Academic journal article Newspaper Research Journal

What Journalists, Judges and Public Consider Defamatory

Academic journal article Newspaper Research Journal

What Journalists, Judges and Public Consider Defamatory

Article excerpt

Libel is an attack on a person's reputation or character. The key criterion, defamation, relates to words or pictures which disgrace a person, so as to diminish his or her standing in the community.(1) A defamatory expression tends to expose a person to hatred, ridicule or contempt, and civil laws have evolved from the notion that citizens should be protected from this type of wrongful hurt, in order to preserve the "essential dignity and worth of every human being."(2)

But decisions about the application of libel law are routinely relegated to jurors who are presumably untrained in the law and who lack understanding of its nuances. In the words of Donald Gillmor, Jerome Barron, Todd Simon and Herbert Terry,(3) the layperson is at sea as to the meaning of libel, even though jury awards in libel cases have skyrocketed in recent years. The Libel Defense Resource Center reports that the median award has increased more than four-fold from 1991 to 1996, to $2.38 million.

While up to 70 percent of libel judgments are reversed or limited in the appeals process,(4) it is important to understand the attitudes of potential jurors concerning libel and defamation. Studies of public support for expressive rights have shown split views: People generally tend to support the investigative role of the press - especially when the reporting is focused upon government wrongdoers - but enthusiasm for such journalism drops sharply if it is perceived that a subject's personal rights are trampled upon in the process,(5) or if reporting fairness is lacking? Elizabeth Hansen and Roy Moore(7) found low public tolerance for even accidental libels against individuals, but discovered that jurors may regard speedy retractions of defamatory content as helpful in addressing plaintiff grievances.

Recent opinion polls have shown diminishing public tolerance toward the way journalists practice their craft, with many people branding today's news workers as "biased, arrogant, cynical and annoying.(8)

It is also important to understand the viewpoints of working journalists. Using a measure of libel understanding, Brian Steffen found Iowa newspaper editors lacking in expertise about the law.(9) Other studies show that journalists and journalism educators are considerably more supportive of First Amendment rights than are members of the general public.(10) Specifically, journalists are more likely than non-journalists to believe that, when it comes to expressive freedom, the rights of the media are at least as important as the rights of individuals. Average citizens, on the other hand, are more likely to view personal rights as of greater ultimate significance.(11)

The attitudes of jurists who hear libel cases are also worthy of examination. Most libel actions are prosecuted at the circuit, superior or U.S. district court level, and judge attitudes toward media practices are understudied.(12) The 1996 National Conference on Media and the Courts brought journalists and judges together to identify how each group could better appreciate the dynamics of the other, leading to better media coverage of the courts. One initial finding was that each group was generally unaware of the other group's professional orientations and practices.(13)

The present investigation employs case studies as a means of measuring attitudes toward defamation among three groups: journalists, judges and members of the public. How do these groups differ in their views toward libel? To what degree are they similar in their evaluations of libelous events as depicted in various real-life scenarios?

Three distinctions:

fact vs. opinion

public vs. private figures

and the role of retractions

Direct and indirect libel account for the majority of libel cases found on American court dockets.(14) Falsely referring to an individual as a felon, or labeling a person's business practices as unethical, may constitute a direct libel; an indirect libel is achieved through innuendo, implication, or omission - for example, when through unseen or unknown circumstances, a journalist links a subject's behavior to reputation-damaging information. …

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