A daily’s loss in court may cause journalists to rethink how they communicate

Journalists across the country are assessing the fallout a week after a North Carolina jury awarded nearly $6 million in libel verdicts against The Raleigh News & Observer and one of its reporters.

The case seems to provide more evidence that the growing unpopularity of media may translate into less-sympathetic jury pools when news organizations face lawsuits. Adding to worries among newsroom leaders are the ways outsiders, including jurors on the N&O case, interpret internal communications among reporters, sources, and editors.

The N&O is also the latest to find out how willing juries can be to award large damages when they believe a journalist has done someone wrong–in this case concluding the paper and reporter Mandy Locke libeled a state firearms investigator who was the subject of a story for an award-winning 2010 N&O investigation called “Agents’ Secrets.”

In North Carolina, the paper’s troubles didn’t end last Wednesday on the final day of a three-week trial, in which the jury awarded the plaintiff $1.5 million. The following day, the jury came back with a second verdict against Locke and her McClatchy-owned employer: A jaw-dropping $7.5 million in punitive damages–a figure so high it exceeded North Carolina’s cap on such punishments. Because of state limits, the total hit to the paper will be nearly $6 million if the verdict stands up on appeal.

The dual verdicts had those involved in First Amendment issues and investigative journalism watching closely, but the news hasn’t received much coverage outside Raleigh. The multi-million dollar judgements come at a time of cutbacks for the N&O, but also as the newspaper’s commitment to accountability journalism is featured prominently in a new book on investigative reporting by a Stanford professor.

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What’s more, some of the courtroom action has journalists thinking twice about how they correspond with sources and editors before a story is published.

First the background: An agent with the State Bureau of Investigation named Beth Desmond, 51, sued the paper in 2012, claiming it libeled her in a 2010 front-page story that was part of an investigative series about questionable practices at the SBI. The paper has stood by its reporting.

Here’s the nut of the plaintiff’s argument, as reported by the N&O, which carried the most comprehensive coverage of the three-week trial:

 

At issue in the case are six statements the N&O published in 2010, among them that independent firearms experts questioned whether Desmond knew anything about her field, and also that some suspected she falsified evidence in a 2006 criminal trial to help Pitt County prosecutors win a murder conviction. Desmond is suing the N&O and Locke, and says the Aug. 14, 2010 article triggered events that led to her developing post-traumatic stress disorder.

 

During the trial, the reporter’s sources testified they were misquoted or taken out of context. Locke testified that her sources, under pressure from the firearms analyst community, are now “distancing themselves” from what they told her for the story. To bolster their case, the plaintiff’s lawyer used notes and electronic correspondence among journalists at the paper, uncovered during the discovery process, and grilled them on the stand about their internal discussions about the story.

From the N&O’s trial coverage:

 

Assistant features editor Brooke Cain, who was a news researcher in 2010, was asked about her emails with Locke in preparation for the story about Desmond. In a June 2010 email asking Cain to make a public records search, Locke wrote that she had narrowed her focus to a few SBI agents and firearms analysts “that we’re bearing down on.” Also in June, Locke had learned that Desmond had once been a ballet dancer with the Juilliard Dance Ensemble. “Bingo!” Locke wrote to Cain. The researcher responded: “Sounds like an excellent main character for a crime novel.” Locke wrote: “How in the world this woman went from ballet to firearms identification work is beyond me.”

 

The lawyer also found emails from a then-photographer who had emailed Locke at one point, saying, “Concentrate on writing the best damn piece you’ve ever done … I want you to compel our readers to gather pitchforks and torches.” (The photographer said at trial that he wasn’t talking about the story in question.)

After the verdicts came down, the N&O reported Desmond’s attorney, James Johnson, said he believed internal emails and memos from the newsroom had an impact on the jury, which in the end agreed with the plaintiff, concluding statements published by the N&O were false.

