Libel: How Far Can You Go?
Stoff, Rick, St. Louis Journalism Review
We have concluded another election year of candidates palling around with terrorists, associating with the guilty, and being smeared on talk radio. One might think it is impossible to go too far in defaming a public official or public figure.
Actually, says communication attorney Mark Sableman, the risk of libel and slander damages can still face individuals or the media who get sued for their criticisms. A couple of recent U.S. Supreme Court decisions have made it somewhat easier for a defamed person to sue successfully for damages, he said.
But the critics must try really hard to achieve the level of libelous defamation that would result in damages against them, he added.
"There is no question that the level of meanness and outrageousness in our discourse has gotten worse over the years, but I am not sure that libel law can control that," said Sableman, a partner in the St. Louis law firm Thompson Coburn LLP.
Much of the political criticism volleyed about during the 2008 elections amounted to quibbling over facts, such as how many times Candidate X voted against the troops, voted for earmarks, was for or against an issue, and so forth. "You don't make a libel suit out of different judgments on the same facts," Sableman said.
The Dole campaign ad
A television campaign ad ran in North Carolina by U.S. Sen. Elizabeth Dole made the list of "Top Ten Political Turkeys of 2008" published on CNN.com. The ad suggested that Dole's opponent, Kay Hagan, had taken "godless money" for her campaign at a "secret fundraiser" held by an adviser to an atheist organization. While a picture of Hagan was displayed on the screen, a woman's voice stated, "There is no God."
It turned out, however, that Hagan was an elder and Sunday School teacher at the First Presbyterian Church in Greensboro, N.C. Hagan filed a defamation and libel suit against Dole, but withdrew it after defeating the incumbent on election day.
Sableman does not believe the Hagan suit would have succeeded, although Dole's ad was apparently intended to be harmful and was prepared with reckless disregard for the truth.
It is a misconception that intent and disregard for facts are sufficient to create a strong case for libel, Sableman said. The defamatory statement must be stronger than an accusation of atheism.
"I don't think that is libelous," Sableman said. "To be libel, it has to be an accusation of serious criminal conduct or incompetence in an office, a profession or business, or sexual misconduct or a loathsome disease. The defamatory content prong in almost every state requires some thing seriously harmful to reputation.
"If you correctly or incorrectly accuse me of having an overdue library book or getting a parking fine, I can't sue you for libel. It is not a sufficiently serious legal violation to seriously damage my reputation. It has to be seriously harmful to reputation before it meets the defamatory content threshold for libel or slander."
Slander is defamation that is spoken as distinguished from libel which is written, printed, or any sign, picture or effigy.
What's libelous can change
Accusations that may have been scandalous decades ago won't go far in today's courtrooms, Sableman said. "Libel follows society's mores, and I don't think an accusation of non-traditional religious beliefs or non-beliefs would seriously tar someone's reputation akin to an accusation of serious criminal conduct. In the past, anything that wasn't traditional morality might have been considered sexual misconduct, such as being homosexual or promiscuous outside of marriage. I don't think an accusation of being homosexual is libelous any more, although it might have been considered almost per se libelous 100 or 50 years ago."
Two U.S. Supreme Court cases in recent decades have made it easier for a news organization to be sued successfully for libel, Sableman said.
The case of Harte-Hanks Communications v. Connaughton in 1989 involved a political candidate (Connaughton) whose incumbent opponent for a municipal judgeship had been endorsed by the local newspaper. In days prior to the election, news broke of a bribery scandal, leading to the arrest of the incumbent's director of court services. The newspaper ran a front-page story prior to the election stating that Connaughton, the challenger, had engaged in "dirty tricks" and offered witnesses jobs and trips to promote the scandal.
Connaughton sued for libel. Subsequent court proceedings showed that the newspaper had interviewed persons critical of Connaughton but had not interviewed a key person who could support his contention that he had done no wrong. The newspaper also chose not to listen to a tape recording Connaughton made of a key conversation and provided to the newspaper.
"It is utterly bewildering in light of the fact that the Journal News (Hamilton, Ohio) committed substantial resources to investigating Thompson's (a woman involved) claims, yet chose not to interview the one witness who was most likely to confirm Thompson's account of the events," The Supreme Court decision stated. "By the time the November 1 story appeared, six witnesses had consistently and categorically denied Thompson's allegations, yet the newspaper chose not to interview the one witness that both Thompson and Connaughton claimed would verify their conflicting accounts of the relevant events."
In the case, the Supreme Court majority wrote of its public-figure exception to libel: "We have not gone so far, however, as to accord the press absolute immunity in its coverage of public figures or elections. If a false and defamatory statement is published with knowledge of falsity or a reckless disregard for the truth, the public figure may prevail.... Based on our review of the entire record, we agree with the Court of Appeals that the evidence did in fact support a finding of actual malice."
Coach sued over claim he lied
The 1990 case of Milkovich v. Lorain Journal Co. was pursued for many years by the wrestling coach at the Maple Heights High School in Ohio, His team was involved in a 1974 brawl that resulted in the hospitalizations of four players from the opposing team. Disciplinary proceedings by the state high school athletic association followed. A sportswriter and columnist who had attended the wrestling match wrote a column charging the coach with lying under oath about events leading to the brawl.
When Coach Milkovich sued, the newspaper claimed the column was protected by an opinion privilege or a contention of "rhetorical hyperbole." After numerous proceedings, the case reached the U.S. Supreme Court, which found that an insinuation of perjury was not protected by the cover of opinion. "The connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false."
The case was remanded to state courts and the newspaper settled with Milkovich out of court.
Other protections against libel claims remain, Sableman said. News media cannot be sued successfully for libel following the publication of communications that are considered privileged. "We have a privilege that attends to reporting things from the public record because there is a public interest in people knowing those things. We are exempt from libel even if a story is false and defamatory, such as an accusation of murder against a man who is later acquitted."
The media also cannot be sued for political advertising broadcast by an opposition candidate. "The Federal Communications Act says broadcast stations may not refuse to accept an ad from a political candidate. The consequence of that, in the no-censorship, no-liability section of the act, is that the station is not liable for the content of ads from a political candidate," Sableman said.
How about that wonderful world of reasoned discourse on talk radio and, sometimes, pundit television, where anyone can be accused of virtually anything? The courts have created the term "rhetorical hyperbole" for such language.
"There is no question that talk radio is pretty outrageous in a lot of situations, but a lot of what they get away with is rhetorical hyperbole. It is opinion--statements that are so extreme they are not taken literally," Sableman said.
Rick Stoff, a former St. Louis Globe Democrat reporter and editor, now practices public relations at his own firm, Stoff Communications…
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Libel: How Far Can You Go?. Contributors: Stoff, Rick - Author. Magazine title: St. Louis Journalism Review. Volume: 38. Issue: 310 Publication date: December 2008. Page number: 17+. © 1999 SJR St. Louis Journalism Review. COPYRIGHT 2008 Gale Group.