In today’s hyper-charged media environment, it takes just one false utterance to create a new (albeit false) reality. Back in the day, if a news outlet misreported a particular fact, the damage could be contained to a single print story or broadcast statement. The best remedy in these circumstances was to correct and move on. Today, the landscape is much more treacherous. One misstatement on a cable news show or error in a print article can quickly reverberate across digital and social channels and feed a self-referential string of follow-up stories, blog posts and organic conversations. That’s why many of our clients, both individual and institutional, often seek our counsel on how best to address both intentional and inadvertent misrepresentations of fact.
There’s a natural inclination on the part of aggrieved parties to sue. Setting aside the question of whether legal action is the best first approach to dealing with a media-related reputational crisis (it’s usually not), there are substantial hurdles to pursuing correction or redress through the legal process. In effect, the system privileges the collective right to open discourse over the individual’s right to protect his personal or institutional reputation.
But the changing nature of celebrity and fame – driven in large part by the very same media innovations that have rendered the landscape so treacherous – may force media outlets to exert more care and thereby limit their legal exposure to libel and slander suits. At least, that’s what some people are hoping. For those of us who work in the reputation business, these developments are of real importance. Our ability to work from a position of strength when seeking correction of factual or interpretive errors relies in part on how editors, publishers and reporters perceive their personal liability.
With this point in mind, we were interested in a news item that appeared last month. On January 1, The New York Times ran a fascinating article concerning a libel suit brought by criminal defendant Michael Skakel against television personality Nancy Grace. The case is currently pending before a federal district court judge in Connecticut. As a primer, Skakel has served over a decade in prison for the grisly 1975 murder of his neighbor, Martha Moxley. Both the accused and the victim were teenagers at the time. We use the term accused, rather than convicted, because a state judge, Thomas Bishop, recently set aside Skakel’s conviction. He is currently free on bail, awaiting an appellate court’s review of Bishop’s decision.
At issue in Skakel’s libel suit is a 2012 broadcast in which Grace and an interviewee falsely claimed that police had found Skakel’s DNA in a tree adjacent to where the victim’s body lay. This claim is patently false. In theory, Skakel should stand on very firm ground in his pursuit of damages. But here’s where it gets tricky.
First, so-called public figures face a steeper burden when suing media outlets for libel or slander. Whereas ordinary citizens may seek redress for false and damaging claims, no matter their intentionality or province, people who earn their living in the public sphere – for instance, politicians, rock stars and television personalities – must also prove malice. In theory, Grace’s attorneys can claim that Skakel is a public person, by virtue of his famous family (he is a Kennedy cousin by marriage) and infamous acts (he was, until very recently, a convicted murderer).
Second, Grace’s attorneys claim that the segment was “substantially true,” as Skakel told investigators that he had climbed a tree adjacent to Moxley’s home earlier in the evening.
Much will depend on how the judge construes both claims. For one, Skakel can fairly claim a certain form of double jeopardy: he is a private citizen who became famous after being convicted of a crime; now that his conviction has been set aside, he should once again enjoy the privileges of a private citizen. Likewise, as his attorney argued, this was no case of simple inaccuracy, as if Grace and her guests had incorrectly argued that Skakel wore a blue shirt when in fact he wore gray. “When you see the letters DNA and put that in any story and hang that around any defendant’s neck,” contends Skakel’s lawyer, “the whole world believes that there is DNA evidence that is lock, stock and done,” Mr. Seeger said. “It’s totally misleading. Anyone who is watching that show now forms the belief that the DNA was there: We all know he’s guilty, period.”
Judges often turn to compelling dissents to ground new findings. In this case, the judge may look to a dissenting opinion authored in 1984 by then-circuit court judge Antonin Scalia. “The libel that ‘Smith is an incompetent carpenter’ is not converted into harmless and non-actionable wordplay by merely embellishing it into the statement that ‘Smith is the worst carpenter this side of the Mississippi,’” Scalia wrote. In effect, he argued that words have real and actionable meaning, and warned his colleagues not “to mistake a freedom to enliven discourse for a freedom to destroy reputation.”
Lower-court trial decisions don’t change the wider landscape overnight, but the judge’s disposition of Skakel’s libel case will have a certain impact on the larger reputation management industry. The ability to work from a position of strength when seeking corrections of fact and interpretation often correlates to an outlet’s perception of criminal and civil liability. If Nancy Grace and her show are dinged with substantial damages for making what was arguably a meaningful error, many producers, editors and publishers are likely to take notice.
For clients whose reputations are on the line, the facts are sacrosanct. Errors in reporting can mean lost revenues, declining share price, or – in the case of some criminal defendants – the loss of liberty. In our experience, most reporters and editors want to get the story right. Rare is the journalist who intentionally distorts facts. But when there is no penalty for getting it wrong, even the best-intentioned actors are likely to treat errors as a trivial matter – to shrug their shoulders and say, “we’ll correct it the next time we report on it.” That’s cold comfort for the client.
For these reasons, we’re interested in how the Skakel-Grace libel suit shakes out. We’ll follow the case and report back when we learn more.