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Libel by omission of facts lawsuit reaches Washington Supreme Court From the Summer 2004 issue of The News Media &…

Libel by omission of facts lawsuit reaches Washington Supreme Court

From the Summer 2004 issue of The News Media & The Law, page 29.

By Kirsten Murphy

In 1998, a television reporter in Spokane, Wash., learned of an ongoing criminal prosecution of Glen Burson, a local man with the mental capacity of a 5-year-old.

Burson would regularly visit area businesses and offer to clean their windows in exchange for candy. As KXLY-TV reported in a series of stories, Burson was being prosecuted as the result of one such visit.

The business owner at the center of the story immediately objected to the broadcasts, calling them one-sided. He later brought a defamation and emotional distress lawsuit against the TV station based on what wasn’t reported in the broadcasts. Omissions of fact in the stories created a false impression, he argued.

Libel by omission is not a new type of defamation claim. What makes the case unusual is that courts have long disfavored such suits out of deference to First Amendment interests.

The Washington Court of Appeals ruled in May 2003 that the case may proceed to trial. The state Supreme Court is expected to rule on the media defendants’ appeal by the fall. If allowed to continue, the case could serve to strengthen the right to second-guess and punish the news media for failing to include facts in their reporting.

Mohr v. Grant

Upon hearing about Burson’s prosecution, KXLY-TV investigative reporter Tom Grant obtained the court file, police reports and an incident history. He also learned that business owners Eliot and Louise Mohr repeatedly requested police assistance in previous dealings with Burson.

Burson, a 40-year-old man born with Down syndrome, was arrested after he threatened the Mohrs by making slashing motions across his throat and saying he would shoot them, according to court documents. Burson was charged with trespassing and harassment, although the charges were eventually dropped when he was ruled incompetent to stand trial.

The news station reported the story of Burson’s prosecution in a series of broadcasts in November and December 1998. The broadcasts showed interviews with several of Burson’s family members and his defense attorney, who described him as “gentle and childlike.” One broadcast contained an interview with Burson himself describing the incident that culminated in his arrest. He added that Eliot Mohr hit him.

Mohr did not respond to Grant’s request for an interview, court records show, and did not appear in the first segment of the series. But the story mentioned the name of his business, Kitchen Interior Showcase, and showed the storefront.

After the first segment of the series, Mohr called Grant and complained that the coverage was one-sided. In a second story, for which Mohr agreed to be interviewed, he is shown explaining his past dealings with Burson. Mohr said he had not wished to press criminal charges, but was told that only the police could abandon the prosecution. More than 30 viewers called Kitchen Interior Showcase to announce their intention to boycott the store.

Mohr brought a defamation and emotional distress lawsuit against Grant and KXLY-TV, alleging that the broadcasts harmed his business and reputation. The omissions of facts in the broadcasts falsely portrayed him as a bully, Mohr argued.

The trial court disagreed, granting KXLY’s motion for summary judgment. However, the Washington Court of Appeals concluded that Mohr had made a sufficient showing of defamatory falsehood, negligence and damages for the case, Mohr v. Grant, to proceed to trial. A reasonable jury could conclude that the broadcasts harmed Mohr more than it would have if the omitted facts had been included, the court held.

The crux of Mohr’s argument was that the defendants made a choice to omit certain facts from their broadcasts that, if included, would have put the incident in the proper context. Because they edited those facts out, the broadcasts created a false impression of the Mohrs and their involvement in Burson’s arrest, Mohr argued. Mohr argues that the public outcry against him and his business was largely generated by the omission of facts in the broadcasts.

Contrary to what Grant reported, Burson had a criminal history, Mohr further contends. And according to police records, which Grant allegedly knew about, Burson had repeatedly threatened the Mohrs with violence. Without these omitted facts, Mohr argued, the story created a false impression.

In 2003, Grant left KXLY to run for mayor of Spokane, Wash. He lost to former state Sen. Jim West.

Although the Court of Appeals did not rule on the merits of Mohr’s claim, deciding only that the case may continue to trial, the court did recognize a cause of action for libel by omission, which no Washington court had previously done.

“We cannot say that no reasonable jury could find that the omitted facts would have placed the events . . . in a context in which the Mohrs’ conduct would appear less arbitrary and insensitive than in the story as broadcast,” the court wrote.

But failure to make a plaintiff look “good” or sympathetic in a story has never been sufficient in any libel by omission claim, said KXLY-TV’s attorney Michele Earl-Hubbard, a partner at the Seattle offices of Davis Wright Tremaine. According to Earl-Hubbard, no other court in the country has recognized a “pure omission” claim — based solely on which facts were excluded, rather than whether the omission created an intended false implication or assertion.

“What the lower court did cannot stand,” she said. “They created a pure omission tort, with no false implication required at all. No other court has done this. This was not a tort in Washington before this case. This tort doesn’t exist anywhere.”

