Magazine article Editor & Publisher

Rhetorical Hyperbole Is OK; Defamation Is Not

Magazine article Editor & Publisher

Rhetorical Hyperbole Is OK; Defamation Is Not

Article excerpt

Gung-Ho reporters and "let 'em loose" editors might restrain their enthusiasm for investigative or jugular journalism after listening to a group of media lawyers at a recent seminar in San Diego.

Going after that Pulitzer is fraught with the perils of suits for invasion of privacy, libel, and breach of contract, they warned.

Lynn Buchy of the law firm King & Ballow, which sponsored "The Media and First Amendment" prefaced her cautionary remarks by saying, "I'm saying don't do it, but ..."

The buts involved using a false identity to obtain an interview, trespassing at crime scenes and other places, picture snatching, shooting with a hidden camera, wiretapping, and "criminal violations" such as stealing files.

"There is no bright line defining privacy," Buchy said. "The courts will protect routine news gathering, but there are lots of situations where a reporter goes beyond merely asking questions. You must weigh the risk."

She cited the case of a photographer who, at the invitation of the fire marshal, entered a burned-out home where a girl had died. Invitation or not, the victim's mother sued the newspaper, Buchy said.

Also, she continued, trespassing on private property - even if a crime had been committed there - can bring a lawsuit for violation of privacy or a criminal charge.

Moreover, Buchy said, there need not be publication or broadcast to cause legal action as, the act of trespassing by itself is sufficient for a suit demanding money damages.

One newspaper, Buchy recalled, was sued because an uninvited reporter surreptitiously observed an "unwedding" ceremony in which two couples and their friends gathered in a field to celebrate their divorces. The plaintiffs, however, lost.

Buchy's admonition: If you are dedicated to superaggressive journalism, be careful.

Another King & Ballow attorney, E. Andrew Norwood, drew a distinction between a medium's use of "rhetorical hyperbole" and words that are defamatory. He defined rhetorical hyperbole as an "exaggeration and/or overbroad generalizations used to achieve an effect in speech or writing."

The distinction, however, may not always be clear to a writer or editor, he suggested.

The difference is important, Norwood said, because the courts have dismissed libel suits in which they ruled that a publication was guilty only of rhetorical hyperbole in describing an individual or group. …

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