Dance like nobody is watching, but email like it may one day be subpoenaed and read aloud in a deposition.”

 

That’s an aspect of the case that has some journalists re-thinking the way they go about their own work prior to publication. “My very clever boss has a saying,” though perhaps not original, says Trevor Hughes, a Denver-based correspondent for USA Today. “Dance like nobody is watching, but email like it may one day be subpoenaed and read aloud in a deposition.”

Trials like the one in Raleigh, he says, show the danger in quoting things out of context, or trying to understand someone’s thought process as they develop their approach to a story. “Technology has made it incredibly easy for me to stay in touch with my bosses around the country, but it also leaves an electronic trail,” he says. “As a reporter, I certainly wouldn’t want internal discussions with my editors about how to approach a story laid bare to the public. But at the same time, it’s hard to have those tools available and instead remember to pick up the phone.”

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Mark Binker, a political reporter for WRAL in Raleigh, gets his hackles up just seeing an email he wrote to a public official appear somewhere, uncovered through an open records request by another journalist.  “I am more than certain there are emails that I’ve written that have been less than thoughtful,” he told me.

But just as much as a trial that featured analysis of internal newsroom discussions on the witness stand, a barrage of leaks such as those from Wikileaks showing just how often electronic communication can surface–however it surfaces–has Binker putting as few words as possible in emails these days.

After reading about the N&O trial, Barry Yeoman, a North Carolina journalist who does plenty of investigative work, started looking through old emails among editors about certain stories he covered. Investigative journalism is a collaborative process, he tells me. It’s messy, with a lot of rough edges rubbing up against each other. You sharpen ideas, and some of those ideas end up getting scrapped.

“So if somebody looked at my emails out of context, they may see a point in my thinking where either I have proposed something beyond where the facts may go, or I’ve proposed something that is too timid,” he says. “It is in the honest conversation that I can push the boundaries and an editor can push me back. Or I can arrive short of the line, and an editor can beckon me forward. And it is a dance that happens backstage so that the final product is absolutely true.”

Yeoman says he does worry one email or another he wrote to an editor could be misinterpreted if it ever got in front of a jury. But in many cases, he says he will still write it. “You need to put your thoughts out there if you’re going to get the feedback and the dynamic back and forth that story development needs,” he says.

As for The News & Observer, the paper has vowed to appeal, and it stands by its coverage as accurate and valuable to the community. “Our 2010 stories about the SBI raised important questions about how that agency investigates and how agents testify at trial,” N&O editor John Drescher said in a statement. “After the stories were published, numerous changes were made in how the SBI and the state crime lab work.”

“The N&O has not and will not shy away from reporting on tough issues important to North Carolina,” he added. “We will appeal the jury’s decision and look forward to discussing these stories with the appellate courts.”

The verdict against this local newspaper is the latest against a publication in a year that has seen news organizations in the crosshairs of litigators. In January I wrote about how journalists across the border in South Carolina were paying close attention to a libel ruling in that state. Judges for an appeals court there examined a reporter’s emails and correspondence with sources to assess his state of mind as he approached his story. In March, a jury awarded $115 million to Hulk Hogan after Gawker published a sex tape involving the pro wrestler. Journalists joking around on internal work chat software came out in discovery, depositions, and at trial. For the past week, jurors in Charlottesville, Virginia, have been hearing testimony in a defamation trial brought by a university administrator against Rolling Stone magazine for the story “A Rape on Campus.” Presidential candidate Donald Trump has continually threatened media outlets with lawsuits.

It is rare anywhere in the US for a libel suit to end up in front of a jury–many are dismissed by judges–but as North Carolina Public Radio pointed out this week, when they do go before juries, judgments against publications are high, and jurors like to “smack down the media” when given the chance.

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“Any time a newspaper is taking a case to a jury it’s risky,” says Jonathan Jones, director of the North Carolina Open Government Coalition, who teaches media law at Elon University. “And especially in sort of the current climate of public distrust in the media–and in some cases even public disgust in the media–I think it’s a particularly risky time to be going to court with these.”

