What follows is not a textbook on libel. It is a guide for The Associated Press staff. It explains fundamental principles in libel for working writers and editors.
This manual will make no reader an expert on libel. It will, we hope, make everyone aware of what libel is and how to avoid it.
Underlying all the guidance in this book is one basic rule for the AP staff: If a legal problem develops with a story, or if guidance is needed in the handling of a story, consult the General Desk. Nothing in the manual alters this rule.
As is the case in other fields of the law, the law of libel is not static. We have seen dramatic changes in the past 20 years — not all in the same direction. And the new interpretations go on even as this is written.
What does not change is our promise to ourselves to be accurate and to be fair.
For his help with this manual we are indebted to then-General News Editor Samuel G. Blackman.
LOUIS D. BOCCARDI
Chief Executive Officer
Associate Justice John Marshall Harlan remarked that “the law of libel has changed substantially since the early days of the Republic.”
And it has changed substantially since he made that observation. Recent years have seen the Supreme Court of the United States decide several cases that made headlines and truly can be called landmarks.
But the working journalist remembers: The news stories that generate the most claims of injury to reputation — the basis of libel — are run-of-the-mill. Perhaps 95 of 100 libel suits are in that category and result from publication of charges of crime, immorality, incompetence or inefficiency.
A Harvard Nieman report makes the point: “The gee-whiz, slam-bang stories usually aren’t the ones that generate libel, but the innocent-appearing, potentially treacherous minor yarns from police courts and traffic cases, from routine meetings and from business reports.”
Most of these suits based on relatively minor stories result from factual error or inexact language — for example, getting the plea wrong or making it appear that all defendants in a case face identical charges.
Libel even lurks in such innocent-appearing stories as birth notices and engagements. The fact that some New York newspapers had to defend suits for such announcements illustrates the care and concern required in every editorial department.
Turner Catledge, former managing editor of The New York Times, says in his book, “My Life and the Times,” that he learned over the years that newspapers must be extremely careful in checking engagement announcements. He noted that “sometimes people will call in the engagement of two people who hate each other, as a practical joke.”
In short, there is no substitute for accuracy. But, of course, this does not mean that accurately reporting libelous assertions automatically absolves the journalist of culpability.
Accurate reporting will not prevent libel if there is no privilege, either the constitutional privilege or the fair report privilege.
A fair and impartial report of judicial, legislative and other public and official proceedings is privileged — that is, not actionable for libel. But it is important to know, for instance, what constitutes judicial action. In many states there is no privilege to report the filing of the summons and complaint in a civil suit until there has been some judicial action.
Many libel suits occur in the handling of court and police news, especially criminal courts. Problems can arise in stories about crime and in identifying a suspect where there has been no arrest or where no charge has been made.
Don’t be deluded into thinking a safe approach is to eliminate the subject’s name. If the description — physical or otherwise — readily identifies people to those in their immediate area, the story has, in effect, named them.
When accusations are made against a person, it is always well to try for balancing comment. The reply must have some relation to the original charges. Irrelevant countercharges can lead to problems with the person who made the first accusation.
The chief causes of libel suits are carelessness, misunderstanding of the law of libel, limitations of the defense of privilege (including the First Amendment privilege) and the extent to which developments may be reported in arrests. These are discussed in detail in this manual, which is “must” reading for every Associated Press staff member. It should be reviewed periodically.
LIBEL, DEFENSES and PRIVILEGE
Libel is injury to reputation.
Words, pictures or cartoons that expose a person to public hatred, shame, disgrace or ridicule, or induce an ill opinion of a person are libelous.
Actions for civil libel result mainly from news stories that allege crime, fraud, dishonesty, immoral or dishonorable conduct, or stories that defame the subject professionally, causing financial loss either personally or to a business.
There is only one complete and unconditional defense to a civil action for libel: that the facts stated are PROVABLY TRUE. (Note well that word, PROVABLY.) Quoting someone correctly is not enough. The important thing is to be able to satisfy a jury that the libelous statement is substantially correct.
A second important defense is PRIVILEGE. Privilege is one of two kinds — absolute and qualified.
Absolute privilege means that certain people in some circumstances can state, without fear of being sued for libel, material that may be false, malicious and damaging. These circumstances include judicial, legislative, public and official proceedings and the contents of most public records.
The doctrine of absolute privilege is founded on the fact that on certain occasions the public interest requires that some individuals be exempted from legal liability for what they say.
Remarks by a member of a legislative body in the discharge of official duties are not actionable. Similarly, libelous statements made in the course of legal proceedings by participants are also absolutely privileged if they are relevant to the issue. Statements containing defamatory matter may be absolutely privileged if publication is required by law.
The interests of society require that judicial, legislative and similar official proceedings be subject to public discussion. To that extent, the rights of the individual about whom damaging statements may be made are subordinated to what are deemed to be the interests of the community.
We have been talking about absolute privilege as it applies to participants in the types of proceedings described here.
As applied to the press, the courts generally have held that privilege is not absolute, but rather is qualified. That means that it can be lost or diluted by how the journalist handles the material.
Privilege can be lost if there are errors in the report of the hearing, or if the plaintiff can show malice on the part of the publication or broadcast outlet.
An exception: Broadcasters have absolute privilege to carry the broadcast statements of political candidates who are given air time under the “equal opportunity” rules.
The two key points are:
1 — Does the material at issue come from a privileged circumstance or proceeding?
2 — Is the report a fair and accurate summation?
Again, the absolute privilege that legislators enjoy — they cannot be sued, for example, for anything said on the floor of the legislature — affords total protection.
The journalist’s protection is not as tight. But it is important and substantial and enables the press to report freely on many items of public interest that otherwise would have to go unreported.
The press has a qualified privilege to report that John Doe has been arrested on a bank robbery charge. If the report is fair and accurate, there is no problem.
Statements made outside the court by police or a prosecutor or an attorney may not be privileged unless the circumstances indicate it is an official proceeding. However, some states do extend privilege to these statements if made by specified top officials.
