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 or 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.
WHY A LIBEL REVIEW?
BASIC LIBEL PRINCIPLES
What Constitutes Libel
Sources That Support Defamatory Statements
Dealing with the Subject of a Report or Investigation
PROTOCOLS FOR LIBEL REVIEWS
CONCLUSION
APPENDIX OF RESOURCES
WHY A LIBEL REVIEW?
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.
BASIC LIBEL PRINCIPLES
Precisely what, then, requires libel review? It is best to begin with a simplified definition of libel. A defamatory statement is a statement that is factual in character about an identifiable entity or living individual that, if believed, would influence the reader’s or hearer’s opinion of the entity or individual, either by reflecting badly on the person’s character, or by harming the person’s reputation or diminishing the esteem, respect, or good will that he, she or it enjoys in a relevant community. Footnote
Defamation is a general term that includes both libel, which is a written defamatorystatement, and slander, which is an oral defamatory statement. For simplicity’s sake, thisdocument uses the term libel generically to include all forms of defamation. Statements ininterviews or press conferences can be the subject of libel litigation, and report authors whocontemplate making statements in interviews that vary significantly from statements in thereport itself, or who plan to use the publicity process without even issuing a report by makingstatements about particular persons that would, if written, implicate libel concerns, shouldshare those statements with the libel reviewer. Some have argued that postings on Internetmessage boards are more like oral statements than like published writings. This distinctionis significant because, in most states, a plaintiff has a higher burden to establish slander.
This definition is a good guide to what sorts of reports and blog posts, or portions of reports, will require libel review. If the report does no more than discuss policy – the desirability of proposed legislation, of an agency rule, or of a community approach to a particular issue – without making statements about particular people or companies involved in the debates no libel review will be required. And even if the report discusses individuals or entities, but only to express disagreement with their policy judgments, libel review is not needed. On the other hand, if you make specific statements about particular people of companies involved in the debates, or to show reasons for or against the legislation, those statements might warrant libel review. For example, if you say, “this legislation [to crack down on deliberate cooking of the books] is needed because of Enron” implies that Enron deliberately cooked its books; or if you say, Pontiac opposes this legislation (to make cars safer) because it would force the company to take all its cars off the market, you are making an implied comment on the safety of Pontiac’s cars.
Another important distinction flows from the general rule that, to be libelous, a statement must be about an individual person or entity, and not a undifferentiated group. For discussions about an entire industry – “all paid lobbyists are corrupt,” for example – libel review is not required, because the statement does not mention any particular individuals or entities. On the other hand, a report need not name names to implicate libel concerns: “The husband of the junior Senator from the State of New York sleeps around” identifies a particular individual just as surely as if his name were used. But you can say all you want about the 37th President, because in most places, only living individuals can sue for libel.
A statement about a “small” group might well be different, however: “All three Bush brothers evaded military service” probably defames each of them individually (although of course truth is still a defense). How big that group must be to come within the rule against group libel depends to some extent on the state in which the suit is filed. Some recent decisions threaten to revive the concept of group libel.
To be libelous, a statement must be one of fact: For libel purposes, the Supreme Court has said, “there is no such thing as a false idea.” For example, a statement that reflects an entirely subjective belief that cannot be proved true or false, and that does not imply false facts about the individual – for example, “With the economy the way it is, I see General Motors as headed for bankruptcy” – is nonactionable opinion. However, this does not mean that you can avoid exposure to a libel suit simply by characterizing a factual statement as an opinion. If you say, “In my opinion, Senator Tower is a notorious drunkard,” the three words at the beginning of the sentence that will not protect you from a successful libel suit. However, if you set forth the facts on which an adverse opinion is based, no libel claim can be based on the resulting opinion so long as the stated facts themselves are true. For example, you might write, “Senator Tower was spotted downing ten beers on Tuesday, Thursday and Friday before heading to the floor. Such a notorious drunkard should not be confirmed.” So long as the statements about beer consumption are correct, no libel action could succeed based on this passage.
