Case's verdict shows truth no certain shield for media

Journalists are worried after the facts don't save a Pensacola newspaper from losing a "false light" suit.

It's the first principle journalists learn about staving off lawsuits: Stick to the facts, stick to what you can prove. People might get angry, but the truth will prevail in court.
That maxim now is being tested by a stray pellet of buckshot.

Last month, a jury awarded $18.28-million to former road paver Joe Anderson Jr., finding that the Pensacola News Journal portrayed him in a false light when, in a story about political influence, it delved into his wife's shooting death.
The story's facts were all true, even Anderson's attorneys conceded as much. But the jury found that the paper strung those facts together in a malicious manner, leaving the impression that Anderson killed his wife.

"The story made him sound like he was a cold-blooded killer," said Joe Ritchie, a journalism professor at Florida A&M University who was hired as an expert witness for Anderson. "It literally leapt out at me when I was first shown the story. I thought, "Whoa, this guy must be a bad guy.' "
The verdict has flabbergasted attorneys for newspapers. Among other things, the story plainly stated that law enforcement officials "determined the shooting was a hunting accident."
How could a paper be punished after printing that?

The answer lies in an emerging application of communications law called "invasion of privacy by false light."
Typically, people who feel wronged by the media sue for libel. They must prove that the story specifically damaged their reputations, such as through a loss of business, and that the story was false. Successful verdicts, which can bring large awards, are rare because the First Amendment gives the media broad protection to print true information.
In false light suits, the facts in a story can be true. It's the implication of the facts that counts. Such suits, not allowed in some states, often involve less serious situations and smaller verdicts than libel cases.

For example, a story in West Virginia about sexual harassment was illustrated with a photo of a female miner who had not sued anyone. She was correctly identified, but the photo created the false implication that she had sued.
And a false light need not be a bad light. New York courts allowed Hall of Fame pitcher Warren Spahn to sue a biographer who called him a war hero when he wasn't.

In the Pensacola case, Anderson's attorneys persuaded a judge and jury to apply these invasion of privacy standards to a more serious, libel-like situation.
They alleged that the paper deliberately painted Anderson as a murderous criminal and temporarily cost his company a state permit to build a cement plant.
It had the classic look of a libel case but for one element, said Bruce Rogow, one of Anderson's attorneys: The details were all true.

Five years ago, Anderson's paving firm, Anderson Columbia Co., was big news in the Panhandle.
Former state Rep. Randy Mackey of Lake City had been convicted of federal tax fraud after failing to report $36,000 in payments from the paving company. A grand jury was about to charge former House Speaker Bo Johnson with the same crime.
News Journal reporter Amie K. Streater wrote a story about Anderson Columbia's political connections. She reminded readers that the company's former chairman, Anderson, once pleaded guilty to bribery charges in a case involving three Hillsborough County commissioners.
She also noted that Anderson was on probation from that case in 1988 when he picked up a 12-gauge shotgun, a violation of his probation, and went hunting with his wife.
During the hunting trip, Streater wrote, Anderson "shot and killed" his wife. The story told readers that the shooting occurred two days after Anderson had filed for divorce - before it told them that law enforcement officials "determined" the shooting was a hunting accident.
Seven more paragraphs about the shooting followed, including Anderson's explanation that a deer ran between him and his wife. An investigator said that when Anderson fired at the deer, "one buckshot pellet hit (his wife) under the arm and went through her heart."

Interrupting a political influence story to elaborate on an old hunting accident showed that the paper was out to get Anderson, said Rogow, a law professor who has defended papers in the past.
The paragraph about the pending divorce was designed to show Anderson had a motive for murder, Rogow said. Equally suspicious was the characterization that law enforcement officials determined it was a hunting accident, as opposed to a statement that the shooting was an accident.
"In the context of the whole story, that Anderson Columbia has influence with public officials, that was inferring that he got away with it," Rogow said.

News Journal executive editor Randy Hammer referred all questions to Washington attorney Robert Bernius, who represents the paper and its corporate parent, Gannett Co. Bernius declined to comment.
Streater, now a reporter for the Fort Worth Star-Telegram, referred questions to her attorney, Robert Kerrigan. He called the verdict ludicrous.