Newspapers and broadcasters often carry accounts going beyond the narrow confines of what is stated in the official charges, taking the risk without malice because they feel the importance of the case and the public interest warrant doing so.
The source of such statements should be specified.
Sometimes there are traps.
In New York and some other states, court rules provide that the papers filed in matrimonial actions are sealed and thus not open to inspection by the general public.
But sometimes litigants or their lawyers may slip a copy of the papers to reporters. Publication of the material is dangerous because often the litigants come to terms outside of court and the case never goes to trial. So privilege may never attach to the accusations made in the court papers.
In one such case, the vice president of a company filed suit alleging that he was fired because the newspaper published his wife’s charges of infidelity. The newspaper responded that its report was a true and fair account of court proceedings. The New York Court of Appeals rejected that argument on grounds that the law makes details of marital cases secret because spatting spouses frequently make unfounded charges. The newspaper appealed to the Supreme Court of the United States. But it lost.
Unless some other privilege applies, there is danger in carrying a report of court papers that are not available for public inspection by reason of a law, court rule or court order directing that such papers be sealed.
As stated earlier, a fair and accurate report of public and official proceedings is privileged.
There has never been an exact legal definition of what constitutes an official proceeding. Some cases are obvious — trials, legislative sessions and hearings, etc.
Strictly speaking, conventions of private organizations are not “public and official proceedings” even though they may be forums for discussions of public questions. Hence, statements made on the floor of convention sessions or from speakers’ platforms may not be privileged.
Statements made by the president of the United States or a governor in the course of executive proceedings have absolute privilege for the speaker, even if false or defamatory. However, this absolute privilege may not apply to statements having no relation to executive proceedings.
President Kennedy once was asked at a news conference what he was going to do about “two well-known security risks” in the State Department. The reporter gave names when the president asked for them. This was not privileged and many newspapers and radio stations did not carry them. The Associated Press did because it seemed in the public interest to report the incident fully. No suits resulted.
After a civil rights march, George Wallace, then governor of Alabama, appeared on a television show and said some of the marchers were members of Communist and Communist-front organizations. He gave some names, which newspapers carried. Some libel suits resulted.
The courts have ruled that publishing that a person is a Communist is libelous on its face if he is not a Communist.
“The claimed charge that the plaintiff is a Nazi and a Communist is in the same category .... The current effect of these statements is the decisive test. Whatever doubt there may have been in the past as to the opprobrious effect on the ordinary mind of such a change ... recent events and legislation make it manifest that to label an attorney a Communist or a Nazi is to taint him with disrepute.” (Levy vs. Gelber, 175 Misc. 746)
The fact that news comes from official sources does not eliminate the concern. To say that a high police official said means that you are making the accusation. A statement that a crime has been committed and that the police are holding someone for questioning is reasonably safe, because it is provably true. However, there are times when the nature of the crime or the prominence of those involved requires broader treatment. Under those circumstances, the safest guide is whatever past experience has shown as to the responsibility of the source. The source must be trustworthy and certain to stand behind the information given.
Repetition of Libel
In reporting the filing of a libel suit, can we report the content of the charge? By so doing, do we compound the libel, even though we quote from the legal complaint?
Ordinarily, a fair and impartial report of the contents of legal papers in a libel action filed in the office of the clerk of the court is privileged. However, many states do not extend privilege to the filing of court actions; in such a case there is no privilege until the case comes to trial or until some other judicial action takes place.
But we have found that it is safe, generally speaking, to repeat the libel in a story based on the filing of a suit.
Fair Comment and Criticism
The publication of defamatory matter that consists of comment and opinion, as distinguished from fact, with reference to matters of public interest or importance, is covered by the defense of fair comment.
Of course, whatever facts are stated must be true.
The right of fair comment has been summarized as follows:
“Everyone has a right to comment on matters of public interest and concern, provided they do so fairly and with an honest purpose. Such comments or criticism are not libelous, however severe in their terms, unless they are written maliciously. Thus it has been held that books, prints, pictures and statuary publicly exhibited, and the architecture of public buildings, and actors and exhibitors are all the legitimate subjects of newspapers’ criticism, and such criticism fairly and honestly made is not libelous, however strong the terms of censure may be.” (Hoeppner vs. Dunkirk Pr. Co., 254 N.Y. 95)
The publication of a libel may result in what is considered a breach of the peace. For that reason, it may constitute a criminal offense. It is unnecessary to review that phase of the law here because the fundamental elements of the crime do not differ substantially from those that give rise to a civil action for damages.
Libel of the Dead
In general, there can be no defamation of the dead. No one can sue on behalf of a deceased individual on the basis of false and defamatory statements made about that individual. Some states, however, permit an ongoing libel suit to continue after the death of the complaining person.
PUBLIC OFFICIALS, PUBLIC FIGURES, PUBLIC ISSUES
In a series of decisions commencing in 1964, the Supreme Court established important First Amendment protections for the press in the libel area.
But in more recent decisions, the tide in libel has been running against the press, particularly in the unrelenting narrowing of the definition of a public figure. This was the single most active area of libel law in the decade of the ’70s.
While the full impact of the later decisions is not yet clear, a review of the rulings since the mid-1960s shows the trend.
Three basic cases established important precedents. They did so in a logical progression. The cases were:
—New York Times vs. Sullivan (1964).
—Associated Press vs. Walker (1967).
—Gertz vs. Robert Welch (1974).
In The New York Times case, the Supreme Court ruled in March 1964 that public officials cannot recover damages for a report related to official duties unless they prove actual malice.
To establish actual malice, the official was required to prove that at the time of publication, those responsible for the story knew it was false or published it with reckless disregard of whether it was true or false.
The decision reversed a $500,000 libel verdict returned in Alabama against The New York Times and four black ministers. The court said:
“The constitutional guarantees (the First and 14th Amendments) require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
This does not give newspapers absolute immunity against libel suits by officials who are criticized. But it does mean that when a newspaper publishes information about a public official and publishes it without actual malice, it should be spared a damage suit even though some of the information may be wrong.
