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The Newspaper Handbook

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COMMUNICATIONS LAW

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom
speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(The First Amendment to the U.S. Constitution)

The First Amendment’s guarantee of “freedom of the press” has never afforded complete freedom to publish anything at any time. Fro
the very beginning of the republic, courts have held that states may punish obscene or libelous expression. In the 20th century, the
courts, particularly the U.S. Supreme Court, elaborated on the meaning of the First Amendment. They found that it does not apply to
advertising, movies and broadcasting in the same way that it applies to newspapers and books. They also found the right to gather
information less broad than the right to publish it. And they said that the First Amendment does not insulate media businesses from the
taxes and regulations to which all other businesses are subject.

Communications law is a broad area involving many aspects of the mass media and a variety of legal principles. Journalism students
usually investigate this subject in detail in specialized media law courses. This chapter introduces three areas of communications law t
news reporting and writing students need to know as professionals-in-training. Libel and privacy are covered extensively because the
danger of a lawsuit is high and the cost of defending or losing one can be great. Newsgathering is also covered, though in less detail.

LIBEL

“Libel” is defamation by written words or by communication in some other tangible form, whereas “slander” is defamation by spoken
words or gestures. Traditionally, the law has treated libel more harshly because the written word is more permanent and may reach mo
people than the spoken word. Courts said the greater power of written words to injure reputation justified harsher penalties and legal
rules more favorable to libel plaintiffs than to slander plaintiffs. One might think that broadcast defamation should be treated as sland
since it is spoken, and some states do so, either by statute or by judicial interpretation. More commonly, however, courts treat broadca

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defamation as libel, because it can reach millions of listeners and be as durable as written defamation.

561

Libel is a major concern for the mass media. People who feel injured by something in a broadcast, a newspaper story or an advertiseme
may be quick to sue. The costs of a lawsuit can be great. Juries may award millions of dollars to a successful libel plaintiff. The Media L
Resource Center reports that in recent years, libel plaintiffs have recovered an average of $2.9 million in damages. Damage awards of $
million, $40 million and $50 million are not uncommon. The largest jury award ever was $223 million—$200 million in punitive damages
against Dow Jones for a story published in The Wall Street Journal. That award was reduced by the judge and later set aside entirely
because of misconduct by the plaintiffs.

Even when media organizations win libel suits, they still may spend millions on court costs and attorneys’ fees. William Westmoreland,
retired general who had commanded U.S. forces in Vietnam, sued CBS for libel in the 1980s. The trial ended in an agreement that
involved no monetary settlement, but the two sides spent an estimated $8 million on legal fees; more than half of that expense was bo
by CBS.

Libel suits place at risk not only the news organization’s pocketbook but also its reputation. News organizations build their reputations
fairness and accuracy. A libel judgment blemishes that reputation, sometimes irreparably. Individual reporters, producers and editors a
depend on their reputations for accuracy, thoroughness and responsibility. If they lose a libel suit, they may lose that reputation. They
may even lose their jobs. For these reasons and others, journalists must know what constitutes libel and what defenses can protect the
in a libel suit.

The Elements of a Libel Suit

A plaintiff in a libel suit involving a statement published in the mass media usually must prove six things: (1) defamation, (2)
identification, (3) publication, (4) falsity, (5) injury and (6) fault.

Defamation

The essence of a libel suit is vindication of one’s reputation. The plaintiff, therefore, must prove defamation, meaning injury to
reputation. A statement is defamatory if it injures a person’s reputation, lowering that person in the estimation of the community or
deterring third persons from associating or doing business with that person. Judging whether a statement is defamatory involves two
steps. The first step requires a judge to determine that the statement is capable of a defamatory meaning; in the second step, the jury
decides whether a substantial and respectable segment of the public actually understood the statement as defaming the plaintiff.

Some statements obviously are capable of defaming a person or business. A report that a bank was founded with drug money and that t
president of the bank was a drug trafficker and money launderer implied the bank and its managers engaged in illegal activities (Banco
Nacional de Mexico S.A. vs. Rodriguez, 30 Media L. Rptr. 1129 [N.Y. Sup. Ct. 2001]). Few people would want to do business with such a
bank. However, just because a statement angers a person does not make it defamatory, even if the statement is false. In one recent ca
a former member of a corporation’s board of directors sued the corporation because it told shareholders and the U.S. Securities and
Exchange Commission that the director had retired from the board. In fact, she had not been renominated. A federal district court
dismissed the director’s lawsuit, however, saying the corporation’s statements had not held her up to ridicule or contempt (Farmer vs.
Lowe’s Companies Inc., 188 F. Supp. 2d 612 [W.D.N.C. 2001]). The Utah Supreme Court ruled that a newspaper column saying a town’s
mayor had engaged in “repeated, and not too subtle, attempts to manipulate the press” was not capable of a defamatory meaning. The
court said the statement amounted to an accusation the mayor had used his office to influence the dissemination of information to the
public. The statement did not suggest the mayor had engaged in any illegal or unethical acts (West vs. Thomson Newspapers, 872 P. 2d
999 [Utah 1994]).

