Newspapers can mitigate libel with story inventories
November 29, 2012
By Stanley Schwartz
Managing Editor | Publishers’ Auxiliary
CHARLESTON, SC—Preventative medicine—it’s a good way to avoid debilitating illness. For newspapers, preventing libel claims is just as important.
And that’s what Jay Bender, with Baker, Ravenel & Bender LLP in Columbia, SC, wanted to do for community newspapers—offer some preventative medicine for libel suits. He said he didn’t want to talk about how to defend against a libel claim; rather he wanted to show how newspapers could avoid them.
Bender spoke to an audience of newspaper publishers and owners during the National Newspaper Association’s 126th Annual Convention and Trade Show.
If nothing else, Bender wanted those in the audience to remember that writing precisely and accurately will go a long way in preventing someone from filing a libel claim against their newspapers.
Libel, he said, “is the publication of a false statement of fact, of and concerning someone, that holds him or her up to scorn, ridicule and abuse, lowers him or her in the esteem of his or her fellows—in other words, injures his or her reputation.” But, he added, “you are in the news business and there are times when you will want to injure someone’s reputation—the police chief who’s taking bribes, the mayor who sleeps on the job; that is the function of a newspaper in our democratic society.
“What you want to avoid is the unintentional injury to reputation.”
Bender showed the traditional inverted pyramid style of story telling—where the most important information was put at the top of a story and the less relevant facts were toward the bottom. In the old days of setting type by hand, this allowed the typesetters to safely remove the bottom of the story if it didn’t fit on the page. Many newspapers continue this style of news writing.
“In my experience,” he said, “the place that gets you into trouble is about the seventh graph on the jump page of a 20-inch story.” For these long stories, he said, editors should start reading from the bottom.
He suggests taking inventory of every story—and every bit of every story.
For an effective inventory, publishers and editors should ask: Who is in this story; what has been said about them; and how is that supported?
All this needs to be done with an eye toward figuring out if the story was written accurately and precisely, he said.
As an example, Bender showed an actual story about a small-town, South Carolina police chief who had died a year after a debilitating car accident. The story also mentioned that he had never fully recovered from the accident and it had quotes from the town’s mayor and gave the name of the woman who had hit the chief. The woman had been charged with driving too fast for conditions.
For the inventory, Bender asked, who is in this story?—the police chief, the mayor and the woman that hit him. What was said about the chief?—that he’s dead. What was said about the mayor?—that he said nice things about the chief. And what was said about the woman?—that she caused his death.
But the story did not mention a cause of death. In actuality, the police chief died of cancer. There was no correlation between the accident and his death. It was only inferred because the actual cause of death was not mentioned.
Bender said that even though all the facts in the story were accurate, it still gave the impression that the chief had died because of the injuries he received in the accident.
“That story was accurate, but it was imprecise and could have been fixed if an inventory had been done,” he said.
He provided a few more examples where imprecise words in stories caused diminished reputation to some of the people mentioned.
Many journalism schools provide students with a list of words that could become actionable if used in stories.
Language changes over time, he noted. “It’s adjustable, it’s flexible, it’s adaptable, it’s ever changing. Twenty-five years ago saying someone was gay meant they were lively. Today, it means he or she is a homosexual.”
If ever you say someone committed a crime in a story, he said, you must be able to back it up with a public record, such as an arrest report.
In one example—a feel-good piece on Thanksgiving—the paper ran a series of photographs of young children, noting their names and what they’re thankful for. In the last photo’s cutline after what the student was thankful for, it said “Unknown Student, in the Witness Protection Program.” The paper was in a small South Carolina town and most everyone knew who the child was—a minister’s son.
Saying the child was in witness protection might diminish his reputation, Bender said. “Because most people think bad guys are placed in witness protection. But even without that, have we held this young man up to scorn and ridicule in his community?”
What had happened, he explained, was after the photographer returned and had written up the piece, he had left off this young man’s name. The editor wrote the caption and sent it back, figuring it would be caught in editing and fixed, but it ended up in the finished printed product.
Bender advised: “If you don’t want to see it in the paper, don’t put it anywhere.”
He also said that:
• It’s not just what you put in the article directly, but what you imply in the article that can run afoul of libel law.
• Spell check won’t catch properly spelled, but misused words. Careful reading will.
• It’s important to know how to read public records. Don’t rely on public officials to tell you what is in them.
• What’s said in a public meeting is protected speech, but what is said out in the hall is not, unless there is evidence to back it up.
• You should have the public record in the newsroom when the story is being edited.