By John C. Henegan Sr.
Just another day at the office
A reporter brings you a story about a matter of interest to the entire community. The story tells how local law enforcement personnel responded to a mass shooting at a local school that took place a week earlier, and the accusations of distraught parents. The parents claim that a deputy sheriff stated that some of the school children were wounded by friendly fire from an unidentified local police officer.
The reporter has asked the sheriff to respond. The sheriff, who led a coordinated attack against the shooter from a command vehicle with audio-contact with his deputies and local police, says that the parents are deeply upset, which is understandable, but they are wrong. Due to their emotional state at the time, they must have misunderstood the deputy.
Your paper has published similar stories from around the country. The adequacy of training received by first responders is a recurring issue. Are you going to run the story as is, and if not, what do you plan to do?
That legal seminar you just went to
You recently attended the annual mid-year press association meeting where you got a 50-minute refresher on libel law. The seminar included several examples of recent decisions where the denial by a public official or public figure of charges of prior improper conduct has been transformed by the accuser into a suit for defamation against the public official or public figure. The examples included:
- The parents of Americans whose sons were killed in the attack on a U.S. diplomatic post in Benghazi, accuse a presidential candidate of lying about the cause of the attack.
- Two women issue separate public statements that a nationally-known comedian and entertainer had drugged and sexually assaulted one, and date raped the other, more than 20 years earlier. Their statements appear in the print and broadcast media and receive national coverage.
- A retail store manager tells one of his cashiers that he is fired because his cash register has been “short” for the past several days.
- The presidential candidate repeatedly denies that she lied to the parents about the reason for the deaths of their sons when responding over a period of months to numerous inquiries from the press. This includes her response of “Not me” when a reporter says: “One of you is lying. Who is it?”
- The entertainer issues public statements that charge the publishers of the two women’s statements with grossly irresponsible journalism. His statements also deny the two women’s charges, attacking their credibility and claiming that their prior accounts of the incidents were different, and asking why they waited so long to come forward.
- The cashier asks if the store manager is calling the cashier a “crook,” and the manager replies “that’s right.”
- The denials of the presidential candidate and the entertainer are published nationwide in a variety of different media outlets. The parents, the two women, and the former retail clerk bring separate suits for defamation against the person who responded and denied their respective charges in four different jurisdictions
- In three suits the plaintiff(s) contend(s) that the defendant’s denial of the charges accuses the plaintiff(s) of lying, expressly or by implication, and is false and defamatory. The cashier claims that the defendant store manager’s agreement with the cashier’s question is false and defamatory.
- On appeal an appellate court dismisses each suit as a matter of law. The different courts rule that each defendant’s response was:
- an opinion not capable of being proved true or false and thus was not actionable as defamation; or
- when examined in the context that the statement was made, was not defamatory either because (i) each side told what they knew about the matter leaving it for the reader to decide who was correct or (ii) the story was clear that it was nothing more than a disagreement between the two parties about what had happened based on their individual perception and understanding of the same events, which is not the basis for a defamation suit; or
- in the case of the store manager, were made at the invitation, and thus with the consent of, the plaintiff cashier, and consent is a defense to defamation.
One of the suits is the subject to possible review on the merits by the U.S. Supreme Court. The High Court has asked the entertainer to address the issue of whether the woman in one of the suits is a “limited purpose public figure,” which is a First Amendment issue. If the Supreme Court concludes that she is not a public figure, the legal duty owed by the defendant entertainer (and the newspaper) to the woman in a defamation suit changes dramatically. The judgment of dismissal in all likelihood will be reversed and remanded for further proceedings in the trial court.
What do you do? The libel review
As an editor and journalist, you have been taught that it is important to get all sides of a news story for purposes of thoroughness as well as fairness. Do you include the charges of the parents and the sheriff’s denial, or do you cut them altogether? Like subjects of art, these questions should not be – cannot be – answered in the abstract. Context and the meaning to be given the words you print drive the decisions you must make. What are the key questions?
- What is the principal subject matter of the story? Was it a newsworthy public controversy before the plaintiff became involved and attempted to influence its outcome?
- What is the status of the person who made the charges and what is the status of the person who denies the charges? The law of defamation asks if the plaintiff is (a) a public official, (b) a general purpose public figure, (c) a limited purpose public figure, or (d) a private figure. That will determine what you investigate before deciding to publish. A public official includes a candidate for elected public office or any public official with substantial discretionary responsibility over the enforcement of public affairs such as a police officer or a public school superintendent or principal. A general purpose public figure is one who has obtained such pervasive fame or notoriety that she is a public figure for all purposes and in all contexts. A limited purpose public figure is one who voluntarily injects herself into or is drawn into a public controversy and as a result becomes a public figure for a limited range of issues. The Mississippi Supreme Court has ruled that a public official always remains a public official related to stories about the performance of the official duties of her public office. A private figure is someone who has not encouraged public interest or drawn notoriety to herself even if she is involved in or associated with a matter that attracts public attention.
- What does the story say about the potential plaintiff? The potential defendant?
- Is each statement capable of being proved true or false? Even if a statement or statements can be proved to be false, is the gist of the story substantially true?
- Is the statement also defamatory? That is, does the statement tend to lower the individual’s reputation in the community or tend to deter others in the community from associating or dealing with the individual by charging him with a crime, unprofessional or immoral conduct, or having certain social diseases?
- Even if each statement about the accuser is not false and defamatory, does the gist of the story as a whole or statements within the story defame the accuser by implication? Put differently, does the accused’s denial of the charges mean that the accused is implicitly calling the accuser a liar or does the denial imply the existence of facts that can be proved true or false in the courtroom?
- Even if the alleged statements defame the accuser by implication, does the story clearly disclose the factual bases for the statements the accused makes and allow the reader to draw her own conclusions about those statements? Or is there additional affirmative evidence contained in the publication itself which taken as a whole shows that the accused actually intends or endorses the defamatory inference that the accuser claims?
- The same questions should be asked about what is said about any other people who appear in the story.
There are broader questions raised by the example of the case involving the cashier and the retail store manager. Did the distraught parents whose children were wounded by friendly fire at the school house implicitly invite and thus consent to the sheriff’s response? Is this also true of the cases involving the presidential candidate and the entertainer? In each instance the accuser knew the individual against whom the charge was made, and they knew that the charges were calculated to provoke the accused to respond. Should the public be allowed to hear both sides of the controversy and make its own assessment of what happened?
John C. Henegan Sr. is a member of Butler Snow LLP and counsel to the Mississippi Press Association. He and other members of his firm have been defending members of the print, broadcast, electronic, and entertainment industries in defamation and privacy suits for over 30 years. Members of the MPA can send general questions about defamation and privacy or requests for story review to email@example.com. The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the views or opinions of Butler Snow, LLP.