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N.J. Court Decision Threatens Media's Ability to Cover Lawsuits

By Ben L. Kaufman · November 26th, 2008 · On Second Thought

This New Jersey appellate decision is dumb or scary. Or both. It allowed a libel suit against The Bergen Record to go ahead even though the defamatory statements were accurately and fairly taken from a bankruptcy court complaint.

This ruling contradicts the long-standing protection courts have given to information taken from documents filed with a court.

If allowed to stand — and worse, to spread — the reasoning in this decision could virtually end reporting of civil suits in which one party speaks ill of the other. Most suits speak ill of someone or something he/she has done, said, promised, threatened, etc.

Under the New Jersey ruling, repeating those accusations could be libelous if the news media couldn't prove their truth. That’s a job for a jury, not the news media.

The New Jersey court seems to want journalists to wait until a court has acted on defamatory claims. The Record says it will appeal to the New Jersey Supreme Court.

Defendants in civil cases must love the idea that critics’ accusations can be muzzled by a court. That’s because most civil cases end without trials where accusations and defenses are presented publicly. More than 90 percent are settled or dropped before trial.

Pretrial resolution doesn’t mean claims are invalid, only that the filing of a suit and the possibility of public airing of dirty laundry moves all sides to resolve the conflict or the party filing the suit gives up and drops it.

The public benefits when accusations in the civil suit are reported, especially when public money or public policy is involved. Think about what we learned from suits over the aborted nuclear power station in Clermont County, the health and safety problems at the Fernald uranium refinery and any number of hotel fires and car and airline crashes. There was a clear public benefit from the information in the complaints well before any of those civil suits went to trial or were settled.

The bright spot in this judicial murk is that a New Jersey precedent does not bind courts outside that state. One state’s precedent, however, can influence judges elsewhere.

Curmudgeon Notes

• Some of our best reporting and writing respond to misery, tragedy or danger. It’s our nature. A must-read example was in Tuesday’s Enquirer, the story by Quan Truong and Eileen Kelley of three children dying in a Lower Price Hill home fire. Instead of sensational and easy emotive adjectives, their story has details, verbs, quotes. It’s riveting storytelling.

• Wild fire coverage from Montecito, Calif., and neighboring Santa Barbara demonstrates what happens after a publisher has fired, discarded or driven out dozens of veteran reporters and editors and their institutional memory and honed trade craft. Online coverage in The Santa Barbara News-Press was almost useless, and national coverage — which needs local savvy — suffered as a result. For instance, a hilltop monastery burned; what denomination? Last time I was there, the monks were Episcopalians. Worse, what happened to the Montecito fire that chased celebs down from zillion-dollar mansions in the hills overlooking the Pacific? When wildfires erupted in Los Angeles County, they became generic “southern California” blazes without distinction. A nonceleb friend in Montecito says that fire was controlled well before outside news media caught on; attention had shifted south.

Finally, initial sloppy reporting asserted this would be the worst fire in decades in Santa Barbara County, with 100 homes destroyed. Not so, and I’ll bet any of those former News-Press reporters and editors would have known it.

The 1990 Painted Cave wildfire burned more than 500 homes above and in Santa Barbara, took my folks’ home and almost killed them.

• An exception to botched fire coverage was the local alternative weekly, Santa Barbara Independent. It’s a perfect example of old values using new technology. This is from Editor-in-Chief Marianne Partridge. She answered my question about the monastery, adding: “We have a small newsroom and two of our senior writers were out, so it was mostly a young staff putting out what amounted to round-the-clock reporting on our web. Two of the three reporters we had in the field were themselves under evacuation orders, one moved into the office with dog, cat and girlfriend, but all kept reporting. One of our graphic designers lost his home, but we were online within an hour of the fire and stayed there. According to my partner/publisher, who almost lost his own home but who keeps track of such things no matter what, we had over 100,000 unique visits to our site each day during the fire. Many of our readers who posted complained bitterly about the TV coverage, which went off the air at midnight of the first day despite the fact that winds were still blowing hard and the fire was spreading quickly through heavily populated areas. And of course no one can get into the News-Press site without a subscription. but since the ‘Gap’ fire this July most people know that and don't even bother to complain about it. KCSB, the university station, did a good job. We have a partnership with them, and they stayed on the air using our own reporters to phone in stories. That helped a lot of people.”

• E&P.com is covering post-election “anti-Obama, often racist, incidents taking place around the country, generally overlooked in the national media — but covered by local papers. Local stories show that anti-Obama incidents (including physical and verbal abuse, KKK outfits worn, flags burned on front lawns) are occurring on both sides of the Mason-Dixon line.”

• A biracial president poses pitfalls for attempts at humor, whether in editorial cartoons or words. The latest in “what were they thinking?” comes from The Murfreesboro (Tenn.) Post. It apologized for publishing a local weekly humor columnist’s “Ode to President Obama.” It began:

“Well we’re movin’ on up,
To Washington, D.C.
To a deee-luxe pimp pad,
Painted whiiiite.

Yeah we’re movin’ on up,
To the White House.
I’ll be jetting with P. Diddy cross the sky.”

