File Podcast: The Telegraph, Libel, and Press Freedom

For the 100th episode of the Journalism History podcast, hosted by Nick Hirshon, author Patrick File discusses his book, Bad News Travels Fast: The Telegraph, Libel and Press Freedom in the Progressive Era, and reviews three turn-of-the-century libel suits, including one from world-famous sharpshooter Annie Oakley.

Patrick File is an associate professor of media law in the Reynolds School of Journalism at University of Nevada, Reno.

Transcript 

Patrick File: Any story on any given day might give rise to a libel suit. That, you know, that really starts to shape the kind of very fundamental business aspects of what was becoming modern journalism.

Nick Hirshon: Welcome to Journalism History, a podcast that rips out the pages of your history books to re-examine the stories you thought you knew, and the ones you were never told.

Teri Finneman: I’m Teri Finneman, and I research media coverage of women in politics.

Nick Hirshon: And I’m Nick Hirshon, and I research the history of New York sports.

Ken Ward: And I’m Ken Ward, and I research the journalism history of the Great Plains and Rocky Mountains.

Nick Hirshon: And together, we are professional media historians guiding you through our own drafts of history. This episode is sponsored by the College of Journalism and Mass Communication at the University of Georgia. For more than a century, the college has educated students –

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to relentlessly pursue the art, science, and integrity of stories. They are committed to following First Amendment principles in a digital-first environment as they prepare democracy’s next generation. Transcripts of the show are available online at journalism-history.org/podcast.

Annie Oakley was livid in the summer of 1903. Oakley had become famous across the United States and Europe as the spunky sharpshooter in Buffalo Bill’s Wild West Show – and after a train accident, she decided to leave the touring circus and embark on an acting career. But then the same newspapers that had made her an international star ran stories that tarnished her public image.

Sensational reports claimed that Oakley had been arrested in Chicago after committing a bizarre crime: stealing a man’s pants in order to buy cocaine.

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The news spread quickly via wire services and the telegraph. The problem was none of it was true. In fact, the real Annie Oakley was living in New Jersey, and the woman who had been arrested in Chicago was an imposter. In the seven years that followed, Oakley went on a crusade to clear her name, filing fifty-five libel suits against newspapers across the country.

Oakley’s confrontation with the news media reflected the conflict at the turn of the century between individuals concerned about losing control over their personal information, and journalists who were relying on faster communications technology to report fresh and interesting news.

On this episode of the Journalism History podcast, we examine this tension between press freedom and privacy with Patrick File, an associate professor of media law at the University of Nevada, and the author of Bad News

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Travels Fast: The Telegraph, Libel, and Press Freedom in the Progressive Era.

Patrick, thanks first for joining us on the Journalism History podcast to discuss your book today. So you published Bad News Travels Fast in 2019, and just to give our listeners an idea of the concept of this book, you examine a series of libel cases between 1890 and 1910 brought against hundreds of newspapers across the country for allegedly republishing false newswire reports.

 

Libel, of course, allows people to sue for damages when their reputations might be harmed by false utterances, publications, or republications. That’s part of what we’re going to be getting into today. You describe how law and technology influence debates about privacy, the acceptable limits of journalism, those times when the media wants to satiate the public appetite for timely and entertaining stories, but then they fear maybe that sensationalism, inaccuracy could take over, and that could lead to expensive libel suits.

So let’s first analyze the –

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title for your book because I thought this was kind of interesting – the concept of bad news. As I was thinking about it reading the book, it could be taken two different ways. I’m sure you intended it this way, but one is just bad news is a negative story about someone. This is a bad story about me, it’s about an affair, a crime, something like that that you explore in the book. But the other way, of course, is to view this as bad news reporting, accepting a wire service story without checking the facts. This is an example of bad journalism. So how do you define bad news?

Patrick File: Yeah, well, both ways, pretty much the way that you just describe it. And just as you said, it was kind of intended to kind of be meant both ways through the title. And basically that, you know, bad news as a – you know, it looks bad for the person that it’s about if it’s, you know, kind of reporting a crime, reporting a business deal that’s shady or a personal affair that’s shady or something like that.

 Um, it’s also –

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bad for the person it’s about if it’s not true, right? You know, it’s bad news in the sense that it’s faulty, it’s false, it’s harmful, and therefore, you know, it’s potentially defamatory, which is of course the book is about libel. But just as you say, it’s also bad for the journalists who report it and it’s bad for the news organizations that get nailed with these libel suits for passing it along.

You know, bad news in a broader sense – that’s sort of like these stories and the legal, the cases that sort of they – that they wrought was sort of bad news for journalism in the sense that, you know, part of the broader problem that this kind of illustrated, these serial libel suits, these libel syndicates as the press liked to call them at the time was, you know, this sort of sudden and fear-inducing new problem where every newspaper in the country published wire service news, right?

They got – they got news from, of course, the Associated Press, but a handful of other competitors to the Associated Press.

