Media Law Handbook



10. What defenses are available to journalists?
8. Injury

9. Fault

Fault is the most complicated of the elements a libel plaintiff must prove.  Only an overview of the fault requirement can be provided here.

Until 1964, when the U.S. Supreme Court issued its landmark opinion in New York Times v. Sullivan,[77] libel law in most states was based on the concept of strict liability.  Strict liability meant that if a newspaper or broadcast station disseminated a defamatory story, it was responsible for the damage done to the subject’s reputation regardless of whether the journalists involved were careful and responsible in their reporting.  Application of this strict liability standard can be seen in early North Carolina cases in which the courts held that when a statement was libelous per se, both malice and falsity were presumed.[78]

In Sullivan, the Supreme Court said the rule of strict liability offended the First Amendment, at least when the libel plaintiffs were public officials.  The Court said a public official couldn’t win a libel action unless he or she demonstrated “with convincing clarity” that the defamatory statement was published with knowledge it was false or with reckless disregard for the truth, a fault level the Court termed “actual malice.”[79]  A few years later, the Court extended the actual malice requirement to public figures[80] and candidates for elected office.[81]  In 1974 the Court said that private person plaintiffs also would have to prove at least some degree of fault to win their libel suits.[82]  In North Carolina, the level of fault that must be proved by private person plaintiffs — those who are neither public officials nor public figures — is negligence.  However, even private person plaintiffs must prove actual malice to collect punitive damages if they were defamed in a report that involved a matter of public interest.[83]  Because of the fault requirement, it is especially difficult for a public official, candidate for elected office or public figure to win a libel suit.

Who is a public official?

All elected government officials are subject to the actual malice requirement, but not every non-elected government employee qualifies as a public official.  The U.S. Supreme Court said the public official category includes “at the very least . . . those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.”[84]  Clearly the definition applies to high-level appointed officials, such as heads of governmental agencies and departments, public school superintendents, the president of the University of North Carolina and the various campus chancellors.  Thus, the N.C. Court of Appeals had no trouble deciding that Knightdale’s town manager and the deputy county manager/ finance officer of Moore County were public officials in their defamation suits.[85]  It is also clear that the definition does not include relatively low-level employees with no policy-making responsibility, such as receptionists, maintenance workers and highway construction workers.  In between these two extremes are thousands of government workers not so easily categorized.

In deciding whether an individual is a public official, courts ask if the person has the power to set public policy or make governmental decisions; has control over the expenditure of public funds; is directly responsible for public health, safety and welfare; exercises power or control over citizens; or has high public visibility. Thus most law enforcement officials are considered public officials because of their responsibility for public safety and the power they can exert over an individual’s liberty and property.  In 1974 the N.C. Court of Appeals, in holding that a deputy sheriff qualified as a public official, noted that state law specifically provides for the appointment of deputies.  “The deputy is the representative of the sheriff in his official capacity.  He is a public officer whose authority and duties are regulated and prescribed by law. . . .  [T]hough the office of deputy sheriff may be a comparatively low ranking one in the hierarchy of government, nevertheless, if the deputy’s office be abused, it has great potential for social harm and thus invites independent interest in the qualifications and performance of the person or persons who hold the position.”[86]  Relying on that decision, the N.C. Court of Appeals also ruled a uniformed taxicab inspector for the City of Charlotte[87] and an IRS agent[88] were public officials.  In the latter case, the court said, “Insofar as the average taxpayer is concerned, the Internal Revenue Service agent is the federal government for tax assessment purposes.  No constitutional difference exists between ‘police work’ entailed in the assessment and collection of taxes and that involved in the enforcement of other governmental laws.”[89]

In New York Times v. Sullivan, the Supreme Court said public officials must prove actual malice when the defamatory statements relate to their “official conduct.”  Courts have interpreted the “official conduct” requirement very liberally and have found that “anything which might touch on an official’s fitness for office” is subject to the actual malice rule.[90]  Accusations of “dishonesty, malfeasance, or improper motivation”[91] and criminal activity[92] have been found to relate to a person’s fitness for office and thus meet the official conduct requirement.

Who is a public figure?

