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Editorialists have it easier, but get no free pass for libel minefields.

Editorial sections, because they offer opinion instead of factually based news, have more leeway when it comes to libel standards than other sections of the newspaper, two attorneys agreed at the NCEW convention session in Portland.

"We have it lucky compared to the rest of the journalism world," said Bruce Johnson, who advises The Seattle Times and The Columbian. Hyperbole and exaggeration are expected in opinion, and judges generally take that into consideration. (Think Bill O'Reilly.)

Johnson and Charlie Hinkle, who advises The Oregonian and the ACLU, said precedent-setting court decisions have generally held that there are no false statements of opinion. The exception, however, established in the Supreme Court's Milkovich ruling in 1990, is that commentary may be libelous if it "implies an assertion of objective fact" that can be proven false.

Hinkle said the two main libel risks come from accusations of criminal conduct and statements that damage a person's reputation in their business or occupation. As an example, a letter writer can complain she was treated disrespectfully by a local business owner, but if she accuses the owner of lying, the newspaper faces a potential liability. Of course, if the business owner has been exposed previously as a liar, the writer has more leeway.

Johnson cited an editorial section's gradation of libel risk, from greatest to least:

1. Guest opinion columns

2. Letters to the editor

3. Staff opinion columns

4. Editorials

5. Editorial cartoons

Editors need to watch for statements of fact embedded in letters and columns that could prove to be false, the attorneys said. Anonymous call-in columns also expose a newspaper to risk.

Opinion editor Pete Wasson of the Wausau Daily Herald asked Johnson and Hinkle about verifying authorship of letters. Noting that a letter writer can lie about his identity, Wasson wondered how much effort is required on the newspaper's part to protect itself. The attorneys said some degree of investigation into a letter writer's legitimacy is important--at least making sure the writer's address is verified, for example. The paper cannot show a willful ignorance of the truth. But, the attorneys warned, even with a letter verification system in place, a newspaper can still be held liable for a writer's false statements of facts. Worth noting: If you publish on your letters page that you have a standard for verifying letters, it raises the bar for your libel liability risk.

Newspaper blogs are a mostly untested area when it comes to libel. One precedent may have been set in a case involving AOL's responsibility for a false Matt Drudge claim that White House adviser Sidney Blumenthal beat his wife. The court dismissed AOL from Blumenthal's defamation suit, ruling that as the Internet service provider it was not responsible for the content of the Drudge Report.

For a newspaper that hosts blogs, the issue is how much control it exerts over them. In this matter, Johnson and Hinkle disagreed. Hinkle said if a newspaper exercises any type of control over a blog--any editing or content monitoring--it then bears liability for the blog. But Johnson said the existing libel protections for opinion would offer a shield.

Judy Ettenhofer is the opinion editor of The Capital Times in Madison, Wisconsin. E-mail JEttenhofer@ madison.com
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Title Annotation:2005 CONVENTION
Author:Ettenhofer, Judy
Publication:The Masthead
Date:Dec 22, 2005
Words:538
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