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If kind of any of those stories could be considered potentially faulty or, you know, any story on any given day might give rise to a libel suit, that, you know, that really starts to shake the kind of very fundamental – some of the very fundamental business aspects of what was becoming modern journalism at the turn of the 20th century, and so that’s bad news, too.

So bad news for plaintiffs, bad news for the people that the story is about, but also potentially bad news for the journalism industry as well.

Nick Hirshon: And it’s stunning when we’re going to get into the actual stories that were reported here that led to the libel suits just how bad some of this news was.

Patrick File: Yeah.

Nick Hirshon: Um, as a former journalist myself and as a journalism professor, just reading what went down. I’m like, “How do they not check these facts? How do they just put this scurrilous stuff into the paper?”

Patrick File: Right.

Nick Hirshon: Um, so it, it’ll be kind of interesting to go – and, as you discuss in the book, obviously a key part of your book is the technology of the age that you’re writing about. The concept of bad news traveling fast took on new meaning with the inception of the telegraph in the –

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1850s.

Its speed and scale made it the most powerful information distribution network ever created, as you describe, and telegraphs are carrying reports almost instantly from trusted wire services like the Associated Press, United Press Association to newsrooms across the country.

But those qualities also amplify the legal risk associated with spreading false stories of debauchery and corruption through news because the newspapers are rushing wire stories into print, usually without any independent verification of the facts in those wire stories, and that became a routine, integral part of the business. No one is even questioning it.

And by the late 1800s, the era that you’re really focusing on here, Americans had become more mobile geographically and socially. They are becoming maybe more concerned about their privacy and their reputations, worried about whether either their close neighbors or even distant strangers, as you describe them, saw them as honest and virtuous. So how did the telegraph specifically give rise to the “traveling fast” element of that bad news?

Patrick File: Yeah, so the –

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central factor here is timeliness, right? That, you know, prior to the telegraph and, and certainly, you know, subsequent to the telegraph being the kind of main means of information and, and news exchange across the country, news has to be timely. That’s, that’s a kind of essential quality of it. And the more timely, the better.

And of course as news publishers and, and newspapers, you know, grow at the – in the mid-part and late part of the 19th century into these large money-making enterprises, those news values become business values, right? And so you need to be timely. You need to be fast. You need to be the – beat the competition. And of course the telegraph enables that, right, to kind of exchange information and news very quickly, getting it in the paper that day or the following day no matter where it occurs across the country.

And just as you say, that comes into conflict with some basic journalistic values about, you know, verification of facts and things like that. It also, again, when you’re dealing with, you know, this,

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desire – really a business imperative to kind of meet the public with sensational salacious and interesting news, you know, the human interest story at the turn of the 20th century. You know, some of that may not be, strictly speaking, accurate. Some of it may not be fully vetted because, again, of the timeliness element.

And so all those kinds of things kind of come together when we’re trying to get, you know interesting, fascinating and salacious news to the public quickly through the telegraph, and, and, again, the, you know, this is a problem of speed, but it’s also one of scale and so you have newspapers all across the country reporting essentially the same stories.

Um, and so that – the way that that works – I think the Tyndale Palmer story, we may get into that in a little bit more detail, is probably the kind of most emblematic of this where you have this otherwise basically anonymous businessman,

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but in theory he could be doing business anywhere in the country. Ah, the guy was born in Ohio, grew up in Ohio, spent some time living in southeast Iowa, spent some time living in Minneapolis and St. Paul and, and I believe, you know, traveled through New York a little bit as well.

And so, you know, wherever his business took him, he went. And if people reading in the newspaper, either before he arrived or while he was there doing business that he was a shady businessman, then, you know, that’s a problem for him. Um, this was – this was new, right? And in, you know, the post-Civil War era, people were a little bit more, you know, socially mobile.

Um, people like Tyndale Palmer could kind of move up the class ranks by, you know, conducting business, but they could also move around the country and, and do business here and there and, and, you know, kind of travel around as they chose. And if newspapers, wherever they may land, were publishing false and harmful information about them, that was a problem.

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Whereas, you know, the Tyndale Palmer of decades before had – would probably have pretty much stayed more or less in the same place. And so if a newspaper halfway across the country was, was reporting false and harmful information about him, he may not have cared, he may not have known.

And so, you know, again, I think there may be a tendency to read this through the kind of the lens of the press and say, “Well, this is just a terrible thing, and, you know, these people were targeting journalists, and targeting good journalism and just trying to harm newspapers and put them out of business.”

But, you know, it’s a legitimate concern for somebody, somebody like Tyndale Palmer where, you know, this is a false and harmful story, and it may limit his ability to do business. And it’s perfectly valid for him to go, you know, town to town, state to state and, and try to at least get a retraction if not, you know, rightfully sue these newspapers for harming his reputation.

Um, so that’s the kind of the scale and the speed part, I think, of the – of the “travels fast.”