The court said it considered the case “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”
The ruling in The New York Times case with respect to public officials was extended by the Supreme Court in June 1967 to apply also to public figures.
In so holding, the court reversed a $500,000 libel judgment won by former Maj. Gen. Edwin A. Walker in a Texas state court against The Associated Press.
The AP reported that Walker had “assumed command” of rioters at the University of Mississippi and “led a charge of students against federal marshals” when James H. Meredith was admitted to the university in September 1962. Walker alleged those statements to be false.
The court said: “Under any reasoning, Gen. Walker was a public man in whose public conduct society and the press had a legitimate and substantial interest.”
The rulings in The New York Times and The Associated Press cases were constitutional landmark decisions for freedom of the press and speech. They offered safeguards not previously defined. But they did not confer license for defamatory statements or for reckless disregard of the truth.
The AP decision made an additional important distinction.
In the same opinion, the court upheld an award granted Wallace Butts, former athletic director of the University of Georgia, against Curtis Publishing Co. The suit was based on an article in the Saturday Evening Post accusing Butts of giving his football team’s strategy secrets to an opposing coach prior to a game between the two schools.
The court found that Butts was a public figure, but said there was a substantial difference between the two cases. Justice Harlan said: “The evidence showed that the Butts story was in no sense ‘hot news’ and the editors of the magazine recognized the need for a thorough investigation of the serious charges. Elementary precautions were, nevertheless, ignored.”
Chief Justice Warren, in a concurring opinion, referred to “slipshod and sketchy investigatory techniques employed to check the veracity of the source.” He said the evidence disclosed “reckless disregard for the truth.”
The differing rulings in The Associated Press and the Saturday Evening Post cases should be noted carefully. The AP-Walker case was “hot news”; the Post-Butts story was investigative reporting of which journalists are doing more and more.
Extension of the Times rule in one case was based on a column by Drew Pearson which characterized a candidate for the United States Senate as “a former small-time bootlegger.” The jury held that the accusation related to the private sector of the candidate’s life. Reversing this judgment, the Supreme Court said:
“We therefore hold as a matter of constitutional law that a charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official’s or a candidate’s fitness for office for purposes of application of the ‘knowing falsehood or reckless disregard’ rule of New York Times vs. Sullivan.”
Another case was brought by a Chicago captain of detectives against Time magazine, which had quoted from a report of the U.S. Civil Rights Commission without making clear that the charges of police brutality were those of the complainant whose home was raided and not the independent findings of the commission. The court described the commission’s documents as “bristling with ambiguities” and said Time did not engage in a “falsification” sufficient to sustain a finding of actual malice.
The progression of The New York Times and AP cases was interrupted in June 1974 with the Supreme Court’s decision in the case of Gertz vs. Robert Welch Inc.
Gertz, a lawyer of prominence in Chicago, had been attacked in a John Birch Society publication as a Communist. There were additional accusations as well.
Gertz sued and the Supreme Court upheld him, ruling that he was neither a public official nor a public figure.
The decision opened the door to giving courts somewhat wider leeway in determining whether someone was a public person.
This case also opened the way to giving state courts the right to assess what standard of liability should be used in testing whether a publication about a private individual is actionable. It insisted, however, that some degree of fault, at least negligence, be shown.
For instance, some state courts have established a negligence standard (whether a reasonable person would have done the same thing as the publisher under the circumstances). The New York courts follow a gross negligence test. Others still observe the actual malice test in suits by private individuals against the press.
Bear in mind that the significance of the Gertz decision still is being developed, as new cases arise and are adjudicated. But at a minimum it opened the way to judgments the three earlier cases would seem to have barred.
More recently, in the case of Time vs. Firestone, the Supreme Court again appears to have restricted the “public figure” and “public issue” standards.
The case stemmed from Time magazine’s account of the divorce of Russell and Mary Alice Firestone. The magazine said she had been divorced on grounds of “extreme cruelty and adultery.” The court made no finding of adultery. She sued.
She was a prominent social figure in Palm Beach, Fla., and held press conferences in the course of the divorce proceedings. Yet the Supreme Court said she was not a public figure because “she did not assume any role of special prominence in the affairs of society, other than perhaps Palm Beach society, and she did not thrust herself to the forefront of any particular public controversy in order to influence resolution of the issues involved in it.”
As in the Gertz case, the decision opened the way to findings within the states involving negligence, a standard less severe than the actual malice standard that was at the base of three earlier landmark cases.
Supreme Court decisions, starting with Gertz and extending through Firestone and more recent cases, have consistently narrowed the class of people to be treated as public figures under the Times-Sullivan and AP-Walker standards.
Two 1979 rulings by the Supreme Court illustrate the narrowing of the protections that seemed so wide only a few years earlier:
Sen. William Proxmire of Wisconsin was sued for $8 million by Ronald Hutchinson, a research scientist who had received several public grants, including one for $50,000. Proxmire gave Hutchinson a “Golden Fleece” award, saying Hutchinson “has made a fortune from his monkeys and in the process made a monkey of the American taxpayer.” Hutchinson sued. The Supreme Court found that, despite the receipt of substantial public funds, Hutchinson was not a public figure. The court also ruled that Proxmire’s news release was not protected by congressional immunity.
Ilya Wolston pleaded guilty in 1957 to criminal contempt for failing to appear before a grand jury investigating espionage. A book published in 1974 referred to these events. Wolston alleged that he had been libeled. In ruling on Wolston vs. Reader’s Digest, the Supreme Court said that he was not a public figure. The court said people convicted of crimes do not automatically become public figures. Wolston, the court said, was thrust into the public spotlight unwillingly.
In effect, the court extended the Firestone concept of unwilling notoriety to criminal as well as civil cases.