For a statement to be defamatory, it must be phrased in such a way that the ordinary reader would understand it as stating facts about
the plaintiff. If the statement is so wildly improbable that no one would understand it as factual, it cannot be the basis for a libel suit.
Former Beatle George Harrison and the Honolulu Advertiser were sued by two of Harrison’s neighbors. The newspaper had reported on
Harrison’s objections to a court order allowing his neighbors to cross parts of his property. “Have you ever been raped?” Harrison told t
Advertiser. “I’m being raped by all these people. . . . My privacy is being violated. The whole issue is my privacy.” The neighbors claim
Harrison’s remarks accused them of the crime of rape, but the Hawaii Supreme Court concluded that “rape” was being used in a
metaphorical rather than a literal sense and that reasonable readers would understand it as such (Gold vs. Harrison, No. 20468, Hawaii

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July 8, 1998). The Virginia Supreme Court reached a similar conclusion in a libel suit brought by Sharon Yeagle, an administrator at the
Virginia Polytechnic Institute and State University, against the student newspaper. The newspaper had quoted Yeagle in a story, and pa
of the quotation was repeated in a large-type drop quote. The drop quote identified the speaker as “Sharon Yeagle, Director of Butt
Licking.” The identification was apparently dummy copy that an editor had forgotten to change. Yeagle contended that the identificati
accused her of committing a criminal sex act, but the Virginia Supreme Court said readers would not interpret the statement as factual
(Yeagle vs. Collegiate Times, 497 S.E.2d 136 [Va. 1998]).

Some statements obviously have the power to injure reputations—for example, statements that a person has committed a crime, has a
loathsome disease, is incompetent in her or his business or has engaged in serious sexual misconduct. In other cases, a statement conve
no obviously defamatory meaning. Rather, a reader or listener must put a statement together with previously known facts to come up
with a defamatory conclusion. In one case, the owner of a kosher market sued the meatpacking firm of Armour & Co. for libel because
had published an advertisement listing his store as one that sold Armour bacon. Saying that a person sells bacon is not defamatory by
itself, but it becomes defamatory when it is combined with the extrinsic fact that the store is kosher (Braun vs. Armour & Co., 173 N.E.
845 [N.Y. 1939]). In cases like this one, the plaintiff must prove that readers or viewers knew the additional facts and that he or she
actually lost money as a result as a result of the defamatory statements.

Libel plaintiffs usually sue over statements made in the body of a news story, but they may sue over pictures, cartoons, headlines or so
combination of words and pictures that create a defamatory meaning. Brian “Kato” Kaelin sued the supermarket tabloid National
Examiner over a headline that ran on the issue it published one week after O.J. Simpson was acquitted of murdering Nicole Brown
Simpson and Ronald Goldman. The headline said, “COPS THINK KATO DID IT!” The story said the police suspected Kaelin had perjured
himself when testifying at Simpson’s trial, but Kaelin argued the headline implied he was suspected of having committed the murders.
federal appeals court agreed with Kaelin (Kaelin vs. Globe Communications, 162 F.3d 1036 [9th Cir. 1998]). An ABC News documentary
about prostitution included a visual of a woman walking along an urban street. The woman, Ruby Clark, was not a prostitute, but a
federal appeals court found that the juxtaposition of her photograph with the narrative, which discussed prostitution, created the
implication that she was a prostitute (Clark vs. American Broadcasting Companies Inc., 684 F.2d 1208 [6th Cir. 1982]).

Identification

The libel plaintiff must also prove he or she was identified with the defamatory statement. This requires proving that reasonable reade
listeners or viewers would have understood that the statement was about the plaintiff. Whether the publisher of the statement intende
to refer to the plaintiff does not matter.

Usually, libel plaintiffs have no trouble establishing identification in cases involving the news media. News stories usually identify sourc
or subjects clearly by name. In fact, detailed identification protects reporters against libel suits. Many suits arise from situations in whi
similar names create confusion. If a Sam Johnson is arrested for selling cocaine, the commonness of the name creates the possibility of
confusion. By identifying the person arrested as Samuel H. Johnson Jr. of 3517 N. Forest St., Apt. 303, the reporter has eliminated the
possibility of inadvertently defaming any other Sam Johnsons in town.