The Supreme Court has identified two types of public figures, both of whom must prove actual malice in libel suits.  The all-purpose public figure is an individual with widespread fame or notoriety or special prominence in society, one who has “persuasive power and influence” or occupies a position of continuing news value.[93]  One court has described the all-purpose public figure as “a well-known ‘celebrity,’ his name a ‘household word.’”[94] Clint Eastwood, Johnny Carson, Carol Burnett, William F. Buckley Jr., Wayne Newton and Ralph Nader have been found to be all-purpose public figures.  Occasionally courts have found corporations to be all-purpose public figures, but only when they meet the requirement of special prominence or persuasive power and influence.[95]

An individual can be deemed an all-purpose public figure on a local level, although this is rare.  For example, the Kansas Supreme Court ruled that a prominent attorney was a local all-purpose public figure.  The man had practiced law in the county for 32 years, including eight as county attorney, had served as special counsel to the county commissioners during a controversial construction project and, according to the court, “was a prominent participant in numerous social activities and served as an officer and representative for many professional, fraternal and social activities.”[96]

The second category, known as limited-purpose or vortex public figures, is much more common in libel suits.  The U.S. Supreme Court has defined limited-purpose public figures as people who “have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” [97] Three critical elements in this definition must be present for an individual to be classified a limited-purpose public figure.  First, the allegedly defamatory statements must relate to a public controversy.  The D.C. Court of Appeals has defined a public controversy as a “real dispute” over an issue affecting a segment of the general public, the resolution of which will have “foreseeable and substantial ramifications for nonparticipants.”[98]

Second, the libel plaintiff must have voluntarily injected himself or herself into the debate over the public controversy that was the subject of the defamatory report.  Although the Supreme Court said it might be possible for a person to become an involuntary public figure,[99] the Court has never found anyone to fit that category.  In a few cases, lower courts have found plaintiffs to be involuntary public figures, but this has been very rare, and journalists should not expect the involuntary public figure category to provide them with the protection of the constitutional actual malice rule.

Third, the plaintiff must have entered into the public controversy in an effort to affect the outcome or influence public opinion.  The plaintiff’s involvement in the public controversy must precede the defamatory publication or broadcast.  A news medium cannot defame an individual and then when that individual steps forth to defend himself — perhaps through a news conference or interviews with journalists — contend that the plaintiff has voluntarily sought to affect the resolution of the controversy.[100]

Determining whether an individual qualifies as a limited-purpose public figure is not easy, and courts frequently disagree.  Just because a person has become the subject of news coverage or has a well-known name does not mean that person will be considered a public figure.  Perhaps the best example of this is a 1976 case involving the ex-wife of Russell Firestone, heir to the Firestone tire fortune.  Mary Alice Firestone sued Time after the magazine incorrectly reported that Russell was granted a divorce on the grounds of “extreme cruelty and adultery.”  Mrs. Firestone was a prominent member of Palm Beach society, whose divorce, according to the Florida Supreme Court, was a “veritable cause celebre in social circles across the country.”[101]  Nonetheless, the U.S. Supreme Court said Mrs. Firestone was not a public figure.  First, her divorce case was not a public controversy but a private matter.  Second, Mrs. Firestone’s involvement was not deemed voluntary because she had no choice but to go to court to dissolve her marriage, and third, Mrs. Firestone’s press conferences were held to “satisfy inquiring reporters” and “should have had no effect upon the merits of the legal dispute . . . or the outcome of (the divorce) trial.”[102]

In contrast, Richard Jewell, the security guard who went from hero to suspect in the 1996 bombing at Centennial Olympic Park in Atlanta, was found to be a limited-purpose public figure because of his many interviews and public appearances immediately after the bombing.  Jewell, who was ultimately cleared of suspicion in the bombing, sued the Atlanta Journal-Constitution for its coverage of him.  In reaching its public figure decision, the Georgia Court of Appeals noted:  “While we can envision situations in which news coverage alone would be insufficient to convert Jewell from private citizen to public figure, we agree with the trial court that Jewell’s actions show that he voluntarily assumed a position of influence in the controversy. . . . The fact is that Jewell was prominent enough to require the assistance of a media handler to field press inquiries and coordinate his media appearances.”[103]

A person does not become a limited-purpose public figure merely by being arrested for, charged with or even convicted of a crime.  While crime and the functioning of the law enforcement and judicial systems may qualify as public controversies, criminal suspects typically do not voluntarily seek public attention.  The Supreme Court has expressly rejected the “contention . . . that any person who engages in criminal conduct automatically becomes a public figure for purposes of comment on a limited range of issues relating to his conviction.”[104]

