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Clarification, Explanation, Etc.

Putting It Together

Understanding the civil, criminal and federal judicial processes is necessary for the understanding of media law such as libel and privacy, and the total picture includes an understanding of such laws as those related to freedom of an access to information.

None of the information in communications law exists in a vacuum. Many areas are related. Hardly any area can be considered incidental. A piece of information about procedure or on a court ruling can years later be a significant link in a question that comes up in the handling of a story.

Most Common Mistakes

While discussions about the law and cases may be interesting, the most ordinary problems that journalists face day to day are the result of nothing more than simple mistakes.

And when such mistakes occur, not much comfort can be had from a vast knowledge of the theory behind the law. A mistake is a mistake is a mistake, no matter who makes it. Avoiding mistakes is the goal of reporters and editors alike.

A person has to know what he’s looking for before he can avoid it, which is where the study of communications law comes in. Beyond that, eternal vigilance is the answer. Training oneself to check and double check, to be skeptical is one of the most difficult aspects of journalistic preparation.

Some common mistakes are listed here to help in that educational process:

•Reversing names of plaintiff and defendant in civil actions; reversing name of suspects and victim in criminal actions; wrong information, such as address, about an individual; mistaking a person of one name for a person of the same name;

•Imputation of guilt in police or court story; inaccurate information from a police officer or other official connected with the criminal procedure; erroneous information from police records; incorrect responsibility in accident story; including information outside the area of privilege in an account based on information that is privileged;

•Carelessness in the handling of civil judgments to the point of imputing guilt; jumping to the conclusion, such as in saying that a “case has been solved with the arrest of ...”; taking the police word, as in saying “a burglary ring was broken up” and naming “a ringleader”;

•Using information that does not have to be used, such as statements made by defendants; calling such statements “confessions”; writing about civil suits in such a way that non-privileged and perhaps inadmissible details are presented.

•In print journalism headlines and cutlines can be especially bothersome because of the nature of print production. A headline may be defamatory as a result of a mistake or lack of attribution, even though the story may be correct. Switching headlines on stories is an ever-present danger. Sometimes the result can be humorous, but more often the resulting mistake may not be a laughing matter.

•Photographs can present potentially dangerous situations as a result of using wrong pictures, switching cutlines or using the wrong cutline. Also, a photograph may in itself be defamatory. One way would be to show a person doing something that may appear to be innocent, although when extrinsic facts are known the situation may not be. A classic example would be a couple holding hands in a park. When extrinsic fact reveals that the couple is married to other people, then ... Certain types of photographs require permission, or releases, for example, a photograph of a mentally retarded child attending a special education class or participating in track and field competition.

•Juxtaposition is an interesting possibility, generally untested in court. A hypothetical example would be using a picture of a person prominent in the community next to a headline that on first glance might refer to that individual. For example, a picture of a new minister in town next to an unrelated story with a headline that says Minister Sought/In Death of Wife.

•This type of mistake comes when the guard is down. Another type that creeps in, although most everybody knows better, is the imputation of guilt, as in “Police solved the Smokey Hollow murder case with the arrest of a 21-year-old unemployed dishwasher.”

•Similar incidences involved references to “a burglary ring,” “recovery of loot,” a “scheme,” “illicit” activities and the like. One Texas newspaper fought a long libel action because it quoted a sheriff’s deputy as saying a two-state burglary ring was broken up. A Texas television station got itself in a legal action by quoting officers about a “coast-to-coast auto and truck theft ring.” One case may not be enough to support broad generalizations about similar cases.

•Statements taken from complaints filed, however, are safe. Adding to that by quoting law enforcement officers presents problems in mixing privileged information with speculation.

Avoiding Mistakes

Mistakes that result in libel actions can be avoided at the point of origin if either or all of the three major causes of libel are cleared up:

1.Carelessness, including bad reporting practices.

2.Misunderstanding the civil-criminal procedure, including the arrest procedure and the procedure involved in a lawsuit.

3.Not understanding or misunderstanding the libel concept.

Carelessness

From the point of view of libel protection, nothing takes the place of care, caution and skepticism. Good reporting and good deskwork proved the best republication defense to potential libel.

For example,

1.Basic, even routine information must be checked and rechecked as a matter of course. Many young reporters don’t take as much care as they should because they assume information to be correct. Given the choice, the assumption that the information is incorrect would be a better assumption. Most, if not all, assumptions about information are bad.

2.Every attempt must be made to research the story as fully as possible. In that way the reporter will understand the entire situation and not have to come to conclusions based on too little information, leave gaps unfilled or, worse, guess at important facts.

3.Other sides of the story should be obtained. Even if the story does not have an obvious other side, the reporter should determine whether the standard of fairness has been met. Getting other sides is good, basic journalism, and including other points of view makes the story fairer.

Getting It Right

Several aspects of procedure and law are misunderstood by reporters and editors. Many have been mentioned previously in this handbook, but for emphasis some of them are being presented again.

Here are several common misconceptions:

1.That what anyone tells the reporter may be used without the reporter or the news organization for which he or she works accepting responsibility. The theory behind this mistaken idea is that whoever makes the statement is responsible for it. The opposite is true. The news media must stand behind what they report.

Included in this area is information obtained by police that may be premature or incorrect.