The publication of a name is not necessary for identification. A California jury awarded damages to a psychologist, Paul Bindrim, who s
he had been libeled by a novel. Bindrim conducted nude encounter-group workshops, one of which was attended by Gwen Mitchell, a
novelist. Mitchell later wrote a novel about a psychiatrist who conducted similar nude workshops. The fictional psychiatrist had a
different name and different physical characteristics from Bindrim, but the real-life psychologist persuaded the jury there were enough
similarities that readers could infer that the novel was about him (Bindrim vs. Mitchell, 155 Cal. Rptr. 29 [Cal. Ct. App. 1979]).

Publication

Obviously, when a statement has appeared in a newspaper or on a television broadcast, it has been published. But a statement does no
have to be so widely disseminated for a person to sue for libel. All the law requires is that the defendant made the defamatory stateme
to someone other than the person defamed. In one case a man dictated a letter to his secretary, accusing the addressee of larceny. Th
secretary then typed the letter. The New York Court of Appeals held that publication took place when the secretary read and transcrib
the stenographic notes (Ostrowe vs. Lee, 175 N.E. 505 [N.Y. 1931]). If the man had written his own letter and sent it to the addressee i
sealed envelope, it would not have been published.

Once a libel is published, the plaintiff must sue within the time specified by the state’s statute of limitations. In most states, the statu

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of limitations is one or two years. A few allow as many as three years. In all states, the statute of limitations runs from the most recent
publication, so republishing a defamatory statement extends the time during which the plaintiff may sue.

The Internet has complicated some of these publication issues. With a daily newspaper or a news broadcast, the statute of limitations
starts running the day of publication. But what if the defamatory story is on a Web site? Someone may easily access that site and the
defamatory story weeks, months or even years later. And what if the Web master updates the site regularly but does not change the
defamatory story? Does each update of the site constitute a new publication of the defamatory story? The New York Court of Appeals
recently answered these questions in a manner favorable to the media. The court said the statute of limitations would start running fro
the day of the initial publication, and updates to the Web site would not constitute republication (Firth v. State of New York, 2002 N.Y
Lexis 1901).

Falsity

For generations, courts presumed defamatory statements were false. A series of U.S. Supreme Court decisions beginning in 1964 change
that. Now many libel plaintiffs must prove falsity when the allegedly defamatory statements involve matters of public concern. In many
libel cases, the Supreme Court has said, the parties argue over whether a defamatory statement is true. In those cases, the party that
must prove truth or falsity is more likely to lose. Making plaintiffs prove falsity means some defamed persons may not be able to recove
damages, but making defendants prove truth means some truthful publications will be punished. When the mass media publish stateme
about matters of public concern, the Supreme Court said, the First Amendment requires tipping the balance in favor of freedom of the
press (Philadelphia Newspapers vs. Hepps, 475 U.S. 767 [1986]).

Although the plaintiffs must prove falsity only when the defamatory statement involves a matter of public concern, the requirement wi
apply in most cases involving the mass media. Courts usually conclude that if a statement appears in a newspaper or a news broadcast,
involves a matter of public concern.

Injury

Under traditional libel law, courts presumed that obviously defamatory statements had injured the plaintiff. The plaintiff did not have
produce any evidence showing that she or he had suffered injury to reputation, monetary loss or emotional suffering. The U.S. Supreme
Court said in 1974 the presumption of injury was incompatible with the First Amendment. Since then libel plaintiffs have had to prove
“actual injury” in order to recover damages from publishers who negligently made defamatory statements. Actual injury includes more
than provable monetary loss. Evidence of damage to reputation, humiliation and mental anguish also count.

A candidate for sheriff in a Tennessee county published campaign advertisements that said the incumbent sheriff’s deputy was guilty of
abusing a woman he had been living with. The deputy sued, but the trial court granted summary judgment to the defendant. On appea
an issue was the sufficiency of the deputy’s evidence of injury. He said some people had asked him about the advertisements and he ha
found the questions embarrassing. He also said he had not been invited to a few parties because of the campaign ads; however, he
offered no evidence to support this claim. The Tennessee Court of Appeals said the deputy’s evidence failed to prove he had been
injured. Whatever embarrassment or discomfort he had suffered had not been a daily problem nor had it interfered with his ability to
perform his duties, the court said. (Murray vs. Lineberry, 69 S.W.3d 560 [Tenn. App. 2002]).

Although the plaintiff must show some injury, the injury need not be great. The Arkansas Democrat-Gazette was reporting on the
prosecution of Little Rock lawyer Eugene Fitzhugh in connection with the Whitewater scandal and erroneously substituted J. Michael
Fitzhugh’s photograph for that of Eugene Fitzhugh. J. Michael Fitzhugh, a lawyer in Fort Smith, Ark., sued and won a $50,000 jury verd
Fitzhugh was unable to show that anybody had shunned him as a result of the publication or that anybody actually believed he was bein
prosecuted in the Whitewater affair, but he did present testimony that at least some people thought he might be involved in the scand
That was enough, the Arkansas Supreme Court said, to establish injury (Little Rock Newspapers vs. Fitzhugh, 954 S.W.2d 650 [Ark. 1997

Sometimes the plaintiff does not have to prove injury. If the defendant published the defamatory statement with actual malice (which
will be explained in the next section), then the courts can presume injury. Publications that do not involve a matter of public concern a
another exception.

