Common misconceptions about libel.

Americans are litigious. Not only the media, but also business, and individuals can be subjected to libel suits. Some of the misconceptions and myths in libel situations are being addressed by Dr. F. Dennis Hale of the Department of Journalism, Bowling Green State University.

1 Persons who are threatened with libel suits should contact a familiar attorney in their hometown to prepare a defense.

Libel is an esoteric specialty that varies significantly from state to state. So find an attorney in your state who has handled dozens of libel cases. Such an expert can provide an informed opinion without conducting rudimentary research.

For the name of an experienced libel attorney, call a newspaper or broadcast station that has a reputation for aggressive reporting. Or contact a regional newspaper association or a broadcast association in the state capital. Most libel specialists live in major cities.

A specialist in mass media law will cost more per hour to employ. But the person will possess the experience to resolve the dispute quickly, and with fewer hours of preparation. Most importantly, the specialist will attempt to dismiss the case before a trial. Trials are expensive.

2 Defending a libel suit is inexpensive because defendants win most of the time.

Unfortunately, libel defendants must pay all of their attorney fees whether they win or lose. Texas author Thomas Thompson spent $50,000 defending himself against three libel suits after he published the bestselling, nonfiction murder account, Blood and Money. "It cost just as much to defend yourself against a bad lawsuit as it does one that has merit," he said.

Thompson won all three suits. The next time he published a book it was a novel. Novels are fiction and are unlikely targets for libel suits.

3 To be libelous, all that is required is for the statement to be defamatory.

Defamation is only one of five elements that are required in a libel suit. Other required elements are:

* Publication. The defamatory statement must have been disseminated to a third party, someone other than the plaintiff or defendant.

* Identification. The plaintiff must be clearly identifiable to the reader.

* Falsity. The statement must be demonstrably false.

* Negligence or carelessness.

There must be some culpability on the part of the writer. The defending journalist must have failed to use ordinary care or prudence. If the defendant demonstrates that one of the required elements is missing, the libel suit will be summarily dismissed before a trial.

4 A statement that is both truthful and defamatory must be entirely accurate to avoid being libelous.

The technical requirement for truth is substantial truth. The defamatory allegation must be substantially true. The gist or sting of the damaging allegation must be true.

Pretend that a story reports that Honest Don has been accused by the state attorney general of fixing the odometers on 11 automobiles. In fact, he was accused of shaving the miles on seven vehicles - three automobiles and four trucks. The gist, or sting, of the allegation is correct. The man is accused of the felony of tampering with the odometers on a number of vehicles. The errors in misreporting the lesser details concerning the greater evil would not cause a libel suit.

5 It is difficult for newsworthy individuals to win libel suits because they are public figures and they must prove actual malice (knowing or reckless falsity).

True, it is difficult for public figures to prove actual malice. But a major qualifier is in order. Most newsworthy persons are not public figures.

The U.S. Supreme Court has narrowly defined two categories of public figures.

One is general purpose public figures. Included are celebrities such as movie and TV stars and professional athletes. Also included are persons who have accepted positions for which public attention is expected. Examples are the president or football coach at a private university.

The other category is limited purpose public figures. These are persons who purposefully thrust themselves into the vortex of a public issue. In 1966, the Supreme Court ruled that a retired Army general was such a person. He had traveled to Oxford, Miss. to demonstrate against the integration of the University of Mississippi.

But most newsworthy persons are not public figures. On four occasions the Supreme Court has ruled that a visible and newsworthy person was a private personality and not a public figure and thus did not have to prove actual malice.

6 It is impossible to libel a political candidate, especially if you print the candidate's denials to a defamatory allegation.

It is difficult to libel a candidate - but not impossible. The Hamilton, Ohio, Journal News discovered that fact after it was required to pay $200,000 to a candidate for municipal court judge.

The U.S. Supreme Court upheld the libel verdict in a 1989 decision. One campaign worker accused the judicial candidate of dirty tricks and said he offered her and her sister jobs and trips to Florida.

Some seven persons were present at the meeting where the unethical offers were made. Five of the persons denied to the newspaper that the offers were made. The seventh person at the meeting was the sister. She also was the most logical source for confirmation of the information. She was never interviewed by the newspaper.

The Supreme Court concluded that "although failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is in a different category."

7 A writer or journalist may only be sued for libel in the state in which they reside.

Ordinarily a writer is sued in the state in which the libel plaintiff resides, which is where most of the reputational damage occurred.

But a journalist may be sued in any state in which the newspaper or magazine routinely circulates. Thus national magazines may be sued in any of the 50 states. Regional newspapers and magazines may be sued in every state in which they promote circulation.

This policy was decided in the Supreme Court decision of Keeton v. Hustler. Kathy Keeton, the associate publisher of Penthouse, sued Hustler for libelous portrayals of her in five issues. She sued in New Hampshire because that was the only state in which the statute of limitations had not expired.

