Libel and Ethics

1
Libel and Ethics

• -- How to stay out of court
• -- How to build an ethics toolbox

2
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.

3
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

4
What is libel?

• Why isnt a story on the
• arrest of Courtney Love
• on drunken driving
• charges considered
• libelous? Its
• defamatory, the
• persons name is given
• and its published.
• Associated Press photo

5
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 its 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 its
  a false
• statement -- although the Texas Supreme Court has
  
• managed to muddy those waters.

6
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 plaintiffs status is evaluated to
  ascertain the
• burden of proof needed to win a judgment.
• Public officials / public figures have to
  demonstrate that 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

7
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 its OK to take out an ad
  saying
• Candidate A is a jerk for wanting to raise your
  taxes or the
• mayors towing program is stupid. In 1967, the
  court
• expanded its ruling to cover public figures as
  well.

8
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.

9
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 Hells Angels are connected to that group. In
  both
• cases, the defamation must be false to be
  considered
• libelous.

10
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 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

11
Libel danger areas

• 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 didnt win)

12
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 Arrested for
• Sentenced for Charged for
• Indicted for
• On trial for
• Allegedly for

13
Libel defenses

• 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
• Fair comment Libel is a misstatement of fact
  there are no false opinions. Fair comment is the
  reasonable criticism of an official act
• Consent -- Thats why photographers should have
  consent forms
• 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.

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How to stay out of court

• Treat every story that could damage someones
  reputation like its 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 wont 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.

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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 its
  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.

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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 days headline was even worse
-- "Baytown serial attacker begins trial today"
where was the copy editor?
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How to stay out of court

• 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.
• 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.
• Using the word allegedly wont 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.
• Always use proper attribution -- saves you in
  libel and plagiarism.

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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
• 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 doesnt have one neither do
  feds and thats 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

19
Libel Handouts, exercise

• Libel write-arounds (some common libelous
  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

20
Ethics

• An ethical decision-making toolbox

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According to Bucky Katt
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Ethics Whats 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.

23
Ethics Whats 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.

24
Ethics Whats 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.

25
Ethics Whats going on here?

• Columnists Armstrong Williams and Maggie
  Gallagher who had 240,000 and 21,500 contracts
  (thats 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.

26
Ethics Whats going on here?

• CBS allowed Washington
• correspondent Rita Braver
• to do a profile on Lynne
• Cheney, the VPs wife.
• Bravers 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 Bravers
• story will undoubtedly aid
• book sales. Any concerns
• here?

27
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 cant trust our product
  information -- we wont
• be very successful. In journalism, taking
  shortcuts is the
• path to danger.

28
Ethics Whats going on here?

• And its 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 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
  Houstons Gay Pride Parade

29
Ethics The ethics gap

• There is often a gulf of difference between how
  the news
• media view their profession/role and the publics
  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.

30
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 wouldnt intervene to
• reveal the position of enemy troops
• trying to ambush American
• soldiers.

31
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 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

32
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)

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Poynter film
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(No Transcript)
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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 victims 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
  open-
• minded, 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.

36
Ethical decision-making

• Gut reaction -- Listen to your gut but dont
  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
  womens opinion about most issues.

37
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.

38
Ethical decision-making The process

• 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.

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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?

40
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?

41
Ethics Some donts

• Dont stage events -- The NBC / exploding Chevy
  truck story. Producer didnt 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.
• Dont 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.
• Dont put anything on the air or in print that
  cant stand up to scrutiny -- If the mechanics of
  information-gathering are questionable, then the
  storys credibility will suffer. ABC Food Lion
  case, CBS and the Bush story

42
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.

43
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.

44
Exercise The Somalia photo

• Now it is time for you to decide what to do with
  the 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.