On the Media; Part 1; [1996-09-22--excerpt], Ruining Reputations

[Alex Jones]: From WNYC in New York, this is ON THE MEDIA. [music] We give our press lots of leeway in this country. The logic is that the remedy for bad speech is good speech, or at least more speech. But what happens when the media make mistakes that hurt innocent people? Are apologies and corrections enough, or should we somehow hold the media more accountable? In this hour, we'll hear from an Arkansas editor who recently tried to make amends for his paper's shabby treatment of a local politician. And do you remember Richard Jewell? He was named early on as a suspect in this summer's Olympic Village bombing, but he has yet to be charged with any crime. Is our free press too free to ruin reputations? That's right after this news. So stay tuned. [music] [Ronnie Radbill]: From National Public Radio News in Washington, I'm Ronnie Radbill. [music] [Alex Jones]: A couple of months ago, a newspaper in Fayetteville, Arkansas, did a truly

remarkable thing. It's something that newspapers probably don't do nearly enough: admit they were wrong. The thing that was really exceptional that, what happened in Arkansas, was that the newspaper, The Northwest Arkansas Times, circulation 13,000, didn't admit error in a few paragraphs at the bottom of an inside page, which is the usual place for newspaper apologies. The Arkansas paper devoted a full page to its mea culpa under a banner headline that said "an apology is long overdue." What makes the apology even more astonishing was that it came after the Northwest Arkansas Times had won a libel suit about the very thing it was apologizing for. The courts had let the paper off the legal hook, but this time the paper's editor and publisher decided that they were still on a moral hook. So they decided to do something about it. We all know that the media make mistakes. Journalists make bad and wrongheaded judgments.

It's a human business, this reporting of the news. But saying that it is human to err is cold comfort to people whose reputations have been damaged or even destroyed by a media mistake. They want their reputations back. They want, at the very least, an admission of error and of apology. But the way our libel laws are constructed, that doesn't often happen. Sincere, full-bore apologies are few and far between. I'm Alex Jones and on this edition of ON THE MEDIA, we're taking a look at what happens when the media ruin a reputation and what better way might be found than the frustrating and expensive system now in place. My guests are Mike Masterson, executive editor of the Northwest Arkansas Times and author of that remarkable full-page apology. Mike, welcome. [Mike Masterson]: Thank you, Alex. Good to be with you. [Alex Jones]: And Randy Bezanson, professor at the University of Iowa College of Law, who led a project looking at how our libel system works and how to improve it. Randy, very glad to have you with us, too.

[Randy Bezanson]: Nice to be with you, Alex. [Alex Jones]: Mike Masterson, you won a libel suit, then apologized. What you did in Fayetteville may not be the first and only time such a thing has happened, but I've never heard of a newspaper doing anything comparable. Why did you do it? [Mike Masterson]: Well, we did it because it was the right thing to do. I had come back home. I had headed the Kiplinger Program at Ohio State for five years and then been out in New Jersey at the Asbury Park Press before coming home. And when I got back here, I'd heard about the Coody case and the trial and the fact he was still appealing that to the Supreme Court and waiting to see whether they were going to grant cert on it, which they did not. So I was aware of the case that had already been heard under a different administration at the paper, but I didn't know much about it. And probably four or five months into it, into my stay, Mr. Coody came to visit and it was very hard for him to come through the door of that newspaper. He told me he hadn't slept for almost, through the night, for almost three years. He'd wake up at night with his teeth gritted and still bitter and

angry about what the newspaper had done to him because he had come very close to winning the election for mayor here within 500 votes. And he blamed the newspaper actually, in this last-minute vendetta campaign that the paper launched against him, for losing the election. And anyway, he spent two hours with me and I listened to him carefully and asked if he still had all the records. And he did. And I brought them home with me, and over the next couple of months pored over those records and just looked at our role and what had happened to him. And I came to the very distinct conclusion, number one, that I wanted to take a shower when I finished reading all that. And, number two, that we should do something about it because we had, while we had won the libel suit legally, and in a legal sense, in the courtroom, we very much had damaged this man, I felt, morally and wrongly. And I think all the records show that clearly. [Alex Jones]: Well, let me ask you, Randy Bezanson, how rare is it for a newspaper to respond to a complaint by someone who - who has really got a legitimate complaint, but

