The CJR Daily, née the Campaign Desk, does an excellent job (or so it seems to YHB) of examining the ways the press works and fails to work. They place stories in context, and they also remove them from camouflaging pseudo-context, and they also on occasion point out stories that are underreported. One such is in the note Silence of the Lambs by Susan Q. Stranahan, which discusses a case in Pennsylvania where a lawsuit for defamation against a newspaper who reported that one city councilman called the mayor and council president liars, queers and child molesters has been reinstituted by the PA Supreme Court, with the approval of the US Supreme Court. More coverage is in yesterday’s Los Angeles Times in an article called Justices Refuse to Shield Reports of False Charges by David G. Savage.
I won’t give the whole story here, but in short the newspaper is going to have to defend itself for printing what one public figure said about another public figure, when it reported the fact of the accusation, calling it a slur and an insult, and seeking a response from the defamed party (a court has already ruled that the councilman defamed the mayor and council president). The issue, essentially, is whether a newspaper can be sued for transmitting defamation, even if it makes it clear that the defamation is, you know, false and defamatory. Now, the topic makes it difficult to avoid arguing by reductio ad absurdum, thusly: Today House Democrats were up in arms, after the Minority Whip said ... something ... about Rep. Jones, but we can’t tell you what. Rep. Jones, in response, said that the Minority Whip could, no, well, responded in kind. No, we won’t tell you what kind. A White House spokesman said the two were, um, well, that’s not technically illegal in the District, but just to be on the safe side, back to you for weather and sports. Jim?
In fact, there does appear to be a pattern of people using news media (particularly television, of course) to spread defamatory lies. The corporate media are complicit in that, and there is some question in my mind whether there is a legitimate case to be made that they bear some liability for the defamation in question. It’s clear to me that the press acts, in part, as a filter, and that therefore they lend some credibility to whatever they let through that filter. It is irresponsible, and unethical, for a news producer to allow its product to be used as a conduit for lies. But should it be actionable? I don’t think so.
I think the solution would be far worse than the problem. Defamation is already such a tricky business that having to consult the lawyers before any story about one person criticizing another would be, I think, prohibitive. The producer would choose to prioritize less risky stories. The decisions would be made not about what (they believe) the public to be interested in, much less the public interest, but about what would avoid an expensive lawsuit.
That might not actually bother the megacorporate media, who are on the whole responsible for the practices I deplore anyway. But a local paper (are there still local papers?), or a local radio newscast, or even a smallish newspaper chain might well get skittish. I think the phrase here is “chilling effect”. The solution (vulnerability to such suits) would most likely have a chilling effect on, well, on the Daily Local News of West Chester, PA. Which, as we all know, is where Dave Barry got his start, back before he wasn’t funny anymore.
The important point here, I think, is that there’s a difference between what is unethical and what is actionable. There should be such a difference. I do think that the press need to exercise judgment whether to pass along slander, and I think that they need to be very careful in how they do it. But I also think that what the press does is sufficiently important they should be protected even when screwing up, to a fairly high extent. Reckless disregard for the truth sounds about right.
The specifics of this case, about which I know only a trifle, seem to make it clear that when this goes to trial the newspaper will win. They didn’t report anything that wasn’t true; they reported what one public figure said about another. They also made it clear by context that it was name-calling rather than accusation. They could have put a big headline along the lines of Mayor a Child Molester? Councilman Speaks but they didn’t. The point, as I understand it, isn’t that there’s a nonzero chance that they will have to shell out a few grand in damages, it’s that they will certainly have to shell out a few grand for attorney’s fees, and that those fees will be an ongoing added cost of doing business, for them and for other press outlets. Or, I suppose, there could arise an insurance industry to cover it, all the same doctors and lawyers, which would be just peachy, too.
chazak, chazak, v’nitchazek,
-Vardibidian.
There is an insurance industry to cover this, and it’s already a cost of doing business.