Heads of businesses or corporations may or may not be limited-purpose public figures, depending on the subject of the defamatory report and the business leader’s involvement in that subject.  For example, in 1987 the D.C. Court of Appeals ruled that William Tavoulareas was a limited-purpose public figure for purposes of his libel suit against the Washington Post not because he was the president of Mobil Oil but because he had voluntarily injected himself into the debate over regulation and reform of the U.S. oil industry through his own controversial speeches and Mobil “advertorials” in numerous publications.  Thus when Tavoulareas sued the Post because of a story alleging he set up his son Peter as a partner in a shipping company that did millions of dollars of business with Mobil, the court ruled he had to prove actual malice.[105]  In contrast, the Minnesota Supreme Court ruled that entrepreneur Thomas Jadwin did not become a public figure simply by heavily advertising and promoting a double tax-exempt, no-load bond mutual fund he developed because soliciting media attention for such an offering was a normal business practice.[106]

Nor is a corporation or business, even one that advertises heavily, automatically a public figure.  For example, in 1990 a federal appeals court ruled that neither Blue Cross/Blue Shield nor its competitor U.S. Healthcare, the largest HMO in the Philadelphia area, was a limited public figure.  In approximately a six-month period, Blue Cross/Blue Shield had spent $2.175 million on direct mail, radio, television and print ads, while U.S. Healthcare had spent $1.255 million on its ad campaign in southeastern Pennsylvania.  It was those comparative ad campaigns that resulted in the two “giants of the health care industry in the Delaware Valley” suing one another for libel and other things.  Nonetheless, the court ruled the two companies were not public figures because they “have acted primarily to generate revenue by influencing customers, not to resolve ‘the issues involved.’”[107]  Similarly, the Oregon Supreme Court ruled that the Bank of Oregon was not a public figure in its lawsuit against the Willamette Week newspaper. “Merely opening one’s doors to the public, offering stock for public sale, advertising, etc., even if considered a thrusting of one’s self into matters of public interest, is not sufficient to establish a public figure.”[108]  On the other hand, courts have said that corporations that engage in unusual or unconventional advertising,[109] are heavily regulated by the government[110] and/or enjoy a high level of public prominence can be public figures.[111] 

In only a few North Carolina cases have courts found libel plaintiffs to be public figures.  In one case, a physician who performed in vitro fertilizations and a fertility clinic were considered limited-purpose public figures in a libel suit that resulted from a newspaper article about infertility treatments and the medical training needed to perform such procedures. The plaintiffs did not sue The Charlotte Observer, which published the story, but instead sued several infertility specialists who were quoted in the article regarding the plaintiff-physician’s training and expertise as an infertility specialist.[112]  A lawyer who was actively seeking appointment as the U.S. attorney for the Middle District of North Carolina was labeled a public figure without any discussion in a case resulting from letters written to President Ronald Reagan opposing the appointment.[113]  In 1980 John J. Ryan, the former vice president and general manager for North Carolina for Southern Bell Telephone Co., was deemed a public figure when he sued the author and publisher of a book that accused him of extorting money from Southern Bell executives for political campaign contributions and filing “false vouchers.”[114]  And in a 1976 case, a man who led an effort to change certain Interstate Commerce Commission rules conceded he was a public figure for purposes of his libel suit against a truckers magazine that accused him of diverting legal defense fund donations to his own personal use.[115] 

Candidates for public office. The U.S. Supreme Court has made it clear that candidates for elective office are considered public figures. Although the Court did not clarify whether candidates are all-purpose or limited-purpose public figures, the Court said that statements about virtually all aspects of a candidate’s life would be subject to the actual malice rule. In a case brought by an unsuccessful candidate for U.S. Senate against a columnist who called him a former “small-time bootlegger,” the Court said that a political candidate “put[s] before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him. A candidate who, for example, seeks to further his cause through the prominent display of his wife and children can hardly argue that his qualities as a husband or father remain of ‘purely private’ concern.  And the candidate who vaunts his spotless record and sterling integrity cannot convincingly cry ‘Foul!’ when an opponent or an industrious reporter attempts to demonstrate the contrary. . . . Given the realities of our political life, it is by no means easy to see what statements about a candidate might be altogether without relevance to his fitness for the office he seeks.”[116]

