Defamation Judgment Puts Onus On Media   

A picture proves costly for a tabloid.

Some of the most vociferous criticism of the news media comes from the industry itself. Up to a point, such navel-gazing is healthy. One way to forestall government attempts to regulate the press is to demonstrate that the media are adept at censuring themselves.

But my support for self-criticism stops at the courthouse door. It is a mistake to presume that the best punishment for lapses in editorial judgment is a lawsuit, followed by a hefty damage award. A case in point is a recent ruling by the California Supreme Court.

In 1968, Khalid Khawar was working as a freelance photojournalist for a Pakistani periodical. While covering a speech by Sen. Robert Kennedy at the Ambassador Hotel in Los Angeles, he arranged to stand on the speaker's podium so a friend could photograph him with the presidential hopeful. A few minutes later, Kennedy left the podium and was shot.

Twenty-one years later, Khawar was operating a farm in California when he saw an article in the Globe, a tabloid newspaper. The story summarized allegations, in a book by former CIA agent Robert Morrow, that the assassination was carried out not by Sirhan Sirhan but by a young Pakistani named Ali Ahmand as part of a plot by the Shah of Iran's secret police and the Mafia.

The Globe illustrated its article with a photograph showing a group of people standing near Kennedy at the Ambassador, with a superimposed arrow pointing at Khawar and identifying him as Kennedy's killer. Khawar, who had never been a suspect in the investigation, sued for libel.

The Globe claimed that the neutral reporting privilege--first articulated by the U.S. Court of Appeals for the 2nd Circuit and recognized in a handful of jurisdictions--should protect the story as an accurate report of allegations about a public controversy made in a book written by an authoritative source. It also argued that Khawar had become a public figure because of the book, and that Khawar's voluntary decision to stand on the podium with Kennedy thrust him into the controversy.

Khawar's status was critical to the case, because the neutral reporting privilege generally has been held to apply only to accusations made by responsible sources about public figures.

The California Supreme Court said that publication of the book, which sold very few copies and attracted no media attention other than the Globe's story, had not turned Khawar into a public figure. The high court also dismissed Khawar's presence on the podium with Kennedy as "trivial at best," adding that "a journalist who is photographed with other journalists crowded around a political candidate does not thereby assume any special prominence."

Once the court decided that Khawar was a private figure, the Globe could not argue that its nonjudgmental report about the book should be protected by the neutral reporting privilege.

The U.S. Supreme Court has never held that the First Amendment requires recognition of the privilege, the California court noted. Whatever merits the privilege might have in encouraging dissemination of information about public controversies, it wouldn't justify defamatory remarks about private figures. Khawar's right to a good reputation outweighed any public interest in learning about allegations made by a source the court decided was suspect, despite the original jury's conclusion that Morrow was a "prominent and responsible" source.

The California court condemned the Globe for failing to use "readily available means" to verify the truth of the accusations. It noted that the story was not time-sensitive and that the Globe easily could have conducted an investigation to form an independent judgment before republishing the charges.

And so, courtesy of the California Supreme Court, which upheld the damage award of nearly $1.2 million, the Globe has had an expensive lesson. Prominent journalists--including CBS correspondent Mike Wallace, columnist Nat Hentoff and Washington Post media writer Howard Kurtz, who condemned the many news organizations that supported the Globe's appeal as tantamount to countenancing "journalistic malpractice"--would probably say the Globe got what it deserved.

But the impact of the decision won't be limited to the tabloid alone. Future courts may interpret the ruling as creating a legal obligation to independently investigate defamatory statements made by authoritative sources before repeating them. That may be a desirable journalistic aspiration. But courts are ill-equipped to second-guess news judgment or allocation of resources. You can bet they'll seldom be satisfied that a reporter did all he or she could to determine the truth.