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Nick Hirshon: Well, and your book certainly shows that these figures are sympathetic who are suing for libel. I mean they were wrong. And so we kind of see in the Tyndale Palmer story, which we’re going to get into, we’ll go through them in chronological order as you do in the book, but that these – maybe a lot of our listeners are journalists, or more sympathetic to the views of journalists.

And so we view libel as a deterrent, someone trying to stop good journalism based on, you know, maybe their concept of what reality was – is it really what was the truth that the journalists were reporting? But here we see that the journalists were really just not practicing correct morals or good process.

 So yeah, let’s get into some of those stories, just mindboggling ones. The first one that you tell in the book is about these wealthy socialites, Juliette Smith and Edward Rutherford. So in the summer of 1890, Smith boards a train in Toronto bound for New York City to meet her husband. He was a wealthy and well-known Canadian merchant named John C. Smith. And she’s traveling with a –

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friend of the family, Edward Rutherford, and her husband knew about this.

In fact, the two men had planned this trip together, and when the train arrived in New York, Rutherford arrived at Grand Central Station to meet them. You know, he was there to greet them when they come off the train. But the United Press Association paints a very different picture of these interactions between Mrs. Smith and Mr. Rutherford.

The correspondent reports that they had absconded from Toronto with plans to elope in New York. And Mr. Smith had learned of their plan and he hurries there to confront them. The New York Evening Sun runs the headline, “Did she go with a handsomer man? Reported sensational elopement in Canadian high life.”

And of course this is all false. They end up suing newspapers in New York and Chicago over these allegations of an elicit love affair. So what can you tell us about this particular libel suit, and then the news industry formulates what becomes known as the wire service defense out of this case. So what can you tell us about that?

Patrick File: Yeah, so just as you said, you know, it was –

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this kind of salacious, salacious story. Ah, yeah, I love that headline, “Did she go with a handsomer man?” Um, right? You know, I mean, the answer to that implied by the question. And so – and it’s, you know, again, one of these things where, as you’re doing the research and reading this stuff, I mean it’s hard to not find like immediate resonance with the present day around reporting on these people who are, again, Canadian high life.

This is just, you know, folks who are kind of famous for being rich and that’s about it and so it’s, yeah, it’s a kind of irresistible story once you see it come over the wire. And, you know, to get to the point of the – of the wire service defense, this is the newspapers that were sued – by and large, you know, their argument that they made in court was that if we – if our kind of full-time job in addition to reporting news – you know, reporting news for ourselves that we send our own reporters out to gather and, and verify and edit –

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and put in the newspaper – in addition to that, we have to verify and edit every piece of wire service that we get, which in many cases, you know, media historians will know in this era was as much as half the newspaper in smaller areas, in smaller towns and rural, rural newspapers, it would be half or more of the newspaper. Um, you know, it’s just not viable as a – from a business standpoint to be verifying both the news that you’re reporting originally as well as the wire service news that’s coming in.

Ah, but the way the law looked at it was essentially that, you know, did you publish this? Is it false? Did it harm their reputation? If the answer is yes to all three of those questions, then that’s it. Um, and the only question at that point is whether the jury agrees that you should get $5, $5,000, or $50,000.

Um, and so that, that puts the news organizations and newspapers in a really difficult spot. And so that was why they raised this, this defense. They said, you know, there has to be a sort of exception that allows us to at least –

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diminish the damages that are owed in a libel case that’s based on a wire service story. By and large, you know, and this is something I had to kind of struggle with and make sense of myself, and, you know, again, libel law is extremely tricky to kind of work out. It’s, to this day is, is very nuanced, and, and, and it’s, you know, just – and even the doctrine of it doesn’t make a lot of sense a lot of the time.

And so it wasn’t that the news organizations were arguing we shouldn’t be responsible, we shouldn’t be held liable for, you know, printing these, these harmful falsehoods, but rather that our liability in terms of damages should be diminished because the fault is lower, right? The strict liability doctrine was essentially what the courts were applying and had been applying for decades, which essentially said, as I say, you know, did you publish it? Is it false? Did it harm their reputation? Okay, well then you’re guilty. That’s all there is to it.

There’s no interrogation as to sort of how did you get to this place, how much fault was there on your part?

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And the newspapers are saying, you know, we should – we should ask that question. We should be able to argue that we would be more at fault if this was our own reporter going out and gathering this information originally and, you know, falsely reporting it, or, you know, of course, maliciously and, and purposefully trying to harm this person’s reputation. But not only was this an accident, but it was an accident that it would be very difficult for us to prevent from happening, and while meeting the need of the public to have information about what’s going on around the country in addition to what’s going on in our community.

And so that was the kind of birth of this wire service defense. I’m sure we’ll talk about it, but, you know, they didn’t have a great deal of success. This was not something where judges sat down and said, “Aha, that’s – you know, that’s a great idea newspaper lawyer. I’ll happily take that into consideration and, and diminish your damages however much you would like.”

