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Newspaper editor, publisher charged with criminal defamation

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  1. Libel and Privacy

    NMU         KANSAS         Libel         Mar 9, 2001    

Newspaper editor, publisher charged with criminal defamation

  • Two journalists will be forced to defend in criminal court two articles that questioned the conduct of the mayor.

A Kansas prosecutor has charged a local newspaper editor and publisher with criminal defamation for statements made in The (Wyandotte, Kan.) New Observer.

Edward H. Powers Jr., editor, and David Carson, publisher, were charged on March 1 with 10 counts of criminal defamation. Eight of the counts were for statements that suggested Mayor Carol Marinovich and her husband were not residents of Wyandotte County.

The newspaper, which is published monthly in print and online, asked in its November 2000 issue: “Is gossip that Marinovich lives in Johnson County true? Sources say she and her husband, District Court Judge Ernie Johnson, really live at 8525 W. 47th in Shawnee, a residence owned by Noah Johnson, according to Johnson County public records.”

In January, the paper apologized to Noah Johnson, the actual resident, and admitted Marinovich did not live there. However, the paper said, “(w)e are completely convinced that ‘Mayor/CEO’ Carol Marinovich and her husband, District Court Judge Ernie Johnson maintain a home in Johnson County. There are too many ‘Marinovich sitings’ (sic) by too many reliable people under too interesting social circumstances for it not to be so.”

The paper defended its story by stating that “two separate sources gave us logical, internally consistent information that Mr. and Mrs. Marinovich’s long-secret (Johnson County) home was located at the address we reported.”

The New Observer has been harshly critical of Marinovich and Prosecutor Nick Tomasic, who brought the charges. Powers, the editor, said the charges are politically motivated, and stem from his newspaper articles and his support for Tomasic’s opponent in a previous election.

“Tomasic thought (the charges) would shut us up,” he said. “It’s egregious what they’ve done.”

The remaining two counts allege defamation to Steve Nicely and Andy Rollins. The Feb. 1 issue asked whether Marinovich’s campaign manager “hired Andy Rollins and ex-(Kansas City) Star reporter Steve Nicely to lie for Marinovich?”

The journalists were charged under a state law that prohibits “communicating to a person orally, in writing, or by any other means, information, knowing the information to be false and with actual malice, tending to expose another living person to public hatred, contempt or ridicule; tending to deprive such person of the benefits of public confidence and social acceptance; or tending to degrade and vilify the memory of one who is dead and to scandalize or provoke surviving relatives and friends.”

A federal appellate court upheld the constitutionality of the little-used statute in 1995, even though at the time it did not require actual malice — knowledge of falsity or reckless disregard of the truth — an element required by the U.S. Supreme Court. The statute now expressly requires a plaintiff to show actual malice.

Powers said he posted a $1,000 bond, and that Carson, the publisher, posted a $2,000 bond. Their first court appearance is set for April 10.

(Kansas v. Carson; Kansas v. Powers) DB

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