Passage of time.  An issue that occasionally arises in libel suits is whether a public figure retains that status over time, even if he or she has returned to relative anonymity.[117]  Most courts that have considered the question have indicated that once a person becomes a public figure for a certain issue, he or she retains public status for discussions of that issue.  For example, the Fourth Circuit U.S. Court of Appeals reached just such a conclusion in reviewing the Neil Johnston case, discussed above.  The trial court had held that Johnston, who played in the NBA in the 1950s, had lost his public figure status by 1968, when Sports Illustrated ran the allegedly libelous article.  The appellate court disagreed.  “[M]ere passage of time will not necessarily insulate from the application of (the actual malice requirement) publications relating to the past public conduct of a then ‘public figure’.  No rule of repose exists to inhibit speech relating to the public career of a public figure so long as newsworthiness and public interest attach to events in such public career.”[118]

What is actual malice?

To win a libel suit, a public official or public figure must prove actual malice, i.e., that the libelous material was published or broadcast with knowledge of its falsity or reckless disregard for the truth.  Knowledge of falsity consists of purposely and knowingly publishing lies.  This type of actual malice is seldom at issue in libel suits against the media.

In a well-publicized 1991 case, the U.S. Supreme Court held that altering quotes does not necessarily constitute knowing falsification.  Psychoanalyst Jeffrey Masson sued The New Yorker magazine, author Janet Malcolm and book publisher Alfred A. Knopf, charging Malcolm attributed fabricated quotations to him, thereby injuring his reputation.  Masson contended that altering a direct quote, except to correct grammar or syntax, constituted knowing falsification.  The Court, however, rejected that stringent interpretation, taking note of the difficulties journalists encounter “in the task of attempting a reconstruction of the speaker’s statement.”  The Court concluded “that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity . . . unless the alteration results in a material change in the meaning conveyed by the statement.”  In other words, if changing the speaker’s words gives a different meaning to his or her statements, knowingly altering direct quotations can constitute actual malice.[119]

In 2007, the N.C. Court of Appeals relied on the Masson case to rule in favor of the Durham Herald-Sun in a libel suit brought by former Durham County Commissioner Joe Bowser.[120]  The article, based on a letter written to the County Commission, stated, “In the letter, Assistant Health Director Gayle Harris says Bowser attempted to pressure her to help his friend Lois Murphy, a disgruntled county employee who has alleged mistreatment by County Manager Mike Ruffin.”[121] Bowser contended the paper was guilty of actual malice because the phrase “attempted to pressure” was not actually in Harris’s letter. Citing Masson, the N.C. Court of Appeals said the phrase “was a rational interpretation of the allegations contained in the letter.” Furthermore, the court noted that the phrase was not within quotation marks. “Thus, there was no attempt on the part of defendant to indicate that Harris actually made this statement.”[122]

Reckless disregard for the truth is more frequently at issue in libel suits than knowing falsification and more difficult to define.  The U.S. Supreme Court has provided a number of definitions:

  1. A high degree of awareness of probable falsity.[123]
  2. Serious doubts as to the truth of the publication.[124]
  3. Purposeful avoidance of the truth.[125]

It is important to note that carelessness or failure to follow standard journalistic procedures is not enough to constitute actual malice, nor is evidence of ill will, bad motives or intent to harm.  As the N.C. Court of Appeals has said, “[P]ersonal hostility is not evidence of actual malice.”[126] The U.S. Supreme Court emphasized that even evidence of “‘extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers’” was insufficient to prove actual malice.[127]  However, evidence regarding motive or care taken in the preparation of a story can be used to bolster other proof of actual malice, the Court said.[128]

In a recent case stemming from two blog posts, the N.C. Court of Appeals held that there was insufficient evidence of actual malice regarding the first post even though “[u]ndoubtedly, defendant could have conducted some research before making his false assertions” and “perhaps . . . should have known” that statements were untrue. At most, the court said, “defendant case may have acted negligently” in accusing a sitting judge of violating the Code of Judicial Conduct by endorsing another candidate running for office. [129] Edward Lee Rapp, the volunteer “media strategist” for Bettie Fennel, a candidate for the N.C. State Senate, posted two blog entries on Facebook and Carolina Talk Network. The first, posted April 9, 2010, was titled “Dirty Politics by the good ol boys” and accused Ola M. Lewis, senior resident judge of District 13B, of an ethics code violation for endorsing Fennell’s opponent. That same day Lewis’s attorney emailed Rapp to tell him that Lewis was herself a candidate for reelection and, therefore, was permitted by the Code of Judicial Conduct to endorse any other candidate for office.[130] On April 12, 2010, Rapp posted a second blog entry in which he said he “was wrong” to say Judge Lewis was guilty of violating the Code. However, he went on to say:

This can be done only by proper disciplinary proceedings and I have neither right nor authority to make that judgment and will let the proper authorities make that determination, if and when, it is brought before them. I have read, top to bottom, The North Carolina Code of Judicial Conduct and have voiced my opinion based on the pertinent articles provided in appendix 1 at the end of this blog. I also solicited the opinion of a friend of mine who happens to be an attorney. We both agreed that there is probable cause for such action. Read the appendix and make up your own mind.[131]

Rapp included portions of the Code in this blog, but not the portion allowing a judicial candidate to endorse another candidate.[132] Saying that “[d]efendant could no longer claim ignorance on 12 April after he had been informed that plaintiff was, in fact, running for reelection,” the Court of Appeals ruled that there was sufficient evidence “that he acted, at the very least, with reckless disregard, i.e., he entertained serious doubts as to the truth of his publication,” to send the libel claim regarding the second blog post to trial.[133]

In determining whether actual malice is present, courts generally consider two types of evidence: intrinsic or direct state-of-mind evidence, aimed at determining what the journalist thought and believed at the time the story was being produced; and extrinsic, indirect or circumstantial evidence, which relates to the circumstances surrounding production and publication of the libelous material.  Because actual malice ultimately depends on the journalist’s state of mind, the U.S. Supreme Court has said libel plaintiffs may probe the minds of reporters and editors, questioning them about their thought processes as they worked on stories and about their conversations with editors, co-workers and sources.[134]  In the case discussed above, the appeals court relied on the defendant’s own testimony to conclude that the evidence was insufficient to prove that the blogger knew his first post was false or had serious doubts about its truth.[135] Reporters can be forced to testify about their evaluations of the reliability of sources or information and why they did or didn’t use certain sources or information.  Editors and co-workers can be called to give evidence about their conversations with the reporter who wrote the allegedly libelous story.  Notes, drafts, tape recordings and outtakes can be used as evidence of what journalists thought and believed as they produced stories.  Journalists must be careful about what they say and do in the course of researching and writing stories.  Publicly expressing doubts about the veracity of a source or piece of information and then using that source or information in the story without further verification can be dangerous.  Boasting that you’re “going to get” someone can come back to haunt you at a libel trial.  Information in notes, drafts, tapes or outtakes that tends to contradict the libelous accusations, but which you did not include in the story, can become evidence of knowing or reckless falsification.

Typically, direct state-of-mind evidence will be supplemented with indirect evidence.  “Although courts must be careful not to place too much reliance on such factors, a plaintiff is entitled to prove the defendant’s state of mind through circumstantial evidence,” the U.S. Supreme Court said.[136]  The circumstantial factors most commonly used to prove actual malice are 1) the sources used or not used in the compilation of the story; 2) the nature of the story itself — feature or breaking news — especially whether the reporter was working under deadline pressure; and 3) the inherent probability or believability of the defamatory charges themselves.

Using reliable sources is one of the best defenses a journalist can raise to charges of actual malice.  For example, in the Ryan case discussed above, the court noted that author John Brooks “relied on two secondary sources which he had used in the past and which have an excellent reputation.  He had no reason to doubt the accuracy of their accounts. . . . The reliability of the third source . . . is more questionable, but Brooks used nothing from it that was not also found in his other sources. . . . Clearly it would have been better journalistic practice to have verified the accuracy of these secondary sources. . . . But we cannot say that the failure to do so amounted to more than mere negligence.”[137]

A 1989 U.S. Supreme Court case demonstrated that using an unreliable source while ignoring other obvious sources can be evidence of reckless disregard for the truth.  An unsuccessful candidate for municipal judge, Daniel Connaughton, sued the Hamilton (Ohio) Journal-News over a front-page story accusing him of using “dirty tricks” in his campaign.  The story was based on the accusations of a woman with a criminal record and a history of mental instability, who accused Connaughton of offering her and her sister jobs and a Florida vacation “in appreciation” for their help in discrediting the incumbent judge.  Not only was the source questionable, but the paper also failed to verify the charges with the sister or even listen to tapes of conversations between Connaughton and the sisters, which Connaughton had provided the newspaper staff.  Describing as “utterly bewildering” the paper’s failure to interview the sister, an obvious source to confirm or deny the allegations, the Court ruled the paper’s staff made a “deliberate decision not to acquire knowledge” that might have revealed the falsity of the charges and, therefore, was guilty of purposely avoiding the truth.[138]

