Although reporters and editors should be sensitive to any statements which may damage reputation, not all such statements are considered defamatory as a matter of law. In general, only statements or implications of fact can form the basis of a libel suit. In addition, minor factual errors may be non-actionable if they add nothing to the "sting" of the true facts. Types of statements that generally will not support a defamation action include:
(a) Insults or Name-Calling: Such words are generally not considered defamatory. However, there is a long history of cases that have construed common insults as statements of fact, and the conclusion may well turn on the context of the story.
(b) Opinion: The Supreme Court has said, "Under the First Amendment, there is no such thing as a false opinion," seemingly preventing statements of opinion from serving as a basis of libel suits. However, in Milkovich v. Lorain Journal, the Supreme Court refused to recognize any special protection for opinion, beyond the requirement that defamatory statements must be capable of factual verification. Pure statements of opinion therefore remain protected, but the distinction between statements of fact and opinion must be drawn more conservatively than it might have been prior to 1990. It is possible that state law, including state constitutional protections for freedom of the press, may still provide the broader protections available for "opinion" prior to Milkovich.
(c) Fair Comment: In response to Milkovich, some courts may apply older and more technical rules relating to "fair comment" in construing matters of opinion. Under these rules damaging statements of opinion were protected only if they concerned matters of public concern, represented the true opinion of the speaker and were based on true facts, accurately stated or readily available to the public. Thus, for example, a critical drama review that included factual errors might well have been unprotected. Although the First Amendment places some limits on such a "strict liability" approach, the fair comment rule has not been expressly overruled and should be considered when dealing with subjects within its scope.
(d) Quotations: Inaccurate or edited quotations pose special problems under the Supreme Court's decision in Masson v. New Yorker Magazine, Inc.. Although the Court rejected the argument that deliberate alteration of quotes automatically constitutes "knowing falsehood" and therefore actual malice, the Court did recognize that misquotation might carry its own defamatory "sting" by appearing to place the damaging statements in the plaintiff's own words.
(e) Improbable Charges: Even under the New York Times rule, the Supreme Court has held that publication of inherently improbable charges without further investigation may be evidence of reckless disregard of the truth. In some cases, of course, the fact that such an improbable charge has been made may, itself, be news. If it is necessary to publish such charges, consider presenting them in such a manner and with such facts as to make the improbability obvious to the reader, thus neutralizing any defamatory effect.
Recognize, however, that there is some risk in this approach, both from the subject of the charges who can then argue that the newspaper knowingly published improbable charges and from the person who made the statements, who may be portrayed as a liar by implication.
(f) Libel From Extraneous Facts: In rare cases, the defamatory impact of apparently innocent statements may be shown by a plaintiff from extraneous facts known to a segment of the public. Although this type of libel is difficult to prevent, be sensitive to the fact that some generally accepted conduct - for example, drinking or gambling - may not be acceptable to some groups. Reporting that a celebrity was drinking may be libelous if the person is an active spokesperson for temprance.
(g) Photographs and Captions: Libel may arise from false implications of photographs or their captions, and from their juxtaposition with news stories. Avoid photographs that can be misinterpreted, imprecise photo captions and erroneous implications that innocent photo subjects are involved in conduct criticized in the accompanying story.
(h) Headlines and Lead Paragraphs: It has been held that misleading headlines or lead paragraphs may be the basis of a libel suit even if the misimpression is corrected by a full and accurate report in the story as a whole. This situation is especially dangerous, as the story itself can provide evidence of the falsity of the implications of the headline or lead.
(i) Overall Context: A number of the "privileges" or protection available for various types of stories, discussed above, depend on the fairness and accuracy of the report. Likewise, it has been held that reckless disregard of the truth under the New York Times rule may be shown by evidence of circumstances demonstrating that the newspaper was predisposed to ignore doubts concerning the truth or falsity of statements about the plaintiff.
The defense of "neutral reportage" also depends on the newspaper's perceived neutrality in its presentation of the dispute. Each of these situations demands careful scrutiny of such things as rhetorical questions, treatment of the news subject's responses, and the overall slant of the story.
In addition, be sensitive
to the broader context of the newspaper's prior coverage of related stories,
editorial positions, etc., which may indicate either endorsement of one
side of a controversy or predisposition to ignore the other. Note: If
the newspaper elects to advocate a position, it should be done consciously,
with due regard to the increased risk through loss of these defenses.
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