never wrote back and has ignored my subsequent emails.)"

You apparently hurt Mr. Araton, Bill, by citing some pesky facts. I got a call from an ESPN person who was perplexed that the members of the 2005-2006 Duke University Women's Lacrosse Team actually were siding with the then beleaguered members of the men's team. The caller was oppressed, not impressed, by that confident expression of support, and frustrated with me for trying to explain that they were in a position to know what kind of people the members of the men's team are.

Alas, Dr. Anderson is disgusted (rightly, of course) with the Far Left's fallback position:

"Even now, we are getting the new party line not only from the Times, but also the Washington Post and other mainstream journalistic outlets. The line goes something like: "Yes, they were innocent of the charges, but they had a party where strippers were paid to dance, and there was drinking, and the air was filled with racial slurs." John Feinstein, in a recent Post column, repeats the line that has little more truth than a story from Pravda in the heady days of the former Soviet Union:

The Duke players were victims of a prosecutor, Mike Nifong, who was either overzealous or incompetent or both. They were also the victims of their school's leadership, which completely ignored an escalating situation, then threw the entire team right under the wheels of the bus in order to save itself. The flip side though is that these were not innocents. This was not a case of one party gone awry, this was a case of a group of out-of-control kids getting themselves into a very bad situation – probably at least in part because some of them were screaming racial epithets at the two strippers they had hired for the evening.

This wasn't just boys being boys. This was a team about whom a Duke administrator had written a report two years earlier describing them (the lacrosse team) as, 'a train wreck waiting to happen.' Tallman Trask, the university vice president who was handed that report, did nothing with it. He informed Joe Alleva, the athletic director, that it existed and Alleva did not so much as ask to see it. And yet neither one of them has been fired in the wake of all this. Only Mike Pressler, the coach, who according to Duke's own report was the one adult on campus who took some action after the report, was fired.

President Richard Brodhead wasn't wrong to suspend the team's season after the initial reports came out. If nothing else it sent a message that accusations of rape would not be taken lightly, even if Alleva's initial response, 'this is an unfortunate incident,' was laughably stupid. But once all 46 players had been DNA-tested and no DNA from any of them showed up on the accuser's body, Brodhead should have allowed the season to continue. At that point the burden should have fallen on Nifong – who probably should be disbarred given his behavior – and not on the players since at that moment Nifong had produced zero evidence of their guilt. He never did produce any evidence at all which is why the charges had to be dropped.

Now, of course, the defenders of the right and the white are screaming that the lives of the three indicted players have been ruined. Surely, they were treated unfairly by Nifong and by Duke. Just as surely Duke – which is so flush it has more money than it knows what to do with – should pay every penny of their legal expenses. But their lives aren't ruined. In fact, to some they will now be heroic martyrs. Doors will open for them because of who they are, and because they were unjustly accused.

Let's not make them into heroes. They were still part of a group of kids that was out of control and never have they shown any remorse for anything other than the fact that they were facing rape charges. No one from the lacrosse team has ever said, 'okay, maybe we went too far with our partying at times.' Remember one team member was also accused of a gay-bashing crime in Washington and another sent out a hateful, threatening e-mail in the wake of the arrests.emphasis mine)

The larger point is this: the white guys aren't always right and neither are the black guys. In the Duke case, the truth clearly lies in the middle: no one on either side covered themselves with any glory."

Dr. Anderson's rebuttal:

"There is much to condemn in Feinstein’s piece. A Duke University report authored by the respected law professor James Coleman did not present a picture of the out-of-control team, as it refuted the 'jocks running wild' stereotype that Feinstein gives. We know now that there was only one racial remark, and that was an unindicted player responding to a vile racial remark by one of the dancers in which he gave a line from a Chris Rock routine: 'Thank your grandfather for my nice cotton shirt.' Second, Collin Finnerty was convicted of assault in a Washington, D.C. courtroom under very questionable circumstances and no one there, including the accuser, said anything about someone being a homosexual. This 'gay bashing' quote is something that the press literally made up.

"(The conviction later was vacated as more information came to light. Finnerty has been on the butt end of a lot of character assassination for that incident, and all it takes is the requisite five minutes to find out what happened, as opposed to what people like Feinstein claim to have happened.)

"As for the 'vile' email, it was written not in the wake of arrests – yet another piece of very sloppy Feinstein 'research' – but after the party, and it was a joke, not a threat. I have dealt with the Ryan McFayden email in another piece that explains what really happened."

I'll second all that, except I believe that the "cotton shirt" crack was not the only racial remark. Still, the painting of the players as a bunch of white racists is unsubstantiated and unjustified name calling. The persons who cry out that the players should not be whitewashed also are quick to blacken their reputations, by repeating falsehoods. Even the North Carolina Attorney General found that the players had ordered white strippers, not blacks. They did not object when "Allure" sent blacks instead, but the fact is that blacks had not been ordered and there was not a plan to abuse black women or anyone else that day or any other day. Apparently a player who felt cheated by the strippers used the N word in explaining that whites had been ordered. Foolish, but hardly grounds for trying to frame three OTHER players for kidnapping, rape and sexual offense and to send them each to prison for thirty years.

Dr. Anderson suspects that Times reporters are poor researchers: "Perhaps it would be too much to ask of reporters from the New York Times and columnists like Harvey Araton, Selena Roberts, and John Feinstein to do even basic research before publishing stories. Indeed, they take the other approach, that they are above having to do research like other people who may have to get their hands a bit grubby before firing away in print. The tip-off here is that they rarely return emails to anyone who criticizes them, and their 'we are untouchable' attitudes define their work."

I suspect that the problem is much worse than sloppiness.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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Copyright © 2007 by Michael J. Gaynor
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