One of the journalism experts testifying for Anderson said the problem was with the sequence of the facts. Not telling readers the shooting was an accident until after you've told them the shooting coincided with the filing of a divorce petition would leave readers assuming murder.
"That was the thrust of his testimony," Kerrigan said, that the investigators' conclusion about the shooting should have been in the first sentence, not the third.
Kerrigan also disputed Anderson's damage claims. The jury awarded Anderson nothing for his pain and suffering, but hung the $18.28-million verdict on the proposed cement plant.

The plant was to be built near the pristine Ichetucknee River, which required the approval of the state Department of Environmental Protection. DEP secretary David Struhs testified that he temporarily denied a construction permit because of Anderson Columbia's pollution record. In a written settlement, chairman Anderson stipulated that pollution concerns were the only reason for the delay.
But an Anderson Columbia lobbyist testified that soon after the permit denial, Struhs appeared to be holding paper clippings when he asked the lobbyist whether Anderson had murdered his wife.
"The evidence in this case required four levels of inference to ever get to the connection to the story and what this man claimed his damages were," Kerrigan said.

Even before the Pensacola verdict, false light suits were showing up elsewhere. Last month in Tampa, three police officers sued WFTS-Ch. 28 for a story titled "Bad Cops, Bad Promotions."
"They implied that my guys got promoted as a result of a good old boy network," said Palm Harbor attorney Mark Herdman, who represents the officers.
"They used words like "corruption' and "lack of integrity.' Nothing could be further from the truth."

Attorneys for the media predict that the Pensacola verdict will be overturned on appeal. The offending passages don't compare with past stories that papers have successfully defended, they say.
In deference to the First Amendment, courts will forgive honest mistakes, even when they damage individuals, said George Rahdert, attorney for the St. Petersburg Times.
"If the court system goes to great lengths to withhold punishment even from libelous publications that aren't quite true," he said, "then it doesn't make any sense to punish something that is true."

Media lawyers cited another reason for confidence: Juries often dislike papers. They tend to identify with plaintiffs, but then papers win on appeal because the suits can't pass constitutional muster.
"If the general public was asked to vote on the First Amendment today, they would probably vote it down," said Tampa lawyer David Snyder, who specializes in media cases. "Look at all the surveys. Who is the least-trusted profession? It's usually a competition between the news media and lawyers."

One of Anderson's attorneys was Willie Gary, who has won hefty verdicts against the Coca-Cola Co. and the Walt Disney Co. He portrayed the News Journal's conglomerate-owner as yet another giant worthy of slaying.
"The Gannett Co. has a lot of power," Gary told the jury. "And, buddy, when they set out to get you, they get you."
The danger in such logic, Snyder said, is that false light suits are subjective.
"Whatever happens in an article or broadcast, somebody can make out the worst possible meaning for it and, through skillful advocacy, . . . they can win. And that's just crazy," he said.

But without false light suits, Rogow countered, what remedy remains for aggrieved citizens when the media stick to the facts, but twist them? Libel law requires a falsehood.
"The courts have clothed newspapers with this great mantle of protection," Rogow said. "If nobody puts restraints on people, they have a tendency to keep plowing ahead."

Times researcher Caryn Baird contributed to this report, which used information from the Pensacola News Journal.

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"In the context of the whole story, that Anderson Columbia has influence with public officials, that was inferring that he got away with it," Rogow said.

Next up: Lawsuits against law professors who don't know the difference between imply and infer.

You can do as much damage by what you DON'T say as by what you DO. And it's as much in HOW you say it as in what you say. Newspapers know that and can use it to create any image they want of a person or situation.

I'm reminded of an edition of a well-known national newspaper that featured parallel stories on the candidates during the 1992 presidential campaign. Bill Clinton was campaigning somewhere on the East Coast, and his story was featured above the fold, complete with a picture of a glorious blue sky, red-white-and-blue bunting in the background, and a host of cheering supporters in the foreground. By contrast, George Bush was shown arriving in Seattle on a drizzly, overcast day, hurrying down the ramp from the airplane, bedraggled, with nobody around but his Secret Service people.

Both photos were "true" in the sense that both actually happened. But some editor had to make the decision as to which picture to use where. The overall impression was transparent, given this paper's marked leftist bias.

Editors are responsible not only for the facts, but how those facts are presented. The measure must be taken of the work as a whole, not just of its individual elements.

Interesting.
Those who use the law will split and dice the words to suit their particular circumstances (meaning of the word "is").

Since this has clearly gotten out of hand, those who insist on continuing and violating the actual "spirit" of the law will no longer be able to say "I actually followed the law - though not the spirit".

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