WRITING WITH LIBEL IN MIND
A GUIDE FOR NON-PROFITS AND BLOGGERS
by Paul Alan Levy
plevy @ citizen.org
It’s a message that no non-profit or blogger wants to get – notification of an impending libel suit based on a published report or blog post. It’s a message that can be avoided if you know what libel is and have your work checked for libel, preferably by a lawyer, before it is published.
The purpose of this guide is to explain what constitutes libel, why libel reviews are needed, and what libel reviewers are looking for when they do the reviews. The first two parts of this guide will help you anticipate what sort of writings are most likely to require libel reviews, and how you can prepare reports (including blog posts and web pages) to maximize the chance that they will pass libel review without requiring changes that delay or even prevent publication. The third part, "Protocols for Libel Reads," describes the way supporting material can be assembled and arranged in preparation for a libel review.
All three parts should be reviewed before you begin to write or even to do research to support what you are going to write, because the subjects are related. Having in mind both the concerns of your libel reviewer and the way you will ultimately need to present the documentation of your writings will help you prepare efficiently for this final stage of your report’s preparation.
The purpose of a libel review is to protect the writer and the organization that employs her or publishes her writing from exposure to libel litigation that could threaten the writer’s financial well-being or the existence of the sponsoring organization or publication. Particularly if the writing is published by a group or publication that has a broad audience, or is posted to a blog that sparks widespread attention online, the individuals or organizations that are criticized may want to strike back by filing lawsuits, either out of anger or desire for retaliation, or in the belief that only bringing a lawsuit will vindicate their reputation or show that they are "serious" in their denial of wrongdoing. A libel plaintiff may also be interested in money damages, which in theory could include not only damages to compensate for injury to reputation or the personal anguish that such loss entails, but also punitive damages to punish the report’s authors and publishers.
In addition to exposure to damages, libel litigation threatens the sponsoring organization, the publication, and the individual authors because, even if the case is ultimately won, the process of libel litigation consumes substantial time of the writers of the report and the lawyers who will handle the case, whether they be in-house lawyers or outside lawyers hired specially for the task. Even if the sponsoring organization has in-house lawyers, litigation requires out-of-pocket expense for travel, discovery and transcripts, and creates the possibility that attorney fees will have to be paid to "local counsel" who are needed to represent the organization if it is sued in a court located in another state, as is often permissible. Even if the lawsuit is defeated, the litigation may wear down the organization, and an organization’s political adversaries may well want to pursue libel litigation precisely for that purpose. Even more serious, some states have laws that allow criminal prosecutions for libel. So lawyers review reports with a mind not only to winning libel litigation if it is brought, but also to avoiding the possibility that a claim for libel will ever get to court, and to ensuring that any litigation would be won at an early stage of the case instead of at trial. The stakes are high.
In theory, a libel suit could be brought against the individual staff members of an organization that writes a report. Where an organization has issued the report, suit against the specific authors may be unlikely if the plaintiff recognizes that they do not have enough personal assets to make attractive defendants, but sometimes individual authors may be joined in a suit either for tactical reasons or as an expression of animus. Indeed, libel suits are sometimes brought more out of anger over the criticism than in the hope of recovering damages. In any event, it is in the interest of both the individual authors and the organization actually publishing the report to have a rigorous libel review.
This guide is based on broad generalizations about libel law in the United States. The rules differ to a certain extent from state to state, although the law of libel has been heavily influenced by the protections afforded to libel defendants by the First Amendment, which applies equally in all states, although some courts have adopted different precedents about those protections. It is important to bear in mind the specific libel laws and precedents in the jurisdictions where you are most likely to be sued, while recognizing that the issue of "personal jurisdiction," which governs where suit can be brought against a particular defendant, is not entirely predictable. If a defendant is realistically exposed to the prospect of suit in a different country, which does not have First Amendment protections, the considerations can be considerably different.
This guide is written without citations to specific precedents or laws. For a listing of free resources that can be consulted to learn about a specific topic, or to check how the laws apply in specific states, see the end of the guide.