Fault

The most crucial issue in modern libel cases is fault. “Fault,” in libel law, refers to the state of mind of the person responsible for the

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allegedly defamatory statement: Was the statement made intentionally, recklessly or negligently? Before 1964, many states said
publishers of defamatory statements would have to pay damages even if they had taken every reasonable step to ensure the accuracy o
the story. Starting in 1964, the U.S. Supreme Court changed that in the case of New York Times vs. Sullivan (376 U.S. 254) and changed
further in its 1974 Gertz vs. Robert Welch Inc. (418 U.S. 323) decision. Now plaintiffs must prove some level of fault. The level of fault
plaintiff needs to prove depends on whether the plaintiff is (1) a public official or public figure or (2) a private individual.

Public officials and public figures must prove that the statement was published with the knowledge that it was false or with reckless
disregard for whether it was false. This is called “actual malice,” a term that causes confusion since many people think it means ill will
but whether the defendant disliked or wanted to harm the plaintiff is not an issue. All that matters is whether the defendant knew the
statement was false or had a high degree of awareness of the statement’s probable falsity when it was published. Proving this can be
difficult, since the plaintiff must produce evidence about the defendant’s state of mind.

Private individuals have less difficulty winning libel suits. In most states, they have to prove only that the defendant acted with
negligence in order to recover actual damages. Negligence essentially means acting unreasonably under the circumstances. Usually, the
jury decides whether a defendant’s actions were unreasonable. In a libel case, an error such as failing to check public records, misspel
or confusing names or accidentally transposing dates or figures might be considered negligence.

The difference between actual malice and negligence is sometimes confusing, but two cases may clarify the distinction:

Chris Gatto, a reporter for the Belleville Post in New Jersey, rewrote a story from a larger paper about an investigation of problems wit
the New Jersey School Board Association’s insurance group. Lawrence Schwartz, a local attorney, represented the school board
association in the investigation. Unfortunately, Gatto’s understanding of the case was weak and his story was confused. When the story
reached Post editor Joseph Cammelieri, Gatto was out of town on another assignment. Cammelieri had to figure out the story on his ow
and incorrectly concluded that the focus of the investigation was Schwartz—specifically, whether the $353,851 Schwartz had received
from the association in legal fees was excessive. Cammelieri later said: “I was confused. So in my confusion, I saw a local person; and I
assumed that oh, this local person must be the primary focus of the story and I was trying to simplify it.” Schwartz sued for libel. The N
Jersey courts said he was a public figure and had to prove actual malice. But the most he could prove was that Gatto and Cammelieri h
been negligent. Gatto should have checked his facts more carefully, and Cammelieri should not have assumed Schwartz was the focus o
the story. But there was no evidence that either had the high degree of awareness of probable falsity required to prove actual malice
(Schwartz vs. Worrall Publications Inc., 20 Media L. Rptr. 1661 [N.J. Super. Ct. App. Div. 1992]).

A Virginia physician proved actual malice in a libel case against WJLA-TV in Washington, D.C. The issue was the technique the physician
Stephen M. Levin, used to treat piriformis syndrome in female patients. The piriformis muscle, in the buttock, sometimes irritates or
pinches the sciatic nerve, causing pain in the lower back, buttock and leg. Levin treated female patients with this condition by
intervaginally manipulating their piriformis muscle. Some of Levin’s patients considered the treatment abusive and humiliating. They
complained first to the Virgina Board of Medicine, which investigated and cleared Levin of any wrongdoing. One of the patients then to
her complaint to WJLA-TV, which investigated and prepared a story. After the story aired, Levin sued. A jury eventually awarded him
more than $2 million in damages. WJLA appealed the verdict to the Virginia Supreme Court, arguing among other things that Levin had
failed to prove actual malice. The court, however, agreed with Levin. For one thing, WJLA had interviewed a specialist who at first said
he had never heard of vaginal manipulation as a treatment for piriformis syndrome. The specialist later disavowed the remarks, but
knowing that, WJLA aired the interview anyway. Another piece of evidence contributing to a finding of actual malice, the court said, w
the promotional advertisements WJLA aired for its report on Levin. Those spots said or strongly implied Levin had sexually abused his
patients, but WJLA news staff knew the Board of Medicine had cleared Levin of any wrongdoing (WJLA-TV et al. vs. Levin, 564 S.E.2d 38
[Va. 2002]).

