Archived Opinion

Press, newsgatherers get special powers in U.S.

I'm sure my paranoia was partly flamed by the buzz about the case of the CIA operative whose name was leaked to the media by Vice President Dick Cheney's chief of staff, with many still suspecting - and even more on the left hoping - that the case could eventually lead to presidential adviser Karl Rove or Bush himself. Would the inner Bush circle really make a concerted effort to retaliate in this manner because of bad publicity concerning the run-up to the war? Are the reporters, including Judith Miller and Robert Novak, way too involved with their sources? Why did Miller spend so much time in jail rather than reveal her source?

When the news reporters and news institutions themselves become a part of the story, most of us in this profession find it discomforting. As this national story was unfolding, I picked up a copy of The Mountaineer two weeks ago and there, on the front page, is the story of a case filed against R.B. Coburn, the owner of Ghost Town. The lawsuit is about breach of contract, and the claim is that Coburn improperly backed out of a deal to sell Ghost Town.

More pertinent to my paranoia, though, is a line from the second paragraph of the story: The suit involves an alleged breach of contract, statements made to The Smoky Mountain News, and the sale of two $100,000 golf carts.

That article pointed out the fact that a new sale of Ghost Town to a group whose spokesperson is David Huskins (who is affiliated with Smoky Mountain Hosts, a tourism group serving several of the far western counties) may be held up by this lawsuit. The group Huskins represents wants to renovate and reopen the theme park as just that, a theme park. Back when the group now suing R.B. Coburn expressed an interest in buying, the word was they wanted to turn the land into an upscale real estate development.

Our involvement in this case - if that's what you could call it - involves the charge of slander. Wanting to make sure we weren't in any trouble, I hustled down to the clerk of court's office to get a copy of the suit. In doing so, I also decided it was time to once again go over all this legal gobbledygook and get it straight in my head. In doing a bit of research, I was reminded once again of the powers the press in this country does have. We are given a privileged status. It is one with which we should take great care not to abuse.

Slander, libel and maliciousness

Slander and libel are both defamations. If you defame someone, it is a tort, which is the legal word for a wrongful act. The difference, as many people know, is that libel is written and slander is spoken.

In the case in which our newspaper was brought up, Ghost Town owner R.B. Coburn is being sued for his alleged slander of the plaintiffs, Charles W. Kearney Jr. and Tracy J. Harris Jr. The two claim Coburn's statements to a reporter and others that they could not get enough money to close the Ghost Town deal amounted to slander. Since they are developers and businessmen who rely on their reputation, those words exposed the plaintiffs to hatred, contempt, or ridicule and caused the plaintiffs to be shunned, avoided, or injured in their trade, business, or occupation of real estate acquisition and development, reads the lawsuit.

Now, truth be known, this newspaper could have been charged for printing those words. The case wouldn't have gone far, but it could have happened. As we know, it is easy to file a lawsuit in this country.

There are three tests to determine if something is defamatory: is it untrue, is it damaging, and was it knowingly false. That's a tough standard, and it's one of the reasons why reporters in this country are so aggressive and discover so much information.

Of course, the standard for libeling a public official is even tougher. To win a libel suit against a journalist, the public official must also prove that there was malice - that some reporter acted in reckless disregard to the known facts. Public figures generally fall into two categories - a general purpose public figure is someone who is prominent, like a movie star; a limited purpose public figure is someone who has intentionally placed themselves into prominence, like a politician or an activist.

In truth, you can publish just about anything that's true in our open society.

Keeping sources' identities

In the Scooter Libby-Nancy Plame case, it was all about protecting the identity of a source. If newsgatherers cannot guarantee the confidentiality promised to some sources, they say those sources won't provide the information critical to investigative reporting. Also, newsgatherers claim that requests for nonconfidential, unpublished information interferes in news gathering by making reporters the investigative arms of government and forcing them to spend time and money in court proceedings.

The 2nd U.S. Court of Appeals ruled in 1972 that compelling a newsgatherer to disclose confidential sources unquestionably threatens a journalist's ability to secure information that is made available to them on a confidential basis ". (and) threatens freedom of the press and the public's need to be informed ". (and) undermines the values which traditionally have been protected "

Although there have been some contradictory rulings, at least 30 states have taken it upon themselves to enact reporters shield laws to protect reporters from having to reveal sources or give up unpublished information.

In this case, one reporter - Judith Miller - chose to go to jail rather than reveal her source. She lost because the investigator determined her information was critical enough to the case that she did not deserve the protection usually afforded to reporters. Unfortunately, more and more judges and investigators are going this route.

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The truth, though, is the shield laws and case law on libel and slander provide reporters in this country with more freedom than those in any other country in the world. Unfortunately, too many of those reporters are abusing those rights, putting a higher priority on getting the story rather than weighing the consequences of their actions. If that continues, the press will continue to lose credibility.

(Scott McLeod can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..)

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