Thus the pattern through Gertz, Firestone, Proxmire and Reader’s Digest is clear. The Times rule has been left standing but it is tougher and tougher to get in under it.
The court is rejecting the notion that a person can be a public figure simply because of the events that led to the story at issue. The courts are saying that public figure means people who seek the limelight, who inject themselves into public debate, etc. The courts are saying that involvement in a crime, even a newsworthy one, does not make one a public figure.
This means that the broad “public official” and “public figure” protections that came out of the Times and AP cases remain, but for shrinking numbers of people who are written about.
At the same time, the “reckless disregard of the truth” and “knowing falsity” standards of the Times decision also slip away, becoming applicable to fewer people as the public figure definition narrows.
And those standards are being replaced in state after state with simple negligence standards. In other words, the plaintiff, now adjudged to be a private citizen because of the recent rulings, must now prove only that the press was negligent, not reckless.
The difference is more than semantic. This development suggests that press lawyers will be relying more on some of the old standbys as defenses — plaintiff’s inability to prove falsity, privilege, fair comment — and this puts the ball right back with editors and reporters.
The Supreme Court in 1986 held, however, in Philadelphia Newspapers vs. Hepps, that, at least where a newspaper has published statements on a matter of public concern, a private figure plaintiff cannot prevail without showing the statements at issue are false. This case provides that the common law rule requiring a defendant to prove truth is supplanted by a constitutional requirement that the plaintiff demonstrate falsity when the statements involved are of public concern.
Another recent Supreme Court decision that provoked wide press controversy came in the case of Herbert vs. Lando.
The court ruled in 1979 that retired Army Lt. Col. Anthony Herbert, a Vietnam veteran, had the right to inquire into the editing process of a CBS “60 Minutes” segment, produced by Barry Lando, which provoked his suit. Herbert had claimed the right to do this so that he could establish actual malice.
The decision formalizes and calls attention to something that was at least implicit in the Times case: that a plaintiff had the right to try to prove the press was reckless or even knew that what it was printing was a lie. How else could this be done except through inquiry about a reporter’s or editor’s state of mind?
So the ruling reminds plaintiffs’ lawyers that they can do this and will, no doubt, be responsible for far more of this kind of inquiry than the press has had to face before.
A crucial test will be how far judges will let plaintiffs’ lawyers range in their discovery efforts. Will they let the plaintiff widen the embrace of inquiry into stories other than the one at issue? Will they let the plaintiff rummage about the news room, probing unrelated news judgments, examining the handling of other unrelated stories, demanding to know why this investigative piece survived while that one died quietly on the kill hook?
That the questions are being prompted by the Herbert-Lando ruling is the best response to those who say that the decision didn’t really mean much.
The preliminary answer to these questions appears to be that there has been some widening of this sort of inquiry by plaintiffs newly alerted to this area by the Lando ruling.
The press should be certain that files include contemporaneous memorandums that will testify later to the care taken with the story and the conviction that it was true and fair.
There was a footnote in the Proxmire case that has had a marked effect on the way libel cases are litigated. Footnote 9 questioned the practice of dismissing libel actions early in the course of litigation. The lower courts have paid serious attention to this footnote, with the result that more and more libel actions are being tried before a jury.
In a 1986 decision, Anderson vs. Liberty Lobby, however, the Supreme Court held that summary judgment should be granted in libel actions against public officials and public figures unless the plaintiff can prove actual malice with “convincing clarity” or by “clear and convincing evidence.” This rule should facilitate the early dismissal of unmeritorious claims without the expense and burden of proceeding to trial.
More recently, in Milkovich vs. Lorain Journal Co. (1990), the Supreme Court made clear that even statements of opinion may constitute libel if “sufficiently factual to be proven true or false.” The Milkovich case therefore took away the opinion defense to libel that had been adopted by many lower courts. Although the decision did not alter the rules relating to public figures and events described above (for example, the requirement of actual malice), the case may lead to more jury trials in libel suits, particularly where the person bringing the suit is a private individual.
The huge jury verdicts that often result have caused much concern among legal commentators and the press. A number of remedies have been proposed, but it remains unclear at this point whether the Supreme Court will take any action to stem the tide of runaway million-dollar jury verdicts of recent years.
An indication that the Supreme Court is facing this problem appeared in its 1984 opinion in Bose vs. Consumers Union. Bose Corp. sued Consumer Reports over its publication of disparaging comments concerning Bose’s loudspeaker systems and obtained a damage judgment of about $211,000. The Court of Appeals, after a careful review of the record, reversed. The Supreme Court endorsed this process, underscoring the need for appellate courts in libel cases to make an independent review of the record — a standard of scrutiny that does not apply in most other appeals. For the foreseeable future, the press will continue to rely on the willingness of the appeals courts to overturn excessive jury verdicts.
SUMMARY OF FIRST AMENDMENT RULES
The gist of the principles established in the cases discussed above may be summarized as follows:
A. The Public Official Rule: the press enjoys a great protection when it covers the affairs of public officials. In order to successfully sue for libel, a public official must prove actual malice. This means the public official must prove that the editor or reporter had knowledge that the facts were false or acted with reckless disregard of the truth.
B. The Public Figure Rule: the rule is the same for public figures and public officials. That is, a public figure must prove actual malice. The problem is that it is very difficult in many cases to predict who will be classified as a public figure. In general, there are two types of public figures:
1. General Purpose Public Figures: this is an individual who has assumed the role of special prominence in the affairs of society and occupies a position of persuasive power and influence. An example is the entertainer Johnny Carson.
2. Limited Purpose Public Figures: this is a person who has thrust himself or herself into the vortex of a public controversy in an attempt to influence the resolution of the controversy. An example would be a vocal scientist who has lectured and published articles in an attempt to influence a state legislature to ban fluoridation of water.
C. The Private Figure Rule: a private figure is defined in the negative: Someone who is not a public figure. The rule of law for libel suits brought by private figures varies from state to state. The variations fall into three general categories:
1. A number of states follow the same rule for private figures and public figures. They require private figures to prove actual malice. These states include Alaska, Colorado, Indiana and New Jersey.