with an open mind? What do you think? [Randy Bezanson]: It's quite rare, less rare today than it was maybe 15 or 20 years ago, but it remains very infrequent. And I would say this is the first case I've heard where that's been done after the newspaper has won a libel suit. [Alex Jones]: Well, what usually happens when someone calls a news organization and says they've been wronged or even libeled? [Randy Bezanson]: The all too typical situation is that the call is directed to the reporter who wrote the story. And the reporter who wrote the story may be very defensive about the story and otherwise occupied on a story for tomorrow's news, and will rebuff the person oftentimes with four-letter words. Tell them to bug off. Not interested. Newspapers more recently have tried to take steps to avoid that and have those calls directed to an editor or someone who's not got a personal stake in the accuracy of the story. But even at that, newspapers, I think, don't do all that good a job dealing with complaints.

[Alex Jones]: I want to read the first couple of paragraphs of this editorial, this apology, a full-page apology that appeared on Sunday, May 5th, 1996, in the Arkansas paper that we've been discussing, written by Mike Masterson. It goes this way: "The power of the press creates and destroys, fosters and hinders, promotes and condemns. So those of us who operate the presses should always strive for truth and fairness in the words we publish. Because we routinely examine the performance of agencies and institutions in our community, we also should be willing to take a hard look at our own performance when it is justified. I believe, as do others here, that the Northwest Arkansas Times fell well short of journalistic standards during Fayetteville's mayoral campaign of 1992." Now, Mike Masterson. [Mike Masterson]: Yes. [Alex Jones]: Please, if you would, and I know you can't tell it in great detail, but tell us the story of Dan Coody and the Northwest Arkansas Times. [Mike Masterson] Well, Mr. Coody was a very viable candidate for mayor here in 1992. He'd been on the council, the city council, and he had a large following.

And our newspaper basically played a very crucial role in seeing that he was defeated. And we did that by hiring a private investigator on the eve of the election to discover whatever bad he could find about Mr. Coody, and by writing an editorial and stories that unfairly and wrongly legitimized some very vicious false rumors and smeared his reputation in the process. And also appears as though we not only put the candidate in a really, I guess, a very negative false light, but we also helped promote these rumors behind the scenes, out of print, even. And that's what the testimony showed in all the depositions that were taken in connection with a libel suit and also the trial testimony. And what I tried to do and what you have there, what you're holding, Alex, is to, not only just to say we're sorry, but to explain to our readers and to this community why I wanted them to see some of the documents

presented that had never been aired to show how we erred exactly. Now, let me make one point that I think is real relevant. We lost the libel suit at the local level. The people in this community said "This newspaper was wrong." It was overturned on appeal because - I'm not up on it that closely as far as the technicality of the ruling - but basically, they said that they had not proved malice and that, consequently, we had the right to say and do what we did. That was very troubling to me when I saw the truth. And I guess we have to go back to truth here, gentlemen. You know, do we owe allegiance to truth as journalists anymore or just to partial truths, regardless of the malice issue? And to me, what I saw in the truth of those documents was that we had done this man a terrible disservice and we had taken his reputation. And because of that, it seemed to me that we were the only ones who could give his reputation back to him. [Alex Jones]: Before we leave the story, just, you know, as it happened, I want to

go into a little bit more with you, Mike. One of the things that really struck me about the story of Dan Coody and the Arkansas paper is the role that the publisher seemed to have had in it. In fact, based on what you, what you wrote and what the other material I've seen on this, the person who really orchestrated this campaign was the publisher of the newspaper himself, not a reporter, not the editor, but the publisher. [Mike Masterson]: He was the driving force behind it. And it certainly appeared that way from everything. I think you have the document in front of you, maybe Alex. I'm not sure, but I don't. And there is one letter that he had sent up to the lawyers in Chicago for the newspaper at that time before it, before his editorial, very demeaning editorial to Mr. Coody was published. And I quoted from that that document that the one he had sent to the attorneys in which he basically had led the attorneys to believe that Dan Coody was a former armed robber and drug salesman and just a very evil person. And none of this had ever been - it wasn't true to begin with, and certainly