In determining what constitutes reckless behavior, courts have also recognized the nature of the news business and the deadlines under which journalists often work.  For example, in a pair of cases decided together in 1967, the Supreme Court recognized that an Associated Press story about the integration of Ole Miss “was news which required immediate dissemination.”  In contrast, the Court said, a Saturday Evening Post story alleging that a college athletic director and a coach had conspired to fix a football game about a month prior to the publication “was in no sense ‘hot news.’”  The magazine had time to check the allegations of its questionable source.[139]

In those cases, the Court also considered the inherent believability of the defamatory allegations.  The AP story had accused retired Maj. Gen. Edwin Walker of taking command of a violent crowd and leading a charge against federal marshals at the University of Mississippi.  According to the Court, the AP reporter’s dispatches, “with one minor exception, were internally consistent and would not have seemed unreasonable to one familiar with General Walker’s prior publicized statements on the underlying controversy.”  The Court then quoted Walker’s public statements, in which he opposed integration and urged defiance of court orders.  In contrast, the Court noted The Saturday Evening Post staff failed to evaluate the believability of its game-fixing allegations by screening game films, determining whether game plans had been adjusted or consulting football experts.[140]

What is negligence and who must prove it?

If a libel plaintiff is not a public official, a candidate for public office or a public figure, he or she is considered a private person for purposes of a libel suit.  The U.S. Supreme Court has left it up to the states to determine what level of fault private person plaintiffs must prove, so long as they do not allow liability without proof of fault.  In North Carolina private person plaintiffs must prove negligence, at least when the subject of the defamatory report is a matter of public concern.[141] 

Generally, negligence means a failure to exercise ordinary or reasonable care.  In deciding whether negligence occurred, some courts rely on professional standards, seeking to determine if defendants followed accepted journalistic practices in their investigation and verification of the information and sometimes allowing expert testimony on industry standards and procedures.  Other courts use a “reasonable person” standard, which requires the jury to decide how a reasonably prudent person would have acted under similar circumstances but does not focus on professional norms.  The North Carolina appellate courts, while holding in several cases that negligence is the applicable fault standard for private individuals, have not defined negligence, nor have they clearly indicated whether negligence is to be determined on the basis of professional norms or by applying a reasonable person standard. In 1982, however, a federal district court in North Carolina used a professional standards approach, holding that “normal publishing procedures” do not require reporters to investigate whether someone else might have the same name as a person arrested and charged with a crime.[142]

Generally, in determining whether journalists are guilty of negligence, courts consider the same factors they use in actual malice analysis:  the sources used or not used, the existence of deadline pressure and the inherent probability of the information itself.  A study of libel cases decided between 1974 and 1984 showed negligence is likely to be found when “there is a discrepancy between what a reporter says he was told by a source and what the source said he told the reporter,” when a journalist makes little or no effort to contact the subject of the defamatory charges, when a story is based on only one source or when information is not verified through official or reliable sources.[143]  In other words, juries appear to place a great deal of emphasis on the use of proper sources, on accuracy in quoting or paraphrasing sources and on giving the person being attacked a chance to rebut the accusations.  For example, in one of the few reported North Carolina cases in which negligence was discussed, the Court of Appeals said it was not negligent for a journalist to rely on the sheriff for “information regarding plaintiff’s being listed on Interpol or as to the status of warrants sworn out against plaintiff.  In fact, consulting a law enforcement agency may have been the only avenue for obtaining this information.”[144]  In an earlier case, the Court of Appeals said failure to run a retraction is not proof of negligence. “[T]he fault required . . . relates to some act or omission of the publisher at the time of publication. An allegation or showing of a failure to retract has no probative value or effect upon what a publisher did or failed to do at the time of publication.”[145]