Actual malice is difficult to prove. Simple mistakes in handling a story are not enough. Nor is evidence that the defendant disliked the
plaintiff. But the U.S. Supreme Court has said actual malice can be found when the defendant:

 Knew facts that would call the story into question;

 Refused to examine evidence that would prove or disprove a charge;
 Relied on an inherently unbelievable source;
 Published an improbable story without investigation; or
 Simply fabricated the story.

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Public Officials, Public Figures and Private Individuals

The most important decision in many libel cases is whether the plaintiff is a public official or public figure. That decision determines
whether the plaintiff will have to prove actual malice and what damages he or she can recover. A public official or public figure must
prove actual malice to win any damages, actual or punitive. A private individual need prove only negligence to recover actual damages
but would have to prove actual malice to win punitive damages. The

U.S. Supreme Court has provided only hazy guidelines for distinguishing public officials and public figures from private individuals. The
guidelines have left a good deal of room for states to expand or contract those categories.

The more clearly defined category is that of public official. The Supreme Court has said public officials must hold some government
position. The category of public officials includes not only elected officials, such as U.S. senators, state legislators and city council
members, but also appointed officials and government employees. Even unpaid government officials may be public officials for purpose
of libel law. Just being on the government payroll does not make a person a public official, however. The person also must have or app
to have substantial authority over governmental affairs. A low-ranking worker in the city sanitation department or a secretary in the cit
attorney’s office probably would not be a public official. Also, to be considered a public official, the employee must hold a position
important enough that the public would have an interest in his or her qualifications even in the absence of a specific news event or
controversy (Rosenblatt vs. Baer, 383 U.S. 75 [1966]).

A gray area exists between government leaders, like mayors, who are clearly public officials, and minor employees, like city file clerks
who are not. Whether people in the gray area are public officials may depend on how a state’s courts have interpreted the law. Some
states have found public school principals and teachers to be public officials, while others have said they are not. Most courts have foun
law enforcement officers and others who make decisions that affect the rights, liberty, health and safety of the public to be public
officials.

Identifying public figures is even more difficult than identifying public officials. A judge in one libel case complained, “Defining public
figures is much like trying to nail a jellyfish to the wall.” Part of the problem is the vagueness with which the U.S. Supreme Court has
defined the term “public figure” and part is the court’s reluctance to impose any uniformity on the states.

After it decided that public officials would have to prove actual malice, the Supreme Court recognized that certain people who did not
hold official government positions nevertheless exercised great influence over public affairs and public opinion. The court decided that
these public figures also should have to prove actual malice, but the justices tried to define “public figure” in a way that would keep th
category small. The Supreme Court in the Gertz decision identified three types of public figures: (1) involuntary, (2) general-purpose an
(3) limited-purpose. The court said the essence of public-figure status is that a person has voluntarily assumed some special prominenc
or role in society; therefore, the category of involuntary public figure must necessarily be very small, almost to the point of being
nonexistent. The other two categories are somewhat larger.

The general-purpose public figure, the Supreme Court said, has such persuasive power and influence as to be a public figure for all
occasions. Celebrities from the entertainment and sports industries, such as David Letterman, Jennifer Lopez, Denzel Washington, Mery
Streep, Tiger Woods and Bret Favre, would probably fit this definition. So would people from other walks of life who have become
unusually prominent—people like Ann Coulter, the Rev. Jerry Falwell, Martha Stewart and Bill Gates. The Supreme Court said this

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category, too, must be small because few people attain such widespread notoriety.

The largest category of public figures consists of those who hold that status for the limited purpose of commenting on some particular
topic or issue. These public figures have thrust themselves to the forefront of a controversy in order to affect its resolution. People wh
organize an abortion-rights march or who lead an effort to persuade a school board to change the curriculum in history classes or who
argue publicly for laws allowing people to carry concealed weapons would be examples of limited-purpose public figures.

Richard Jewell, the private security guard who became a suspect in the Olympic Park bombing in Atlanta, became a limited-purpose
public figure, a Georgia appeals court ruled. Jewell had discovered the bomb and had helped get people out of the park before it
exploded. At first, he was considered a hero, but FBI investigators soon were telling local reporters on background that Jewell was a
suspect. Eventually, Jewell was cleared, but his reputation had been tarnished and he sued for libel. The Georgia Court of Appeals,
however, ruled he had to prove actual malice. His willingness to speak to reporters after the bomb incident and help persuade visitors
they would be safe at the Olympics had made him a public figure (Atlanta Journal-Constitution vs. Jewell, 555 S.E.2d 175 [Ga. Ct. App.
2001]).