Whether a statement is deemed fact or opinion depends in part on its context. Hyperbole and name calling, for example, are often treated as opinion, although they may also undermine the credibility of the entire report. A statement in an “opinion column,” or a posting on an Internet message board and on many kinds of blogs, comes in contexts in which readers may expect to find opinion rather than fact, so close cases may be resolved in light of their contexts. But the danger in using hyperbolic language is that, if the statement is deemed fact, it may be hard to defend its truth.
To be defamatory, a statement must be false. This principle is often written as, “truth is an absolute defense,” although actually in libel litigation the burden is actually on the plaintiff, as a matter of First Amendment law, to prove falsity, not on the defendant to prove truth. (Purely private libel may be different.) A related doctrine is the principle of substantial truth: So long as the gist of an accusation is true, the fact that minor or irrelevant details were wrong does not allow the blog writer to be found liable. (Thus, “The President’s secretary obstructed justice when she testified that her erasure of 20 minutes of tape was entirely inadvertent” is substantially true even though it was only 18-½ minutes.) On the other hand, even minor errors can undermine the reader’s confidence in the entire report, and in a libel case that gets to trial, the judge or jury may well be influenced by an overall feeling that the report was sloppily written.
Three principles inform the level of detail that should be considered for the support of factual statements in a report. First, both as a matter of state law and under the First Amendment, libel law gives especially broad leeway to criticize public officials or “public figures“ – persons who voluntarily put themselves in the public eye in connection with their activities or who are drawn involuntarily into public controversies. When a report focuses on an individual or entity that is not a public figure, especially strong support should be available for critical statements.
Liability cannot be imposed for statements about public officials or public figures unless “actual malice” is shown. (The term actual malice is discussed below.) A “public official” is just who it sounds like – someone who holds elective office, or non-elected government staff with substantial responsibility or control over public affairs; candidates for public office also are often treated as public officials. “Public figure” is a more elusive term, and can apply to those who are public figures for all purposes – those who are famous (or notorious) to the whole community, such as cultural or sports celebrities, or major political figures, companies and organizations. Some cases in some states say that publicly traded corporations or their executives are public figures, but not every business would be. The term can also apply to those who are public figures for the purpose of particular controversies; those people or entities are treated as public figures only with respect to comments about them in connection with such controversies. These “limited purpose” public figures may have voluntarily injected themselves into a controversy of public concern, or may have become involuntarily dragged into the public spotlight (for example, by being indicted). However, a speaker cannot criticize someone not previously a public figure and then defend based on the controversy that the speaker has created.
Second, a rule that does not apply as a matter of constitutional law but is available in most states is the “fair report” privilege. The privilege provides extra protection, although not as much as the public figure rule, for an even-handed report about the findings of official bodies, or about a trial or other public, “official” proceeding that may lead to such findings. By and large, the “fair report” privilege applies to an official, public document, or a statement by a public official on a matter of public concern, so long as your report provides a fair and accurate account of the information in that source. To take advantage of this privilege, you must have clearly attributed your statement to the qualifying source. In other words, because the law places value on the public’s interest in information about what occurs in official proceedings (for example, briefs or opinions filed in litigation) and public meetings (for example, a legislative committee hearing), in these circumstances you can rely on the document even if it turns out that the document’s contents were false.
Third, certain kinds of assertions are particularly prone to libel claims – for example, statements alleging criminal, dishonest, or immoral conduct, or alleging conduct that deliberately causes injury to others. When a report makes this sort of allegation, a good libel review will demand support for every fact stated about the person criticized. On the other hand, when other statements are made that are negative, but not so damning, a libel reviewer may decide to spot-check the sources for the statements in the report, and may assume that, if each of the spot-checked sources supports the statement, then no further review is required. There is a synergy between the relative prominence of the person criticized and the relative seriousness of the accusations, so that in a libel review closer scrutiny will be given the less prominent the target and the more serious the charges.