I mean courts were extremely leery. Judges were extremely leery of this sort of new interpretation based on, you know, new ideas about what news ought to be, whether it’s –

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a story about the salacious elopement of members of the Canadian high life even belongs in the newspaper, and that’s where this kind of, you know, culture clash, this question about what exactly makes a good or worthy news report in the first place starts to get into this as well.

Nick Hirshon: And just to follow up there then, how did that case end up?

Patrick File: Ah, Smith and Rutherford mostly won their cases. And for the – you know, the damages would end up getting kind of debated. It’s kind of similar today where, you know, what you do – the way that libel law works is you sue for as much as you can possibly claim.

I mean, we’ll see the news – you know, news reports about this from time to time where a person is suing a news organization for $50 million. Um, and it’s essentially because you’ve got to set a high bar in order for the – if you sue for a small amount, you can never get more than that. And so even if damages get sort of lowered, you’ll still end up with, you know, a large amount that way.

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You still, of course, have to prove that there was harm, that there was loss. Um, and so Smith and Rutherford in their cases, my recollection is that they won in the thousands of dollars in several cases. I would say kind of financially they were in some ways probably the most successful of the – of the three cases, the three series of cases in the book.

I guess, you know, put it in kind of like sports term, they had – in sports terms, they had sort of like the highest percentage winning percentage on the cases that they filed, and the largest amount of damages that they won. So this was this first kind of, you know, I mean, I would see it looking back at it, as a historian, it’s like this is the shot across the bow.

This is the sort of, you know, an incident where there were maybe a dozen-ish cases filed. Not a ton, not a huge libel syndicate like we’ll see with Tyndale Palmer and even Annie Oakley, but

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but, you know, this – they sued in multiple places: in New York and as well as in Chicago and they were fairly successful.

So it was kind of this warning sign to news organizations, you know, if you’re publishing faulty, false, defamatory stories, even if it involves people that you’ve never heard of before publishing this story, that doesn’t mean that you’re kind of absolved and that you’re going to avoid a libel suit.

Nick Hirshon: Mhm. And just seeing the permutations of law now having to even define a wire service defense, something that didn’t really exist maybe before the telegraph, didn’t need to be discussed in this way.

Patrick File: Yeah.

Nick Hirshon: So you’ve mentioned Tyndale Palmer a few times. So we go from Smith and Rutherford in the summer of 1890 to then two years later, October of 1892. United Press Association is at it again. They report that this businessman, Tyndale Palmer, who worked for a light company, had been sent to Brazil to negotiate the sale of patent rights for a new light bulb.

And the story says that –

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he goes to Rio de Janeiro, he sells the patent for $510,000, but he doesn’t tell this to his employer. He says, “It only sold for $70,000,” and then he splits that difference with a local hotel owner. Obviously a shocking tale of international business fraud, pocketing $440,000. It’s also untrue.

In fact, Palmer was an entrepreneur and businessman whose work life, as you describe in the book, was in tune with the social and geographic mobility at the turn of the 20th century. He wasn’t doing anything particularly wrong here. Over the next ten years, Palmer pursued lawsuits against hundreds of newspapers for printing the false allegations, and you’ve brought this up a few times so far.

The trade – one trade publication calls the systemic approach to litigation the greatest libel syndicate of the age. Almost like it’s becoming a business pursuit. Just suing somebody for libel becomes its own independent hobby and business. But this case ends out playing a lot differently than Smith and Rutherford. So how did this go?

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Patrick File: Yeah, so I mean, I just – every time I kind of reread and think about that story, like what newspaper could have possibly resisted this, right? Um, and again, because – partly because it’s just so emblematic of, you know, the world and, and of kind of American culture and business culture at this time.

Um, so what was interesting and, and sort of different about this was the – you know, so a couple of big differences. Palmer indeed kind of turns this into a business venture. He gets an attorney from Philadelphia, goes around and they send letters to basically every newspaper they can possibly find that published this story. They demand a retraction and essentially say, you know, “You can – you can offer us payment in response – for harming us, or harming Palmer and/or I’m going to come sue you.”

Um, and he, you know, sort of very systematically –

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goes around and sues newspapers. He seems to focus, from what I can tell, on places that he’s lived or – and/or done business. As I mentioned, you know, grew up in Ohio, lived in Iowa for a time, which was very interesting because he actually had some connections to places that I grew up – very close to where I grew up in southeast Iowa, which is always kind of an interesting thing for, you know, to obviously writing about it, but also getting to go and do research in local courthouses in towns near where I grew up, which was sort of interesting.

In Minnesota, upstate New York and then in New York City is primarily where he focuses these lawsuits, but there are others in other states such that the – at least the way the trade press describes it, is he’s essentially filing test cases. So he’ll file a case in a state, see what happens, see if it, you know, if it goes anywhere or if a jury kind of is willing to award him damages. And if it – if it’s a successful case then –

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he’ll file more in that state.