hadn't been proven. But yet what the attorney saw in Chicago was that memo, which clearly indicated that it was true. And based on that, I guess, the attorneys told him, well, go ahead and run, run your article. [Alex Jones]: Well, the thing it - let me just give the story a little more, a little more shape here. Because what, what I think happened in Fayetteville is that the publisher did not agree with the politics of Dan Coody. He characterized him as a left winger and one of the kind of a '60s type. He very much wanted to discredit him for political reasons, apparently. But he also made, you know, at least in his own defense, the argument that he genuinely harbored suspicions about Dan Coody's past and felt like Dan Coody had not been forthcoming; and he had gone to the trouble to hire a private detective in order to do, as far as he was concerned, the way he described it, his journalistic duty to the town to find out if this guy had something in his past. [Mike Masterson]: Right, Alex.

[Alex Jones]: And he had, in fact one source, a woman who claimed to have known Dan Coody and gone to school with him, who, according to the publisher, said that he had done all of these things and therefore prompted the publisher to write this editorial and to publish these articles that were very, very damaging to Dan Coody. So I guess my question is this: the basis upon which, as I understand it, the newspaper won the libel suit, was that it was, by legal terms anyway, doing its job... [Mike Masterson]: Mm-hmm. [Alex Jones]:...in investigating aggressively the background of this man. [Mike Masterson: Mm-hmm]. [Alex Jones]: Is that right? [Mike Masterson]: Yeah, basically. I think it ruled out the malice issue. You and I...and you, you have characterized the story quite well there, Alex. That's exactly what happened. Now, the woman on the stand, you have to understand this woman that the publisher had put so much faith in. He said, he told others, including the ones, the attorneys in Chicago initially, that he had sources that said this. Well, it turned out that his sources turned out, or what was one source who was also not a political ally of Dan Coody's

and on the stand, she basically said she knew nothing about Dan Coody's background, and had really never said anything specific about him... [Alex Jones]: When we get... [Mike Masterson]:...and the whole thing fell apart. [Alex Jones]:... when we get back, we're going to be talking with Randy Bezanson more about how the newspaper won this case and why, in a way, it was a good thing that this newspaper won this case and why that creates this conundrum for libel when you can be wrong and right at the same time, in kind of an odd way. We also want to hear from you. We want to hear what you think. Have any of you felt you've been wronged by the media? What happened when you complained? Our number is 1-800-343-3342. That's 1-800-343-3342. This is ON THE MEDIA from National Public Radio. [musical interlude] [Alex Jones]: I'm Alex Jones. We're back with ON THE MEDIA, we're talking about what happens when a

news organization ruins or damages someone's reputation. We're talking with Randy Bezanson, professor of...at the University of Iowa College of Law, and Mike Masterson, executive editor of the Northwest Arkansas Times. Randy Bezanson, here's the situation. Here's a man, Dan Coody, who has been terribly wronged by this newspaper. It has published all kinds of damaging, slurring innuendo, which is in fact not true about him, theoretically has cost him his election and a large part of his reputation. Yet the newspaper wins the libel suit. Why? [Randy Bezanson]: Well, the main reason is that the law is designed to protect newspapers publishing that which they believe is true when they publish it. If the Times, at the time of publication, had not believed that these things about Mr. Coody were true, then it would be libel. But given that the appellate court at least was convinced that they did believe they were true, it was not libel.

