Libel tough to prove for good reason


By Bud Herron

Neither I nor any of the publications I worked for in my 45-year career in journalism were ever sued for libel.

That doesn’t mean I didn’t pick up my telephone at least once a month to find someone screaming they were going to sue me, my publication, my publication’s owners — and maybe even my family cat — for printing something that allegedly defamed their reputation.

I was even threatened in person one morning by an out-of-town attorney I found wandering around The Republic newsroom, examining the building and various pieces of equipment. He was in town defending a client in Bartholomew Circuit Court, and we had printed an article about the case the day before.

When I asked him if I could help him in some way, he responded, “No, I am just looking over what I am going to own when I get finished suing this rag for the story in yesterday’s paper.”

Another memorable threat came one Monday morning in a call from a screaming woman intent on suing the newspaper for a story that had run on the front page two days earlier.

“You have totally ruined my reputation,” she sobbed. “I demand a retraction and an apology. You made me look like a scumbag.”

I picked up a copy of the offending newspaper from my credenza and quickly read the story as she continued to cry. The article was about two women arrested and jailed at 2 a.m. Saturday morning for public intoxication and fighting in the parking lot of a local tavern. When police arrived, both women stopped fighting long enough to assault two officers.

I assured her that if the story was wrong or listed her name by mistake, we would immediately print a retraction along with the correct information.

“No,” she sobbed. “It was me and what you wrote was correct, but think of how that story made me look. I am going to sue.”

In the first incident, the attorney knew he had no grounds for a libel suit. He likely just thought a little intimidation might frighten the reporter into more favorable coverage of the trial the next day.

The woman believed saying something bad about someone in print is libelous defamation of character, even if the statement is true.

Fact is, the person suing must prove a printed statement was false, the newspaper staff knew it was false when it was printed and actual damages were incurred by the statement.

And, in cases involving public figures — politicians, celebrities, business leaders, media personalities and others — the law requires an even higher burden of proof. These suits require proof of “actual malice” and “reckless disregard for the truth.”

Of course, public figures — particularly politicians — are constantly pushing libel cases into the courts hoping to change or alter the landmark 1964 Supreme Court decision in New York Times Co v. Sullivan. The ruling gave public figures a greater burden of proof than that of private citizens.

The reasoning for this has been that public figures — many with scores of lawyers and partisan financial backing — can use the courts to restrain freedom of the press.

In the midst of the massive challenge of publishing the news of the day in a timely fashion, newspapers can make unintentional errors. Reporters and editors are not perfect. That is why reputable publications print corrections.

Yet, if politicians and other public figures can successfully penalize a newspaper for an error committed unintentionally and then corrected, reporters and editors might be less likely to pursue the truth out of fear of reprisal.

So far, federal courts have held the line, turning back numerous libel cases by politicians trying to suppress news coverage.

One recent libel case by a public figure went to trial in February in a suit against The New York Times by Sarah Palin, former Alaskan governor and vice presidential candidate.

A newspaper opinion article incorrectly tied the shooting of Arizona Rep. Gabrielle Giffords to campaign postings by Palin, which pictured various politicians in the crosshairs of what appeared to be a rifle scope. The newspaper later apologized in print for making that connection.

A federal judge dismissed Palin’s suit on the grounds that she failed to prove the newspaper knew the claim was false or “acted recklessly” by printing it.

It was only one of hundreds of such cases filed by politicians in recent years to try to open the courts to easier verdicts against newspapers. Palin’s case likely will not be the last.

Of course, any softening of public-figure libel laws also could work both ways. Politicians themselves could be prosecuted for libel for printing campaign materials containing lies with malice and reckless disregard for the truth.

In that case, so many politicians might be in court for malicious lies that no one would be left in Washington to run the government. How bad could that be?

Bud Herron is a retired editor and newspaper publisher who lives in Columbus. He served as publisher of The Republic from 1998 to 2007. Contact him at [email protected]. 

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