Frankly, this would make for great satire, but it’s not … and that’s the point. Despite months of attempts to get the New York Times to remove characterizations of the Babylon Bee that cast it as a misinformation site, the paper hasn’t budged. CEO Seth Dillon says the malice has become obvious enough to proceed with legal action, and have taken the first steps toward a defamation lawsuit:

Yesterday our counsel sent a letter to @nytimes demanding a retraction. We took this action because their article was—and remains—defamatory.

— Seth Dillon (@SethDillon) June 3, 2021

The article appeared in March, and it was pretty consistent with other media outlets’ treatment of TBB. That is to say, other media outlets obsessed over fact-checking TBB rather than recognize them as a satire publication, but the NYT was more hostile than most in declaring them to “sometimes trafficked in misinformation under the guise of satire.” The Times provided an update to that description after TBB complained, an update that founder Adam Ford called “flaming hot garbage” at the time (“rat king” was reporter Mike Isaac’s Twitter handle at the time):

So here’s the original wording in the NYT article:

But satire kept popping up as a blind spot. In 2019 and 2020, Facebook often dealt with far-right misinformation sites that used “satire” claims to protect their presence on the platform, Mr. Brooking said. For example, The Babylon Bee, a right-leaning site, sometimes trafficked in misinformation under the guise of satire.

And here’s the rat king’s updated version:

But satire kept popping up as a blind spot. In 2019 and 2020, Facebook often dealt with far-right misinformation sites that used “satire” claims to protect their presence on the platform, Mr. Brooking said. [Updated March 22, 2021: The Babylon Bee, a right-leaning satirical site, has feuded with Facebook and the fact-checking site Snopes over whether the site published misinformation or satire.]

Ford goes on at some length to describe just how unsatisfactory Isaac’s changes were. As far as feuding with Snopes, Ford pointed out at the time that Snopes had already conceded the point on satire:

In rat king’s update, the words “has feuded” are linked to this fact-check from Snopes. Which is amazing. Because if you click through to that fact-check and scroll down just below the headline you’ll see that Snopes rated our article not “False” but “Satire.”

Three months later, nothing has changed, Dillon wrote. Now it’s time for the attorneys to step into the ring:

It’s therefore misleading and malicious to characterize that incident as a feud, as if Snopes ever openly stood by the claim that we are misinformation and not satire.

These mischaracterizations from the Times are nothing new. Previously, Times reporter Kevin Roose wrote a defamatory piece that claimed we “capitalize on confusion” and that we have a “habit of skirting the line between misinformation and satire,” whatever that means.

But they know better. In fact, Roose himself contradicted the title of his own piece by acknowledging in his conclusion that, “The Babylon Bee is not a covert disinformation operation disguised as a right-wing satire site, and is in fact trying to do comedy.”

For better or worse, the NY Times is considered a “reliable source.” We cannot stand idly by as they act with malice to misrepresent us in ways that jeopardize our business.

Dillon stops short of promising to file a defamation suit, but that intent seems pretty clear. Having attorneys send a demand letter intends to establish actual malice if changes aren’t made and this goes to a trial. Needless to say, the Babylon Bee would be considered a public “person” or entity for the purposes of Sullivan. They would have to establish actual malice to win at trial, which would entail proving that they knowingly published a defamatory falsehood (or acted with reckless disregard of the truth, but that’s not as clean-cut). The numerous failures to correct the record help, but a demand from attorneys provides a pretty clear opportunity for the paper to show that they didn’t act with actual malice. If they refuse to correct a statement that can be shown as a falsehood, well, full steam ahead.

Aaron Minc offers a reasonably concise definition of actual malice in regard to Sullivan for laypeople:

• Actual malice is the legal requirement imposed on specific defamation plaintiffs when filing a lawsuit for libel or slander, and will be found where a defendant publishes or communicates a false statement with knowledge of its falsity or reckless disregard for its veracity.
• Specifically, actual malice is the legal threshold and burden of proof a public defamation plaintiff must prove in order to recover damages, while private persons and plaintiffs need only prove a defendant acted with ‘ordinary negligence’.
• Constitutional malice differs slightly from common law malice, as constitutional malice emphasizes two fundamental components; knowledge of the statement’s falsity or reckless disregard for the truth, while common law malice emphasizes the ideas of “ill will” and “spite” or the plaintiff’s feelings towards the plaintiff.

So will the Bee sting the Gray Lady over this journalistic malpractice? I’d guess that the NYT’s attorneys will advise their client to do a clean-up on its reporting, and that the clean-up will be accompanied by a non-apology statement of some vague sort. It doesn’t cost much to solve this problem, while there’s not much point in defending the reporting that the Paper of Record did on the Babylon Bee. It’s not just the smart thing to do, it’s the right thing to do … which is why I’m betting this ends up in court.