This just in, and the rush to publish

In this five-part series, we’ll look at some of the challenges that young business journalists face in today’s media landscape. A common theme running through all five installments is the recognition that avoiding errors is a journalist’s first responsibility. News moves faster, farther and wider than ever before, and given the ever-increasing volatility of markets, the effect of incorrect news reporting can have shattering consequences: not just on the share price or business prospects of the company being written about, but on the media organization that faces legal liability and the exorbitant cost of legal defense.

The second installment is “This Just In” where we’ll look at the way law, the public interest and competitive pressure all inform news judgment about when a story is ready to publish.

There are few situations quite as stressful for an editor and his or her libel lawyer than the decision to publish a story we deem “immediate.” The great preponderance of corrections – and libel suits – involve errors made in good faith but were nonetheless the product of moving so quickly that an important fact was not checked out, a source’s credibility was not checked out, or the reporter and editors simply misunderstood the facts.

Navigating this and learning good news judgment is helped by understanding a few concepts in law that explain when the First Amendment does and doesn’t protect such errors. Non-journalists often wonder why there is any such protection at all. Surely, if a household appliance maker speeds up the production line to make more toasters quickly and as a result, the toasters short-circuit and electrocute customers, that company would face liability to the harm their defective product caused.

So why aren’t news organizations similarly liable when they speed up production and make a “defective” product that causes harm?

The answer comes in two parts: 1) Newspapers aren’t toasters; and 2) The First Amendment does not remove all possible liability, it simply raises the bar for liability to attach. News organizations that make mistakes can and do face liability, but when applicable, the First Amendment makes the plaintiff establish a higher degree of proof in order to recover damages.

Newspapers are not toasters

Legal treatises have long taught that under products liability law, strict liability is imposed on the theory that “[t]he costs of damaging events due to defectively dangerous products can best be borne by the enterprisers who make and sell these products.” (See, Prosser & Keeton on The Law of Torts, § 98, at 692-93 (W. Keeton ed. 5th ed. 1984). But publications are not products, they are ideas.

This was explained in one of my favorite cases that explains this important distinction. In Winter v. GP Putnam’s Sons, 938 F. 2d 1033 (9th Cir. 1991), the publisher produced a book about how to hunt for wild mushrooms. An editing error resulted in a poisonous mushroom being described as edible, and in reliance on the book, the plaintiffs ate the wrong mushrooms, almost died and required liver transplants to survive. There’s no libel or privacy issue here, so the plaintiffs brought a products liability case against the publisher. Just like the hypothetical defective toaster that electrocutes a customer where the maker should be held responsible, Putnam ought to have been held responsible for the defect in its publication, right? Not so fast.

The Winter court began by making the distinction between products and ideas:

“A book containing Shakespeare’s sonnets consists of two parts, the material and print therein, and the ideas and expression thereof. The first may be a product, but the second is not. The latter, were Shakespeare alive, would be governed by copyright laws; the laws of libel, to the extent consistent with the First Amendment; and the laws of misrepresentation, negligent misrepresentation, negligence, and mistake. These doctrines applicable to the second part are aimed at the delicate issues that arise with respect to intangibles such as ideas and expression. Products liability law is geared to the tangible world.” Id. at 1034. (Emphasis added).

So if the tangible pages and book jacket were made of toxic material that poisoned readers, products liability law might apply, but the courts have refused to apply products liability law to ideas contained on those pages. The Winter court concluded that “Guided by the First Amendment and the values embodied therein, we decline to extend liability under this theory to the ideas and expression contained in a book.” Id. at 1037.

Why are ideas and expressions protected?