The Supreme Court has left the definitions of “public figure” so vague lower courts have had trouble applying them. Some court decisio
seem to contradict one another. For example, one court said a life insurance company had become a public figure through its advertisi
and public relations efforts dealing with the health-care funding controversy (National Life Insurance Co. vs. Phillips Publishing Inc., 20
Media L. Rptr. 1393 [D. Md. 1992]). Another court said neither of two corporations engaged in competitive and comparative advertising
focusing on the cost and quality of their health insurance programs was a public figure (U.S. Healthcare vs. Blue Cross of Greater
Philadelphia, 17 Media L. Rptr. 1681 [3rd Cir. 1990]).

Journalists need to remember that just being involved in a newsworthy event does not make a person a public figure. The U.S. Supreme
Court has said that people involved in civil court cases, criminal suspects and defendants, individuals and businesses who receive mone
from the government, and lawyers representing people in court are not automatically public figures. The court has said that such peopl
have not necessarily stepped forward to influence the resolution of a public controversy.

Major Defenses to Libel Suits

The difficulty plaintiffs have in proving actual malice has become the major defense for media organizations in libel cases. Other defen
are available, and they can be important in some cases. Of these defenses, the main ones are (1) truth, (2) fair-report privilege and (3)
fair comment and criticism.

Truth

The use of truth as a defense arose when courts presumed defamatory statements were false. Now, plaintiffs must prove falsity; but
proving a statement true can still defeat a libel claim.

Proving truth does not mean proving a news report accurate in every detail. Most courts require only proof that the sting or the gist of
charge is true. A former president of the Kansas Farm Bureau sued the bureau over a statement its attorney had made to the board of
directors. The attorney had said the former president needed to reimburse the bureau for $10,467 in travel expenses, when he actually
owed only $5,888. The Kansas Supreme Court said that even though the attorney had misstated the amount owed, the statement was
substantially true. The former president’s reputation suffered no more from the inaccurate statement than it would have if the statem
had been accurate (Hall vs. Kansas Farm Bureau, 50 P.3d 495 [Kan. 2002]).

The Nevada Supreme Court used similar reasoning to uphold the dismissal of a libel suit brought by James Mortensen, who had been
arrested for removing artifacts from an archaeological site in Nevada. He later pleaded guilty to selling archaeological resources illegal
Newspaper stories, based on press releases from the U.S. Attorney’s office, described Mortensen as having looted and robbed graves.
Mortensen contended he had not looted or robbed and that the site from which the artifacts had come was not a grave. The Nevada
Supreme Court said the terms “looter” or “robber” accurately described Mortensen’s conduct, even though they were not the actual
charges brought against him. Also, the site from which the artifacts were taken was described in the U.S. Attorney’s press release as a
burial ground, and the news organizations were justified in relying on that description (Mortensen vs. Gannett, No. 27724 [Nev. S.Ct., O
1, 1997]).

If a news story misuses a technical term to create a substantially false and defamatory impression, then courts will not consider the sto

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true. A Minnesota appeals court upheld a $676,000 damage award to a Duluth street maintenance supervisor over a series of stories and
editorials in a local newspaper. The stories and editorials said the supervisor had arranged to have the clay road in front of his home
paved. In fact, the street was not paved but repaired with asphalt shavings. The difference is that paving an unpaved road is a major
improvement, for which the adjacent property owners would have to pay. Repairing a road with asphalt shavings is routine maintenanc
and homeowners do not pay any of the costs. The difference, the Minnesota appeals court said, is substantial enough to create the fals
and defamatory impression that the supervisor had misused his office (LeDoux vs. Northwest Publishing Inc., 521 N.W.2d 59 [Minn. Ct.
App. 1994]).

Crucial omissions can defeat the defense of truth even if every fact in a news report is accurate. A Memphis newspaper reported that R
Nichols had been shot in the arm by another woman. The story said, “Officers said the incident took place Thursday night after the
suspect arrived at the Nichols home and found her husband there with Mrs. Nichols.” That was true, but the story failed to mention tha
Ruth Nichols’ husband and two other people also were present. Nichols successfully sued for libel, saying that the omission created the
false and defamatory impression that she was having an affair with the other woman’s husband (Memphis Publishing Co. vs. Nichols, 4
Media L. Rptr. 1573 [Tenn. 1978]).

The defense of truth does not protect the accurate republication of defamatory charges made by other people. A news organization tha
reports a defamatory statement a bank president makes about a competitor cannot escape liability by proving that it accurately quoted
the bank president. The news organization is responsible for proving that the underlying statement was true, not merely that it had
quoted the source accurately. There are some exceptions to this rule, the main one being the fair-report privilege that news organizati
have to report on official proceedings and documents.

