Libel and Ethics - UHCL

Report
Libel and Ethics
-- How to stay out of court
-- How to build an ethics toolbox
Libel: In fall 2007 …
Illinois Chief Justice Robert Thomas agreed to a $3 million settlement –
he initial was awarded $7 million – after winning a libel lawsuit against
the Kane County Chronicle, a suburban Chicago newspaper and
former columnist Bill Page.
Supposedly, the paper and Page issued apologies, but Page denied
that. ``That apology runs after my signature,'' he said. ``I stand by
everything I wrote, and I would repeat it. I'm not backing down from
this.''
The chief justice was satisfied with the settlement. ``They've apologized for
what they have done. The case is over,'' he said.
Page wrote a series of columns in 2003 accusing Thomas of softening his
position in a disciplinary hearing of a prosecutor after her supporters backed a
judicial candidate Thomas favored.
Since 1986, judges have won eight of 11 cases in which they have sued news
media, according to the Media Law Resource Center in New York. Dozens of
other cases brought by judges were dismissed before trial, said center staff
attorney David Heller.
What is libel?
Libel is a false statement printed or broadcast about a
person that tends to bring that person into public
hatred, contempt or ridicule.
Other than falsehood, three other elements constitute libel,
which you can remember by the acronym DIP:
1. Defamation
2. Identification
3. Publication
What is libel?
Why isn’t a story on the
arrest of Courtney Love
on drunken driving
charges considered
libelous? It’s
defamatory, the
person’s name is given
and it’s published.
Associated Press photo
What is libel?
The actions of agents of the government are protected
under privilege, plus the police are public officials. More on
that in a bit. But primarily you are protected because it’s the
truth; the arrest may end up being harassment or
erroneous but the arrest still occurred and thus, you are
protected.
Remember, the first element of libel is that it’s a false
statement -- although the Texas Supreme Court has
managed to muddy those waters.
Libel
There is a fourth element that is often the most crucial
when and if you ever enter a courtroom for a libel case –
fault. Fault is a two-headed beast, and those heads are
called actual malice and negligence. To determine the level
of fault, a plaintiff’s status is evaluated to ascertain the
burden of proof needed to win a judgment.
 Public officials / public figures have to demonstrate that
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the falsehood was intentional, malicious or there was
some deliberate violation of known protocols.
Private citizens have a less severe burden of proof -they need only show that some degree of negligence is
present in the information-gathering process
Libel
In 1964, the Supreme Court ruled in Times v. Sullivan that
defamation of a public official is permissible unless there is
a reckless disregard for the truth. This is otherwise known
as actual malice. So it’s OK to take out an ad saying
Candidate A is a jerk for wanting to raise your taxes or the
mayor’s towing program is stupid. In 1967, the court
expanded its ruling to cover public figures as well.
Libel
 A public official is someone who has or appears to the
public to have substantial responsibility for the conduct
of government affairs. If they get paid by your tax dollars
then they are a public official (includes police, elected
officials, candidates etc.)
 A public figure is a person with pervasive power or
influence, or someone who thrusts themselves into the
vortex of a public controversy. Texas courts have ruled
that it makes no difference if they seek the spotlight or if
the spotlight finds them. Includes activists, entertainers,
athletes (so you can say what Randy Moss or Janet
Jackson did was stupid).
 A private citizen need only prove that there was
negligence in the information gathering process.
Libel per quod, libel per se
When something is defamatory on its face – like calling
someone a lying, Nazi, drug-dealing pedophile – that is
called libel per se. It is the most common type courts deal
with. But many states also recognize libel (or defamation)
per quod. With the latter, the defamation is dependent upon
the context and the interpretation of the listener/reader. For
instance, it would be natural for a reader to presume that
the bikers depicted in a photo accompanying a story about
the Hell’s Angels are connected to that group. In both
cases, the defamation must be false to be considered
libelous.
Actual malice vs. negligence
Texas courts have decided that the following is insufficient
to be deemed actual malice:
 The failure to perform further investigation or further
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interviews
Inconsistencies in internal policies, procedures etc.
Doing constant rewrites or omission of more favorable
interviews
Evidence that the reporter hates the subject
Reporter is under continuous legal review
Libel danger areas
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Shoddy or incomplete reporting. Not checking records
thoroughly enough or misreading them. Not getting the other
side of the story.
Photos -- using the wrong photo with a defamatory story.
Using a photo out of context.
Quotes -- Tale bearers are just as guilty as tale tellers. Under
the republication doctrine, if you print it, you own it. You are
just as responsible for that quote as the person who said it.