The reason for that is that, if newspapers are held liable for inadvertent errors in a business in which the truth is oftentimes unclear and uncertain, then we would not have the free press that we enjoy today. But I do think it should be said that the law, in protecting against liability, false statements that were believed true at the time of publication isn't saying that the falsity that was published is a good thing. It's just saying it should not be subject to liability. Whether the newspapers ought to attend to truth and, when they discover the truth, correct the situation is an entirely different matter. [Alex Jones]: If you would please also describe the distinction between an ordinary citizen who is liable or suing for libel and someone in Dan Coody's situation. He was a candidate running for public office and was a public figure in an election campaign. That put him in a different category. [Randy Bezanson]: It did. If Dan Coody had been a private citizen, someone who was not in the public eye or running for public office, he could have sued and succeeded upon proving

that the newspaper had published unreasonably or negligently. That is to say that they should have known it was false, even though they might not have. In this case, given that he was a candidate for public office, what had to be shown was that the newspaper or the reporter or publisher, in fact, knew that what was published about him was false when published, or at least actually entertained very grave doubts about the truth and published recklessly notwithstanding those doubts. That's a very, very hard standard to meet. It requires proving basically what's in the mind of the reporter and the publisher at the time of publication. The proof problems are nearly insurmountable. And the cases that involve this issue become terribly intrusive and very expensive, even to the point at which, I think it can fairly be said, in these public cases that nobody wins these cases.

In this case, the Northwest Arkansas Times won the case. But I suspect Mike Masterson would report to us that the cost of winning the case was hardly worth it. Probably cost a tremendous amount of money, a great deal of stress in the news organization and a lot of very intrusive discovery into how the newspaper operates. [Alex Jones]: Not to mention the sort of esteem that the public held for the newspaper while this was, while this was going on. [Randy Bezanson]: Absolutely. And I think we have to understand in these libel cases, that libel is a tort that deals with one's interest in reputation. And Mr. Coody, of course, felt his reputation was besmirched. And so, on his side of the case, reputation was an important factor. On the other side of the case, too, reputation is critical. Newspapers believe they must defend these suits to preserve their reputation. Many would be of the view that's a short sighted thing, that what Mike Masterson has done by apologizing actually enhances the reputation of the Arkansas Times. But that's not a view widely held in the newspaper profession.

[Alex Jones]: I want to get some callers on this line, on the line on this, because this is a subject that I think strikes people on a very deep chord. Robert in Boston, Massachusetts, you're on the air. [Caller--Robert]: Yes. I wanted to comment that the leading case in this area is New York Times Company against Sullivan, which holds that if the newspaper is is wrong, as long as it acted without actual malice or such carelessness that it amounted to malice, the newspaper nonetheless will win the libel suit. That's only if the plaintiff is a public figure. And it sounds to me like that case was controlling in this area? [Alex Jones]: Well, I think you're exactly right, Times v. Sullivan is the landmark decision. The interesting thing about this particular case, though, is that this was a situation where the publisher who was responsible for these stories had hired a private detective, and his own private detective had given this guy a clean bill of health. He went ahead with the slurring innuendo, and negative stories anyway, which in a way, would say that standard is legitimately been met

in terms of reckless disregard for what the truth is. I don't know. Randy Bezanson Is that not so? [Randy Bezanson]: Well, I think so. If those were the facts and the only facts, I think clearly there must have been other facts in the record that convinced the appellate court that that conclusion could not be sustained by the jury or the district court judge. [Alex Jones]: Well, Mike Masterson, you put in this. you know, in your big apology, you took note of the fact that even though the newspaper was wrong, it was probably the correct decision, in your opinion, by the courts to uphold the libel rather, to defeat the libel verdict that the local jury had given. Why, what was your thinking? [Mike Masterson]: Well, my thinking is this. This is Mike. Let me say that the private eye went down, let's see, I think he was hired on a Thursday or Friday. The election was on Tuesday, the following Tuesday. And then he subcontracted that to another private investigator in Texas already, where Coody had come from. And the results weren't forthcoming

until probably Saturday night or Sunday morning - the initial checks. And the story was published, the questionable story, the one that prompted the suit, on Saturday. So the results weren't back yet from what the private eye had found until after that story was published. And then another newspaper, a competing newspaper, discovered the results and published them on Monday morning. The fact that he had a clean bill of health, which forced us then, at that time, to come back on Tuesday morning, the Election Day, saying that the private eye had found nothing. But still, there were some innuendos, even that day, that, you know, Coody hasn't really fully explained his past, indicating that. Even on Election Day. So my thinking was that, I think, the decision was probably right because the private investigators findings had not come back when the story was published, although there could be an argument made that they should have waited for those before writing that.

