The “Libel Lite” Case: Truth AND Consequences

Call it truth AND consequences.

That’s the dumbfounding, dumb-sounding upshot of a disturbing lawsuit recently –and successfully — brought against the Pensacola News Journal.

Last month a jury found that a former road-paver, Joe Anderson Jr., had been wronged by being portrayed in a “false light” by the News Journal. The jury said, in effect, that references to his past involvement in his wife’s death in a hunting accident were maliciously grafted onto a story about political influence. The net effect, said the jury, was that even though the hunting-death details were all true, it still left the impression that Anderson murdered his wife. The jury also determined that it was all worth some $18 million to the plaintiff.

Anderson’s attorneys apparently scored big on two relatively lame arguments.

First, that interjecting the hunting accident into a political influence story showed the paper’s intent to nail Anderson. Moreover, the News Journal. curiously parsed some language. To wit: it said law enforcement officials had merely “determined” that it was an accident — not that it “was” an accident.

Second, that the News Journal’s. hunting-accident chronology was a little too skewed to be anything but further intent to get Anderson. For example, it mentioned that Anderson “shot and killed” his wife just two days after filing for divorce. Not until a couple of sentences later did the story note that officials had “determined” that it was an accident.

Journalists, media attorneys and most legal scholars were — and still are — shell shocked at the verdict — and what passed muster as evidence. Among the thunderstruck: University of Tampa Criminology and Law Professor — and First Amendment expert — Tom Hickey.

“This is mind-blowing,” says Hickey. “This chills speech. To members of the media it says ‘Even if it’s true, you may be held liable.’ And over what? The order of a couple of sentences?

“How can the truth portray someone in a false light?” asks Hickey. “That’s almost a non-sequitur. It’s logically inconsistent. A falsehood can produce a ‘false light,’ but not the truth.”

‘False light’ suits, which are more an extension of common law, are not even allowed in a number of states because of their dubious constitutionality. And where they are permitted, such as in Florida, they are typically not a substitute rationale in a high-stakes libel case.

Hickey is hardly alone in expecting the News Journal. case to be overturned on appeal.

“Based on what we know, this will be one tough verdict to sustain,” states Hickey. “I don’t think you can hold someone liable — and $18 million worth at that — for bad or inartful writing, if that is what happened in this case. This basically suppresses speech. And we as Americans have never been comfortable with suppression of speech.”

For journalists, the News Journal verdict is sheer blasphemy. It contravenes the intent of the Supreme Court’s seminal and now sacrosanct decision in the 40-year-old New York Times Co . vs. Sullivan libel case. The Court, in a staunch defense of an unfettered and rigorous press, wrapped it in a thick layer of libel insulation. Sullivan said that not only was truth a defense against libel of public figures, but inaccuracies — absent any malicious intent — were also protected.

The News Journal. case appears to set that standard on its ear by saying that the truth can be less of a defense than the inaccurate.

Message from a mess

For all the media’s incredulity and flabbergasting double-takes, however, there is a message from this News Journal. mess worth heeding.

The media are as bottom-line oriented as other businesses, but their product is more than, well, “news.” It’s also people and reputations and livelihoods, including Joe Anderson’s. Sullivan is a shield, not a sword.

Reporters need to be reminded to stay vigilant and not let their healthy skepticism morph into chronic cynicism. Opinion must be properly labeled and never allowed to seep into reporting. And there’s nothing wrong with allowing empathy to emanate from the newsroom.

Moreover, the press should exercise discretion when, in the good name of proper backgrounding, it routinely regurgitates — and perpetuates — old news. To freely inform the public is the charge of the press. But the culture of the press sometimes encourages a “gotcha” game with easily targeted public figures.

I suspect there might have been a bit of that in play in the News Journal. case. As well as some careless writing and absentee editing. Not to the degree, however, that it trumps truth as a defense.

But to the degree that says “We can do better than this.” A constitutional firewall, alas, is no guarantee of journalistic quality.

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