Crime stories -- by definition they contain defamatory
material. Be sure to use attribution. Avoid the use of the word
“for” unless there is a conviction. (“Warrant for pastor in fur
thefts; loot cached in organ at Park Falls” – pastor sued but
didn’t win)
Libel danger areas: the “f-word”
The word “for” is a three-letter word that will make you say
a lot of four-letter words if it leads to a five-letter word –
libel. Or a seven-letter word – lawsuit. They may be
nuisance suits, but you have to pay a lawyer all the same.
Safe
Not safe
Convicted for …
Sentenced for …
Arrested for …
Charged for …
Indicted for …
On trial for …
Allegedly for …
Libel defenses
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Truth – Except Massachusetts? This is why accuracy is so
important. You can make mistakes and live thanks to the doctrine of
substantial truth: A defendant does not have to establish the literal
truth of the publication in every detail as long as the "sting" or "gist"
of the statement is substantially true. For example, you write a story
that accuses the mayor of wasting $100,000 of the taxpayers’
money. The literal truth is that the amount was $50,000. The amount
is wrong but the gist of the story is substantially true.
Privilege -- Covers any fair, true and impartial account of what goes
on and what is said in court testimony, a public forum, a council
meeting, the Senate etc. Covers any official meeting, judicial
proceeding, executive or legislative proceeding
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Fair comment – Libel is a misstatement of fact; there are no false
opinions. Fair comment is the reasonable criticism of an official act
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Consent -- That’s why photographers should have consent forms
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Reply -- mostly in broadcast medium; a person such as a political
candidate has the right to respond to criticism. No big deal now
since FCC changed the rules.
How to stay out of court
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Treat every story that could damage someone’s reputation like it’s
fire. All facts should be confirmed and verified. Be consistent in your
information gathering and reporting procedures. Beware of using
unreliable sources.
Watch out for the so-called routine story -- they account for most
libel cases
Be fair -- try to get the other side of the story.
Be careful with quotes -- Just because you tape-recorded it won’t
save you.
If you make a mistake, but quick to run a correction. Demands for a
retraction should go to your lawyer. Have a good corrections /
retractions policy.
Take extra care with headlines and photo cutlines. Big type gets
more attention than the little type.
Check the big type
Since people will generally read the display type –
headlines, cutlines, refers, teasers, art type – more often
and more thoroughly, those elements require special care.
Not that you can slack off in paragraph 57; it’s a simple fact
that 48 point type will draw more eyes than 9 point type.
In a 1998 lawsuit filed by famed O.J. houseguest Kato
Kaelin against Globe Communications, the U.S. 9th Circuit
Court of Appeals held that a headline alone (“Cops think
Kato did it”) can constitute libel.
Check the big type
This was the lead story in the Baytown Sun on
Jan. 15, 2008. Perhaps “Victim in serial attacks
…” could work. Also note the smug look in the
mug shot. The previous day’s headline was
even worse -- "Baytown serial attacker begins
trial today" … where was the copy editor?
How to stay out of court
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Handle any phone calls from disgruntled folks with courtesy.
Have libel insurance and / or have good lawyers. Use lawyers on
sensitive stories.
Try to stay up to date on changes in libel and privacy laws.
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Notes -- keep ’em if you take good ones; pitch them if you take bad
ones. Always tape police officials/officers on sensitive stories -- they
will nearly always lie later. In Texas, there is one-party approval for
taping. In general keep notes for a year – that is the statute of
limitations on libel.
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Using the word allegedly won’t save you -- look up “allege” in the AP
stylebook. Use “alleged” or “suspected” or “accused” or “reputed” or
similar phrases only when necessary to make clear that an
unproved action is not being treated as fact.
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Always use proper attribution -- saves you in libel and plagiarism.
Libel: More information
For more information, please check out the “libel and privacy” section of
the AP stylebook
Also, the Reporters Committee on Freedom of the Press has a very
useful Web site www.rcfp.org that provides a wealth of information on
legal issues that apply to journalists, including:
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State by state compilation of libel laws
How to fight a gag order
Court access and access to public records
How to use the FOI Act
Guidelines for photographers
Shield laws (Texas doesn’t have one; neither do feds and that‘s why
Judith Miller of the NY Times is incarcerated.)
Other good sources to help you stay apprised of legal issues are:
www.poynter.org, magazines American Journalism Review and
Columbia Journalism Review
Libel: Handouts, exercise
 Libel write-arounds (some common libelous
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constructions and some Band-aids)
Libel primer
Red Flag words (page 177 of text), Dallas News story
EXERCISE:
 Find the libel in the Chronicle story, rewrite, do headline
Ethics
An ethical decision-making
toolbox
According to Bucky Katt …
Ethics: What’s going on here?
