Truth and Consent

The best defense against a libel suit is that the information you have presented is the truth.

Part Two:  Privacy vs. the Right to Know in last month's issue

If you are doing your job properly and not misrepresenting the facts, this should be easy when producing news. In 1996, ABC News learned the hard way that news coverage cannot be deceitful in any way. As part of their investigation into unsanitary conditions at a popular food market, an employee of ABC applied for and got a job at the market using a false resume. A jury found ABC's allegations of unsafe practices in the store to be true, but gave an extremely large settlement to the store's management because of the deceptive way ABC uncovered the story. The end does not justify the means, and a jury can drive that point home in a big way.

Related to truth, another defense is to present a story as opinion. For example, news organizations regularly conduct public polls to gauge the public's opinions on a variety of issues. If a poll reveals that, say, a majority of Americans believe that a certain actress did not deserve to win an Oscar for best actress in a particular movie, the poll can be considered newsworthy because of the prominence of the actress and the Oscar awards. The poll might hurt the actress's feelings and possibly even cause her to lose an audition or two (though the added publicity might actually increase her auditions); however, she would not be likely to file any lawsuit because the news organization only reported public opinion. If the news organization itself chooses to state an opinion, then that opinion must be labeled as such. If in print, the opinion piece should appear on the opinion page; if broadcast, it should be labeled as commentary.

Regarding the defense of truth, sometimes a reporter might be asked to reveal his or her sources of information so that the accuracy of that information might be evaluated. Most states have shield laws that protect reporters from revealing their sources. Sometimes reporters stand behind those laws; sometimes not. A very famous case of the former—not revealing a source—was Washington Post reporters Bob Woodward and Carl Bernstein not revealing the identity of their source, known as "Deep Throat," during their investigative reporting of the Watergate scandal in the Nixon White House in the early 1970s. They promised this source they would not reveal his identity while he was living. However, in 2005 he chose to go public on his own and the world learned that Deep Throat was (William) Mark Felt, an Associate Director of the FBI during the Nixon administration. 

A very famous example of choosing to reveal a source occurred in 2004, when CBS news anchor Dan Rather reported a story that then President Bush had been given preferential treatment to get out of duty when he was in the Texas Air National Guard. The story was based on documents attributed to Bush's commander, Jerry B. Killian. However, the documents proved to be after-the-fact recreations; that is, forgeries. With the source's permission, Mr. Rather revealed that the source of these documents was former Texas Army National Guard officer Bill Burkett. Burkett argued that the documents were "like" the kind of special handling that Bush received, but the damage was done. It is worthwhile to note that even though Mr. Rather revealed his source, with the source's permission and confession that the documents were not authentic, damage to Mr. Rather's reputation still occurred. Caveat reporter: Get the facts right. Having a source fall on his own sword after the fact does not substitute for a reporter's obligation to tell the truth.

From time to time, Congress debates whether or not to pass a national shield law at the federal level. To date, this has not happened. Many consider this less likely in the wake of the 2010 WikiLeaks scandal. On November 28, 2010, this nonprofit web site, known for posting unavailable documents, began leaking the first few hundred of a few hundred thousand confidential cables from 274 embassies, including frank discussions from high-ranking ambassadors around the world. Some considered this a global scandal that could result in a meltdown of diplomatic relations among some nations. Though a global diplomatic crisis did not occur, WikiLeaks's top dog, Julian Assange, was arrested (he had already come under investigation earlier in 2010 for prior government leaks). Army Private First Class Bradley Manning (already in a military prison in Virginia since July 2010 for earlier leaks to WikiLeaks) was considered the most likely suspect for giving the November-leaked cables to WikiLeaks. Many supporters rallied to the defense of Assange and Manning, arguing for their First Amendment rights to disclose information, and raising money to pay for their legal fees.

In addition to truth, another defense against potential libel is consent.

If a person consents to appear in your news report, then you have a right to use that person's image and whatever he or she says. For EFP nonnews stories, as will be discussed later, it is always best to get a written consent form from each person you record. In contrast, for ENG news stories, written consent is not usually necessary because there is precious little time to get it and because the agreement to be interviewed (for print or broadcast) is normally considered to be implied consent. That is, when someone agrees to let you set up a camera and microphone and interview him or her for a news story, you can safely use soundbites from that interview, as long as you do not deliberately edit things to present a falsehood (e.g., removing the word "not" from an accused person's statement, "1 did not commit this crime").

In addition to agreeing to be interviewed, a public forum presents another type of implied consent. When a person agrees to appear at a privileged event—an event that is open to the public or at least open to credentialed journalists (whether or not it is held on public or private property)—that person's agreement to appear implies consent to be recorded. For example, universities love to invite their famous alumni to return to campus to speak with students. When an alumnus agrees to appear at the student union to give a talk and answer questions, that appearance is a public forum. The person knows that he or she may be recorded. The news media have a right to record the event and use soundbites in their newspapers and newscasts, if those bites are deemed newsworthy.

Regarding ethics, remember that even if a subject has given consent and an item in a story is accurate, it might not be right to publish or broadcast that item. For example, retired Texas Tech University basketball coach, Bob Knight, is famous for his outbursts. In the late 1980s, when he was the coach at Indiana University CBS reporter Connie Chung interviewed him, as well as other celebrities, for a special report on how famous people deal with stress. With the lights, camera, and microphone all on him, Mr. Knight made a statement to the effect that he believed stress is like rape; if it's inevitable, one should relax and enjoy it. Immediately he realized the damning nature of what he said, even though he was trying to be funny, and retracted the statement, asking Ms. Chung to edit that out. What do you think she did? She aired it, of course.

Would you have done the same thing? Pro argument for using the soundbite: Mr. Knight had implied his consent by agreeing to be recorded; he said what he said; and that kind of soundbite gets ratings. Con argument: Mr. Knight immediately acknowledged that he had misspoken; he requested that this statement not be used because he did not mean it—that is, it was not an accurate reflection of his thoughts; and the soundbite was irrelevant to the story because he does not actually believe it—he was just trying to be funny and realized the statement was not humorous. After the story aired with the soundbite, Mr. Knight considered filing defamation charges against CBS and Ms. Chung, but in the end, he decided to let it go. The bottom line is that he said what he said during an interview to which he had consented (besides, it was neither the first nor the last time he uttered a controversial statement).