Public officials suing the news media over critical or unfavorable coverage is nothing new. Perhaps the most revered case in all of First Amendment law, New York Times v. Sullivan from 1964 — holding that public officials must prove “actual malice” to win a defamation suit — resulted from statements (arguably) about L.B. Sullivan, the segregationist police commissioner in Montgomery, Alabama, who sought to stifle coverage of the civil rights movement. In the 50 years that followed, politicians continued to go after the press, but failed far more often than not, thanks to Sullivan. Despite Sullivan’s robust protections, however, the number of defamation suits by public officials against the press has steadily increased over the past 10 years, spurred by the open antagonism of some politicians toward the mainstream media, by the Supreme Court’s rumblings about overturning Sullivan, and by public officials’ recognition that the press can be effectively punished and chilled simply by having to defend a lawsuit, however meritless.
So, what can be done to protect against this? While nothing can stop a determined plaintiff from filing a complaint in the first place, avoiding some of the common pitfalls that plague defamation defendants can go a long way toward ensuring that any claim against you is ultimately (and, with luck, quickly) dismissed.
Pitfall No. 1: Forgetting the Republication Rule. A common misconception in journalism is that a publisher cannot be held liable for statements made by others, in, for example, direct quotes, advertisements or letters to the editor. To the contrary, courts have consistently maintained that “tale bearers are as bad as tale makers” and that publishers may be held liable for anything that appears in their pages, regardless of whether they were directly responsible for it. In fact, Sullivan arose from a political advertisement, not something that The New York Times reported and wrote itself. For this reason, publishers and journalists must check the accuracy of everything distributed under their name.
There is, however, an important exception to this rule: the Fair Report Privilege. This privilege varies in scope by state, but generally allows journalists to (fairly and accurately) report on the content of government records and on occurrences in public proceedings (everything from school board meetings to Supreme Court arguments) without having to independently verify that information. The Fair Report Privilege can be a powerful tool and can serve as a significant block against liability, particularly when it comes to reporting on politicians. The more that journalists can support their reporting with government records, the safer that reporting is.
Pitfall No. 2: Over-Reliance on “Opinion.” Generally speaking, defamation claims may be based only on statements of “fact,” not on statements of “opinion.” But sometimes determining what is a fact and what is an opinion is not easy. A statement can be treated as a “fact” even if it is prefaced with “I believe” or “in my opinion.” A statement can be treated as a fact even if it appears in an Op-Ed piece. And a statement can be treated as a fact even where the statement on its face seems subjective (for example, that a politician is “racist”) if it somehow suggests that the writer or publisher has specific reasons for this belief that they are not disclosing. Careful publishers should take pains to make sure that any defamatory opinions offered in their pages are supported by underlying facts and that those underlying facts are accurate.
Pitfall No. 3: Ignoring Minor or Unnamed Characters. Pre-publication concerns about defamation tend to focus on the main, identified subjects of news stories, not the side characters or implied wrongdoers. But ignoring these potential plaintiffs is a mistake. After Buzzfeed published the Steele Dossier, one of the people who sued was a Russian businessman who was referenced only in one paragraph in the last of the 17 memos comprising the dossier. L.B. Sullivan was not actually named in the civil rights ad in the New York Times, but sued because of the criticism of his agency. In considering legal risk, journalists should be attuned to what is being said about everyone mentioned in a story, however tangentially, whether or not they are actually named.
Pitfall No. 4: Unfortunate Internal Comments. If a defamation case is not dismissed early, then it moves into the “discovery” phase of litigation. In this phase, journalists’ internal communications about the story may be disclosed to the plaintiff. In the age of Slack, Teams, texts and emails, such communications — especially those that are cruel, flippant, joking or disbelieving — have the potential to be very damaging. For example, in one defamation lawsuit arising from a news report, many of the internal messages among the journalists and editors were paraded out at trial. They included a reference to the plaintiff as a “s—bag” with a “punchable face” and a journalist’s statement that he was going to “nail this . . . mf—er.” While evidence of a reporter’s dislike of the person he or she is reporting upon is, by itself, be sufficient evidence of “actual malice,” it still may be considered by a jury.
Plaintiffs’ lawyers also often look to internal communications to help them bolster their favorite argument — that journalists approached the story with a preconceived idea of what they wanted to write and then deliberately ignored evidence that did not align with their preconceived notion. Plaintiffs’ lawyers love to get their hands on pitch memos or other correspondence that (in their view) suggests that journalists already know what the story is going to reveal before they report and write it. The takeaway from all of this? Journalists should be very careful about using flip language or expressing political opinions in internal communications that might make them appear to be biased. They should avoid approaching stories with a pre-determined narrative in mind. And, of course, if they should think twice (or 10 times!) about relying on sources, even very prominent ones, who they don’t believe are credible.
Pitfall No. 5: Loose Language. Defamation law generally does not expect journalists to be lawyers or to completely understand technical concepts, legal or otherwise. As long as journalists accurately convey the “gist” of the information, the specific language used should not matter. Still, publishers should strive for technical accuracy as much as possible to try to prevent claims based on imprecise language in the first place. Use of arguably imprecise language is what led to President Trump’s lawsuit against ABC after George Stephanopoulos said on air that Trump had been found liable for the “rape” of E. Jean Carroll when, in fact, he was found liable for sexually abusing and defaming her. This misstatement allowed Trump to extract a $15 million settlement. Double-checking legal terms, financial terms or other technical information can go a long way toward avoiding suit.
While the current ultra-political landscape, along with the ongoing threats to Sullivan, makes reporting feel fraught, the best defense against defamation claims continues to be careful reporting, thoughtful editing and disciplined internal practices.
More information about MIC Ltd.’s media liability coverage is available at www.mic.bm/coverage.