The current climate of public distrust in the media–and in some cases even public disgust in the media–I think it’s a particularly risky time to be going to court with these.”

 

The verdicts come at a tough time particularly for the N&O, which got a new publisher this year.

Like many papers its size, it has been laying off staff including, most recently, the last of its graphic design team and an assistant opinion editor who had been there for nearly three decades. Like other papers, it has been forced to scale back days the opinion page runs. A business editor who left within the past six months has not yet been replaced. In 2004, the newspaper had around 250 full-time newsroom staffers.* Now that number is in the low 80s. Like other papers, the N&O is selling its building to save on operating costs.

“There are people there who are doing the best work that they can but the newspaper cannot do the best work that it can with fewer and fewer resources,” says Andy Curliss, a journalist at the N&O for nearly 20 years who recently left for the private sector as a communications specialist. “We have reached the moment where the cuts upon cuts upon cuts are apparent in the context of coverage–with multiple political campaigns, with a serious hurricane–and these are the things the N&O would have covered in tremendous depth in the past, and it would shine.”

That said, the N&O is a paper that has put a premium on accountability journalism and has protected its investigative team from cutbacks. It is one of the few American newspapers of its size with a dedicated investigative unit. The team of three investigative reporters, plus a data journalist, is overseen by an investigative editor. And that unit has actually expanded in the past decade despite the economic crunch.

“This type of reporting has been a core strength of the News & Observer for a long time,” Drescher tells me, adding, “even in a time of cuts we wanted to continue to do the kind of important journalism that our readers expect of us.”

Outside Raleigh, others have taken notice. The N&O’s commitment to watchdog work makes consistent cameos in Democracy’s Detectives: The Economics of Investigative Journalism, published this month by James T. Hamilton of Stanford University.

Big projects like “Agents’ Secrets,” which got the paper sued, take time and resources the newspaper is not likely to recoup in operating costs, but have a measurable benefit to society, Hamilton says. In one chapter of his book, he calculates an N&O series on the state’s probation system cost the paper $200,000 in salary and expenses. And the series, he believes, saved lives.

Hamilton’s concern: Big libel verdicts like the one leveled against the paper are another economic burden to producing such work. The paper does carry libel insurance but still had to shell out for legal bills.

No one rolls out of bed in the morning and says ‘Thank you, News and Observer for lowering the probability I’ll be murdered today by a probationer.”

 

“I think if you look at the language that the plaintiff’s lawyer used, it’s populism: Send the paper a message about what impact it has on people’s lives,” Hamilton says. But what gets lost in that is how the series the N&O reported changed policies at the SBI. In Democracy’s Detectives, Hamilton lays out why he believes fewer people were murdered in the state because of the newspaper’s investigative work on the probation system.

“But no one rolls out of bed in the morning and says ‘Thank you, News and Observer for lowering the probability I’ll be murdered today by a probationer,’” he says. “It’s the things that don’t happen that we neglect, but really the preventative actions that are generated by holding an institution accountable that’s really important, and I didn’t hear people really talking about that–because that’s something that you don’t often put a dollar value on.”

Photo credit: Jon S. via Flickr 

Editor’s note: An earlier version of this story incorrectly stated the number of full-time staffers at the N&O in 2004. There were 250 full-time staff in the newsroom at that time, not at the entire newspaper.

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Corey Hutchins is CJR’s correspondent based in Colorado, where he is also a journalist for The Colorado Independent. A former alt-weekly reporter in South Carolina, he was twice named journalist of the year in the weekly division by the SC Press Association. Hutchins recently worked on the State Integrity In vestigation at the Center for Public Integrity and he has contributed to Slate, The Nation, The Washington Post, and others. Follow him on Twitter @coreyhutchins or email him at coreyhutchins@gmail.com.