Um, so the scale is much larger than what Smith and Rutherford did, but then what’s also interesting is he doesn’t end up kind of raking in the damage amounts that Smith and Rutherford did. In most cases, he’s awarded nominal damages, which is basically a legal term for kind of the minimum amount. Um, in some cases, it varies from place to place, but it’s like 25 cents or a $1.75 or something like this.

You know, one newspaper points out that it’s, you know, what he wins in damages isn’t sufficient to pay for his travel and board in town while he’s there to testify in the case. It’s always difficult to know without kind of – what we can’t do is go back and like interview the jurors to find out what it was that may have tipped the scales in this case and made it somehow different from the Smith and Rutherford case.

Um, but I mean, you know, there are a couple ways to –

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think about it.

In some ways, it was that I think Smith and Rutherford in some ways, I think, sued in places where they were maybe a little bit possibly better known. It could also be that the jurors were more offended by the idea of this false claim of elopement and a marital affair than they were about a business deal. Um, you know, a kind of phony business deal and money laundering and these kinds of things and stealing from a large light bulb factory, or a light bulb producer, I guess.

So you know, there are a couple ways to think about why the jurors kind of might have awarded smaller damages. It could also be that the wire service defense was kind of – although maybe not necessarily catching on with judges, jurors could have been open to that idea a little bit more. Um, also the possibility is this kind of

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second line of defense that the news organizations were raising in the libel syndicate defense, which was essentially that this – jurors should be able to see the fact that this person is going around and has essentially turned this crusade, this legal crusade into a new business where he’s just going around and suing newspaper after newspaper after newspaper. Um, and, and jurors sort of saying, “Well, we’re not going to go along with that.”

So ultimately like, yes, the newspaper loses and Palmer wins. Because again, with strict liability approach, and, and, you know, no wire service defense explicitly in the law, no libel syndicate defense explicitly in the law, you would say, “Well, you know, did the newspaper publish it? Yes. Was it false? Yes. Did it harm his reputation? Yes. All true, however, we don’t see that he was harmed in some, you know, terrible way. And so instead of the $50,000, or the –

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$15,000 that he’s claiming in damages, we’re going to award him $1.50. You know, say legally you are the winner of this case but we’re not going to award you a big pile of damages.”

And so Palmer ultimately again, and from the standpoint of like was this good business, probably not. Um, he wasn’t terribly successful. I think, if you run the numbers, he won a couple of cases and a couple of large judgments.

The other part of this is that a lot of – a fair number of newspapers settle with him out of court. So they take him up on that offer when they get the letter that says, “Here’s your – here’s your option. You can pay me $500. You know, send me a check, or I’ll come and sue you for $50,000.”

A fair number of newspapers settled the cases, and so that, again, kind of gives him presumably enough money to kind of keep this thing going for a little bit. But it certainly doesn’t enrich him in any kind of meaningful way, such that he can kind of quit his job and just become a full-time libel plaintiff.

Nick Hirshon: Well, I imagine also with any lawsuit,

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and certainly in a libel case, you risk that you’re suing somebody and then that only highlights, again, the original false claims that were made against you in the newspaper story. So even if he’s winning some of these cases, maybe there are some people who were going to do business with him and then they see reports and it’s like, “You know what? Why don’t I go with some other person? Hire somebody else, or go into business with another person.” That could be tricky.

Patrick File: Well, and, and news organizations do kind of play that card of the court of public opinion as well. I mean, you see it in some of the coverage. You know, there are sort of two ways that newspapers go about this and go about kind of writing about libel generally that you can see.

You know, one that’s sort of interesting is in many cases they downplay it. They don’t – they don’t cover libel cases, particularly libel cases against newspapers. In one case, or in a couple of cases, there were actually in larger or mid-sized cities, I want to say it’s Detroit. I’d have to get the book out and remember exactly and possibly also Cincinnati where a –

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handful of newspapers get together and say, “You know, we’re not going to publish news of libel suits against any of the newspapers in town because all that does is encourage people to file more libel suits.”

So which, of course, poses an interesting problem for those of us doing this historically research because it’s like, “Well, you know, the legal records are spotty particularly if it doesn’t ever get appealed. If this only kind of exists at the trial court level, it’s hard to find those records, and if it’s not in the newspapers, then how do we find out about these things?” And a couple of people obviously done this kind of work and, and struggled with that.

The other way that they go about it is they – again, they kind of litigate a little bit in the public in the court of public opinion. And they write about these cases and they say, you know, “There’s this guy, he was going around suing newspapers and we’re about to see him in our town, too.”

And they essentially explain their case where, you know, “Listen, public, if you like good sort of news –

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from all across the country that’s interesting and it’s delivered in a timely fashion that comes from the wire services, then this is the thing that might happen sometimes. And, you know, we are – we are of the opinion that it was a harmless mistake. We feel bad for Mr. Palmer, but ultimately we don’t feel like we’re at fault to the tune of $15,000 or however much he’s suing us for.”