The First Amendment provides a degree of protection for ideas and expressions. Understanding why is the key to developing better news judgment. In Ollman v. Evans, 750 F. 2d 970 (D.C.Cir. 1984) the court had to determine the viability of a libel case brought by a college professor accused by veteran columnist Rowland Evans of being a Marxist, unqualified to teach, and misusing his teaching position as a tool to indoctrinate students. Although much of this case turned on whether the columnist’s statements were assertion of fact or instead pure opinion, the court began by explaining that the application of the First Amendment is a matter of “striking the balance” between protection of free expression of ideas and the protection of an individual’s interest in his or her reputation:

It is a truism that the free flow of ideas and opinions is integral to our democratic system of government. Thomas Jefferson well expressed this principle in his first inaugural address when he said, “If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” At the same time, an individual’s interest in his or her reputation is of the highest order. Its protection is an eloquent expression of the respect historically afforded the dignity of the individual in Anglo-American legal culture. A defamatory statement may destroy an individual’s livelihood, wreck his standing in the community, and seriously impair his sense of dignity and self-esteem.  Id. at 974.

Understanding that balance is essential to knowing when the time is right to publish a potentially defamatory story. Judge Robert Bork’s concurrence in Ollman also underscores that columnists (and by extension, reporters, editors, bloggers and the like) must recognize that it is service of the public interest that animates the First Amendment’s balancing act: “The American press is extraordinarily free and vigorous, as it should be. It should be, not because it is free of inaccuracy, oversimplification, and bias, but because the alternative to that freedom is worse than those failings.”

Put another way, Judge Bork’s concurrence asks us to consider what that alternative is, in other words, what value, what critical social good does a free press and accurate journalism bring to society, so much so that it is given a degree of license to err and still avoid liability?

It’s also critical for reporters and editors to understand that the First Amendment’s high bar is neither absolute, nor always entirely applicable. See Gertz v. Robert Welch, Inc., 418 US 323, 341 (1974) (“The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation.”)

In cases where the subject is a private figure, and the story is not about a matter of public concern, states may lower the bar to a “mere negligence” standard. That means in those cases that instead of just relying on a reporter’s good faith in making the error, the publication will have to prove that its staff did everything a “reasonable” journalist would have done in those circumstances. This ought to encourage journalists to look for the biggest impact not only to get more reads but to build in as much legal protection as possible.

Serving the public interest: Look for the impact

In Bloomberg News editor-in-chief Matthew Winkler’s magnum opus “The Bloomberg Way,” considerable emphasis is given to “What’s at Stake?” and it teaches that the impact or significance of an event is often just as important as explaining why something happened. Some editors, when presented with a story also call this the “So What?” approach, and rightly so. Finding and showing the “so what” in a story dovetails with the law nicely because as mentioned above, matters of public concern are afforded a degree of constitutional protection that purely private affairs may not enjoy. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 US 749 (1985)

The more people a story affects, the closer to altering public policy a story gets, the greater the public interest. In my media law classes at Bloomberg News I would consistently ask journalists to ask themselves, “Will the public be smarter, safer, healthier, wealthier or wiser for your having published this story?” If a story is well-reported, well-written and can answer those questions in the affirmative, the public interest will be apparent on its face and will reduce legal exposure.

Karen Testa, East regional editor for The Associated Press, grapples with this issue every day. The competitive pressure of the new media landscape adds complexity to the question of news judgment, says Testa, a 21-year veteran of the co-operative wire service.

“Our primary concern is accuracy first,” she says, but media organizations can lose sight of that when “everybody is tweeting something as a fact, or poorly-attributed websites take those tweets and rumors as fact and it sort of morphs into common knowledge… it’s often just an echo chamber. We still have to ask ‘How do we know what we know? ‘Is it first-hand information, is the source in a position to know?” Competitive pressure is a reality, notes Testa, but it’s no substitute for being as certain about the facts as possible. For that reason, Testa and her fellow AP editors avoid summarizing defamatory allegations from other news organizations that are based on confidential sources or “people familiar” because there’s no way to check them out.

“The impact of a story or the ripples of influence that a story subject may have is an important element that adds to a report,” says Testa, who also adds that while breaking this-just-in news is always going to run first (once verified as best as possible) “given the narrower resources that newsrooms have these days, if I have five stories on my desk, and we only have resources to move three of them, I’m going to ask which ones affect the most people.”