2. One state, New York, requires private figures to prove that the publisher acted in a “grossly irresponsible manner.” To date, no other state has adopted this rule.
3. Most states require private figures to prove only “negligence.” Negligence is difficult to define. As a rule of thumb, a careless error on the part of the journalist will often be found to constitute negligence.
These distinctions become important after the story has moved on our wires when there is a challenge and we are preparing our legal defenses. These distinctions do not apply in our preparations of stories. We do not have a standard that lets us go easier with ourselves if the story concerns a public official/figure and be tougher on ourselves if it concerns a private figure.
THE RIGHT OF PRIVACY
The right of privacy is a doctrine that has been developing in the past century. It is recognized by statute in only a few states, including New York, but courts increasingly are taking cognizance of it. It is clearly an area to be watched.
The doctrine is based on the idea that a person has the right to be left alone, to live a private life free from publicity.
In 1890, two Boston lawyers wrote in the Harvard Law Review:
“The press is overstepping in every direction the obvious bounds of propriety and decency.”
It is of interest that one of those lawyers, who later became Justice Brandeis, said years later in one of his dissents:
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” (Olmstead vs. United States, 277 U.S. 438, 478)
When a person becomes involved in a news event, voluntarily or involuntarily, he forfeits the right to privacy. Similarly, a person somehow involved in a matter of legitimate public interest, even if not a bona fide spot news event, normally can be written about with safety.
However, this is different from publication of a story or picture that dredges up the sordid details of a person’s past and has no current newsworthiness.
Paul P. Ashley, then president of the Washington State Bar Association, said in a talk on this subject at a meeting of The Associated Press Managing Editors Association:
“The essence of the wrong will be found in crudity, in ruthless exploitation of the woes or other personal affairs of private individuals who have done nothing noteworthy and have not by design or misadventure been involved in an event which tosses them into an arena subject to public gaze.”
Here are details of a few cases brought in the name of right of privacy:
—A leading case centering on publication of details of a person’s past concerned a man who, as a child prodigy in 1910, had attracted national attention. In 1937, The New Yorker magazine published a biographical sketch of the plaintiff. He alleged invasion of privacy.
The court said “he had cloaked himself in obscurity but his subsequent history, containing as it did the answer to the question of whether or not he had fulfilled his early promise, was still a matter of public concern. The article ... sketched the life of an unusual personality, and it possessed considerable popular news interest.”
The court said further:
“We express no comment on whether or not the newsworthiness of the matter printed will always constitute a complete defense. Revelations may be so intimate and so unwarranted in view of the victim’s position as to outrage the community’s notions of decency. But when focused upon public characters, truthful comments upon dress, speech, habits, and the ordinary aspects of personality will usually not transgress this line. Regrettably or not, the misfortunes and frailties of neighbors and ‘public figures’ are subjects of considerable interest and discussion to the rest of the population. And when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day.”
—The unsavory incidents of the past of a former prostitute, who had been tried for murder, acquitted, married and lived a respectable life, were featured in a motion picture. The court ruled that the use of her name in the picture and the statement in advertisements that the story was taken from true incidents in her life violated her right to pursue and obtain happiness.
Some courts have ruled that a person who is recognizable in a picture of a crowd in a public place is not entitled to the right of privacy. But if a camera singled him out for no news-connected reason, then his privacy is invaded, some courts have ruled.
Another example of spot news interest: A child was injured in an auto accident in Alabama. A newspaper took a picture of the scene before the child was removed and ran it. That was spot news. Twenty months later a magazine used the picture to illustrate an article. The magazine was sued and lost the case, the court ruling that 20 months after the accident the child was no longer “in the news.”
In another case, a newspaper photographer in search of a picture to illustrate a hot-weather story took a picture of a woman sitting on her front porch. She wore a housedress, her hair in curlers, her feet in thong sandals. The picture was taken from a car parked across the street from the woman’s home. She sued, charging invasion of privacy. A court, denying the newspaper’s motion for dismissal of the suit, said the scene photographed “was not a particularly newsworthy incident,” and the limits of decency were exceeded by “surreptitious” taking and publishing of pictures “in an embarrassing pose.”
A woman took her two children to the county fair and went with them into the funhouse. A newspaper photographer took her picture just as a jet of air blew her dress up. She sued, and the Supreme Court of Alabama upheld the damages.
The rules in New York state on the right of privacy that are applicable to unauthorized publication of photographs in a single issue of a newspaper may be summarized generally as follows:
1. The plaintiff may recover damages if the photograph is published in or as part of an advertisement, or for advertising purposes.
2. There is liability if the photograph is used in connection with an article of fiction in any part of a newspaper.
3. There may be no recovery under the statute for publication of a photograph in connection with an article of current news or immediate public interest.
4. Newspapers publish articles that are neither strictly news items nor strictly fictional in character. They are not the responses to an event of peculiarly immediate interest, but though based on fact, are used to satisfy an ever-present educational need. Such articles include, among others, travel stories, stories of distant places, tales of historical personages and events, the reproduction of items of past news and surveys of social conditions. These are articles educational and informative in character. As a general rule, such cases are not within the purview of the statute. (Lahiri vs. Daily Mirror Inc., Misc. Reports, N.Y. 162, p780)
The Supreme Court of the United States ruled in January 1967 that the constitutional guarantees of freedom of the press are applicable to invasion-of-privacy cases involving reports of newsworthy matters.
The ruling arose out of a reversal by the Supreme Court of a decision of a New York court that an article with photos in Life magazine reviewing a play, “The Desperate Hours,” violated the privacy of a couple who had been held hostage in a real-life incident. In illustrating the article, Life posed the actors in the house where the real family had been held captive.
The family alleged violation of privacy, saying the article gave readers the impression that the play was a true account of their experiences. Life said the article was “basically truthful.”