Um, and which – of course, what’s interesting about that is that, you know, who are they writing to with their potential jurors in these cases, right? And so that’s another attack that they would take is not only does Palmer kind of potentially risk further harm to his reputation as this kind of guy, this sort of shyster who’s going around and suing all these newspapers and trying to use the law, you know, in this way that enriches him and harms a free press, but also, you know, the newspapers as they report about this literally or potentially catching the eyes and ears of potential jurors.

Um, and obviously, there’s processes in courts –

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that – so that you can, you know, get a fair jury. And so it’s not like you’re necessarily going to get – necessarily going to impanel a jury that’s going to sit there and, and all just kind of look down their noses at Tyndale Palmer and, and, you know, kick out of the courtroom.

But that’s the sort of this, this kind of court of public opinion approach to reporting on these cases was sort of an interesting aspect of the Palmer cases as well.

Nick Hirshon: And then about a decade after Palmer, we have the case that is maybe involving the most prominent figure in your book. The last one we’ll discuss here, the world-famous entertainer Annie Oakley, a sharpshooter who appeared in Buffalo Bill’s Wild West Show. Our listeners probably know her best as the inspiration for the Broadway musical Annie Get Your Gun.

 And in August of 1903, newspapers across the United States publish a story that describes how Oakley had turned up in a Chicago courtroom drug addicted and destitute. She’s accused of stealing a man’s pants in order to buy cocaine. The Scranton Truth reports,

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“The striking beauty of the woman whom the crowds at the World’s Fair admired is gone.” But this story, like the others we’ve been discussing, was completely false. The arrested woman was not Annie Oakley but an imposter who had toured the country claiming to be the famous Annie Oakley. The real Annie Oakley was vacationing in New Jersey at the time of this incident.

The newspapers apologized and retracted the stories, but Oakley argued the damage was already done. She filed fifty-five libel lawsuits over the next seven years. So this trailblazing female entertainer, one of the first true international superstars, she’s relying on positive news coverage. She has a different kind of relationship with the news media than the other figures we’ve discussed, who were pretty anonymous. Maybe okay, in the case of, you know, Smith and Rutherford, they are people who are getting some public attention, but they’re not really relying on that to get a frenzy of people to go to these events. And now she is embroiled in this acrimonious legal fight because of this dubious reported debauchery.

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Um, so what can you tell us about this case with Annie Oakley?

Patrick File: Yeah, that’s exactly right. And this is – you know, I mean, this is – this is career stuff for her, right? This – her reputation is her career as Annie Oakley. She is a celebrity. Obviously one who – with great talent and ability that she has, you know, spun into again, international fame, right? She went over to Europe and spent a year or two over there with Wild Bill’s Wild West Show and the, you know, and kind of meeting and greeting royalty and doing all these kinds of things. And she very much relies on positive news coverage.

Um, let’s just pause also for a moment to like the – to appreciate, again, like, for those of us who write about history, immediate history, just the great story here. I mean, I just – again, like there were a couple times when doing this research where my jaw is just on the floor where –

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it’s, like, so the story was, the report is, she stole a man’s pants in order to buy cocaine. Am I getting that correct?

You know, and again, so it’s like if you’re a public – if you’re – if you’re, you know, you see this story come across the wire like, “Oh yeah, that’s – I mean that’s front page right there. Like that’s really interesting and shocking news.”

Um, and so yeah, I mean it’s just – and then, of course, there’s other things like the fact that it’s a false story that’s published in the Scranton Truth. So it’s like there’s lots of opportunities for wordplay as a writer here, too, and I tried not to ham that up too much in the book.

But yeah, so I mean, so a couple things with this case. Um, indeed, you know, so that one thing is that – how do I want to say, like sort of the die is cast a little bit. Ah, you know, we’re now in sort of round three of these libel syndicates, these serial libel cases.

We had this sort of shot across the bow with the Smith and Rutherford cases. We had the kind of very widespread kind of turning it into a business model with Tyndale Palmer just –

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suing hundreds of papers across the country. Um, and now we have the sort of added twist of someone who really does rely on – you know, is not an anonymous person, does rely on positive news coverage.

Um, and she – yeah, she’s really hurt by this. I mean, also light – thankfully due to her prominence we have a little bit more biographical literature about Annie Oakley so I could learn a little bit more about how she actually felt and how she responded. We have her letters, we have things that she did, things that she wrote and, and we had a little bit more documentary evidence of how she felt as a – as a consequence of these news stories.

Um, she sues for many tens of thousands of dollars. In most cases, I think she sued for generally more than most – or more than the other plaintiffs across the board. She also tends to win a little bit more. The news stories about her cases often kind of talk about her in the courtroom and,

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and, you know, this, this sort of very sympathetic figure on the stand.

I mean, you’re – imagine in your small town or medium-sized town, you know, Annie Oakley arrives in town to pursue this libel suit, and the coverage in the courtroom and it’s a little bit more, I think, of a media circus as well.

