Can I say that? A legal primer for journalists

Photo: AP

Here’s how it was done for hundreds of years.

One man would smear another’s reputation, and the offended party would challenge his foe to a duel involving swords or pistols. But before scheduling it, the two would attempt, through third parties, to reconcile their differences. Typically, the offender would admit some kind of wrongdoing (e.g., that his comments were spurious) without admitting that he had acted maliciously—and the duel would be called off. Still, many thousands died in duels, which were long seen as the civilized way to defend your honor and reputation.

Courts, of course, ultimately won out as the preferred venue to redress reputational harms, and that’s why today I generally don’t advise my clients to use swords or pistols to resolve defamation claims. Instead, I mostly help journalists and others avoid claims by doing pre-publication reviews—by checking their copy for legal landmines before it’s published or aired. This is a routine part of my practice, one that I put in the Can I say that? category.

As a media lawyer, I field all manner of questions every week, and whether I’m speaking generally to a non-client or giving specific legal advice to a client, I’ve noticed that the questions fall into three broad categories:

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Can I use that?

Can I do that?

Can I say that?

In recent posts, I’ve explored Can I use that? and Can I do that? questions. This post picks up where those left off, with Can I say that? questions—focusing on defamation and the risk of running a story that harms a person’s reputation.

(Please keep in mind that I’m a lawyer, not your lawyer, and these comments shouldn’t be construed as legal advice.)

The ‘red flags’ for defamation risk

Defamation, the umbrella term for libel and slander, is a state law claim that is limited by federal constitutional principles—that is, states can define their defamation laws how they want, as long as they comply with First Amendment requirements. That means the laws vary from one state to the next, but generally to defame someone means publishing a false statement of fact about a person that harms his or her reputation.

Journalists frequently ask what subjects are most likely to raise the specter of defamation. The major red flags involve accusing a person of criminal activity, of a serious moral failing, of job-related incompetence, of having a stigmatized disease, or of sexual promiscuity (keeping in mind, again, that for a statement to be defamatory it must be false).

Making a false statement of fact related to one of those subjects is highly likely to harm a person’s reputation, and in some states it qualifies as “per se” defamation, which means the plaintiff does not have to prove actual harm. The court will presume harm because of the statement’s subject.

Why Kato could sue over an accurate article

Journalists also frequently ask whether a short statement, like a headline or photo caption, can be defamatory. The answer is yes. Consider the classic case Kaelin v. Globe Comm. Corp., decided in 1998 by the Ninth Circuit.

One week after OJ Simpson was acquitted of the murders of Nicole Brown Simpson and Ronald Goldman, the National Examiner’s front page included this screaming, boldfaced headline about Kato Kaelin, a witness at Simpson’s trial: “COPS THINK KATO DID IT!” In smaller font nearby was the subhead: “He fears they want him for perjury, say pals.”

Inside the paper, the story reported that Kaelin’s friends were worried that the LAPD was investigating Kaelin for perjury. The story neither stated nor implied that the LAPD was investigating Kaelin for murder. The appeals court, reversing a judgment for the paper, held that the headline falsely insinuated that the police believed Kaelin committed the murders, and that the insinuation was not cured by the subhead or the otherwise accurate story.

So, yes, a headline or caption can be defamatory. The same goes for tweets and other short social-media posts. In 2011, the musician and actress Courtney Love agreed to pay $430,000 to a fashion designer who claimed that Love posted defamatory tweets about her two years earlier, harming her reputation and business.

But can I say he said it? And what if it’s my opinion?

Another common question is whether news organizations are liable for republishing defamatory statements made by others, including sources. With few exceptions—which I won’t cover here, because their invocation is relatively rare—republishing carries the same legal consequence as publishing. The fact that a source or story subject made the statement would not be an effective defense.

Finally, I sometimes get questions about the distinction between facts and opinions in libel law (recall that to defame someone means you publish a false statement of fact). This is an important but difficult concept. The First Amendment mostly protects the expression of opinions, jokes and hyperbolic language, so a defamatory statement is one that a person reasonably would believe as asserting an actual fact.

For example, in a classic 1998 case decided by the Virginia Supreme Court, the justices held that a college administrator could not successfully sue a student newspaper for libel based on a caption that referred to her as the “Director of Butt Licking.” The newspaper had published a story about a program the administrator facilitated, and the journalists had inserted that title as a placeholder while laying out the paper. Then they forgot to change it.

Writing for the court, Justice Elizabeth Lacy said the administrator could not sue because the title could not reasonably be construed as an allegation of fact. “The phrase is disgusting, offensive, and in extremely bad taste,” she wrote, “but it cannot reasonably be understood as stating an actual fact about [the administrator’s] job title or her conduct.”

A statement’s context is probably the most important factor in determining whether it is an opinion or a fact. In other words, as you consider the language, be mindful of context: how the words are used, what words surround them, and thus the statement’s overall meaning. And understand that many common words can have a specific defamatory meaning or a more general hyperbolic meaning, depending on context—words like bankrupt or thief. For example, you could say someone is a thief and actually mean the person has stolen from others, or you could say, “My girlfriend is a thief for stealing my heart after our first date.”

And, last but not least, a few words about prefatory remarks like “I think…” or “In my opinion…” They don’t magically transform a factual statement into opinion, and so they don’t immunize you or otherwise allow you to say whatever you want. In other words, prefatory remarks don’t operate like the scene in Talladega Nights in which Ricky Bobby claims he can say whatever he wants as long as he prefaces the statement: “With all due respect…”

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Jonathan Peters is CJR’s press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.