The court said:
“The line between the informing and the entertaining is too elusive for the protection of [freedom of the press]. Erroneous statement is no less inevitable in such case than in the case of comment upon public affairs, and in both, if innocent or merely negligent, it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive.’
“We create grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in a news article with a person’s name, picture or portrait, particularly as related to non-defamatory matter.”
The court added, however, that these constitutional guarantees do not extend to “knowing or reckless falsehood.” A newspaper still may be liable for invasion of privacy if the facts of a story are changed deliberately or recklessly, or “fictionalized.” As with The New York Times and The Associated Press decisions in the field of libel, “The Desperate Hours” case does not confer a license for defamatory statements or for reckless disregard of the truth.
APPLYING THE RULES
We already have defined libel and explained the defenses available to the press. Let’s now look at some applications.
In a society in which standards of right living are recognized by most people, any accusation that a member of society has violated such standards must be injurious. Members of a community establish in the minds of others an estimate of what they are believed to be. Injury to that reputation may mean business, professional or social ruin.
One court decision put the matter this way:
“The law of defamation is concerned only with injuries to one’s reputation....
“Embarrassment and discomfort no doubt came to her from the publication, as they would to any decent woman under like circumstances. Her own reaction, however, has no bearing upon her reputation. That rests entirely upon the reactions of others. We are unable to find anything in this article which could appreciably injure plaintiff’s reputation.” (Kimmerle vs. New York Evening Journal Inc., 262 N.Y. 99)
The traditional rule was that defamation was concerned only with injuries to one’s reputation. That rule was altered in 1974 by the Gertz case, which held that emotional distress is also an element of damages in libel.
In order to be libelous, it is not necessary that a publication impute criminal activity. The following was held to be libelous:
"Pauper’s Grave For Poor Child"
“Unless financial aid is forthcoming immediately, the body of a 4-year-old boy who was run over Tuesday will be interred in Potter’s Field, burying ground of the homeless, friendless and penniless, who die or are killed in New York City. The parents of this youngster are in dire financial straits, and at this writing have no alternative but to let their son go to his final rest in a pauper’s grave.”
The court said:
“It is reasonably clear, therefore, that in some cases it may be a libel if the plaintiff has been written up as an object of pity .... The reason is that in libel the matter is defamatory not only if it brings a party into hatred, ridicule or contempt by asserting some moral discredit upon his part, but also if it tends to make him be shunned or avoided, although it imputes no moral turpitude to him.” (Katapodis vs. Brooklyn Spectator Inc., 287 N.Y. 17)
A publication that does not discredit a person as an individual may nonetheless damage a person’s professional status.
A story stated that after a youth’s body had been taken from the waters in which he had been swimming, he was pronounced dead by a doctor. Later the youth was revived. The doctor sued because of the implication that he had been unable to determine whether a person was living or dead.
Similarly, a publication may affect a business.
Companies are naturally sensitive to news stories that reflect on their business prospects and practices. There have been many such news stories in the field of environmental and consumer protection. The issues are complicated, and the legal aspects not always clear. Formal charges and allegations should be reported precisely and fairly.
Likewise, there is no alternative to precision in reporting any criminal charge.
Not only what is written, but the instruments used in transmitting it, must be considered in handling news. It is safer to say acquitted or innocent, rather than not guilty because of the danger that the negative may be dropped in transmission.
An essential element of an action for libel is that the complainant be identifiable to a third party. Nevertheless, the omission of names will not, in itself, provide a shield against a claim for libel. As was pointed out earlier, there may be enough details for the person to be recognizable.
A story may, by the use of a general description or name, make a libelous charge against an organized group. It is possible that any member of the group could bring an action on the story.
If the material is libelous and not privileged, then the question turns to proof.
Can the substance be established by documents, by testimony from trustworthy people or by material from privileged sources? Hearsay evidence is not enough. It is not enough to show that somebody gave you the unprivileged information. The issue turns on proof.
Another libel pitfall is the mistaken identity case. There is no complete defense when a newspaper confuses a famous individual with a person bearing a similar name who gets into a scrape. Petty thieves running afoul of the law may give the names of famous people — often old-time athletes — in the hope of getting leniency from a judge.
A few years ago a man charged with a minor crime appeared in Magistrate’s Court in New York and gave as his name that of a once-great baseball pitcher. The magistrate gave the prisoner a suspended sentence. The real baseball player was a prosperous auto salesman who threatened multiple suits when he read the story in the newspapers.
In 1980, in Richmond Newspapers vs. Virginia, the Supreme Court ruled that, under the First Amendment, criminal trials are presumptively open to the public and the media and may be closed only when it is necessary to protect some interest that outweighs the interest in access. A trial judge must articulate findings, on the record, to support any closure. This decision marked the first time in the nation’s history that the right to find out what a branch of government is doing had been afforded direct and specific constitutional protection.
In 1982, in Globe Newspapers vs. Superior Court, the Supreme Court recognized that the constitutional right of access to criminal trials applies even with respect to a sex-offense trial involving a minor victim. The court struck down a statute mandating closure in such cases. While it said that the states have a significant interest in protecting minors who are victims of sexual assault from the trauma of testifying in open court, the Supreme Court held that trial judges must determine on a case-by-case basis whether this interest outweighs the presumption of openness and stated that any closure order must be “narrowly tailored to protect that interest” without unduly infringing on First Amendment rights.
The Supreme Court further held in 1984 in Press-Enterprise vs. Superior Court that the constitutional right of access to criminal trials encompasses the right to attend jury selection.
In 1986, in a second case, called Press-Enterprise vs. Superior Court, the Supreme Court ruled that the First Amendment right to access attaches to preliminary hearings in a criminal case unless specific findings are made on the record to demonstrate that closure is essential to preserve higher values and is narrowly tailored to serve that interest. If the interest asserted is the defendant’s right to a fair trial, the preliminary hearing may not be closed unless there is a “substantial probability” that the right to a fair trial will be prejudiced by publicity that closure would prevent and that reasonable alternatives to closure cannot adequately protect the right to a fair trial.