The question of the public interest informing when and how long to hold a story is not limited to wire-service style breaking news. Those working on feature-length or investigative reporting may have additional obstacles to publication on schedule. As a legal matter, while there should be no variance in the degree of protection afforded a story simply because of its format, as a practical and atmospheric matter, the longer the lead time a story has, the higher the expectation grows that a story will be accurate and fair.

Judges and juries are more forgiving of an error made in the heat of breaking news but are less forgiving when a plaintiff can argue that in the case of a weekly or monthly magazine or even a book, the reporter had more time – sometimes weeks or months – to check things out. What in the first instance looks like a good faith error starts to look more like slovenly work.

Playing it straight matters

Weighing the public interest against when to publish is a particular challenge for enterprise and investigative journalists. Amanda Bennett, the executive editor for Bloomberg News’ projects and investigations team often manages stories that have been months in the making. As a reporter and editor at the Wall Street Journal and The (Portland) Oregonian, respectively, Bennett won the Pulitzer Prize in 1997 and again in 2001 for National Reporting and for Public Service. Given the long lead time that her team’s stories have and the often controversial nature of investigative reporting, Bennett refuses to let the convenience of a publication schedule affect her judgment of when a story is ready for publication. “You must approach the subject and allow them the chance to poke holes in what you think you learned,” says Bennett.

Emphasizing transparency and fairness, Bennett notes that younger reporters have a tendency to “hold their cards too close to the chest” by waiting too long on making the call for comment, fearing that the subject will either dish a watered-down version to the competition, start pressuring sources to recant, or launch some other pre-emptive attack on the story. “That’s the cost of doing it right,” Bennett says, and expecting honesty from her reporters, adds that reporters first approaching a story subject “should never obfuscate” what the thrust of the story is.

Unlike breaking news, Bennett notes, enterprise and investigative stories may be complicated by negotiations with the company or story subject. Deal-making is sometimes necessary, Bennett says. “Companies will often say ‘If you hold off from publishing, we’ll give you an hour with the CEO’, or they offer to provide access to documents.” In her experience, “making reasonable accommodations to include the subject’s point of view or allowing them to show you where you might be wrong is the ethical thing to do, and we are better off if this happens sooner, rather than later in the process.”  At the same time, reporters should never show anyone outside the newsroom a draft of a story as part of a deal, Bennett adds.

Checklist for public interest

• Ask yourself if your reader will be demonstrably smarter, safer, healthier, wiser, or able to make more informed decisions as a result of your article.

• Show the impact on lives that the facts about which you report will have. Don’t assume that readers see how a story affects them.

• Separate merely interesting or previously unknown tidbits from genuine information that the public ought to know. The former may not enjoy a high degree of legal protection while that latter almost always will.

• Don’t let yourself be accused of sandbagging a subject. If you have been working on a story for three weeks, it’s unfair to call them for comment or denial the night before publication.

• Be honest with the subject about what you are writing, but never ever show them notes or a draft.

• Use great caution in making deals with story subjects, and use “check quotes” or “quote approval” very sparingly. This almost always gives the subject an opportunity to re-write what they said. Confer with your editor or newsroom lawyer before making any such deal: it might be a binding contract.

Charles J. Glasser Jr. spent the last 12 years as global media counsel to Bloomberg News, responsible for litigation, ethical newsroom issues and pre-publication review, and was responsible for handling the work of more than 2,100 journalists on a 24-hour basis. Prior to joining Bloomberg, he represented a wide variety of news organizations including The New York Post, Readers’ Digest and NBC News. Prior to becoming an attorney, he was a journalist for 16 years. He is the author of “The International Libel and Privacy Handbook” and is currently a consultant on media law and corporate communications issues, and can be reached at charlesglasseresq@gmail.com or via www.charlesglasser.com.