• In 1998, reporter Stephen
Glass, right, was fired
from the once-prestigious
New Republic magazine
for making up stories.
• Boston Globe columnists
Mike Barnicle and
Patricia Smith were fired
for making stuff up.
Another Globe columnist
was suspended for
basing a column on an
Internet hoax piece.
Ethics: What’s going on here?
• In 1999, the Arizona Republic
fired a columnist when the
subjects of her columns could
not be found.
• The ABC Food Lion case, use
of hidden cameras. Not a libel
case; it was a fraud and
trespass case.
• Jayson Blair, right, was fired
from the NY Times after his
fabrications were outed by the
San Antonio Express-News.
Ethics: What’s going on here?
• USA Today fired Pulitzer
nominee Jack Kelley, right, for
embellishments and
fabrications in his reporting.
• A few years ago, CNN had to
retract a story about the use of
nerve gas in Vietnam.
• The Cincinnati Enquirer paid
$10 million to settle a potential
lawsuit with Chiquita because of
a series of stories that were
based partly on stolen phone
voice mail tapes.
Ethics: What’s going on here?
• Columnists Armstrong Williams and
Maggie Gallagher who had
$240,000 and $21,500 contracts
(that’s taxpayer money by the way)
with the Education Dept. and HHS to
write pro-Bush agenda material.
• Sacramento Bee columnist Diana
Griego Erwin, right, resigned in Sept.
2005 amid an investigation into
whether she fabricated some of the
people she mentioned in several
columns. Erwin won a Pulitzer Prize
and George Polk award while at the
Denver Post in the 1980s.
Ethics: What’s going on here?
CBS allowed Washington
correspondent Rita Braver
to do a profile on Lynne
Cheney, the VP’s wife.
Braver’s husband, lawyer
Bob Barnett, had recently
represented Lynne Cheney
in getting a book published.
Barnett was paid upfront,
and so far CBS is defending
Braver. Critics say Braver’s
story will undoubtedly aid
book sales. Any concerns
here?
Ethics: Need for credibility
Ethics and a strong sense of values form the cornerstone
of credibility -- that C-word I will keep harping on all
semester. Without credibility, few journalistic goals can be
achieved. The true power of the media (including
advertising and PR) lies in the ability to influence society
through truth-telling.
If the public can’t trust our product – information -- we won’t
be very successful. In journalism, taking shortcuts is the
path to danger.
Ethics: What’s going on here?
And it’s not just the “other guys”:
 The Conroe JP / grand jury story
 The Kathy Whitmire / White House story
 Chronicle columnist who borrowed a couple graphs from
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a Washington Post story
Chronicle food editor who plagiarized recipes
Former Chronicle editor who insisted Lebanese
guerrillas be called “fighters,” made a one-graph
reference to the accidental bombing of a Lebanese
mental hospital by Israeli planes the play story, forbade
AIDS stories and banned coverage of Houston’s Gay
Pride Parade
Ethics: The ethics gap
There is often a gulf of difference between how the news
media view their profession/role and the public’s perception
of the same – creating an “ethics gap,” if you will. This
ethics gap can hurt credibility, and thus hamstring our
communication goals. Newsmen might say that a doing a
story about the lack of armor on military vehicles is at the
heart of what defines journalism. But many in the public
domain might consider the story muck-raking or unpatriotic
to question the decisions of our leaders.
Ethics: The ethics gap
Good illustration: The PBS
program about ethics in the
military and ethics in journalism:
Military men said torture could be
OK under some circumstances;
Peter Jennings and Mike Wallace
said that, in the need for objectivity,
they wouldn’t intervene to
reveal the position of enemy troops
trying to ambush American
soldiers.
The ethics gap: Contributing factors
 The personal biases of the audience (“Why are you
picking on my guy?”)
 Lack of understanding of journalistic rules and goals
(“Why give both sides?”)
 Rise of “infotainment” has clouded news and soured
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public perceptions of the news media (“The Amber Frey /
Natalee Holloway syndrome”)
Ivory tower attitudes by journalists. (“Our way of looking
at things must be the right way.”)
Lack of news councils. No oversight body for journalists
except in Minnesota and Washington state.
Sloppiness. Not doing your job. Realize that people will
lie to you or spin the facts
Ethics: Guiding principles
• Seek the truth and report it as fully as possible (afflict the
comfortable and comfort the afflicted; give voice to the
voiceless and hold the powerful accountable)
• Act independently, avoiding associations that can create
conflicts or cast doubt upon your information-providing
goals
• Minimize harm (to yourself, the medium your represent
and to those directly and indirectly affected by the story)
Poynter film
Ethical decision-making
Many stories will require you to make a variety of
commonplace ethical decisions: the use of juvenile names,
the use of a rape victim’s name, use of unnamed sources,
whether to trust data in a report or survey, use of graphic
photos.