The Associated Press has distributed the following statement to be read in court by its reporters when confronted with an attempt to close a criminal proceeding.
The statement allows the reporter, when permitted to address the court, to state the basic press position and to seek time for counsel to appear to make the legal argument.
The following statement can be read verbatim, although if any parts are not applicable to a specific case, they can be changed or omitted.
May it please the Court, I am (name) of The Associated Press (or newspaper). I respectfully request the opportunity to register on the record an objection to the motion to close this proceeding to the public and to representatives of the news media. The Associated Press (or newspaper) requests a hearing at which its counsel may present to the court legal authority and arguments that closure in this case is improper.
The United States Supreme Court has now firmly held that the press and the public have a constitutional right to attend criminal trials and pretrial proceedings and may not be excluded unless the court makes findings on the record that closure is required to preserve higher values and is narrowly tailored to serve that interest. There is, therefore, a presumption of openness which is firmly rooted in the Constitution and essential to proper functioning of the criminal justice system.
The Associated Press (or newspaper) takes the position that the defendant should be required to make the following showing in order to prevail on a motion to close this proceeding:
—First, the defendant must demonstrate that by conducting this proceeding in public the defendant’s right to a fair trial will be prejudiced by publicity which closure would prevent. The defendant must demonstrate therefore that disclosures made in this hearing will prejudice the case and that these disclosures would not otherwise be brought to the attention of potential jurors.
—Second, the defendant must demonstrate that none of the alternatives to an order closing this proceeding would effectively protect the right to a fair trial. Among the alternatives available to protect the defendant’s rights are: a careful and searching voir dire, continuance, severance, change of venue, pre-emptory challenges, sequestration and admonition of the jury.
—Third, the defendant must demonstrate that closure will be effective in protecting the right to a fair trial. In the present case there has already been substantial publicity concerning the facts. The defendant must demonstrate that any prejudice to the right of a fair trial would result from publicity given to disclosures made in this proceeding, and not to previously published facts or allegations.
—Finally, the defendant must establish that reasonable alternatives to closure cannot adequately protect the defendant’s free trial rights.
The Associated Press (or newspaper) believes that there has been substantial public interest generated by this case. The public has a right to be informed of future developments, and the court should avoid any impression that justice is being carried on in secrecy. The public has a right to know how the court system is handling criminal matters, what kind of deals may be struck by prosecutors and defense lawyers, what kind of evidence may be kept from the jury, and what sort of police or prosecutorial acts or omissions have occurred. For these reasons, The Associated Press (or newspaper) objects to the motion for closure and respectfully requests a hearing in which it can present full legal arguments and authority.
The Supreme Court has never addressed the question of whether there is a First Amendment right of access to civil trials and pretrial proceedings. Several federal appeals courts, employing the reasoning of the Supreme Court’s criminal trial access decisions, have ruled that both civil trials and pretrial proceedings are presumptively open to the press and public.
POINTS TO REMEMBER
Obviously, the first question is whether it is libelous. That is, whether it is actionable on its face. If it is, can you prove it? Or is it privileged?
If the story is libelous or potentially libelous, if you can’t prove it and if it is not privleged, don’t move it. If it is already on the wireKILL IT AT ONCE.
—Don’t try to fix a possibly libelous story by elimination, correction, sub or new lead. If there is any unprivileged or unsafe material in the story, the dangerous portionMUST BE KILLED. That is the only way in which material definitely can be removed from the report. If the problem is in only one paragraph of the story, kill the paragraph. It is not necessary to kill the entire item.
—Remember that privilege does not remove the need for careful reporting and the use of editorial judgment. In many cases, courts have held that it is up to the jury to decide whether a particular publication was a fair and true report or whether there was “actual malice.”
—If it is decided that a name should be withheld from a crime story, be certain that no potentially troublesome descriptive phrases are given. An elderly janitor of a nearby apartment house could lead to suits from every elderly janitor in the neighborhood.
—The fact that police are questioning someone about a crime does not necessarily justify the label suspect. In most cases, a detective’s telling you that someone is a suspect is not privileged. Again, the basic question: Could you prove it, if it came to that? Or is it privileged?
—Picture captions must be as accurate and objective as news stories. You can commit libel in a picture caption as damagingly as in a story.
—In writing about murder charges filed during a preliminary police investigation, it makes no difference legally whether you say John Doe is charged (a) with murder or (b) with murdering or (c) with murder, in connection with the killing of Richard Roe.
AP counsel says:
“Each statement contains an accusation by The Associated Press that John Doe is guilty of murder. The accusation is made by implication in that the wording suggests that the charge was made by someone other than The Associated Press. That, however, does not relieve the AP of responsibility unless the publication is qualifiedly privileged.
“Thus a publication relating to a murder charge against John Doe in connection with the killing of Richard Roe must be either privileged (based on official proceedings), or provably true.”
PROCEDURES FOR HANDLING KILLS
This summarizes how to deal with stories when legal action and libel might be involved. Remember that if a legal problem develops with a story or if guidance is needed, the General Desk in New York must be consulted. The General Desk must approve a kill before it is filed. The New York Photo Desk must be consulted for photo caption problems.
There are three ways to deal with problem stories: withholds, kills and eliminations.
—File awithhold when the accuracy of a story has been seriously challenged and The Associated Press cannot quickly confirm the story. A withhold should be followed as soon as possible with a kill or elimination if further checking makes either necessary. If the information holds true after further checking, file an advisory releasing the story.
—Material that is libelous and unprivileged calls for a promptkill. The kill is mandatory. A corrective story may be required as explained later in this chapter.
—Use anelimination when a story carries no threat of legal action but is objectionable for some other reason: error, poor taste, an old story inadvertently transmitted, etc.
Material considered libelous and unprivileged requires a prompt kill. The kill is mandatory.