Another protection for the writer flows from the concept that, to be libelous, the statement must harm the target’s reputation or diminish his or her respect in the community. Some subjects of criticism are “libel proof” because their reputation is so bad it cannot go any lower. If you accuse an admitted Cosa Nostra capo of jaywalking, or a Klan leader of using racist language, their reputations may be so low that it cannot get even worse even if your specific charge is false. But relying on such a defense is playing with fire.
Sources That Support Defamatory Statements
The general rule for public officials and public figures who sue for libel is that the plaintiff has to show both that a libelous statement about them was false, and that the statement was made with “actual malice” – a technical term that does not connote ill will, which may or may not be present, but either “knowledge” of falsity, or “reckless disregard” of the likelihood that the statements were probably false. The fact that the speaker made foolish judgments about the reliability of sources or made merely careless errors about the facts should nevertheless prevail in litigation on the issue of actual malice. But that is only a standard for avoiding liability. However, as important as that protection is, it only makes it harder for a public official or public figure to win a libel lawsuit. A speaker or organization that issues reports or makes blog postings, but that does not have either good libel insurance or very substantial assets with which to finance a libel defense, and that only prevails after enduring both full discovery and trial, will end up with a victory that will feel in many ways like a loss. Libel defendants who have to endure the entirety of a suit will both experience both dissipation of assets because of the legal expense, and lose all the time and energy that has to be spent on the defense. As a result, when libel litigation is a realistic possibility, it is wise to set a higher standard – the libel reviewer should be satisfied that the allegations are true and that sound judgments have been made about possibly disputed issues of fact.
Applying this higher, constitutionally-not-required standard, you need to have a good and defensible reason for relying on a particular source for the statements in a report. For example, just because someone has accused OJ Simpson of murdering his ex-wife does not mean that everyone else in the world gets a free pass to repeat the accusation simply because it is “true” that the accusation was made. The “republication” of libelous accusations can be just as serious – and just as much the basis for a libel suit – as the original publication. In fact, some accused persons may be more inclined to proceed against the republisher than against the original accuser, for a variety of reasons such as the second speaker having deeper pockets than some lone critic, the concern that endorsement by the speaker gives the accusation greater credibility, reasons of harassment, or the belief that the second speaker can more easily be intimidated. This is not to say that you should shy away from repeating strong accusations when you have good reason to rely on the sources who make them.
Original sources, such as financial reports filed by a person when used as a basis for statements about that person, or “respected” media sources, will generally be accepted in a libel review without question. If, however, you rely on a supermarket tabloid for a statement about Senator Jones’ latest escapade in the red-light district, or on some obscure left-wing publication for statements about a capitalist’s abuse of his employees, it may be foolish to accept the citation at face value without some better showing of reliability. Again, the nature of the allegation and the susceptibility of the statement to a serious threat of libel litigation may bear on how such sources will be treated in the course of the review.
If, in the course of your research, you find reason to question the accuracy of a particular statement or the reliability of a particular source, you should take that information into consideration in deciding whether to rely on the source; and, you should share that information with the libel reviewer. You cannot turn a blind eye to serious questions about the sources for your assertions. Such questions may, for example, be raised by the denial of an accusation by its subject, by known biases and accuracy problems on the part of a source, and by conflicting accounts from different sources. For example, you may learn that the authors of certain accusations of criminal misconduct had been sued for libel and lost. Even if that judgment was on appeal, it could be disastrous to include these accusations without a strong explanation of the circumstances. The report need not necessarily discuss the reasons for relying on a possibly questionable source – although disclosing the problem in the report and explaining the reasons for your conclusions is helpful as a form of “opinion based on disclosed facts,” discussed above. At the very least, you need to disclose those issues to the libel reviewer so that the reviewer can make the necessary judgments.