The Case Law

The U.S. Supreme Court has never directly ruled on a libel by omission claim. However, in the 1974 case Miami Herald v. Tornillo, the Court held unconstitutional a Florida statute that created a right for political candidates to have their replies to press criticisms published. “The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment,” the Court unanimously held.

Many courts have read this ruling as an admonition to refrain from interfering with the editorial process, including choices to omit material.

For example, in Janklow v. Newsweek, decided in 1985 by the U.S. Court of Appeals in St. Louis, Mo. (8th Cir.), the court reasoned that there is no difference between a law forcing the news media to publish a specific item and allowing a plaintiff to “recover damages based on mere failure to publish a specific item.”

Former South Dakota Gov. Bill Janklow had argued that a Newsweek article about a “feud” he had with South Dakota Native American activist Dennis Banks defamed him because it made selective omissions of fact. The charges focused on an accusation that Janklow had raped a 15-year-old Native American girl who babysat his children.

Janklow argued that Newsweek omitted circumstances surrounding the rape allegation by failing to include certain facts, including that he had passed a lie detector test in which he denied the rape. Also not mentioned in the story was the fact that a polygraph examiner concluded the Indian girl was untestable because of the emotions she displayed during testing, and that a medical examination of the girl showed no evidence of rape.

The Eighth Circuit, noting that South Dakota law did not recognize claims of libel by omission, determined that “libel, by definition, consists of the publication of a false and unprivileged fact. Thus, liability may be imposed in a libel case only for an assertion or implication of fact that is false and unprivileged, and not for mere omission of a relevant fact.”

Newsweek could not be held liable, the court held, because “while newspapers have long been liable for that which they publish, they have never been liable solely for that which they omitted.”

Getting the Gist of It

News media defendants can defeat a libel by omission claim by showing that the publication is substantially true. In making such evaluations, courts look at the “gist” of a publication, taking it as a whole to see if the alleged false implication of the article or broadcast is the main inference that a reader or viewer might draw.

In the 1978 case Memphis Publishing v. Nichols, the Tennessee Supreme Court found that the truth of all the individual facts of a publication is not a defense if an omission “so distorted the truth as to make the entire article false and defamatory.” In this case, a newspaper article about a woman who shot at her husband after finding him in another woman’s living room left out the fact that there were several other people in the room at the time of the shooting. The clear and false implication, the court found, was that the husband was having an a ffair with the other woman.

“The publication of the complete facts could not conceivably have led the reader to conclude” the plaintiff was having an affair, the court held, and would have completely negated the false implication.

That doesn’t mean the news media are required to report all relevant information. In Green v. CBS, the U.S. Court of Appeals in New Orleans (5th Cir.) held in 2002 that the “gist” of a CBS broadcast was substantially true, despite the omission of facts that would have shown the plaintiff in a more favorable light.

The case arose over the broadcast of “Lotto Town,” a segment on the TV news magazine show “48 Hours” about changes in lottery winner Lance Green’s life. The story included Green’s divorce from his wife, Mitzi, her accusation that he had sexually abused her daughter from a previous relationship, and a statement that Mitzi “wanted more money.” At one point during the show, Green and his lawyer said they believe Mitzi fabricated the rape charges.

Mitzi filed suit against CBS for defamation and invasion of privacy. She claimed that the broadcast was misleading as a whole, painting her as a “gold digger” and a liar, because CBS failed to include relevant information about her.

The court disagreed. “Given that CBS accurately reported facts, albeit not all the facts, whether or not the story painted Mitzi Green in an attractive light is irrelevant,” it ruled.

Even though including additional facts would have led to a more balanced report, the court concluded, the broadcast did not make any factual misrepresentations and was therefore not defamatory.

A Chilling Effect

Courts disfavor libel by omission claims because of the difficulty in proving that the defendant intended to create a defamatory implication. More to the point, as the U.S. Court of Appeals in San Francisco (9th Cir.) stated in the 1991 case Newton v. NBC, “editorial decisions to omit material are best left to editors.”

Earl-Hubbard of Davis Wright and Tremaine points out that these cases allow judges and juries to put themselves into the position of “super-editors.”

“This is scary for the media,” she said. “You never know what facts will cause a judge or jury to say, ‘Shame on you; you should have reported that.’

“Editorial discretion requires some breathing room for complicated facts.”

The ultimate problem, as the Ninth Circuit held again in the 1995 case Auvil v. CBS “60 Minutes, is that “because a broadcast could be interpreted in numerous, nuanced ways, a great deal of uncertainty would arise as to the message conveyed by the broadcast. Such uncertainty would make it difficult for broadcasters to predict whether their work would subject them to tort liability.”

This uncertainty, the court determined, “raises the spectre of a chilling effect on speech.”

If the Mohr decision stands, Earl-Hubbard says the effect will be similar.

“The idea that someone can come in and look at all the facts you had in your files, and in your brain . . . the media would never be able to get cases dismissed,” she said.

“Plaintiffs would always get to a jury. Ultimately, this would mean that a lot of stories would never get written at all.” u