TV station did not defame store owner by leaving out favorable facts

• The state Supreme Court cleared a television station of defamation but said omitting facts could be cause for a defamation suit in other circumstances.

March 25, 2005 — A Spokane television reporter cannot be sued for defamation for omitting facts, the Washington Supreme Court ruled Thursday in a 6-3 opinion that leaves open the possibility of future defamation cases in the state where the omission of facts creates a false implication.

Spokane businessman Eliot B. Mohr did not convince the court that a television reporter defamed him by leaving out facts that would have cast him in a better light. Mohr also failed to show that the three 1998 newscasts were untrue, the court ruled.

Mohr sued KXLY-TV and reporter Tom Grant after three broadcasts about the prosecution of a man with Down syndrome for alleged harassment of Mohr and alleged trespass into his kitchen remodeling store. Glen Burson, whom court records say has the mind of a 5-year-old, wanted to wash the store’s windows in exchange for candy, and when he refused to leave the store, Mohr called the police.

Burson was arrested and charged with criminal trespass and harassment. Grant’s story about the incident did not name Mohr, but identified his store. Mohr declined an interview for Grant’s story.

After receiving more than 30 calls from upset KXLY viewers, Mohr gave Grant an interview and the station reported that Burson had previously threatened Mohr and his wife, but that he had asked prosecutors to drop charges. Mohr thought Grant should have included more from their interview, including that Burson once threatened to “put a bullet” in Mohr’s head. Mohr sued for defamation.

A Spokane County Superior Court judge dismissed the case, which was reinstated by the state Court of Appeals. At issue before the state Supreme Court was whether omitting the facts constituted defamation, not whether the newscasts contained false statements.

In ruling against Mohr, the state high court found that although including more facts in a story would have led to a more balanced report, the broadcast as a whole was not defamatory because it did not create a false impression.

Justice Mary Fairhurst, writing for the majority, said that to prevail under such circumstances, a libel plaintiff must show “that the communication left a false impression that would be contradicted by the inclusion of the omitted facts. Merely omitting facts favorable to the plaintiff or facts that the plaintiff thinks should have been included does not make a publication false and subject to defamation liability.”

Chief Justice Gerry L. Alexander and two other justices concurred with the majority, but rejected the idea of defamation by omission. “There is no Washington authority that supports the recognition of defamation by omission, and we should not recognize such a cause of action now. In my view, only words can defame, and they can do so directly or by implication. The absence of words, however, can never defame,” Alexander wrote.

Justice Tom Chambers and two other dissenters said that KXLY did not prove that “the gist of this story was true.”

“Mohr points to numerous discrete historical facts which, if believed, could lead a trier of fact to conclude that KXLY-TV knew and purposefully omitted facts from its story that slanted coverage,” Chambers wrote.

Though the television station won, the split opinion is not a clear victory for the press, according to Michele Lynn Earl-Hubbard, who represented 15 media groups, including The Reporters Committee for Freedom of the Press, in a friend-of-the-court brief.

Judge Fairhurst defined omitted facts as those known or reasonably known to a reporter — in Grant’s case, his interviews and Burson’s court file.

“You could actually be sued not for what you said, but for what you didn’t,” Earl-Hubbard told The Associated Press. “When you’re on deadline, I don’t know that you have a chance to write down every single fact in a big fat court file. They’re saying you can be held liable for omitting one little fact in a big fat court file.”

(Mohr v. Grant; Media counsel: Michele Lynn Earl-Hubbard, Davis Wright Tremaine, Seattle) — KM

Other links:

• Libel by omission of facts lawsuit reaches Washington Supreme Court

© 2005 The Reporters Committee for Freedom of the Press

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