Fair-Report Privilege

The law recognizes certain occasions when people need absolute protection from libel suits. People called to testify in court, for
example, cannot be sued for defamation because of what they say on the witness stand. And members of legislative bodies, such as
Congress and state legislatures, cannot be sued over remarks they make in the course of their official duties. News organizations enjoy
similar, although qualified, privilege to report on what happens in courtrooms and legislative chambers and what is said in official
documents. So a news reporter covering a trial cannot be sued for reporting false and defamatory statements made by a witness so long
as the reporter’s story is full, fair and accurate.

A reporter for the Lamar (Mo.) Democrat covered a meeting of the City Council of Golden City, Mo., at which the members discussed th
fitness of the town’s chief of police and its only patrolman. The council also heard comments from citizens, including one person who s
his 16-year-old daughter had been “knocked up” by the patrolman. That comment appeared later on the front page of the Democrat, a
the patrolman sued for libel. The Missouri Court of Appeals said newspapers have a privilege to report on public meetings about matter
of public concern so long as the reports are fair and accurate, and this one was (Shafer vs. Lamar Publishing Co., 7 Media L. Rptr. 2049
[Mo. Ct. App. 1981]).

Under the qualified privilege defense, the Lamar Democrat was not responsible for proving that the deputy in fact had gotten a 16-year
old girl pregnant; it was responsible only for showing that it had accurately reported what was said at the council meeting. If the repor
inaccurately summarizes an official meeting or an official document, the privilege may be lost. So when a broadcast news report said a
attorney had been found guilty of conspiring to help a client evade the federal income tax, when in fact the attorney had been acquitte
the station could not claim that it had made a fair and accurate report of an official proceeding (Western Broadcasting vs. Wright, 14
Media L. Rptr. 1286 [Ga. Ct. App. 1987]).

Journalists have this fair-report privilege when describing such governmental proceedings as court hearings, administrative agency
meetings and legislative sessions at all levels of government from town council to Congress. In most states, the privilege extends to
official documents, such as police reports, health inspection reports, depositions, official government correspondence and grand jury
transcripts. In some states, the privilege also applies to reports of nongovernmental meetings open to the public for discussion of matte
of public concern.

Including in a news report information gathered from sources other than official meetings or records can defeat the fair-report privileg
A citizen complained during a meeting of the Crookston, Minn., City Council that a police officer, Gerardo Moreno, had been selling dru
out of his police car. Mike Christopherson, the city editor of the Crookston Times, attended the council meeting and heard the charge.
did not report it until several days later, after he had heard that an officer was about to be arrested. Christopherson asked the police

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chief about the rumors. The chief denied Moreno was about to be arrested, but he also said the department would investigate the drug
selling accusation. Christopherson’s story included information from the council meeting and from his later investigations. Moreno sued
the Times for libel. The newspaper argued it was protected by the fair-report privilege. The case eventually reached the Minnesota
Supreme Court, which said the privilege did apply to information gathered in official city council meetings—about three paragraphs of t
story. But the Supreme Court said the trial court needed to determine whether Moreno had been defamed by any of the information
Christopherson had gathered outside the council meeting (Moreno vs. Crookston Times Publishing Co., 610 N.W.2d 321 [Minn. 2000]).

Fair Comment and Criticism

Everyone has the right to an opinion, even an opinion that might injure another person. The fair comment and criticism defense evolve
in the late 19th and early 20th centuries to protect from libel suits expressions of opinion about matters of legitimate public interest. T
defense applied only if the opinions were based on true facts, were the sincere opinions of the speakers and were not motivated solely
ill will.

The U.S. Supreme Court seemed to expand the opinion defense in 1974. The court, in deciding the Gertz vs. Robert Welch Inc. libel cas
made the passing remark that there is “no such thing as a false idea.” Many lawyers and judges took that as creating a nearly complete
defense for any statement that could reasonably be classified as an opinion. So lower courts developed elaborate tests for distinguishin
statements of fact from statements of opinion.

The Supreme Court threw this area of libel law into disarray in 1990 when it declared in Milkovich vs. Lorain Journal (497 U.S. 1 [1990])
that a sports writer’s opinion column could be the basis for a libel suit. The court said opinions enjoy no special protection from libel
suits. Chief Justice William Rehnquist, who wrote the majority opinion in Milkovich, said existing principles of libel law provide sufficie
protection for expressions of opinion. He said an editorial, column, letter to the editor or other expression of opinion can be libelous if
says something about a person that can be proved false and defamatory.

Many legal scholars worried that the Milkovich decision would expose all manner of opinions to libel litigation. To some extent, that has
happened, but it appears courts are analyzing such cases in a manner like that used before the Milkovich case. Now, however, instead o
talking about whether a statement is fact or opinion, courts talk about whether a statement can be proved false. The result, in many
instances, is the same, but a crucial question remains: How much emphasis should be given to the context in which a defamatory
statement appeared?

