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It's a courtroom out there.

For most of this century, the press has grown accustomed to using the First Amendment as a shield against libel suits and government censorship.

But during the past decade, a new world of legal woe has been developing for the media--a guerrilla band of lawsuits that seek to sneak past First Amendment defenses and sap resources just as surely as a headline-grabbing libel suit.

The suits can be grouped under the inelegant catch-all title of "non-defamation torts"--legal wrongs perpetrated by the media that have nothing to do with harming an individual's reputation, as in the classic libel suit.

Put simply, these lawsuits treat the media the same as any business that harms its customers--like a manufacturer that markets a faulty lawnmower or car, a department store that fails to repair a broken sidewalk or a dishonest landlord who breaks a lease.

With its unique protection under the Bill of Rights, how can the media, in the eyes of law, be treated in the same way as a negligent lawnmower manufacturer?

Rather easily, it turns out.

* The U.S. Supreme Court opinion with the most negative impact on the news media in recent years had nothing to do with libel or access. Its 1991 decision in Cohen vs. Cowles Media Co. held that the First Amendment does not necessarily protect the media from breach of contract claims. The case arose in the context of a broken promise to keep a source confidential (see "Burning the Source," September 1991). The ruling has spawned a rash of similar lawsuits against the media.

* Another Supreme Court case that concerns many journalists is Soldier of Fortune Magazine vs. Braun. On January 11, the court declined to review a decision in the case by the U.S. Court of Appeals for the Eleventh Circuit. A "gun for hire" ad in Soldier of Fortune resulted in a $2 million negligence award to the family of Richard Braun, an Alabama businessman killed by a group that included the person who took out the ad. The magazine's lawyer, E. Barrett Prettyman Jr., predicts that the decision will create "a whole new world for plaintiffs' attorneys" who will sue the press for negligently publishing ads.

* The creators of all kinds of expression, from rap songs to television miniseries, are being sued for "causing" crimes through incitement or "copycat" motivations. The widow of Texas state trooper Bill Davidson is suing rapper 2Pac Amaru Shakur and Time Warner, his distributor, for inciting Davidson's murder with anti-police lyrics. Ronald Ray Howard, accused of the murder, had a copy of Shakur's violence-laced "2Pacalypse now" tape in his car when the trooper was shot.

"This is not a constitutional question and not a freedom of speech question," Ron DeLord of the Combined Law Enforcement Associations of Texas told the Austin American-Statesman last September. "Ford produced the Pinto.... People died because of problems associated with the Pinto. Well, a trooper died because of a product produced by Time Warner. What's the difference?"

The difference, of course, is the First Amendment. Until now, most courts have recognized that while the framers of the First Amendment may not have had Soldier of Fortune or 2Pac in mind, speech deserves special protection.

"The reason we protect ideas is not that they are harmless. They may in fact be extremely dangerous, but we put up with them," notes Portland, Oregon, attorney Jonathan Hoffman, who has tracked non-defamation lawsuits against the media for years. "Ideas may be dangerous, but they are entitled to more protection than lawnmower blades." To protect and foster useful speech, the theory goes, we have to tolerate some reckless speech as well.

That line of thinking has been reinforced by a long line of cases in which the media have been sued for a range of mishaps and damage other than libel. But the media's winning streak could end with the newest wave of suits for two reasons: public disapproval and money.

In recent years, publishers have been sued for recommending shoes that were slippery, recipes that made people sick, diets that didn't work, chemistry experiments that blew up and tools that shattered.

In a 1991 case, two mushroom enthusiasts sued G.P. Putnam's Sons, publisher of the "Encyclopedia of Mushrooms," under product liability law. Relying on the book, Wilhelm Winter and Cynthia Zheng went on a mushroom hunt, collected and ate what they found--and became seriously ill. Both required liver transplants.

More recently, Fodor's travel Publications was sued by Joseph and Gail Birmingham. The couple had purchased Fodor's 1988 Hawaii guidebook in preparation for their honeymoon in Kauai. The book recommended a visit to Kekaha Beach, which it described as a "long, luxurious strip of sand." The Birminghams took the recommendation and Joseph injured himself while body surfing at the beach.

In the mushroom case, the Ninth Circuit U.S. Court of Appeals affirmed a lower court's rejection of the suit. Resisting the temptation to apply simple tort law to ideas and books, the court ruled the publisher was not responsible for the accuracy of its books' contents. "Products liability law is geared to the tangible world," the panel wrote. "We accept the risk that words and ideas have wings we cannot clip and which carry them we know not where. The threat of liability ... could seriously inhibit those who wish to share thoughts and theories."

In Fodor's case, the Hawaii Supreme Court embraced the same "ideas have wings" philosophy and ruled in the publisher's favor. The Hawaii court cited "compelling policy reasons" and a long line of cases, including the mushroom guide decision which noted that, except for a series of decisions involving faulty aeronautical charts--in which publishers were held liable--no court has ever allowed a suit to proceed against a publisher for injuries caused by "pure thought and expression."

But in some of the more recent suits, the expression challenged is so abrasive or obnoxious that it begs to be punished. Travel guides are one thing; rap lyrics that speak lightly of "droppi' the cop" are another. "There's a growing social concern about the effect of the media on family values, and a resulting desire to punish the media--sue Murphy Brown," says attorney Hoffman.