And I certainly would have waited. I wouldn't have felt compelled. [Alex Jones]: Well, this is sort of a case, it seems to me, of investigative reporting you know, run, run, riot. I mean, it was a, it was an inquiry into a candidate's past, but with a vendetta as its, its real objective. Whereas, you know, in another situation, it could be a very legitimate inquiry that would be just as unpleasant to the candidate, but would be motivated differently. [Mike Masterson]: Yes. And he used this one person in the Chamber of Commerce as a source for all this. That's where it stemmed from. And then he tried to build some sort of case against Dan Coody on that rumor, which the woman certainly didn't stand behind and no facts substantiated eventually. [Alex Jones]: Well, you know, it really - it really is this trade off. And, you know, libel laws protect aggressive reporting, but libel laws also probably make admitting journalistic mistakes less likely. Is the balance right?

I don't know. It's something that that I want to talk more about. Robert, thank you for your call, that's - you're quite right about that Times v. Sullivan standard. That's the thing that applies here. And it's a real question of whether...not whether that's the right standard, but whether the way we have of dealing with errors in the press is best handled in this environment of expensive lawsuits and protections, legitimate protections for the press, but ones that make getting at the truth that Mike Masterson was describing much less likely. Thank you a lot for your call, Robert. I want to ask you, our listeners, what suggestions do you have for how complaints about news stories should be handled? How should errors be corrected? What do you think? Our number is 1-800-343-3342. That's 1-800-343-3342. This is ON THE MEDIA from National Public Radio. [lengthy musical interlude] [Alex Jones]: I'm Alex Jones. We're back with ON THE MEDIA, we're talking today about what happens

when the media get it wrong and ruin someone's reputation, really do someone some serious damage, and they're wrong about it. We're talking with Randy Bezanson, professor at the University of Iowa College of Law, and Mike Masterson, executive editor of the Northwest Arkansas Times. Martha in Columbus, Ohio, you're on the air. [Caller--Martha]: Yes, I must tell you that I am, I have pulled off. I'm at a gasoline station to make this telephone call. And the reason is, is because I thought it was so important. In 1983, my husband was libeled by the newspaper when he was running for judge in our hometown of Hamilton, Ohio. It took five and a half years. We went all the way to the Supreme Court of the United States where they upheld the decision for my husband, nine - zero. All the way along, throughout each phase of the experience, the newspaper, of course, said that they had done no wrong. And even after the Supreme Court had come down with their decision their comment was, "We disagree with the Supreme Court."

As far as...you know, I think I'm getting a little bit off track. They never admitted they were wrong throughout the entire process. And they continued to repeat the libel throughout the five-and-a-half year period that my husband fought this. [Alex Jones]: Randy Bezanson. What do you have to say to this woman? [Randy Bezanson]: Well, I think it's a nice illustration of a problem that exists in all libel cases. The two parties to these cases see the cases as involving completely different issues. The, this woman's husband and this woman, understandably, think what's at issue is whether what was published was true. The newspaper, on the other hand, believes that what's at issue is whether they believed it was true when they published it and ne'er the twain shall those meet and they don't meet in these cases. So the solutions are never satisfying to either party, really. [Alex Jones]: Martha, did the newspaper ever offer any apology or any kind of admission that what they had done was report something incorrectly?

