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When reporters appear in unfamiliar formats, problems can occur From the Spring 2005 issue of The News Media & The…

When reporters appear in unfamiliar formats, problems can occur

From the Spring 2005 issue of The News Media & The Law, page 25.

By Grant Penrod

When Massachusetts Superior Court Judge Ernest B. Murphy’s libel lawsuit against the Boston Herald and four of its reporters came to trial in January, the case garnered significant national media interest. But what captured the attention of media pundits wasn’t the alleged libelous statements &#151 the Herald claimed Murphy told a rape victim to “get over it” &#151 or the fact that a rare libel lawsuit by a public official over comments about his job performance actually made it to trial.

What raised eyebrows was that Murphy was partially basing his case on statements Herald reporter David Wedge made during a subsequent appearance on Fox News’ “The O’Reilly Factor.” Commentators wondered whether the case signaled dire consequences for media cross-promotion and convergence, opening up whole new avenues of liability for journalists who appear in formats unfamiliar to them &#151 such as print reporters appearing on television, radio or online to talk about their stories.

Murphy’s case centered on a Feb. 13, 2002, Herald article by Wedge and Jules Crittenden headlined “Murphy’s law: Lenient judge frees dangerous criminals.” The article was part of a series addressing alleged overly lenient criminal sentencing by Murphy. Citing “several courthouse sources,” the article quoted Murphy as telling a rape victim: “She can’t go through life as a victim. She’s 14. She got raped. Tell her to get over it.”

After receiving several threats against himself and his family, Murphy sued in June 2002.

The source of the statement, and even its exact wording, remain unclear. One of Wedge’s sources, prosecutor David Crowley, testified at trial that he heard Murphy say some version of “get over it,” but could not remember the exact quote, Massachusetts Lawyers Weekly reported. Two other prosecutors who did not actually hear Murphy confirmed the quote to Wedge, the paper reported. Murphy denied making the statement at all.

“Neither Wedge nor anyone else at the Herald had any doubt about the accuracy of the statements,” said Herald attorney Robert Dushman.

During his March 7, 2002, appearance on “The O’Reilly Factor,” Wedge was asked if the quote was “100 percent accurate.” Wedge responded: “Yes he said this. He made this comment to three lawyers. He knows he said it, and everybody else knows that he said it.” Because Murphy is a public official, he had the heavy burden of proving by “clear and convincing evidence” that Wedge acted with actual malice &#151 meaning he knew the statement was false or recklessly disregarded whether it was true or not. Pre-trial speculation hinted that Murphy might try to use the O’Reilly appearance to prove actual malice.

“As a strict technical matter [the post-publication comments] really shouldn’t matter because the question really is what was the state of mind of the reporter at the time they wrote the story or aired the story,” said Kurt Wimmer, a media lawyer with Covington & Burling in Washington, D.C. “What happens afterwards should really not be the focus.”

However, “as a practical matter it does create a different inference for the jury who is now seeing not just the disinterested reporter writing what he thinks was correct, but the reporter as advocate on a television show reinforcing the point and driving it home, ” Wimmer said.

In the end, that is not how the O’Reilly appearance figured into the trial, Dushman said. “It was almost like just another publication,” he said.

The jury awarded Murphy a whopping $2.1 million in damages for 22 separate statements it found to be libelous, including two from the O’Reilly appearance. The jury had considered a total of 61 statements, five from the O’Reilly show. Murphy was awarded $300,000 for the “get over it” quote from the Feb. 13 article, and varying lesser amounts for the other statements. According to Dushman, the awards for the O’Reilly statements were roughly in line with the other damages awarded.

The Herald is appealing the verdict.

Should print reporters discuss their stories on TV ?

It’s nearly impossible these days to watch television news programs and not see print reporters appearing.

“In the era of modern journalism many media companies think as a practical matter they not only cannot keep reporters from appearing on talk shows, but there are some benefits,” said James Grossberg, a partner at Levine, Sullivan, Koch & Schulz in Laguna Beach, Calif., and principle newsroom lawyer for The Orange County Register. Newspapers like the promotional and public relations benefits while reporters want to enhance their careers, he said.

Wimmer agrees. “I’m not sure anyone would look at the Boston case and say reporters now should never go on the air to discuss their stories. I think that is unrealistic. These days with the convergence of media, reporters clearly will be talking about their stories on other news outlets. That is just the world that we live in,” he said.

But, Wimmer and Grossberg both stress caution in making such appearances. The media &#151 from the executive offices to the newsroom &#151 “need to be aware of potential legal problems when reporters speak outside of the pages of the newspaper or outside the confines of the broadcast booth,” Grossberg said.

That’s particularly true with controversial subjects, he said. “The reporter should think about what he or she is saying in the same context as when he or she is composing a story. This is information being publicly disseminated and they need to consider all of the same issues that they would consider before doing a page one story for the newspaper.”

Grossberg suggests that reporters thinking of appearing on television discuss the risks with their editor, publisher, or lawyer. He also suggests that reporters should be educated and aware of the legal ramifications of what they say. “You can’t expect a reporter to be a lawyer, but even knowing a few basics may significantly reduce the chances they’ll get themselves in trouble.”

The nature of the story is an important factor in considering whether to appear on television to discuss it.

“If a reporter goes on the talk show and does nothing more than essentially repeat what was already published, then that shouldn’t cause the newspaper’s libel lawyers to lose much sleep,” Grossberg said.

“The rule of thumb would be if it is something that it would be OK to put in the paper it should be something OK to say on the air,” he said. “The problem is determining what’s OK. There are more risks involved when a reporter is talking off the top of his or her head on a talk show.”

Wimmer also cautions that when the subject of a story has indicated that he or she might sue, “it’s really a wholly different issue.

“If the reporter really does know that there is a controverted version of the facts and it could be seen in multiple different ways, and the subject is disputing what he’s written, I think it does raise the risk profile of appearing on television just a bit, and that is something to take into consideration,” he said.

“If you’ve just come back from the tsunami site and you’re talking about what you’ve seen, that is an area where the risk is just negligible,” Wimmer said. “I really draw a distinction between reporting on a newsworthy event that you have been an eyewitness to, which is something that reporters obviously do all the time, and going on a news interview program specifically to talk about your story, which strikes me as a different animal.”

The differences between gathering and reporting news, and being interviewed about what you’ve reported, are also important.

“If you are a reporter and you are writing a story for a newspaper you are in control of the delivery, of the content, and its not just you, it is your editor, it is your copy editor, it is layers of review, it is time to reflect &#151 sometimes not much time &#151 but it’s time to reflect on what you’re writing and ultimately it is your content that you are delivering,” Wimmer said.

During a televison interview these protections are not there, and there is no chance for a second draft. “You’re not really in control of your content and that does a raise a risk for reporters,” he said.

These concerns extend beyond just defamation liability for television appearances, Grossberg said. “There are a whole variety of issues. One is potential defamation, another one is shield law issues. If you are in a jurisdiction . . . where it is an open question whether you can waive your shield law rights, then there is the potential that information that you divulge . . . could be deemed to be published and therefore not protected by the shield law.”

He notes that the same concerns apply to reporters who write Weblogs or gather news online in chatrooms, where records of their comments may be kept on Internet servers long after they disappear from the computer screen.

“Some of where this goes is going to be based on just where the business takes us,” Grossberg predicted. “Assuming that this continues, I think that the media will need to adapt to the trend the way it adapts to any new development. I don’t think this presents insurmountable problems. There are practical ways to address it.”