That said, I’m not sure that the court decisions are anywhere near as scary as the press is making them out to be. The libel case against the newspaper has not yet been tried. If the newspaper loses, they can appeal, eventually up to the state Supreme Court (which already signalled they’d side with the newspaper) and then up to the US Supreme Court. And the newspapers reporting on this case, by reporting on it, are signalling that they believe they are still reasonably protected. After all, they’re including the same underlying defamatory statements which got the Pennsylvania paper in trouble in the first place. (Is that irony? I’m never quite sure what qualifies.)
As long as there is any valid cause for action available against newspapers, including reckless disregard for the truth, newspapers will face the prospect of legal action and therefore will face a chilling effect and additional costs in insurance and legal fees. As you mention, it takes a tremendous toll in time, expense, energy, and attention to defend against a court case, regardless of the merits of the case. In most cases, defendants can at the most hope to eventually recover a portion of their legal costs, but nothing else. Meanwhile, the plaintiff (or prosecutor) risks essentially nothing.
We give absolute immunity to diplomats, but that seems like a bad model for newspapers. We give qualified immunity to government officials, which seems like a bad idea for government officials but a better model for newspapers. That might improve the situation.
Another approach would be to penalize bogus court cases in a far more sensible manner than the Republicans are proposing. As you note, the problem isn’t the potential damages awarded; it’s the guaranteed damages from defending yourself.
One tricky aspect to this is the blurry line between “journalists” and “everyone else”. The FEC comments on blogging touched on that.
I definitely see the value in a free and un-chilled press, but I’m not sure why we should restrict those freedoms to people officially certified by the government as “press”.
Yes, exactly. And the courts have said in many cases as well that the special rights the press claims are in fact the same rights that every citizen has (or is supposed to have). That’s rankled for the press when they’ve tried to assert a new right to protect their sources, for example — they argue that the freedom of the press is different from (and superior to) the general freedom of speech, while the courts say that it’s not.
V, you’ve mentioned before on this blog that it’s difficult to precisely define journalism. The only way to create a bright line is through licensing, which is incompatible with a free press. That’s why the courts have so frequently said that we all need to have these freedoms.
Although I agree with you on principle, in some ways, isn’t what’s at stake in a defamation case such as this one directly affected by the broadcast nature of the professional press? I don’t think the court should hold the Daily Local News to a substantially different standard than a private citizen who was publishing a newsletter of comparable circulation, but I don’t think that’s what you’re getting at. Myself, I’m not sure I’d allow civil libel and slander suits; criminal statutes would prevent the worst of it, and we’d live in a messier, nastier world (or perhaps we wouldn’t).
Also, and it may not be relevent to the discussion at hand, I tend to think of journalism, broadly speaking, procedurally. That is, journalism requres both some element of reportage and some element of editing. No editor, no journalist. This assumes some sort of editorial standards that are institutional (depending on the institution in question) and that take priority over those of the journalists. This wouldn’t be any reason to restrict freedoms to edited journalists, but does hint at the definition that I find it so hard to pin down.
Now, would some sort of qualified protection for stuff that gets printed or broadcast in public ‘news’ sources be a good idea? I think a different standard, such as applied to public figures versus private ones on the receiving end, might be feasible, but I’d want somebody really smart to write the actual legislation…
Thanks,
-V.
let’s add some spice. if we were talking about a television news broadcast that had done the same thing the same way, only instead of reading the nasty bits into the camera for the record, they’d played footage of the actual defamation – what then.
(i realize that this happens regularly – i just want to distinguish between the two very different levels of quotation that are available to television and radio and see if the feelings of protection change.)
From an ethical perspective, it’s all about the context. Is the quotation clearly presented as lunatic ravings, rather than being mistaken for or presented as expert opinion?
But context is a tricky thing these days. People channel-surf more, so the only responsible way to make sure video isn’t seen without surrounding material is to put an overlaid banner on the screen saying “lunatic ravings” or “Fox News”. And with text, where quotes can be lifted so easily and dropped elsewhere, you need to insert plenty of “…,’ raved the lunatic, ‘…” into the middle of the quotes.