The wire service defense.  Normally it is not negligent for a news medium to use wire service stories without checking their accuracy.  Courts have recognized that the major news services have reputations for reliability and that it would be impossible for newspapers and broadcasters to verify all of the wire service stories they run.  However, it is possible that news media could be found guilty of negligence, or even actual malice, if they published wire service stories containing obvious errors or that were “so inherently improbable or inconsistent that the defendants had, or should have had, some reason to doubt their accuracy.”[146]  In 1990 the N.C. Court of Appeals accepted the wire service defense in a libel suit against the Avery Journal and its editor.  Joyce McKinney sued over an article that recapped the bizarre story of her allegedly kidnapping and raping a Mormon missionary in London.  The editor “relied on reputable wire services and daily newspapers” in recounting the McKinney story, the court noted.  “There was nothing inconsistent or improbable in the articles upon which (the editor) relied which should have prompted her to investigate the reliability of the stories. . . . The sources relied upon . . . are known for their accuracy and are regularly relied upon by local newspapers without independent verification.”[147]



[77] 376 U.S. 254 (1964).

[78] See, e.g., Ramsey v. Cheek, 109 N.C. 270, 273, 13 S.E. 775 (1891).

[79] 376 U.S. at 279-80, 285-86.

[80] Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967).

[81] Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971).

[82] Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974).

[83] Id. at 349; Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985).

[84] Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).

[85] Griffin v. Holden, 180 N.C. App. 129, 636 S.E.2d 298 (2006); Varner v. Bryan, 113 N.C. App. 697, 440 S.E.2d 295 (1994).

[86] Cline v. Brown, 24 N.C. App. 209, 215, 210 S.E.2d 446 (1974), cert. denied, 286 N.C. 412, 211 S.E.2d 793 (1975).

[87] Dellinger v. Belk, 34 N.C. App. 488, 238 S.E.2d 788 (1977), cert. denied, 294 N.C. 182, 241 S.E.2d 517 (1978).

[88] Angel v. Ward, 43 N.C. App. 288, 258 S.E.2d 788 (1979).

[89] 43 N.C. App. at 292-93.

[90] Garrison v. Louisiana, 379 U.S. 64, 77 (1964).

[91] Id.

[92] See Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971).

[93] Gertz v. Robert Welch, Inc., 418 U.S. at 345, 351-52.

[94] Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d 1287, 1294 (D.C. Cir.), cert. denied, 449 U.S. 898 (1980).

[95] See Reliance Ins. Co. v. Barron’s, 442 F. Supp. 1341, 1348 (S.D.N.Y. 1977).

[96] Steere v. Cupp, 602 P.2d 1267, 1273 (Kan. 1979).

[97] Gertz , 418 U.S. at 345.

[98] Waldbaum, 627 F.2d at 1296-97.

[99] Gertz, 418 U.S. at 345.

[100] See Hutchinson v. Proxmire, 443 U.S. 111, 134-36 (1979).

[101] Firestone v. Time, Inc., 271 So.2d 745, 751 (Fla. 1972).

[102] Time, Inc., v. Firestone, 424 U.S. 448, 454-55 n. 3 (1976).

[103] Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 818, 555 S.E.2d 175, 184 (2001), cert. denied, 537 U.S. 814 (2002).

[104] Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 168 (1979). See also McKinney v. Avery Journal, 99 N.C. App. 532, 393 S.E.2d 295, cert. denied, 327 N.C. 636, 399 S.E.2d 123 (1990).

[105] Tavoulareas v. Piro, 817 F.2d 762, 773 (D.C. Cir.), cert denied, 484 U.S. 870 (1987). See also Silvester v. ABC, 839 F.2d 1491 (11th Cir. 1988).

[106] Jadwin v. Minneapolis Star, 367 N.W.2d 476, 486 (Minn. 1985).

[107] U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 939 (3d Cir. 1990).

[108] Bank of Oregon v. Indep. News, 693 P.2d 35, 42, reh. denied, 696 P.2d 1095 (Ore.), cert. denied, 474 U.S. 826 (1985).

[109] See, e.g., Steaks Unlimited v. Deaner, 623 F.2d 264 (3d Cir. 1980).

[110] See, e.g., Harris Nursing Home, Inc. v. Narragansett Television, Inc., 24 Media L. Rep. (BNA) 1671 (R.I. 1995); Beech Aircraft v. National Aviation Underwriters, 11 Media L. Rep. (BNA) 1401 (D. Kan. 1984).

