MCOM 210
Basic Journalism
Dr. Wally Hastings
Northern State University
Aberdeen, SD 57401
Journalism and Law
(Note: these notes have not been fully edited for web viewing.)

        There are two key areas of intersection between journalism and the law: the First Amendment and free press issues, and the matter of libel.

Freedom of the press

        The first newspaper in colonial America was shut down by the authorities under a Massachusetts law requiring a license, but it was closed as much for what it said as for the licensing law.  Early newspapers had little freedom as we know it today.
        The most significant colonial case involving press freedom is New York v. John Peter Zenger.  Zenger established Weekly Journal in New York, November 1733 -- second NYC paper.  The New York governor, William Cosby, was fairly tyrannical and had dismissed a popular chief justice, Lewis Morris.  Zenger's paper sided with Morris, attacked Cosby.  This led to his arrest on charges of criminal libel (which entailed imprisonment as well as a fine).  The courts were stacked against him, but Benjamin Franklin became interested in the case and persuaded Philadelphia lawyer Andrew Hamilton, in his 80s, to defend Zenger.
        The statute required only proof that Zenger was the publisher (i.e., not proof that it was a lie -- in fact, it was accepted that he could tell the truth and still be guilty of libel).  Hamilton admitted this -- but he turned the focus to the paper's language: were the statements false, malicious, and/or seditious?  The jury found for Zenger although there were no legal grounds, since truth not officially recognized as a defense.  The case helped to promote a freer reign in political commentary.
        During the debate over the Bill of Rights, First Amendment guarantees of free speech and press were promoted particularly by the anti-Federalist side, who feared government oppression.  The amendment only prohibits Congress from making laws abridging freedom of the press, but it typically has been applied at state levels as well.
        Most relevant constitutional law has come in this century, although the first Congress passed the Alien and Sedition Act, which abrogated free speech for certain "unpatriotic" actions.  However, the law was overturned by the Supreme Court.
        During the muckraking period of the early 20th century, reporters investigating corruption, etc., produced increasing friction between government and press -- so, e.g., Teddy Roosevelt instituted several specious libel suits against the NY World in hopes of scaring the paper off.  Wide-scale limitations on press freedom occurred during World War I, as war censorship met little opposition from newspapers or others.  Soon, though, military censorship began to establish one of the common lines of conflict, between national security and free press.  While few responsible journalists are interested in undermining the nation's defenses, the problem is that national security has often been used to protect those guilty of wrongdoing, as in the case of Watergate.
        Other limitations on free press have included: libel; protection of defendants' rights to a fair trial (setting up a conflict of constitutional rights), threats to the public safety (the journalistic equivalent of yelling fire in a crowded theater) -- but this latter is much harder to define -- and obscenity to various degrees.  Many supporters of the First Amendment will defend all cases, applying the slippery slope principle (i.e., any limitation on a free press begins to erode the legal protections and may lead to further limitations -- besides which, an established limitation may be used as a pretext for suppressing publications that have offended politically).
        WARNING:  There is a specific academic limitation to free press laws: secondary school papers have in the 1990s been held to be property of schools, and hence can be censored by school authorities.  How far this principle applies to college newspapers has not been determined.

