Inside the Media
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To order Winning with the News Media:
Below are excerpts from the Libel chapter of
Winning with the News Media
Copyright © 2005, 2001, 1999, 1996
By Clarence Jones
LibelCan They Do That and
Get Away With It?
It depends on who you are, as well as what they show and tell. No matter how powerful the media seem to be, there are ways to get even if a story damages you unjustly. Sue. For libel, or invasion of privacy.
The lawsuit might make you a millionaire. But before you rush to the courthouse, you should know what you’re getting into. Collecting damages may take years. You’ll need a very good lawyer, because libel law is extremely complicated. It’s constantly evolving.
A Long, Painful Process
Your lawsuit will be a very long, expensive, painful process. The station, network, newspaper or magazine will have on its side some of the best legal counsel available. Because they carry insurance to protect them against this kind of attack, they can spend an enormous amount of money defending themselves in court.
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News stories defame thousands of people every day in America, yet relatively few suits are filed. The law provides protection for the media, based on the Constitution’s First Amendment guaranteeing freedom of press and speech. To win a libel suit, you must prove more than the fact that you were defamed.
Issue #1 - Truth
The law says they can defame you and get away with it if the story is true. Truth is an almost perfect defense in a libel suit.
How do you prove something is true? How many witnesses does it take, what kind of evidence? There are no rigid rules.
Truth is what a jury will believe.
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Relaying the Defamation
A journalist does not have to initiate the libel. If the media pass on something someone else says about you, the media outlet generally must take responsibility for the truth of that statement.
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Issue #2 - Privilege
If the damaging information comes from a part of the governmental process, the news media have very limited responsibility for the truth of that information. This is called privilege.
The legal theory says government officials should be able to do their jobs freely, without worrying about libel suits. A Supreme Court justice once said freedom of speech does not give you the right to yell "Fire!" in a crowded theater when there is no fire.
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Judicial Process Privileged
If you are charged with a crime, or sued, almost everything in the judicial proceeding (part of the governmental process) is privileged. The civil or criminal complaint, records or testimony, the contents of a governmental audit, what a policeman says during the investigation of a crime — all will almost always be privileged.
Notice as we go through this chapter how often I hedge with qualifiers like probably — almost always — generally — usually — virtually. The law is constantly changing. The rules can be bent — and often are — by judges and juries who feel they should cure an injustice.
The rules are different in state and federal courts. Most courts would probably extend privilege to what is said in political advertising and debates, or presidential press conferences, even though they technically are not part of the governmental process.
Issue #3 - Absence of Malice
In the early 1960s Martin Luther King, Jr. was waging war against racial segregation in Alabama. He moved from city to city, encouraging black followers to break the law. Use segregated rest rooms, he told them. Sit in segregated sections of the bus. Demand service in restaurants and hotels that — by law — bar blacks.
King reasoned that if the law was bad, the only way it would be changed was to get media coverage of public officials enforcing bad law. The civil rights movement became a major national story. The police who enforced the law became the villains in that story as they used clubs, fire hoses, attack dogs and tear gas to rout and arrest the demonstrators.
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Issue #3A - Public Figures
Back to the 1960s. As integration spread across the South under court edicts and the muzzles of army rifles, a federal court ordered the University of Mississippi to admit James Meredith, its first black student. To insure his safety, he was escorted to the campus by a squad of U.S. marshals.
That night, the marshals and a small army of reporters were driven into the university administration building by an angry mob. As the night wore on, a full-fledged riot developed. The mob began to shoot at the marshals and the building.
Small groups charged, carrying Confederate flags, trying to break in. A reporter was killed. The federal government was once again in a shooting war with the rebellious South.
Who’s Leading the Charge
In the heat of the battle, an Associated Press reporter called the AP’s Atlanta bureau to report a famous man — retired U. S. Army General Edwin Walker — was giving technical advice on tear gas to the rebels. The general, he said, was leading and encouraging the charges at the Old Miss administration building. A bulletin was quickly teletyped. The story was published all over the world.
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Associated Press v. Walker
The AP appealed, and again the U.S. Supreme Court reversed. In 1967, the court extended the New York Times Co. v. Sullivan guidelines to "public figures." Public figures, like public officials, cannot win a libel judgment, the court ruled, unless the media show reckless disregard for truth. In the chaos of the riot — under deadline pressure — the court decided the AP was not guilty of "reckless disregard" and should not be penalized.
The Walker decision was sandwiched into another "public figure" case, in which the justices used the same legal standards, with a different result -- Curtis Publishing Co. v. Butts.
he chapter details the Curtis v. Butts case and the Supreme Court decision, followed by Rosenbloom v. Metromedia, Inc. and tells readers where to find complete text of the court's decisions on the Internet.
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The Court Pulls Back
The Rosenbloom decision shows how confused the issue had become. The court was badly split. There are five separate opinions, using different legal reasoning. The bundle of opinions runs 32 pages, single-spaced.
In 1974, through Gertz v. Robert Welch, Inc. a more conservative Supreme Court pulled back.
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Celebrities Risk Attack
Public officials and celebrities, the Gertz decision said, have chosen to step into the limelight and subject themselves to public scrutiny. They need less protection because they have more opportunities to counter false information published about them. The Powell opinion said:
Gertz went back, had another trial, and won $482,000 in damages, interest, and court costs.
Tabloids & Public People
Now you can understand why the tabloids concentrate on politicians, actors, athletes and rock stars. The libel rules are much more lenient for celebrities. The media don’t have to be absolutely sure the story is true, so long as they don’t suspect it may be false.
If you’re a public official or public figure and you hear a journalist is about to damage your reputation with a false story, run — do not walk — to the media outlet and warn them. Take a lawyer with you.
That’s what Carol Burnett did when she heard the National Enquirer was about to print a false story about her being drunk in a restaurant and arguing with Secretary of State Henry Kissinger.
She put the Enquirer on notice, but they published it anyway. Clear evidence, the jury decided, of malice and reckless disregard for truth.
The jury awarded Burnett $1.6 million.
Issue #4 - Fair Comment
British Common Law developed another area where the press could defame people and get away with it — theater critics.
If a critic says an actor’s performance is shoddy, and the script miserable, the review does great damage to everyone involved with the play. Not just their reputations. Their livelihood.
Today’s standards say that if you go on stage to display yourself or your talent, journalists have the right to throw figurative tomatoes if they don’t like what they see. That same kind of license has been extended to journalists who test cars, rate restaurants, or review other kinds of consumer services and products.
A damaging story can kill a new business. A favorable story, in the right place, can make millions for a new product.
There are some restrictions. Most courts would probably rule that the journalist who decides to judge artistic or engineering merit can be successfully sued for libel if the review misstates the facts.
Libel on the Internet
The Internet has unleashed a huge torrent of new, unresolved libel questions.
Is the Internet service provider (AOL, EarthLink) legally responsible for libelous material posted by a customer? What jurisdiction do U.S. laws and courts have over the publication of material on the web which originates in another country?
The 1996 Telecommunications Act barred libel suits against Internet providers for information placed on their system by third parties. That portion of the law will surely be challenged. Eventually, the U.S. Supreme Court will have to decide.
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