[111] See, e.g., Snead v. Redland Aggregates Ltd., 998 F.2d 1325, 1329 (5th Cir. 1993).

[112] Gaunt v. Pittaway, 135 N.C.App. 442, 520 S.E.2d 603 (N.C. App. 1999).  Despite the plaintiffs’ objections to being deemed public figures, the N.C. Court of Appeals did not discuss that issue because plaintiffs committed a procedural error.

[113] Smith v. McDonald, 713 F. Supp. 871 (M.D.N.C. 1988), rev’d 895 F.2d 147 (4th Cir. 1990), cert. denied, 498 U.S. 814 (1990). The reversal of the trial court’s decision had nothing to do with Smith’s status as a public figure but was because McDonald’s letters to the president were absolutely privileged.

[114] Ryan v. Brooks, 634 F.2d 726, 728 n.2 (4th Cir. 1980).

[115] Appleyard v. Transamerican Press, Inc., 539 F.2d 1026 (4th Cir. 1976), cert. denied, 429 U.S. 1041 (1977).

[116] Monitor Patriot Co. v. Roy, 401 U.S. 265, 274-75 (1971). See also Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 659 (1989); Boyce & Isley, PLLC v. Cooper, 710 S.E.2d 309, 318 (N.C. Ct. App. 2011).

[117] See Wolston v. Reader’s Digest Ass’n., 443 U.S. 157, 166 n.7 (1979).

[118] Time, Inc. v. Johnston, 448 F.2d at 381. See also Street v. NBC, 645 F.2d 1227 (6th Cir.), cert. granted, 454 U.S. 815, cert. dismissed, 454 U.S. 1095 (1981).

[119] Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 514-17 (1991).

[120] Bowser v. Durham Herald Co., 181 N.C. App. 339, 638 S.E.2d 614 (2007).

[121] 181 N.C. at 340.

[122] Id. at 342.

[123] Garrison v. Louisiana, 379 U.S. 64, 74 (1964).

[124] St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

[125] Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 692 (1989).

[126] Griffin v. Holden, 180 N.C. App. 129, 137, 636 S.E.2d 298, 305 (2006). See also Varner v. Bryan, 113 N.C. App. 697, 704, 440 S.E.2d 295, 300 (1994).

[127] Harte-Hanks Commc’ns, 491 U.S. at 666 (quoting Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155 (1967)).

[128] Id. at 668.

[129] Lewis v. Rapp, No. COA11–1188, 2012 WL 1512110, at *4 (N.C. Ct. App May 1, 2012).

[130] Id. at *1.

[131] Id.

[132] Id. at *2.

[133] Id. at *6.

[134] Herbert v. Lando, 441 U.S. 153 (1979).

[135] Lewis, 2012 WL 1512110, at *3-4.

[136] Harte-Hanks Commc’ns, 491 U.S. at 668.

[137] Ryan v. Brooks, 634 F.2d at 732-33.

[138] Harte-Hanks Commc’ns, 491 U.S. at 682, 692.

[139] Curtis Publ’g Co. v. Butts, 388 U.S. at 157-58.

[140] Id. at 157-59.

[141] Neill Grading & Const. Co., Inc. v. Lingafelt, 168 N.C. App. 36, 47, 606 S.E.2d 734, 741 (2005). See also McKinney v. Avery Journal, Inc., 99 N.C. App. 529, 393 S.E.2d 295, cert. denied, 327 N.C. 636, 399 S.E.2d 123 (1990); Walters v. Sanford Herald, 31 N.C. App. 233, 228 S.E.2d 766 (1976).

[142] Nesbitt v. Multimedia, Inc., 9 Media L. Rep. (BNA) 1473, 1475-76 (W.D.N.C. 1982).

[143] W. Wat Hopkins, Negligence Ten Years after Gertz v. Welch, 93 Journalism Monographs 19 (Aug. 1985).

[144] McKinney v. Avery Journal, Inc., 99 N.C. App. 532, 532-33, 393 S.E.2d 295, cert. denied, 327 N.C. 636, 399 S.E.2d 123 (1990).

[145] Walters v. Sanford Herald, 31 N.C. App. 233, 236, 228 S.E.2d 766 (1976).

[146] Appleby v. Daily Hampshire Gazette, 478 N.E.2d 721, 726 (Mass. 1985).

[147] McKinney, 99 N.C. App. at 532.

10. What defenses are available to journalists?
8. Injury

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