The foregoing discussion was largely based on the assumption that the sources are written and could simply be copied for inspection by the libel reviewer. Reliance on oral sources poses special questions, in part because the interviewer may not be available by the time the report is challenged. If a report contains factual statements based on conversations (or attempted conversations), the gold standard is to make contemporaneous notes of those conversations, which can then be provided for review along with written sources. Because contemporaneous notes – made during or immediately after the interview – are given more credence in court than notes made weeks after the fact when the author is preparing for a libel review – a libel review might refuse to accept after-the-fact reconstructions of conversations, depending on the nature of the statements for which the notes are provided. If an organization uses the same libel reviewer on several reviews, the reviewer is likely to develop a good sense of which staff members can be trusted, and to what extent, with respect to the reliability of their reports. Footnote
If a libel case goes to trial, however, notes of interviews can hurt the defense case aswell as helping it, if the plaintiff uses them to argue about what was left out of the report, orwhat facts were “known” to the writer but not used in the blog past, in making an argumentabout actual malice. Some libel lawyers recommend that their clients adopt a strict policyabout retaining notes, because if the notes are lost instead of being discarded after the reportis published pursuant to organizational policy, the plaintiff may ask the jury to infer that thenotes were deliberately destroyed to hide evidence.
If possible, it may be best to provide recorded interviews, but it is not always possible to make a recording of interviews. Some sources may be more reluctant to be candid if they know that a tape recorder is running, and in many states (such as Maryland) it is unlawful to make a tape recording without informing all parties to the conversation of the recording. If an organization relies on oral statements made to a non-staffer, such as a stringer who is reporting from some far-flung location, it may be wise to insist upon a recording depending, again, on the nature of the statement. At the least, it is a good idea to have information about the track record of non-staff reporters, and an explanation of why he or she made the judgment to rely on their reporting.
Sometimes sources are reluctant to speak to an investigator or report writer unless they are confident that their identities will be kept confidential. Some people believe that reliance on unidentified, confidential sources is inconsistent with sound practice, while others believe that significant reporting is impossible without such sources. It is, to a certain extent, a choice of the report writer (or an organization employing the writer) whether to rely on confidential sources, and whether and to what extent to extend assurances of confidentiality. Most jurisdictions recognize a qualified privilege to withhold confidential sources in response to a legal subpoena in civil litigation. The privilege may be based on the First Amendment or the common law, and many states have “shield laws” that either codify this privilege or even, in some states, provide a more ironclad privilege that cannot be overcome by the particular circumstances of the case. Whether a non-profit organization or blogger can invoke the source privilege may depend on the court precedents in particular locations, or on the wording of a state’s shield law. Although there are strong arguments for extending the source privilege to journalistic bloggers, this area of the law is new and still developing.
As a “qualified” privilege, the source privilege can be overcome depending on the circumstances of a particular case. Moreover, even if you are able to succeed in asserting the source privilege in a particular case, the court will not be obligated to accept as gospel the facts that you derived from the source. To the contrary, you may find that you are unable to put forward any other factual basis for a very important part of your story. What is more, you need to be careful about promising confidentiality, because such a promise, if broken, can become a basis for a lawsuit against you by the source for breach of contract. Further complicating this picture is the fact that, in some places, a promise of confidentiality increases the strength of the argument for application of the source privilege.
Dealing with the Subject of a Report or Investigation
It is often wise to conduct an interview with people or companies who are themselves the target of criticism in a report or on a blog. Sometimes you will want to do this early in your investigation to frame your research or, indeed, to decide whether a subject for a potential report is as promising as might initially appear based on a tip or a previous published report. If your investigation has developed facts about someone, particularly about someone who is likely to be unhappy about the publication of those facts or about your criticisms based on those facts, it can be a good idea to confront the subject with the facts or criticism to obtain his or her reaction. If the subject of a report is unwilling to grant an interview or to respond to the facts, that can itself be significant. You may, indeed, want to mention the refusal to respond, although it is important to be completely accurate about the circumstances of the refusal. On the other hand, the person’s response may reveal innocent explanations for the facts that you have developed, and denial of the facts may lead you to question the soundness of your sources. Of course, you do not have to accept the denials, but it may be wise to mention the denials (or explanations) in the course of your report. You need not provide the subject with a draft of your report in the course of seeking comment, and it is usually not a good idea to do so. There are choices to be made about how specifically to describe the facts in the process of seeking comment from the subject.
