1. Libel Law for Copy Editors By Arati Bechtel

2. About This Session I asked copy editors about legal issues they face at work. I’ll give you the basics of the law most relevant to your job. You’ll apply it to some examples. Please offer your questions and comments throughout.

3. What Do You Remember? What kinds of things do you remember about media law? Have you had a media law refresher?

4. Your Experiences Be thinking about issues, questions or problems you’ve faced. Please tell us about them.

5. Why This Is Relevant “I was assigned to edit a series about two gynecologists who had developed a new technique to treat endometriosis. Among their fans were movie stars and other prominent people. “They had made a fortune using this technique, which appeared to help but had some pretty horrifying side effects, like people’s bowels falling out.”

6. Why You Should Care “A lot of gynecologists thought they were quacks. They’d been sued but never faced sanctions. They were aggressive with counter-suits. “So there was a fairly strong possibility that any news organization that took them on was going to be threatened with a suit.”

7. Why This Matters “As a copy editor, I had to really look closely at how we portrayed them and the criticism and legal actions against them. I worked with our lawyer, the reporter and the editor of the series. We didn’t get sued, and the series was still pretty hard-hitting.”

8. Libel Libel law protects reputation as seen through the eyes of others. Libel is communication that injures a person’s reputation. Libel is communication that exposes a person to hatred, ridicule or contempt.

9. Libel Six elements of libel: defamatory content identification publication false statement of fact injury fault

10. Defamatory Content Harms reputation or not? Maybe? Joe Smith likes sushi. Joe Smith visits gay nightclubs. Joe Smith defrauded clients. Ask: Does headline, source or story say something that harms reputation? Note: Headlines may be libelous on their own, though courts are more likely to consider headlines in context.

11. Defamatory Content Categories of obviously defamatory content in North Carolina (similar elsewhere): –Person has committed a crime. –Person has an infectious disease. –Person is incompetent or unethical in his or her trade or profession. –Person is worthy of ridicule or contempt. Can also libel a product (trade libel).

12. Exercise MISSING BRIDE SAFE, NOT SOUND: A woman whose disappearance prompted a widespread search tells police she got cold feet. NATION, PAGE 3A. Is this (real) 1A promo defamatory?

13. Identification True or false? A person can be identified simply by a nickname. Yes. The statement has to be “of and concerning” the plaintiff. So, identification could happen by initials, description, caricature, photo, too. Ask: Do other people recognize the plaintiff?

14. Identification Using as much information as possible to identify a person is a good idea, especially with obviously defamatory stories. Ask: Did we ID this person/co./org. as fully and clearly as possible?

15. Using Middle Initials “We talk a lot about the importance of using middle initials. Today we are glad we used them in the metro briefs. A former cop, Will W. Oates III, was charged with obtaining property by false pretenses.”

16. Middle Initials (cont’d) “Today we received a call from a former sheriff’s deputy named William E. Oates, who was getting calls from friends because his name was in the paper. But we used the middle initial, and we were able to inform Mr. Oates, which calmed him somewhat.”

17. Middle Initials (cont’d) “It is on the police and court beats where this most often becomes an issue, but it can come up when we quote people at public meetings or as bystanders at an accident.”

18. Middle Initials (cont’d) “If you want more convincing, open the local phone book and turn to Miller. There are five Garys, a dozen Williams, 11 Pauls. At any particular time, one of these Garys, Williams or Pauls may pop up in our paper, and we need to think of the rest of them and their friends.”

19. Publication True or false? To win a libel case, there has to be widespread publication of a story. Nope. Requires communication to one person other than writer and defamed person. Circulating a story in a newsroom can be publication. (But limited communication may mean limited harm.)

20. Republication Rule “The bearer of tales is as guilty as the teller of tales.” Each person who participates in the repetition or republication of a libelous statement can be held legally liable. This is why newspapers can be held liable for defamatory letters to the editor, ads, statements from sources.

21. Injury True or false? Some plaintiffs can’t be harmed by a libelous statement. True. A few people have truly horrible reputations not capable of further injury. Examples?

22. Injury Usually, injury is intangible: loss of reputation, standing in community, mental harm, emotional distress, etc. Sometimes, injury is actual monetary loss.

23. Falsity True or false? Newspapers have the burden to prove in court that the story is true. Nope. Plaintiffs have to prove the story is false if the story involves a matter of public concern. Most everything in a newspaper is a matter of public concern.

24. Fault Show seriously unprofessional conduct, not just honest mistakes. Fault level depends on who the plaintiff is. Public figures and public officials face a higher hurdle because they put themselves in public positions, invite attention and criticism, and have access to media to rebut false claims. Private figures have it easier because they don’t enter the public spotlight willingly.

25. Fault Two kinds of public figures: –All-purpose: have persuasive power and influence, a “household name,” celebrity, widespread fame or notoriety, or continuing news value. Examples? –Limited-purpose: voluntarily involve themselves in public controversy to influence the outcome. Examples?

26. Richard Jewell Ruled to be a limited-purpose public figure. Why not just a private figure? Jewell voluntarily entered a public controversy by speaking out about the bombing and his role in clearing the park. He “spoke repeatedly of the training which he and the others had received, commented on park safety, and encouraged the general public to return to the park,” a court ruled.

27. Fault Public official has or appears to the public to have substantial responsibility for or control over the conduct of government. –Controlling finances, directing policy, making law, enforcing law, etc. Private figure is a person who doesn’t fit the other plaintiff categories.