And so the other thing about this, I think, and, and, you know, this, too, for the case of Juliette Smith is the role of gender in these cases as well, and how, particularly for Juliette Smith, I mean, you know, a woman at the turn of the 20th century often her sort of – the sort of public view of her or sort of even kind of community view of her as chaste is, is, you know, is very significant and is an important part of kind of how the public or, or sort of non-private image of a woman in this society.

And so Oakley kind of this is, you know, that –

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on steroids as well. A big part of who she – she has to be seen as not a crass person. She has to be seen as a person of high class. Um, and so that is a very important part of her public image as well and, and a basis for these lawsuits.

And so this, in some ways, I think the trade press reports on this as being sort of like a perfect storm where you have the kind of false and harmful personal details about someone. We’re not talking about a shady business deal. We’re talking about someone who’s drug addicted and destitute when they really weren’t.

Um, it’s a – we have a female protagonist, a female plaintiff who again, is not just sort of dependent on an image, a public image of being chaste, but also a very public image of being chaste, right? I mean that’s – this, again, she’s an international superstar. She’s kind of one of our earliest sort of gigantic celebrities that everybody knows,

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and she’s got, you know, a lot more resources to file these lawsuits than does, than did perhaps Smith and Rutherford, and than did Palmer.

And so, you know, you have this kind of well-resourced and highly motivated plaintiff that is kind of especially scary to the news media who are, who again, you know, published this story that was almost irresistible, right?

So it’s like what newspaper is going to – is going to, you know, deny this story? What newspaper that relies on wire service news is going to actually have the resources to check it, to verify that it’s actually true, and then, you know, what newspaper then is not at risk therefore of getting hit with one of these lawsuits? Again, not, not due to their own malice or intention to harm her reputation, but it’s an accident.

Um, and so they’re not claiming that they didn’t do it,

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they’re not claiming that it, you know, that it legally that they should be absolved but rather that they shouldn’t be on the hook for essentially a damage award that for many newspapers could, you know, basically put them out of business.

Nick Hirshon: I think your book also highlights, as we then look at the evolution of libel law and the way that the public views the media today, maybe gets into how the press back then had a better reputation generally, or just people were more excited about these new forms of technology like the telegraph that was bringing them news quickly, and they were relying so much on journalists to bring them information in an era where we didn’t have the internet and TV and radio and all those sorts of things and that now maybe the public perception has changed.

And so I don’t know if the public would be quite so understanding of some of these foibles of the press as they might have been at that time. And that kind of gets into one of these final questions that I wanted to ask you. News travels even faster –

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today than in the era of the telegraph, of course, on social media and the internet.

You were researching this book, it was published in 2019, so you’re researching at a time that the rise of bad news and fake news on social media especially. I imagine this was around the time that Donald Trump was campaigning and then assuming the presidency, and he’s threatening libel suits and that he’s going to change libel law so that – open it up to more of these kinds of suits.

And of course, he’s always saying fake news, and, you know, there’s the kind of connection between what’s bad news and fake news, which you can argue with a lot of these stories, right? What was reported about Annie Oakley was fake news.

Patrick File: Right.

Nick Hirshon: The original definition of fake news.

Patrick File: Yeah. An almost truer – a truer version of it, yeah.

Nick Hirshon: Exactly. Um, and then we’ve seen in the last few years bad and fake news about the spread of the coronavirus, and can you get ill from the vaccine and all these kinds of controversial questions that have risen.

So now that we’re looking at your topic in that context, what do you –

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think a contemporary audience can learn from what happened in these libel suits and the kind of evolution to, to bring us up to today and how bad news is traveling even faster?

Patrick File: So I – so I think – I mean, one thing that we can think about, and this is sort of at the kind of conceptual framework level of the book here, is thinking about the way that what James Carey called the idea of a report and kind of what, what news is supposed to be, and what, what sort of how that is socially constructed, how it’s socially debated and contested.

 Um, you know, this is kind of a historian’s answer, but I think part of what the book tells us is that we have to pay attention to how that evolves, and, and understand and appreciate that that’s – that that is, you know, something that isn’t set in stone. The idea of what is bad news and what is good news is something that’s evolving, and it’s dependent on, certainly, you know, big and powerful institutions like politicians and politics,

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as well as journalistic institutions, news organizations, at the time, of course, newspapers and now there – you know, as you say, we’ve got a much more diverse kind of institutional landscape that make up the news media as it were.

Um, so that’s part of it. I think that just sort of thinking about the way that we are constantly defining and redefining what is good news, what is bad news, and what is news, period, right? Like, what makes an acceptable report? That’s what was to be – partly being debated in these cases, right?

You’ve got judges explicitly, juries implicitly signaling like what is an acceptable news report that, that it’s less acceptable to report on, you know, false foibles of Annie Oakley, of potential romantic liaison between a couple of members of Canadian high life. That’s very unacceptable and that’s reflected in how these cases played out.