PROTOCOLS FOR LIBEL REVIEWS
The final section of this guide discusses the manner in which the report and its sources should be organized for transmission to the libel reviewer. Most bloggers and small non-profit organizations will not have an attorney who is an experienced libel reader; or they may not be able afford to pay for libel review by an attorney. In theory, anybody who was not involved in the preparation of the report could conduct a libel review, which is largely a matter of dispassionately comparing potentially actionable statements in a report to the source materials. A good libel reviewer will make judgments about what statements to review, how closely to review them, and what sources should be deemed acceptable, based on experience and knowledge of libel law, as well as an appreciation of the likely course of litigation should it come to that. To that extent, it is preferable to obtain review by a libel lawyer. However, if that is not possible, review by another dispassionate observer or experienced writer or reporter, using the considerations and procedures provided in this guide, would still be worthwhile.
A draft should be sent for libel review only once it is substantively complete. That is, the draft it should be presented in the form that the public will see, except for all but the most mundane editing and formatting. The draft should include things as seemingly innocuous as headings titles, photo captions, charts, graphs, and all felicitous turns of phrase, which, after all, are there to grab the public’s attention, and, therefore, must be critically reviewed from a libel perspective. It doesn’t make sense to libel-read a draft that is not what is intended for public consumption. It is better to avoid sending the report to the reviewer in stages, say, three of four sections of a report at first, with the fourth section to follow, because it is usually necessary to see the whole report, at once, in final form.
A draft cannot be reviewed unless it is accompanied by support for the factual assertions in the report. Typically, the factual statements in reports are footnoted, so the reviewer needs the support for the footnotes. For instance, if you say that Jane Doe gave $4,000 to Sonja Smith’s Ohio gubernatorial campaign, and the report cites the Cleveland Plain Dealer in footnote 4, the reviewer needs a copy of the Cleveland Plain Dealer article. (In this instance, a better source might be the relevant Ohio campaign finance reporting records, but that’s a different issue.) Of course, footnotes are less common in blogs and newsletters.
The key job of the libel reviewer is not checking footnotes or footnoted statements, but checking the support for all statements that might be actionable as libel. The decision about whether to footnote, and what to footnote, is an editorial, stylistic and political one. Certainly a report with every statement footnoted can look more credible – but it also may be more ponderous to read. But an author should be prepared with support for every fact, footnoted or otherwise.
In some instances, the source material may be very voluminous (a large book, for example; in those circumstances, the report should be accompanied by the cover page of the document and the relevant pages. The relevant pages would include not just the precise page on which the fact appears, but also the surrounding pages that provide context for that fact.
If the source is a personal interview, the source material, whenever possible, should be interviewer’s notes or tape recordings from the interview, which help test the accuracy of the report. Although important in any case, this is absolutely critical when the interviewer is not an employee of the issuing organization (in other words, a person whose interviewing and recollection skills you don’t know).
The relevant passages in the source material should be highlighted (for instance, with a yellow marker). Moreover, the source materials should be arranged in the order of their appearance in the report. So, the source material for footnote 1 should be on top of the pile, with the source material for footnote 2 next, and so forth. The source material should be labeled accordingly. So, the source material for footnote 22 should say “22” on its first page. But a libel reviewer should not ask that items be duplicated more than once (which is a waste of paper). If the source material for footnote 2 is also the source material for footnotes 11, 13, and 18, the material would appear behind the source material for footnote 1 and be marked on the front page “2,” “11,” “13,” and “18.” In situations where there are only a small number of sources — say, five sources to support 75 footnotes — you can simply arrange the source materials in alphabetical order and highlight the relevant passages. In that situation (which happens occasionally), it is not a good use of anyone’s time to mark dozens of footnote numbers on every source. The reviewer can just go to the relevant source based on the footnote. Although it is always a good idea for the footnote to contain both the source and the page at which the fact is supported (e.g., 2003 World Almanac, p. 12), it is particularly important to state the page number in the footnote if the libel reader needs the page number to locate quickly the relevant portion of a large document. If the page information is not in the footnote, the reviewer will need an index indicating where in each long source to go for each fact supported.