Two Texas newspapers lost libel actions as a result of a wire service story they used about a man who was killed in a gun battle with Texas Rangers. The wire service got the name of the man from the Department of Public Safety. The dead man’s brother sued because it was his name in the story, not his brother’s.

Defamatory statements may be used if consent is present, reply offered or if some other justification exists for using the statements. Accuracy, or truth, is one type of justification. If challenged, the news organization may have to prove more than the statements were actually made. The statement may have been proved as true.

2.That because a person isn’t named, he or she can’t sue. Identification is so simple it may involve nothing more than one person coming forward and saying, “I know the person referred to.” L.B. Sullivan’s suit against The New York Times is a good example of this. He wasn’t named and wasn’t even referred to directly in the advertisement that led to the suit.

A person may be identified obliquely. For instance, a story one day may say police are searching for a suspect (unnamed) in a murder case. The next day the story may say the police charged a suspect but without saying it was not the same one they were looking for. If the first suspect could be identified, he or she could have cause for a libel action. Such theoretical situations point up the need to be extra careful in stories about unnamed suspects.

When no one is named, care must be taken so that the wrong person doesn’t claim to be the person referred to.

Also, a person may be identified by class. The best example of this would be a reference to all the certain type of people in town, say, motorcycle dealers. If the class is small enough an individual can contend he or she is specifically identified.

3.That privilege covers everything. The application here is broad and complex.

One of the most common examples is the reporting of the filing of a civil petition that initiates a lawsuit.

A specific example would be divorce actions. The petition that originates the divorce action may be juicy and almost too interesting to ignore. Outside parties may be named. And no one may be willing to discuss the matter. What could happen, though, is that the couple may reconcile their differences and as a result the petition is withdrawn. Where does that leave the news organization that ran the juicy story?

A most difficult area is the integration of non-privileged material with privileged material. In certain kinds of stories non-privileged material is necessary as background and must be included in an account that otherwise is based on privileged information.

One Texas newspaper lost a libel case (the final decision was by the Texas Supreme Court) as a result of a report of a city council meeting, which is privileged under Texas law if the report is “fair, true and impartial.”

The story contained a sentence stating that a group of citizens from a subdivision asked the council if the streets in the subdivision could be paved. In the same paragraph another sentence said that the developer of the subdivision, and he was named, declared bankruptcy and didn’t pave 901 feet of streets.

The developer sued. The newspaper claimed the report was privileged as a matter of law.

However, the Texas Supreme Court, on rehearing, said that the news story obviously constituted, at least in part, an account of public meeting. But the court said the second sentence in the paragraph in question stating that the developer had declared bankruptcy “does not show on its face that it was, or was not, a report of a statement or utterance at such meeting.”

The court said that the problem arose because the article as published was subject to the interpretation that as a matter of background information the developer was in fact bankrupt instead of reporting that a statement was made (if it was) at the city council meeting that he was bankrupt.

As it turned out the developer had not declared bankruptcy and such statement is, in the absence of a defense, defamatory and actionable.

A related problem here, as this case points up, is the problem of attribution. Younger reporters and writers believe attribution gets in the way of their flowing prose and avoid it wherever they can. A basic way of avoiding attribution is leave it out of a second sentence in a paragraph when the first sentence is attributed. That’s a foolhardy approach.

With privileged material, attribution has to be constant to satisfy the question of whether the material has or doesn’t have privileged origin.

4.Finally, that the use of words such as alleged, suspected and reported is a safeguard against libel action.

The most important technique involved in writing the police story is separating the details of the crime from the individual believed to be involved. In presenting details, the information about the accused must be kept separate from the information about the incident. The two should not be tied. No story should make a statement like, “The suspect was arrested in the stolen car.” Instead the story should say a car was stolen, a suspect was arrested and was named in a complaint charging auto theft.

Shortcutting sets up the wrong kind of emphasis in a story. The suspect is convicted by the sentence construction. And using words such as allegedly indicate a sloppiness in writing that probably stems from sloppy reporting. Reporters tend to use words such as allegedly, reportedly and apparently as crutch words. The superficiality of such an approach is evident in such constructions as “the alleged crime.”

Reporters should be extremely careful of such temptations as “the suspected murder” and “he allegedly told police.” Say it straight and attribute it. That’s the safest way.

The shortcut isn’t worth the risk.

Handling news of this sort isn’t difficult for the neophyte reporter if he or she keeps the story in the proper legal framework. It’s the crime that’s being reported upon and reporters are not adjuncts of law enforcement officials in reporting on the crime.

5.That if information is legally safe it may be or should be used. Equating the legal standard with using or not using material is overlooking the ethical considerations that go into the decision-making process in newsgathering.

Reporters and editors make constant evaluations that are subjective, but professional. The profession demands expertise. But too often news managers use the legal standard as a scapegoat: If it’s legal, use it.

Coexisting with the freedom of the press is the responsibility of the press. The responsibility to be fair to individuals is a keystone of other press responsibilities. And too often an individual who is involved in a civil or criminal action is treated by the press as though he or she had forfeited their rights.

Following up on stories is an example of responsibility. Suppose a story is used saying that a person is charged with a crime or is named as a defendant in a civil action. Then as time goes by the defendant prevails in a trial that is not particularly newsworthy. Doesn’t the news organization that ran the original story have an obligation to follow up?

Failure to do so probably would not justify a libel action. In this instance, the opposite question may be asked: If it’s not legally required, why do it? The answer involved responsibility.