Raleigh N&O, Duke Lacrosse & Defamation (Post 1)

Readers Caution: I’m not an attorney and I’m not offering here any “final” or “firm” answers.”

I’m providing some limited information which you’ll want to verify for yourselves and some links to sites which will be of some help to those of you who’ve asked questions concerning legal liabilities the Raleigh News & Observer may bear for its biased, racially inflammatory and, in some cases, deliberately fraudulent coverage trashing the Duke students who were members of the school’s 2006 Men’s lacrosse team; and for it enablement of what we now know was the attempted frame-up of three members of the team for multiple felonies, including gang rape and the cover-up of the frame-up attempt, a cover-up which is ongoing to this day.

With that caution before you, let’s begin:

First, a condensation of what a number of attorneys who litigate in the area of media defamation have told me since a few months after the case “broke” on March 24, 2006:

It will be very, very hard, but not totally impossible, to hold the N&O to some account for what it did. There are many strong defenses the N&O can raise to avoid liability.

Even allowing that it can be held to some account, there are questions of whether it will be worth the expenditure of time and money involved to pursue defamatory claims.

Separate from any legal action, it is in the N&O’s long-term interests to be forthcoming about errors it made and to make retractions and apologies as warranted.

Attorneys have stressed that where slander and libel are concerned, news organizations have protections the ordinary citizen doesn’t have. "There’s 'a very high wall' that protects them," is how one attorney put it.

All of the attorneys referenced a Supreme Court decision in 1964 which is explained in a U. S. State Department public information document as follows [extracts]:

…[In] 1964 when the Supreme Court issued a ruling that revolutionized libel law in the United States. The famous decision in New York Times Co. v. Sullivan once and for all created a national rule that squared more fully with the free press guarantees of the First Amendment.

In its ruling, the Court decided that public officials no longer could sue successfully for libel unless reporters or editors were guilty of "actual malice" when publishing false statements about them.

And just what is malice when it comes to proving libel?

Retired Justice William J. Brennan, Jr., who wrote the Sullivan decision, defined it as "knowledge that the [published information] was false" or that it was published "with reckless disregard of whether it was false or not."

In other words, public officials no longer could sue for libel simply by proving that something that had been broadcast or printed about them was false. Now they would have to prove that a journalist had knowingly printed false information while making little, if any, attempt to distinguish truth from lies.

The Supreme Court later extended its so-called Sullivan rule to cover "public figures," meaning individuals who are not in public office but who are still newsworthy because of their prominence in the public eye.

Over the years, American courts have ruled that this category includes celebrities in the entertainment field, well-known writers, athletes, and others who often attract attention in the media.

For purely private individuals, the test for proving libel is not as difficult.

Although Supreme Court rulings such as the Sullivan decision apply everywhere in the United States, most states continue to have their own libel laws that cover private individuals. …

When discussing Sullivan, attorneys have used the term “deliberately malicious.”

They’ve explained it to mean that it’s not enough for a plaintiff to prove that a news organization’s report was “malicious.” The plaintiff must also prove the news organization “deliberately” intended to be “malicious.”

“The plaintiff’s burden is to prove both ‘deliberativeness’ and ‘maliciousness.’ ‘Maliciousness by itself won’t do it,” one attorney said.

News organizations often defend themselves from the “deliberately” part of “deliberately malicious” by what attorneys refer to as an “incompetency defense.

In cases involving slander and libel, news organizations will argue something like this: “We didn’t do it deliberately. We make mistakes all the time. Here, look at this long list of mistakes we made. And they're just from this past year.”

In the case of the Duke students, the question of whether a court would view them as "public figures" or private citizens would also come up.

On that question all the attorneys said you could argue it either way, but all said they thought ultimately the courts would rule the students were "public figures" by virtue of the very public nature of the case.

I asked each attorney whether each of the players being named a suspect in the NTO request was the kind of act which could be used to argue they were "public figures." They all said yes.

Some attorneys said that membership on a nationally ranked sports team, by itself, could make the players "public figures" in the eyes of the court.

None of the attorneys ruled out entirely the players and others being able to successfully bring actions against the N&O. They just repeatedly stressed how difficult that will be.

What I’ve just presented only touches on a few important aspects of very complex matters. But I hope it was of some interest and help.

I’ll post in a day or two concerning statue of limitation questions in regard to legal claims that might yet be brought against the N&O.

The entire State Department public information document is here.