Sometimes the timing of a kill raises questions. Here are the guidelines:
—Error discovered in the cycle in which the original moved: kill in the same cycle, send advisory notes to the editors in the next two cycles.
—Error discovered in the cycle after the original moved: kill when the error is discovered, send an advisory note in the subsequent cycle (which will be the same one in which the item originally moved).
—Error discovered in the third cycle: no kill, but urgent consultation with the General Desk about the need for a corrective or other follow-up.
The reason for the repetition of kill advisory notes is that some members may have held the story for later use.
The kill should say succinctly what was wrong with the original story — for example, Smith not arrested. It should not say the original was libelous. Just state the factual problem behind the kill.
Use this form:
^AM-Zyx Bankrupt, KILL, a0720,
NEW YORK — Kill the Zyx bankrupt story, a0720. The company is not bankrupt.
Follow the kill immediately with an advisory. State whether a substitute story is planned.
^AM-Zyx Bankrupt, KILL Advisory, a0720,
The NEW YORK story about Zyx bankrupt, a0720, has been killed. The company is NOT bankrupt.
A kill is mandatory.
Make certain the story is not published.
A sub story will be filed shortly. (Or: No sub will be filed.)
Send an advisory note during the next cycle.
^PM-Zyx Bankrupt, KILL Advisory, a0720,
A NEW YORK story filed for Monday AMs as a0720 under the slug AM-Zyx Bankrupt has been killed. The Zyx Co. is not bankrupt.
A kill is mandatory.
Make certain the story is not published.
A sub was filed as a0741, slugged AM-Zyx Petition.
Because of the inconvenience caused to a member when we kill a story, the substitute should be moved as quickly as possible so that the member can replace the killed item with a publishable account.
If a substitute story is filed, include a non-publishable editor’s note advising that it replaces an earlier story that was killed.
Circumstances will dictate whether a substitute story is required. (See correctives below.)
A copy of the story killed and the kill itself should be mailed promptly to the managing editor with a letter telling who made the error and how it was made. If necessary, AP counsel will contact you for further information.
The file sent by the bureau chief to New York should include four things:
1. Wire copy of the erroneous story, the kill and the kill notes, including that transmitted on broadcast.
2. Wire copy of the substitute story or corrective.
3. A copy of any source material used by the writer or editor in preparation of the story, including member clip, reporter’s notes and the like.
4. A factual explanation from the staff member(s) who handled the story as to exactly how the error was made — what they did, where the information came from, etc.
The cover letter should add relevant details not covered above. For example, how we became aware of the mistake, what contact we have had from outsiders on the matter, etc.
The bureau chief’s letter and the staff member’s memorandum should be factual reports of what happened. They are not the place for extraneous comments about the individuals or bureau procedures and definitely not for apologies.
Do not make any response to any letter or other communication in connection with any case where legal action seems possible without first consulting the managing editor or the General Desk.
Send a copy of the kill or a memo to the News and Information Research Center in New York.
A kill may necessitate a corrective story. Or a corrective may be required for a story that contained an error but was not killed.
As with a kill, a corrective must be approved by the General Desk before it is filed by a bureau.
Do not feel you must be hasty in transmitting a corrective. When there is a factual error in the report, we want to correct it as quickly as possible. But remember that publication of a corrective does not safeguard us against legal action. You should be aware of any legal requirement in your state setting a time within which a corrective must appear.
The corrective story should identify the previous incorrect story by slug, transmission number, dateline and the date. As follows:
Eds: Members who used a0620, PM—Fed-Indict, sent Oct. 22 under a New York dateline, are asked to use the following story.
If the erroneous story has been out long enough to have gotten into print or on the air, then our corrective or substitute story should acknowledge the previous error and set the record straight.
The corrective or sub story should be preceded by a note asking members who used the original item to use the following story.
While each case must be considered individually, the proper form for this corrective or sub story often will be the straight assertion at the start that a previous AP account was in error, as in, The Associated Press reported erroneously on Feb. 27 that ...
In no instance should the story say The Associated Press is glad to make this correction or regrets the error or any similar phrase. The corrective is simply a factual account.
The corrective should be filed on all circuits where the original was transmitted.
If a corrective results from a kill, it and all material relating to it must be sent to New York as part of the procedure on kills. (See step No. 2 in KILLS.)
Again, do not make any response to any letter or other communication in connection with any case where legal action seems possible without first consulting the managing editor or the General Desk.
If a corrective to a story that was not killed is needed and has been approved by the General Desk supervisor, follow this procedure:
1. Mail to New York, attentioned to the managing editor, a letter explaining the need for the corrective. This letter should say what was wrong with the original story, when and how the error was made, when and how the error was discovered and the names of the AP employees involved in the original error and the corrective.
2. Maintain a file in the bureau on the corrective that includes:
—Wire copy of the erroneous story and wire copy of the substitute story or corrective.
—A copy of any source material used by the writer or editor in preparation of the original story, including member clip, reporter’s notes or whatever.
—A factual explanation from the staff member(s) who handled the story as to exactly how the error was made — what they did, where the information came from, etc.
The letter explaining the corrective must affirm that the above material has been retained in the bureau files.
If it is needed, the managing editor’s office may request this file be sent to New York later.
File a withhold when the accuracy of a story has been seriously questioned and The Associated Press cannot quickly confirm the story. A withhold should be followed as soon as possible by a kill or an elimination if further checking makes either necessary.
If the information holds true after checking, file an advisory releasing the story.
The slugging when a withhold is necessary:
^AM-Gold Find, WITHHOLD,a0680,
Denver-Withhold AM-Gold, filed as a0680. Authorities say the miner’s story has been questioned.
An elimination is used for matter that carries no threat of libel action but is objectionable for some other reason: error, poor taste, an old story inadvertently transmitted, etc.
The form for an elimination:
Boston-Eliminate the Practical Joke story, filed as a0240. It cannot be confirmed.