28. Fault Public figures & public officials must prove actual malice: –Knowledge of falsity or reckless disregard for the truth Knowledge of falsity: e.g., fabrication (think Stephen Glass); examine state of mind. Reckless disregard: use of poor sources, inadequate investigation by deadline, avoiding truth, inherent unbelievability of allegation, serious doubts about the story; examine conduct.

29. Judge Murphy v. Boston Herald (2005) A front-page story said Judge Murphy was a "wrist-slapping" judge who had "heartlessly demeaned victims" and had said of one young rape victim: "She's 14. She got raped. Tell her to get over it." Judge denied making these statements.

30. Judge Murphy v. Boston Herald (2005) The jury considered 61 statements; most appeared in The Herald, and the reporter made five on "The O'Reilly Factor." After deliberating for 20 hours, the jury concluded that The Herald and its reporter libeled Judge Murphy in 22 statements. Jury awarded $2.09 million to the judge.

31. Reckless Disregard One prosecutor said the reporter got the gist of what the judge said. Others testified they remembered no such remark. Reporter never spoke to the judge before the first article was published. The Herald's reporting was based on local prosecutors with a "vendetta" against the judge.

32. Fault Private figures usually must prove negligence: –Failure to exercise ordinary care, to act as a reasonably prudent person would under similar circumstances, to follow accepted professional standards and practices Evidence: failure to contact the person defamed, failure to verify information through the best sources available and failure to resolve discrepancy between what the reporter reported and what a source said.

33. The Wires Ordinarily, courts rule that it is not negligent to publish a wire service story without checking the facts in the story. In other words, courts recognize that relying on the wires is an accepted professional practice.

34. Libel Defenses Truth Opinion Fair report privilege: for stories based on official gov’t meetings and documents; protects if story is accurate, fair, substantially complete and not motivated by ill will

35. Truth All elements of story (headline, cutline, text, etc.) have to be substantially true. Most of the information and all of the important details must be true. Some minor falsity or errors will not necessarily destroy the truth defense.

36. Libel Exercise Headline from New York Post (July 9): Vatican sacks six pervy N.Y. priests Story names all six and says they “were defrocked… following allegations of sexual abuse.” Two men were convicted of sex crimes. All were punished under the Charter for the Protection of Children and Young People. Is this headline safe?

37. Opinion Defense This defense protects if the defamatory statement: –Is hyperbole. –Is incapable of being proven true or false. OR –Is based on accurate information.

38. Not Protected Opinion A columnist wrote about a university basketball star who was arrested one weekend for assaulting his ex- girlfriend. The athlete wasn’t held in jail over the weekend, as is required in domestic violence cases. The columnist condemned his special treatment as an athlete.

39. Not Protected Opinion But the player and ex-girlfriend didn’t live together; therefore, the assault wasn’t considered domestic violence. Therefore, the athlete would not have been required to remain in jail. Columnist’s opinion was based on inaccurate information.

40. Protected Opinion A Louisiana newspaper food critic wrote that food from a restaurant was covered with “hideous sauces” and that he was served “trout a la green plague.” Opinion was based on critic’s actual experience. Plus, how food tastes or looks is a subjective matter that can’t be proven true or false. “Green plague” is hyperbole.

41. A Libel Exercise A (real) letter to the editor, criticizing a portly sheriff’s use of Taser stun guns, reads: –“There was something else [the sheriff] established during his press conference: that he would be too overweight and out of shape ever to apprehend a suspect without the assistance of a Taser. I doubt that [he] could even subdue a suspect already in handcuffs.” Opinion defense applies? Is it hyperbole, incapable of being proven true/false, based on solid facts?

42. Case: Fair Report Privilege N.C. newspaper reported in its “police blotter” section that Daniel and Gail LaComb were arrested and charged with contributing to the delinquency of a minor.

43. Case: Fair Report Privilege Arrest warrants: the LaCombs “unlawfully, willfully did knowingly... cause, encourage and aid [the juveniles] to commit an act, drinking beer and smoking cigarettes, and engage in a sex act.” Newspaper: “The two were both accused of encouraging cigarette smoking; beer drinking and engaging in sex acts involving a 15-year- old boy and 16-year-old girl.” Note red semicolon above.

44. Case: Fair Report Privilege The LaCombs claimed the incorrect semicolon in the news report falsely implied that they themselves were accused of engaging in sex acts with the juveniles – rather than just encouraging this behavior.

45. Case: Fair Report Privilege The N.C. Court of Appeals ruled –The fair report privilege covers arrest reports. –It applies if the report makes a substantially accurate statement of the facts and if it does not comment on or suggest guilt of the person accused. The court concluded: –The semicolon is misused. –But the article is still substantially accurate when compared to the warrant.

46. Blog example Cutline: Doesn’t this woman look like she’s gonna pee her pants, she’s so excited?

47. Libel Exercise Is there any difference between referring to Eric Rudolph as “suspected serial bomber Eric Rudolph” or “serial bombing defendant Eric Robert Rudolph”?

48. Another Libel Exercise A headline in a feature section about controversy over Michael Moore’s film “Fahrenheit 9/11” says “Moore Lies?” Is this defamatory? What level of fault would Moore have to prove? Can he prove falsity? Would he be likely to win?

49. Yet Another Libel Exercise Geraldo Rivera called anti-abortion activist Neal Horsley an “accomplice to homicide” because Horsley listed Dr. Bernard Slepian’s name and address on the Nuremberg Files Web site and crossed this information out after Slepian was murdered. Any defense?

50. Questions? What questions do you have? Any comments?