Understanding LibelIt’s essential to know the difference between what’s acceptable and what’s defamatory

Ben Franklin believed that journalists should be free to write anything they like without fear of being arrested or sued. And if a reporter should abuse his power and damage your reputation? “Break his head,” Franklin suggested. “Way-lay him in the night, attack him behind, and give him a good drubbing.” Drubbings never really caught on. Instead, we have lawyers. And as a result, if you write something that’s damaging and untrue, you can be sued for libel. Libel is a slippery slope. It’s harder to prove in some states than in others; it’s harder to win if you’re a famous celebri-ty or powerful politician. The legal boundaries evolve and shift over time too, as new cases create new precedents. So what’s a reporter to do? The most concise advice we’ve yet come across is this, written years ago by libel attorney William A. DeFord: “Be sure of your facts. Remember that when you make a statement that might be considered damaging you must not only believe it or even know it, but you must be able to prove it.”

At a glance: The beginning reporter’s guide to libel

So what exactly constitutes libel?All five of these criteria must be met:1. Statements must be false, based on facts that are wrong or unverifiable.2. Statements must be defamatory (damaging to a person’s or a group’s reputation). It can libelous, for example, to accuse someone of a crime, discredit a person professionally, accuse someone of immorality or imply that a person is infected with a loathsome disease. 3. Statements must be published. Any form of communication counts, whether it’s printed, broadcast, posted on the Internet, or just typed to a friend. 4. Plaintiffs must be identifiable. They must prove that they’re the ones named, described or pictured. 5. The defendant – that’s you – must be at fault, either through negligence (failure to exercise appropriate care) or malice (negative intent).

Who can sue for libel? Any living person can be defamed, but dead people can’t. Small groups (clubs, businesses, organizations) can be defamed; the government can’t. Getting sued or threatened with a suit doesn’t mean you’ve done anything wrong, but libel suits are costly and time-consuming even if you win.

Who is it that gets sued? Me, the reporter?Usually, it’s the publication, but the reporter can be dragged into court as a defendant, along with any editors who worked on the story. If the suit stems from a libelous quote you ran, the person quoted could be a defendant, too.

How do I defend myself if someone claims that I libeled him or her? Generally, the best defenses include:• Truth. The plaintiff must prove that what you wrote was false, so you’re safe if you can prove your story is true, or substantially true; minor errors sometimes don’t matter if the “gist” of the story is accurate.• Consent. If someone allows you to publish a libelous statement about him, he can’t successfully sue you later – even if the statement starts causing him damage. • Privilege. If you don’t take sides, the fair report privilege allows you to report on newsworthy statements and public controversies.

Are libel laws different for famous or influential people? Yes. Ordinary folks suing for libel need to only show that a publication acted negligently, but public figures and public officials must prove that publications acted with “actual malice” by recklessly & deliberately printing lies or disregarding the truth. Angry celebrities occasionally sue tabloid magazines for libel; however, those suits can be costly, humiliating and difficult to win - thus, they’re commonly resolved with cash settlements.

The Cherry Sisters vs. “Fair Comment and Criticism”

There once was a vaudeville trio called the Cherry Sisters, and they were horrible. In 1901, a critic for a small Iowa newspaper caught their act and wrote: Their long, skinny arms, equipped with talons at the extremeties, swung mechanically and anon waved frantically at the suffering audience. The mouths of their rancid features opened like caverns, and sounds like the wailing of damned souls issues therefrom... Reading this review, the Cherrys went bananas. They felt humiliated and degraded. They sued for libel, but they lost. Why? For one thing, the judge saw them perform. “If ever there was a case justifying ridicule and sarcasm,” he said, “it is the one before us now.”

The Cherry Sisters appealed to the Iowa Supreme Court and lost there too. The court ruled that “any performance to which the public is invited may be freely criticized. Also, any editor may publish reasonable comments on their performance.” Thus, the legal principle know as fair comment

and criticism was established. Because the Cherry sisters chose to expose their performance to public opinion, they had no right to whine when that opinion turned ugly. That’s why all critics of books, films, plays, sports events, restaurants or politics are free to public negative opinions. However, they aren’t free to publish damaging facts that aren’t true. That’s called libel.

PRINT it or PULL it? What would you do if you were the reporter in these situations?

1 A football coach tells you he’s benching the school’s star quarterback because “he’s been lazy and stupid. His head’s not in the game - he’s too busy partying and getting laid.” Can you print that quote?

2 Professor Smith published a paper theorizing that Asians are genetically superior to Africans. Professor Jones tells you that those ideas are “racist garbage.” If you print that, can Smith sue you for calling him a racist?

3 A local jazz musician dies. You’re collecting quotes for a profile about her, and one woman says, “She was a brilliant pianist, but the heroin turned her into a thief and a whore.” Can you print that comment?

4 After a week-long manhunt, police finally track down Daryl Lickt and arrest him for murdering his wife. In the story about the arrest, you refer to Lickt as “the alleged murderer.” Is is safe to say that?

5 A teacher abruptly quits amid rumors that he sexually harassed a student. Can you report that those rumors exist?

6 A local doctor who specializes in nutrition says that the food served your school cafeteria is unfit for human consumption and that school cooks are unqualified to know the difference between healthy and unhealthy food. Can you print her comments?

Libel Fact Sheet(Definitions to remember)

Libel: Published false statements about a person that injure their reputation

Elements of Libel:1. The libel was published2. Published material concerned the plaintiff3. Material is defamatory4. Material is false5. Defendant was at fault

Defamation of a person:1. Harms a person’s reputation2. Deprives a person of a right to enjoy social contracts3. Harms a person’s ability to work or make a living

Slander: Spoken false statements about a person that injure their reputation

Public figure: A person who has acquired fame or notoriety (a performer or athlete) or has participated in some public controversy (a protester or social activist). Must prove actual malice when suing for libel

Malice: Negative intent, knowledge of falsity or reckless disregard for the truth

1. Our experts unanimously agreed that you’d need to PULL at least part of that quote. “The ‘lazy and stupid’ and ‘partying’ comments would be considered loose, figurative language that can’t be proven true or false,” attorney James Tidwell said. “But the ‘getting laid’ comment can be proven, and could be construed as claiming the quarterback has loose morals. So unless you can independently verify the accuracy of the statement, I’d pull it.”2. PRINT IT. Professor Jones’ remark refers to the theory — not the author.3. PRINT IT. You can’t libel the dead, our experts all agree — but they also expressed some concerns about the ethics of running that quote. “What good would derive from printing such comments?” Tidwell asked.

4. PRINT IT — but only if Lickt has actually been charged with the crime. Until people are convicted of crimes, you cannot call them criminals. Until a person has been formally charged with a crime, you should avoid the risk of using alleged.5. PULL IT, our experts all agreed. “I didn’t know we were training students to report rumors,” attorney Jay Bender observed. “Unless there were a factual basis for publishing the allegation, don’t print it.”6. Our experts were divided on this one. Communications lawyer John Zelezny said PULL IT: “Allegations of professional incompetences and code violations are defamatory,” he said. For Tidwell, this was a close call, but he voted to PRINT IT: “I would argue that the claim in this context is loose, figurative language that can’t be proven true or false,” he said. “The claim of incompetence is similar to stating the cooks’ food isn’t fit to eat. It’s fair comment and criticism.”

PRINT it or PULL it? Answers from a panel of libel experts: