Editors group renews call for states to adopt defamation proposal

Tuesday, December 15, 1998

Edward Seaton fears the big libel suit — in fact, the thought of one sometimes keeps him awake at night.

To illustrate the seriousness of the threat of libel actions, the editor of The Manhattan (Kan.) Mercury names several recent jury awards and settlements totaling more than $400 million. Among these:

  • Within days of publishing a 16-page expose on Chiquita Brands International, the Cincinnati Enquirer published a front-page apology and reportedly offered to pay the company $10 million.
  • A Texas securities firm won a $223 million jury award against The Wall Street Journal last year. A judge reduced the award to $22.7 million in actual damages and $20,000 in punitive damages.
  • A New York weekly folded in the wake of a $2.1 million judgment against it. Although the newspaper eventually won the lawsuit, it had no libel insurance to cover its legal bills.
  • Over the past decade, juries have awarded $58 million against the Dallas Morning News, $34 million against the Philadelphia Inquirer, $29 million against publisher Harte-Hanks, $18 million against Capitol Cities, $16 million against a California weekly, $13.5 million against the Cleveland Plain Dealer and $10 million against ABC News.

But Seaton, new president of the American Society of Newspaper Editors, says he sees hope in the Uniform Correction or Clarification of Defamation Act, a proposal drafted four years ago by the National Conference of Commissioners on Uniform State Laws.

As the new ASNE president, Seaton says he plans to renew efforts to encourage state legislatures to adopt the proposal in the upcoming year.

If enacted by a state, the proposal would allow plaintiffs in a defamation suit to recover only “actual economic loss” due to false statements if the publication or speaker offers a quick and visible correction or clarification. Many state laws today also allow plaintiffs to seek punitive damages.

If the act “is adopted in my state, I'm going to be able to sleep better at night,” said Seaton. “If we do make an error, I'll be able to focus on getting the story right rather than the punishment that may come for printing it.”

But not all journalists are as optimistic.

The Society for Professional Journalists, for one, warns that such laws could create an incentive for media owners to shy away from defending factual stories.

“There is already an incentive for publishers and media owners to go out of court and settle things rather than to defend the stories,” said Joel Campbell, who leads Freedom of Information efforts for the group.

Campbell says journalists only have to look as far as the Cincinnati Enquirer to see how the threat of libel affects the industry. In that case, the newspaper settled with the Chiquita banana company after it learned one of its reporters stole voice-mail messages.

“Obviously there was some theft and some problems with the stories,” Campbell said. “But what about the facts? Are they true? We haven't heard much about that.”

But Seaton writes in an ASNE editorial that current laws often give publishers incentive not to correct stories.

“News organizations routinely are advised against making a correction because if they admit the error they increase the plaintiff's chance of proving the claim in a subsequent libel trial,” Seaton wrote. “While most of us correct quickly in a black-and-white case of defamation, it is the gray cases where we are advised to consider that the correction may seriously hurt us in court.”

If states adopted the proposed defamation act, ASNE and others contend, wronged parties would be limited to only actual economic loss — such as compensation for a lost job — if the newspaper or broadcast station properly published a correction or clarification.

The Uniform State Law commission first offered drafts of the defamation act in 1994 and soon secured an endorsement from the American Bar Association. Most states refused to consider the measure in subsequent legislative sessions, although North Dakota approved a similar version of it in 1995.

“The bill was not the (North Dakota) media's choice,” said Jack McDonald, counsel for North Dakota's newspaper and broadcast associations. “It got kind of hoisted upon us.”

Although the media groups supported the bill, McDonald said the proposal opened them up “to a lot of potshots. It was a heck of lot of work to get it through without a bunch of bad” amendments by legislators.

Specifically, the North Dakota media groups staved off legislative amendments exempting malicious statements from the defamation act. McDonald said that if the law didn't cover malice, “then we might as well not pass the bill.”

At the time, the Reporters Committee for Freedom of the Press based in Arlington, Va., also expressed concern that the proposal “might prompt the media to publish spurious 'corrections' too hastily to avoid a suit and might encourage management to pressure reporters to reveal their sources.”

McDonald said the North Dakota Legislature amended the bill so that newspapers would not be required to identify sources, even if those sources provided the defamatory material.

McDonald said it has been difficult to gauge the law's impact on media in North Dakota because there haven't been any related defamation lawsuits since its passage. But he said newspaper publishers have called him about 10 times asking about the proper way to handle corrections.

SPJ's Campbell said it was encouraging that North Dakota added a few technical amendments to its version of the law to assure the protection of confidential sources. But he said that in other states — particularly Utah where he covers business news for the Deseret News — the legislatures often have taken a more adversarial position toward press issues.

“I've been bloodied and battered on my own turf,” Campbell said. “Anything that has the appearance of helping the press in states, legislators are more than happy to amend the bill. They want to be punitive, they want to punish us.

“You've got to be prepared for a major battle,” he said. “You have to have your lobbying ducks in a row. If ASNE brings this forward, are they ready to get all of the journalists groups and fight a major battle? They can't just say, 'This is a great idea.'”

McDonald says press associations must prepare early to guide the bills through their state legislatures and encourage business leaders and others to join the effort. Seaton says his group plans to do that.

“This doesn't just involve newspaper and broadcasts,” McDonald said. “Defamation can involve letters to the editor, company newsletters, billboards. You have to get business and advertisers involved. We didn't have time to do that, but you should do it in other places.”