Her sole connection to New Hampshire was that one percent of Hustler's circulation was in that state. Such regular circulation was sufficient to permit Keeton to sue in New Hampshire. The court pointed out that this was regular circulation, not random, isolated or fortuitous circulation.

8 An author can never relax after publishing a controversial article because of the continuing danger of a libel suit.

The law places a limit on how long after publication a libel suit may be initiated. In most states this statute of limitations is one or two years. Thus in most states a libel plaintiff loses the right to sue for libel one year after the offending article is published.

9 There is no way that a direct quotation could libel the named source of that quotation.

Such a scenario occurs occasionally. The Supreme Court decided this issue in the case, Masson v. New Yorker.

New Yorker writer Janet Malcolm interviewed psychologist Jeffrey Masson for 40 hours on tape in preparation for a 49,000-word profile about the colorful psychologist.

When the New Yorker fact checker called Masson to verify the direct quotes that appeared in the final draft, he challenged a dozen of them, denying that he had said them.

The writer insisted that the challenged direct quotes were accurate and authentic, and so they remained in the article.

Ultimately, the writer could not back up some of the quotes with either tape recordings or notes. The Supreme Court agreed that false direct quotes may be the basis for a libel suit by the quoted source. The court ruled that fabricated or unsubstantiated quotes could be defamatory because they could attribute a false fact, such as a conviction for a crime. Or they could attribute a negative personality trait or attitude that the speaker lacked such as egotism or bravado.

10 By not naming a person who is being criticized, a journalist avoids a libel suit.

To avoid identifying a person the journalist should withhold the name. But additional care must be taken. Identifying characteristics must also be avoided. If you describe a person in a story as a Wood County veterinarian from Kansas, that will have identified the person without using the name. So to avoid identification, keep all description vague.

11 Most of the damages that are awarded in libel suits stem from tangible, concrete losses that are suffered by the plaintiff, such as lost wages or clients.

Such concrete losses, called special or actual damages, are rare in libel. When comedian Carol Burnett successfully sued the National Enquirer, she was not awarded actual damages. Most of the damages that are awarded in libel are general or compensatory damages - compensation for the humiliation and anguish associated with loss of reputation. There are no standards or limits for such damages and they routinely exceed $1 million.

12 Opinionated pieces such as bylined columns, editorials and movie reviews cannot be libelous.

This assumption is untrue. Even letters to the editor, which consist primarily of opinions, may result in libel suits.

The problem is, opinionated pieces consist of a mixture of opinions and facts. Pure opinions are protected from the threat of libel. But statements of fact are not. Any many libelous facts in editorials and columns have led to libel suits.

Statements of opinion are protected by two libel defenses. First, they are protected by the fair comment defense that allows writers to criticize or even ridicule persons who offer themselves or their creations to the public. Included are entertainers, architects, athletes and public speakers. Second, opinions are protected by the falsity element. Because a pure opinion cannot be proven to be true or false, it is not demonstrably false and thus cannot be libelous.

Thus a writer has.the freedom to use such insulting terms as jerk or egotist. Such terms are mere opinions; they defy definition and documentation.

13 Statements of opinion cannot be the basis for a libel suit.

Pure opinions and hyperbolic statements or parodies are completely protected. But unprotected are statements that are a combination of opinions and facts and opinionated statements that imply a defamatory fact.

The Supreme Court has provided examples of these two categories of opinions.

Hustler magazine published a spoof of a liqueur ad in which a celebrity discussed his "first time." In the spoof version, which Hustler labeled a parody, minister Jerry Falwell is quoted as saying that his first time was during a drunken incestuous, rendezvous with his mother in an outhouse. The Supreme Court said the statement was similar to a political cartoon and that it represented hyperbole. And because the parody did not contain false facts, it could not give rise to a libel.

But two years later the Supreme Court said that it was potentially libelous to publish that a coach was a liar and that he had lied to an athletic commission and a court. Under some circumstances, the term liar is a mere opinion. But in this context the opinion implied a defamatory fact, that the coach had lied to a court and had committed the crime of perjury. Thus statements of opinion that imply the assertion of an objective fact are unprotected.

14 Any false statement about a named person is potentially libelous.

Most false facts about people are nondefamatory and thus innocent and nonactionable. Ordinarily, it is not defamatory to misspell a person's name or give the wrong age, occupation or height. It would not be libelous to falsely report that a person was charged with driving 70 mph on a freeway. Such a falsity would not harm a reputation; it would not make people think less of the person. However, it would be libelous to falsely report that a person was charged with driving while intoxicated. That would harm reputation.

15 Government employees are public officials and cannot sue for libel unless they can prove actual malice.

Only a narrow category of government employees must prove actual malice. Included are elected officials and policymakers and persons who appear to the public to control a government program. One example was the man who operated the public ski area in a New Hampshire county. But not every public employee is required to prove libel. The principal and football coach at the public high school would be required to prove actual malice. And so would the superintendent and the school board members. But most teachers and custodians and bus drivers would not.