As noted above, in general, a reviewer needs only a small portion of a large document, and so it is sufficient to provide the cover page and other relevant pages. In rare instances, however, the libel reader must review large portions of a large document. When that is the case, there are two good alternatives to reproducing the entire item: (1) send the original (e.g., a book), which the libel reviewer will return when the review is complete, or (2) point the reviewer to an on-line source.
Some reviewers may prefer to review support provided in soft form, such as files furnished on a CD or URL’s cited from the Internet. Support found that way can be more readily searched, for example. In that case, highlighting could be done in soft form for a file, although it is difficult to mark a web site (and downloading an entire report to be transmitted on a CD could raise copyright questions as well though it might also be fair use). Some reviewers will be less comfortable than others reviewing sources on a computer screen, and may insist on printed copy.
Finally, the press work done in connection with a report must also be done with libel in mind. If the report is shared with a reporter who is given an “exclusive” before public release, libel review should be done first, even if the report has been embargoed until a date certain. If an organization plans to release a report accompanied by a written press statement, the press releases must be libel read before they are issued, especially if they are not written by the author of the report. It makes little sense to review the report but not the press release, since the press release is intended to maximize public impact. There could be serious consequences if press releases are not subjected to the same kind of scrutiny as the report itself. Similarly, statements made to the press at a press conference, or in post-release interviews, are potentially actionable as slander; they might also be cited in arguments about the real meaning of otherwise ambiguous statements in the report, or as evidence of how “reckless” the writer may have been. Staff thus need to resist the temptation to save the really explosive statements for the telephone or the press conference podium, unless such intended statements have also been considered by a more dispassionate reviewer.
CONCLUSION
Libel readers (and report-writers) should keep in mind the limitation of the libel reading function. A reviewer should not try to substitute political judgment for the authors, either about whether the report is worthwhile or trivial or whether the policy positions taken in the report are desirable. A libel reviewer may at times point out typos or offer editorial suggestions, but her responsibility is not to proofread reports. A sloppily written report may be more amenable to libel challenge because it creates the appearance of carelessness; or it may so reduce the credibility of the report that readers are not likely to take its charges seriously. Nor should a libel reviewer ensure that sensible conclusions are being drawn, or sound legal analysis employed, except insofar as such judgments may bear on the amenability of the report to libel litigation. Nor, even, does a libel review assess the accuracy of the report, per se, except insofar as accuracy relates to libel exposure. The reviewer’s sole objective is to enable report authors to achieve their expressive or political objectives while protecting themselves, and any organization for which they may be writing, from exposure to libel liability or litigation.
APPENDIX OF RESOURCES
A brief listing of resources to learn more about specific libel law rules and how they apply in specific jurisdictions:
Citizen Media Law Project at Harvard Law School’s Berkman Center for Internet & Society, Risks Associated With Publication (there are also guides on other legal issues of interest to writers and bloggers).
http://www.medialaw.org/Template.cfm?Section=Public_Resources
Free online resources include an FAQ on libel and selected articles from its journal. Members who pay their high membership fees get access to extensive online resources. Law libraries may carry the Center’s invaluable 50 State Guide to libel law, which features a lengthy outline for each state, with extensive case citations, updated annually by some top libel defense lawyers.
Reporters Committee for Freedom of the Press, Reporters’ Privilege
http://www.rcfp.org/privilege/
This resource offers a state by state compendium on the reporters privilege. Other resources relating to defamation and other issues faced by the media can be found in the Reading Room located on the same web site, http://www.rcfp.org/readingroom/index.php.
Libel issues are covered in my outline, Legal Perils and Legal Rights of Internet Speakers, available on Public Citizen’s web site.
https://www.citizen.org/sites/default/files/internetlegalrightsoutline1.pdf
Other information about Public Citizen’s Internet Free Speech issues can be found by clicking here.