A case involving a book review published in The New York Times provides a good look at how the opinion defense works in the wake of
Milkovich decision. Dan Moldea, an investigative reporter, wrote “Interference,” a book that describes organized crime’s influence on
professional football. Gerald Eskenazi reviewed the book for The New York Times and concluded that the book contained “too much
sloppy journalism.” Moldea thought the remark libeled him and sued. A federal district court granted The Times’ motion to dismiss the
case. Moldea appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The appeals court issued two opinions in the ca
the second dramatically reversing the first.

The first time the court of appeals considered Moldea’s case, it ruled that the statement about “sloppy journalism” was sufficiently
factual that a jury could decide whether it was true. Furthermore, the court said the Milkovich decision prevented it from attaching mu
weight to the fact that the statement appeared in a book review.

A short time later, the appeals court reconsidered its ruling and concluded that the Supreme Court had not intended to prevent courts
from considering context in libel cases. Context had been irrelevant in the Milkovich case, the appeals court said, but when it is relevan
context helps indicate whether readers will understand a statement as factual. The court said in the context of a book review the
accusation of sloppy journalism was exactly the kind of thing a reader would interpret as opinion and not as something that could be
proved true or false (Moldea vs. New York Times, 22 Media L. Rptr. 1673 [D.C. Cir. 1994]).

The fair-comment-and-criticism defense does not protect all editorials, columns and reviews. Any opinion based on or implying false fa
can be the basis of a libel suit. However, the fair comment defense may apply outside the opinion pages. News stories often report the
opinions of others. If those opinions are based on true facts or cannot be proved false, they enjoy protection.

Legislative Trends

The principles of libel law are shaped largely by court decisions. In a few areas, however, state legislation has an impact. Two areas of

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recent activity are retraction statutes and agricultural product-disparagement laws.

Most states have retraction statutes that limit damages or prevent libel suits in cases where a full, prompt and prominent retraction ha
been published. The statutes vary greatly in their terms. Some states prohibit a plaintiff from recovering punitive damages when a
retraction has been published; others say a plaintiff cannot seek punitive damages unless she or he has first requested a retraction. And
few statutes require a person to seek a retraction before filing a libel suit. Some retraction statutes have been rendered obsolete by U.
Supreme Court decisions over the last 40 years.

In 1993 the National Conference of Commissioners on Uniform State Laws proposed a uniform correction or clarification act that would
harmonize the state laws and provide an alternative to costly and confusing libel suits. The proposed statute would limit the damages a
libel plaintiff can recover to provable economic loss when the defendant publishes a retraction. The defendant would benefit from hav
a cap placed on damage awards, and the plaintiff would benefit from prompt vindication of her or his reputation and reimbursement fo
economic loss. Only one state—North Dakota—has adopted the Uniform Correction or Clarification of Defamation Act and only a handful
other states have considered it. The proposal has the support of several journalism organizations—the National Newspaper Association,
the American Society of Newspaper Editors, the Associated Press Managing Editors and the Media Law Resource Center, among others—
it also has its critics. Some contend the proposal puts libel plaintiffs at a disadvantage. Others contend that the corrections statute may
encourage news organizations to sacrifice their credibility in order to avoid costly libel suits.

Agricultural product-disparagement laws—sometimes called veggie libel laws—are a new trend. After “60 Minutes” reported that many
apple growers used a pesticide linked to cancer, the market for apples collapsed and apple producers lost millions of dollars. Some
producers sued, unsuccessfully. As a result, some state legislatures have passed laws creating a right on the part of producers of
agricultural products to sue when those products are disparaged. In some states, the rules for these lawsuits are more favorable to
plaintiffs than the rules governing personal libel suits, leading some legal authorities to say most of the laws are unconstitutional.

The Texas agricultural product-disparagement act, which applies to perishable food products, was tested in a widely publicized, but
inconclusive, lawsuit. “The Oprah Winfrey Show” had broadcast a segment on mad-cow disease which included derogatory statements b
Winfrey and her guest about beef. Some Texas beef producers sued in federal court under the agricultural product-disparagement law a
the common law of product disparagement. The judge dismissed the charges brought under the Texas statute on two grounds: Cattle ar
not a perishable food product, and Winfrey and the other defendants had not knowingly made any false statements. The jury found in
favor of Winfrey on the remaining charges. The U.S. Court of Appeals for the 5th Circuit affirmed the decision in Winfrey’s favor (Texas
Beef Group vs. Winfrey, No. 98-10391 [5th Cir., Feb. 9, 2000]). Thirteen states have enacted veggie libel laws: Alabama, Arizona,
Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota and Texas. Several other states
have considered such laws.

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