[Caller--Martha]: Never, never. And even after the Supreme Court came back with their nine-[zer]o decision did they admit any wrong doing. [Alex Jones]: A nine-[zer]o decision. And there was still no, I mean, Randy Bezanson, The thing is this: is the press... and I don't mean to characterize the press by the reaction of this one newspaper, especially with Mike Masterson from a very different kind of newspaper on the line... but doesn't this kind of of of response from the newspaper really tend to damage the whole idea that the press is after the truth? [Randy Bezanson]: Well, I think it does. And in some cases, I think it hurts the press and the press doesn't realize that it hurts their reputation. This happens, though, too often because once a complaint is made, lawyers come into the act and the whole dispute resolves itself into a lawsuit. And the law doesn't have a lot to do with the basic disagreement between the newspaper and the subject of the news article. [Alex Jones]: Mike Masterson, what has been the reaction to your mea culpa from your

colleagues in the press and from, you know, the former publisher and so forth? [Mike Masterson]: There were a few who disagreed, but I'd say the majority felt like it was pretty refreshing and I think a lot of them agreed with it. But the point that Randy just made, I think, is real important, and that is that I think all too often when we make mistakes, that the attorneys get involved early and they tell us, don't admit anything, because if you admit anything, you're going to be you know, you're going to be just that much more culpable in the long run. So I think there's...the way our system is set up, it's sort of built in that we deny, deny, deny. And... [Alex Jones]: Martha, let me ask you: Did you, before you filed your libel suit, did your husband seek any kind of other, you know, anything else from the newspaper, an apology, you know, a retraction, that kind of thing? [Caller -- Martha]: Well, absolutely. Keep in mind, this occurred maybe four to five days before the

actual election... [Alex Jones]: Yes. [Caller--Martha]...and we did go to the newspaper office. I went personally. The editor got right up in my face and laughed at me. We did ask for an apology. And no, their response was, "Absolutely not." [Alex Jones]: Well, OK, Randy Bezanson, the issue now is if this is, this is obviously broke in some respects, how do you fix it? [Randy Bezanson]: Well, it is broke. And I want to, I want to repeat that and emphasize it. And in fact, Alex, there isn't anybody involved in the libel system who thinks it works, not the newspapers, not the lawyers, not the plaintiffs. Whether they win or lose, everybody thinks it's broke. I think the answer, or a solution, is to get rid of converting these disputes into money-damage lawsuits, and to focus on what the truth is without a lawsuit necessarily and without recrimination, without money damage, without punitive damages, and without trying to assess whether the newspaper was a responsible newspaper or not, the question is simply the plain truth.

And there ought to be a way to get to that. [Alex Jones]: And how much... [Mike Masterson]: Alex, this is Mike. [Alex Jones]: Yes, Mike? [Mike Masterson]: Let me say that in Dan Coody's case, he did, he did ask for an apology up front. That's all he wanted was for the newspaper to say they'd been wrong and there wouldn't, there would not have been a libel suit. But the newspaper refused to do that at the time. And, you know, the dance began, so they could have avoided a whole lot of agony on both sides had they just admitted that, you know, we really messed up here and we're sorry. And we hope the community forgives us for this, too. [Randy Bezanson]: Alex? [Alex Jones]: Sorry. Go ahead. [Randy Bezanson]: This is Randy. And let me just add two things. One, we found in a study of libel suits and libel plaintiffs over a long period of time that relatively few of them are interested in money, that's consistent with what Mike just said. The other thing that needs to be said is that when an attorney advises a publisher, "Don't admit anything, we'll win the lawsuit," that's really bad legal advice, in my judgment. It's probably true that they'll win the lawsuit. But to say, "Don't admit anything because admitting you erred is going to

create greater legal problems," I think is wrong. [Alex Jones]: I agree with you. Martha, I'm sorry that it happened to you. And I thank you for calling. [Caller--Martha]: Well, thank you for your time. [Alex Jones]: Bill - Weehawken, New Jersey. Yes, you're, I'm sorry, Bill. You're on the air. [Caller--Bill]: I'm, I'm calling because, about 10 years ago, I guess it was October. Com - in 86, Commentary magazine ran a letter that said something about me that was untrue, wasn't worth suing over, and it was sort of a last gasp effort of people.