Um, it’s less –

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unacceptable, or more acceptable than the story about Tyndale Palmer, and so – and that’s reflected in how those cases played out. And the point is that that’s, you know, socially contested, and, and, and socially, you know, constituted, but it’s also something that, that happens through the law.

And we can see – you know, look at the law and indeed, you know, some of the conversation around opening up libel law, or changing libel law, or reexamining some of the fundamental principles that we’ve gotten from New York Times v. Sullivan.

You know, that – again, it’s, you know, those are concepts that are – that are determined through society and through law, and, and so I think that that’s understanding this, you know, the period that I’m writing about can help us kind of reflect a little bit on what we’re currently experiencing.

Um, the other thing I think is, and this comes out in a chapter about that we didn’t really get into too much, but talks about the press’s response to this –

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problem through pushing for retraction statutes, which essentially allowed for a wire service type of defense, allowed for a defense against these serial libel suits.

Where a newspaper could essentially say, “Listen, you know, we have to be able to rely on the wire services to publish interesting and important news across the country. If we’re going to, you know, be under threat of getting a libel suit every time we publish a wire service story, we won’t do that. We won’t publish those stories, and the public will lose because of that because there will be less news for them to read,” and that’s bad, right? That’s a – that creates an uninformed public.

And so the news organizations got together and their professional associations, they lobbied hard. They said, “We’re losing in the courts. Maybe we can win in the legislatures.” And seventeen legislatures passed these retraction statutes.

And so something we can think about today is like, well, what institutions, like the news media,

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press associations at that time, are helping to define this landscape today, right? Does the fact that the institutional press, the traditional at least in, you know, newspaper press is not nearly as powerful, as well resourced and as well organized as it was perhaps then, and certainly as it became through the 20th century. How is that going to play out when it comes to this redefinition, this potential redefinition of libel, this kind of changing or opening up of libel law if that’s something that’s bound to happen?

Could we expect the press to step up and, and kind of fight it through legislatures, or fight it through the courts in the same way that they would have at the turn of the 20th century, in the same way that they did kind of leading up into New York Times v. Sullivan, as most recently and most notably Aimee Edmondson has written about in the cases leading up to them, right?

It’s important that these powerful institutions and organizations play a role. Um, and so –

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thinking about who’s defining these fundamental concepts of freedom of the press, what institutions, what organizations, what people. That’s something I think that we can think about. You know, look at the book and say, “Well, that’s how it played out then. How might we expect it to play out now?” I think that’s another, you know, a good kind of historical type of question to ask.

Nick Hirshon: And it’s constantly evolving and we’re going to be seeing a lot of new libel suits, I’m sure, that will come out, and then new technology that will change how – is it going to be possible that somehow even more instantly, I don’t know, through some new technology that libel could be done instantaneously.

 Um, I’m sure, it’s going to, you know, happen, but as we wrap up today’s episode, I want to pose a question to you that we ask all of our guests to close the Journalism History podcast, why does journalism history matter?

Patrick File: I think I may have laid out a pretty good answer in the last – in the last question. And I think, you know, to kind of twist your question around a little bit, I mean, I think it’s an argument for why journalism history and the legal history of journalism matters.

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It’s because these things are very interconnected, right? The way that we define what journalism is evolves over time. And so if we could look at and kind of understand how that has evolved over time, then we can understand kind of where we are and where we’re going. History tells a story not about the past, but about the present.

Um, but, you know, that’s a legal question as well, right? We define what journalism is. We define what is good journalism and bad journalism. We define what is good news and what is bad news in the courts and in legislatures. These are policy questions. These are questions that get litigated in the courts, and it’s certainly something that news organizations think about, right?

So if we can argue that news organizations play a really important role in defining what journalism is then they’re thinking very hard about what, you know, what’s going to get them sued and what is not going to get them sued, or what’s going to win in a case and not going to win in a case, or what the legislatures are willing to protect or not protect as acts of journalism.

So those two things are completely intertwined. And so that –

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matters a great deal for how we understand some of these more fundamental concepts like freedom of the press, right? If the press plays a key role in defining what freedom of the press is both from a practical and a principled standpoint then that matters a great deal for how we understand where we are today in the world of journalism, where we’ve come from and where we might be headed.

Nick Hirshon: Thank you so much, Patrick, for coming on today to discuss your book. Again, it’s titled Bad News Travels Fast: The Telegraph, Libel and Press Freedom in the Progressive Era, published by the University of Massachusetts Press. We thank you again for joining us today on the Journalism History podcast.

Patrick File: Thanks, Nick. It was a real pleasure.

Nick Hirshon: Thanks for tuning in, and additional thanks to our sponsor, the College of Journalism and Mass Communication at the University of Georgia. Be sure to subscribe to our podcast. You can also follow us on Twitter at @JHistoryJournal. Until next time, I’m your host, Nick Hirshon, signing off with the –

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words of Edward R. Murrow, “Good night, and good luck.”