  Libel Law

     Libel = injury to reputation through publication of negative information.  Technically, any injury to reputation by something published or broadcast is libel, whether it is true or false.
What will be seen by the courts as libel:
    Only the first two are likely problems today, although one may have trouble with reports of sexual conduct and/or AIDS.
Defenses against libel:
  1. Truth is an absolute defense.  But it must be provably true; i.e., you must not only believe it to be true but you must be able to provide evidence of its truth.  This can be a problem with anonymous sources, or with incautious reliance on official reports.  You can't say Jones started a fire because the police say he did, only that he is accused of starting a fire.
  1. Privilege applies only to government officials acting within their official capacities.  But journalists have a limited privilege to report such statements if they do so within a complete and accurate report of events -- such as accusations made in open court, statements by the President, etc.  Note, though, as above, you can't state as a fact that someone broke the law, only that the President/congressman/attorney/whoever said that the person in question broke the law.
  1. Fair comment applies to arts critics and sports columnists who are clearly expressing an opinion.  You can say someone is a lousy artist if that is your critical judgment; you can say a baseball player should be benched or traded if that is your professional opinion.  Ditto criticism of public officials in clearcut opinion pieces.  But be careful about your motives. If you say "Joe Smith deserves to be traded to the bottom of the league" because you have a personal animosity toward Smith, and not because it is your supportable professional opinion, you may still be found guilty of libel.
Tests of libel applicability:
    Public officials must show actual malice -- i.e., not just that the material is untrue but that it was published with a willful disregard of whether its true or not.  This dates to NY Times v. Sullivan, 1964 -- the Times published an ad from a civil rights group that the Montgomery (Ala) commisioner thought falsely libeled the police.  The Supreme Court upheld the Times, citing a necessary legal and judicial commitment to an uninhibited and robust public discussion of the issues.  So Sullivan could not collect, even though he might have been able to prove falsehood; the Times was judged not to have shown malice.

Questions for the jury in actual malice cases:

  1. Is the publication defamatory?
  2. Is the publication false?
  3. Did the publisher know it was false, or did it disregard questions of accuracy?
 The answers to all three must be "Yes" for libel to be found.
    The concept of actual malice, however, introduces the concept of fault -- an offficial could collect if he could show that the newspaper knew a story was false or recklessly disregarded possible falsehood.  And in Herbert v. Lando, 1979, the Supreme Court ruled that it was permissible to question the thought processes of reporters and editors in a libel cas, since these go to the motives behind the story.
    One result of Herbert v.Lando is that libel cases now frequently focus on how story was done rather than the possible truth of what was actually published (Iowa Libel Research Project).  A lawyer for one major newspaper has recommended that reporters discard all notes and drafts to prevent discovery of motives through such means; at least avoid "cute comments or wisecracks" -- but most legal experts recommend retaining notes as they show the meticulous process of newsgathering and writing.
    One option here is a kind of "no-fault" libel law -- eliminate punitive damages and provide for a public hearing on the disputed facts.  Example: Westmoreland v. CBS, 1985.  Gen. Westmoreland thought CBS report had libeled him by suggesting he engaged in a conspiracy to falsify statistics in Viet Nam, to make it seem we were winning.  They reached an out-of-court settlement; CBS made no concessions, paid no money.  Westmoreland said he was mainly concerned with putting his position before the public, and had done so through the publicity about the trial.  The Iowa Libel Project finds that three-fourths of libel plaintiffs care more about vindicating or repairing reputations than monetary damages.
    The media win about 40 percent of libel cases tried to conclusion, but potential libel losses can be enormous: the Alton, Ill., Telegraph lost a libel decision for $9.2 million, which would have closed them down via bankruptcy; the judgment was reduced to $2.1 million, still enough to make smaller papers very nervous, hence cautious.

    Public figures are somewhere between officials and private citizens-- they are those who are in public eye by virtue of their position or by having put themselves forward in controversies.  In 1967, the actual malice test was made applicable to people in this group, but since then courts have limited the number of people falling into the group -- e.g., Firestone v. Time in 1979 found that, while rich people are of interest to a segment of the population, merely being rich is not enough to forfeit privacy.  A private individual is not automatically transformed into a public figure merely by becoming involved in or being associated with a matter that attracts public attention.

    Private citizens who seek punitive damages must meet the actual malice test, but for compensatory damages they can win if they can show negligence -- failure to give the same care as any reasonable reporter would use (fairness).  The standards for libel of private citizens in different states varies, from simple to gross negligence to actual malice.  In South Dakota, there has been no case law so the standard to apply has not been established here.  Ditto North Dakota and Minnesota.
 

    Who is a private citizen?  In Gertz v. Robert Welch, Inc., the courts found that a fairly prominent attorney was still a private citizen in terms of the particular issue. Thus, it is often difficult to determine ahead of time the standard of evidence needed for those who are not elected or appointed officials.

    Libel can even be found when the facts in the story are true but they are put together to leave a false impression in the readers' minds -- problems of guilt by association, etc.

Avoiding Libel


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This page last updated on September 2, 2003.