Stephen Lewis, principal of Rock Springs Elementary, who wrote the column, sent an e-mail apology to parents, faculty, school board members and the school system, according to records obtained by Gannett’s Daily News Journal. The Post also took the ode down from the web site. Lewis' column revised lyrics to the theme song of The Jeffersons, a 1970s sitcom about a black family who rose from modest means, "movin' on up to the East Side" of Manhattan "to a dee-luxe apartment in the sky." Lewis likens that to Obama's move into the White House. Lewis also poked fun at losing state legislative candidate Rishi Saxena, an immigrant from India. Lewis advised Saxena, an American citizen since 1991, to perfect his Southern accent, "not southern Bangladesh," to become more electable.

• While suburbanites agonized over crime in the central city they rarely visit, their investments and property values are tanking. This tells us where true dangers lie. If you don’t buy sex or drugs on street corners, you probably won’t be threatened or hurt in the city. If you have a 401(k), other investments or property (think “home”), you’re probably threatened or hurt. The moral? If an editor has to choose between traditional police reporting and newer, smarter business reporting, shifting some resources into the latter makes good sense, as does the admonition to eschew traditional boosterism and deferential treatment of CEOs, developers and money lenders.

• Paparazzi agreed to stop chasing actress Sienna Miller as part of a settlement after she sued in England. The London-based Big Pictures photographic agency also paid damages. Parliament adopted the Protection from Harassment Act in 1997 to limit the actions of animal rights protesters and stalkers, and this appears to be its first use by a celebrity.

• News media ecstasy over Hillary Clinton being considered for secretary of state often quotes women who think it’s some sort of breakthrough. Immigrant Madeleine Albright (female) was secretary of state, as was an African-American woman, Condoleezza Rice. That should end the “woman as...“ exultation. Maybe the breakthrough involves Hillary’s shadow clouding men’s minds and erasing memory of her hubris, secrecy and Hillarycare fiasco.

• Newspaper apologies also can mean that lawyers have been involved and money has salved hurt feelings or bottom lines. Recently, Rupert Mudoch’s London Sunday Times added this to the rich lore of corrections and apologies:

Apology: Shaun Woodward's visit to Marrakesh

“Our story about Shaun Woodward’s visit to Marrakesh (Shaun of the Souks, November 2) contained mistakes that did not meet the accurate standard of reporting expected of the Sunday Times. The reporter was misled but information was inadequately checked. We now accept this was not intended as an ostentatious celebration. The photograph published was from library archives and not from the weekend. The visit to Marrakesh was organised without Mr Woodward’s knowledge by his wife, Camilla, as a surprise for his 50th birthday. There were fewer guests than reported. They did not visit a nightclub or Le Tobsil restaurant. The picnic they attended was more modest than we reported and the Woodwards did not stay in the hotel suite as described in the report. We apologise for the embarrassment caused to them and their family.”

• The latest in the “it’s too hot to check it out” comes from the New York Times’ Richard Perez-Pena. “It was among the juicier post-election recriminations: Fox News Channel quoted an unnamed McCain campaign figure as saying that Sarah Palin did not know that Africa was a continent. ... (T)he answer popped up on a blog and popped out of the mouth of David Shuster, an MSNBC anchor. ‘Turns out it was Martin Eisenstadt, a McCain policy adviser, who has come forward today to identify himself as the source of the leaks,’ Mr. Shuster said. Trouble is, Martin Eisenstadt doesn’t exist. His blog does, but it’s a put-on. The think tank where he is a senior fellow — the Harding Institute for Freedom and Democracy — is just a Web site. The TV clips of him on YouTube are fakes. ... MSNBC, which quickly corrected the mistake, has plenty of company in being taken in by an Eisenstadt hoax, including The New Republic and The Los Angeles Times. ... The pranksters behind Eisenstadt acknowledge that he was not, through them, the anonymous source of the Palin leak. He just claimed falsely that he was the leaker — and they say they have no reason to cast doubt on the original story. For its part, Fox News Channel continues to stand behind its story."

Pranksters Eitan Gorlin and Dan Mirvish say the blame lies not with them but with shoddiness in the traditional news media and especially the blogosphere. Perez-Pena quotes Mirvish as saying, “With the 24-hour news cycle they rush into anything they can find.” An MSNBC spokesman told The Times that someone in the newsroom received the Palin item in an e-mail message from a colleague and assumed it had been checked out.”

• Daily journalism — print, Internet or broadcast/cable — might not appeal to conservatives who like things as they are or were. Washington Post ombuds Deborah Howell concedes the appeal of journalism to liberals; we do want to change the world.

So, if we need more newsroom intellectual diversity, do we imitate Bush Justice Department partisan hacks and vet job candidates’ politics until we identify and hire true conservatives? Do we impose a religious test, hiring quotas of conservative, white evangelical Christians (but not politically and culturally conservative black Protestants, Catholics, Orthodox Christians, Jews, Muslims, Hindus or Mormons)?

• Veteran editor and buzz generator Tina Brown saw her new web site, TheDailyBeast.com, hoaxed by a bogus design for an Inaugural Ball gown for Michelle Obama. Internet is alive with schadenfreud.

CONTACT BEN L. KAUFMAN: letters@citybeat.com



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