To best handle those sorts of situations, you need to
create an ethical decision-making toolbox that is openminded, fair and consistent. Readers/customers may not
agree with your decision, but at least they will see it was
the end result of a process – not whim.
Ethical decision-making
 Gut reaction -- Listen to your gut but don’t always trust
it.
 Rule obedience -- Having rules helps with consistency,
but beware of painting yourself into a corner with rules.
 Reflection and reasoning -- Widens the circle of
discussion in order to obtain additional viewpoints and
create alternatives and options. Be careful about
allowing one individual to provide a universal opinion.
For instance, there is no universal black opinion or
universal women’s opinion about most issues.
Ethical decision-making
Relying on gut reaction and rule obedience for your
decisions can be a quick fix, but those processes tend to
give only “either / or” choices. Reflection and reasoning
may be more time-consuming, but this approach provides
more choices, which is the goal.
After viewing the alternatives, you may end up deciding
that your gut reaction was right or that the appropriate rule
should be applied. But at least you have considered other
choices that might be useful the next time your judgment is
called for and the facts are slightly different.
Ethical decision-making: The process
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Take note of what newsroom rules apply.
Invite collaboration. Collaboration thrives in an environment where
input is not only allowed, but valued equally.
Consider the consequences of any course of action OR inaction.
What will the possible results or counteractions be?
Determine who the stakeholders are. Who will be most affected by
your decision? The stakeholders could include the journalist, the
subject, relatives / friends of the subject or the news organization
itself.
Decide what principles, both as a human and as a journalist, need to
be applied.
Try to reach a consensus or present alternatives that allow you to
accomplish your journalistic goals while minimizing harm.
See the list of questions on Page 4 of the handout.
Ethical decision-making
Class exercise: After being
missing a year, Utah
teenager Elizabeth Smart is
found. Her two abductors
are arrested. A day after the
initial “reunion” story, you
learn that Smart was
sexually abused. Your shop
has a rule against naming
rape victims. What do you
do?
Ethics: class exercise
This is one of the most famous
images from the war in Iraq and is
one of many photos released
depicting the treatment of
detainees at Abu Ghraib prison.
What are your journalistic
obligations? Would you run it?
Where would you run it? Does it
hurt our troops / political leaders?
Does the latter impact your
decision?
Ethics: Some don’ts
 Don’t stage events -- The NBC / exploding Chevy truck
story. Producer didn’t realize that what he did would not
only damage his credibility but that of the entire TV news
medium as well. Photogs with throw-down kids’ toys and
shoes.
 Don’t ask someone to do something that otherwise
would not have happened -- be careful of protests. If you
ask what time a demonstration will be held, and the
organizer replies “what time do you want it to be?” then
hang up.
 Don’t put anything on the air or in print that can’t stand
up to scrutiny -- If the mechanics of informationgathering are questionable, then the story’s credibility
will suffer. ABC Food Lion case, CBS and the Bush story
Ethics: In conclusion …
Doing your job in a professional and ethical manner will
boost your credibility and enhance your marketability. Folks
might disagree with your decision or not like a particular
story, but at least they will know your information can be
trusted.
Also, realize that as a human being, you can never be fully
objective. But you can strive to be fair and be consistent in
that fairness.
Exercise: The Somalia photo
During the Oct. 1993 battle in
Mogadishu, Somalia, 18 U.S. soldiers
were killed during an operation.
Among the dead were two
helicopter pilots whose bodies
were dragged through the street
(the famed Black Hawk Down
incident). One Somali is making an
obscene gesture. There is not much
blood on the body, and the pilot may
or may not be recognizable.
This photo, shot by Paul Watson of the
Toronto Star, was shown on TV news
networks throughout the day.
Exercise: The Somalia photo
 Now it is time for you to decide what to do with the
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photo. You are the editor of a midsize daily newspaper in
the Houston area; that is your audience. Your general
rule is to avoid publishing photos of dead bodies.
Work individually or in collaboration with classmates or
others. Seek additional information from the Web or
other sources.
Try to answer as many of the 10 questions in the
reflection and reasoning process that apply.
Write down what your decision is regarding the photo (a
page?). Explain how you came up with that decision and
how you would defend it when the phone starts ringing.
This is a must extra-credit exercise. It is worth a letter
grade boost to a story assignment or a step-grade
reduction if not done.

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