And there is a more practical factor at work too, says Hoffman. "One thing these suits have in common is that there is no other readily available source of cash. There's been a terrible event in people's lives, but who can you sue? People are searching for a new type of deep pocket, so they go after the media."

Many plaintiffs are looking for the quickest route to those deep pockets, quicker than libel lawsuits that often get bogged down in First Amendment debates. Actress Joan Collins recently sued the Globe, a supermarket tabloid, for a 1991 photo spread showing her and a male guest at her French home. The headline read, "Him Tarzan, Me Joan." She sued not only on libel grounds but also for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), a law usually used to target organized or white collar criminals that provides triple damages to a winner. She argued that distribution of the newspaper containing the defamatory material could be considered an act of racketeering.

A California appeals judge ruled that the RICO charge was "nothing more than an attempt to avoid the protections given to speech by simply affixing labels other than invasion of privacy and defamation."

Juries may eventually respond to the deep pocket search, as they have by rendering million-dollar verdicts in other types of product liability lawsuits, including medical malpractice. It's no accident that media companies have aligned themselves with "reform" groups that have sought to limit damage awards.

In the incitement area of litigation, where the media is blamed for encouraging violence, the precedents have tended to favor the media. Remember Ronnie Zamora, the Florida teenager who claimed that his addiction to television, which began at age 5, led him to kill an 83-year-old neighbor? His negligence suit, filed against all the major networks, was dismissed on First Amendment grounds.

In another incitement case, the victim of an assault committed by youths imitating what they'd seen in a television drama sued NBC; the suit was similarly rejected. Allowing the suit, the judge said, would "lead to self-censorship which would dampen the vigor and limit the variety of public debate."

In yet another, the family of a teenager who committed suicide after listening repeatedly to an Ozzy Osbourne recording that included the song "Suicide Solution" lost its suit against CBS, also on First Amendment grounds.

But the First Amendment shield may be wearing thin. In a 1989 Nevada case, a judge allowed a suit to go forward against the heavy metal group Judas Priest. The plaintiffs argued that two youths shot themselves after listening to one of the group's songs that had subliminal pro-suicide messages embedded in it. The judge's decision turned mainly on his determination that subliminal speech deserved no First Amendment protection. But the judge seemed receptive to opinions by expert witnesses that the speech could have caused the shootings. Ultimately, the judge tossed out the suit on the grounds that it could not be proven that the subliminal lyrics caused the suicide attempts.

In the non-defamation cases that have made it to the Supreme Court, the First Amendment was of little help, and one recent ruling could change the way reporters and newspapers deal with sources.

Cohen vs. Cowles Media involved a source who claimed that two Minnesota newspapers broke their pledge to keep his identity confidential--a breach of promise that caused the source to lose his job. The newspapers claimed a First Amendment right to publish the name notwithstanding the promise. But the high court ruled that in this context, the newspapers were like any other business entity that broke a promise; the First Amendment offered no special protection. The court held that "generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news."

At first, it did not seem that the Cohen decision would have much impact. How often do newspapers, after all, do something as dumb as naming a confidential source? In fact, the Cohen ruling has spawned a series of lawsuits from aggrieved citizens who complain that news organizations broke promises made to them.

The Rev. Donald Wildmon, head of the conservative media watchdog group American Family Association, sued the producer of a British documentary for breach of contract because he didn't like the final product. Wildmon said he had agreed to be interviewed for the documentary titled "Damned in America" after being promised that his views would be presented "fairly" and that the documentary would be aired only in Britain. As it turned out, Wildmon's comments were juxtaposed with some of the "immoral" graphic images Wildmon objected to. The judge ruled for the producer because the terms of the agreement were ambiguous.

Gannett newspapers have had to defend themselves in more than a half-dozen Cohen-style lawsuits--none of which involved a "burned" confidential source--since the Supreme Court ruled, says Gannett's senior legal counsel Barbara Wartelle Wall. "It's a growth industry," she says.

In one such case, the Valley News Dispatch, a Gannett newspaper in Tarentum, Pennsylvania, was sued by the mother of a 3-year-old incest victim whose father had been charged with committing the abuse. Like most newspapers, the News Dispatch has a policy of not using names in such stories, but it used the girl's name and photo in this instance because, the paper argued, the mother had given the reporter permission to do so. A year after the article appeared, the mother sued, claiming the reporter had promised that her daughter's name would not be used.

Citing the Cohen case, a judge allowed the suit to go to trial, but after two days of testimony it was dismissed because of lack of evidence.

Although the newspaper won the case, it lost in other ways: Its reputation was tarnished, it incurred high legal fees, and its reporter's time was tied up in the defense of the case. All of the pain of a libel suit, with none of the relief.

"It was a very painful thing to go through because there was so little justification and the reporter's word and the newspaper's word were called into question," says Executive Editor Richard Leonard.

The fallout has not been entirely negative, however. Wall's advice to reporters is to be much more careful about the promises they make--whether it is about use of a name, placement of a picture, or the tone of an article. Getting promises on tape is not a bad idea in the post-Cohen climate, Wall adds.

As troublesome as the Cohen case has been, the Soldier of Fortune case holds the biggest potential threat to the media in the non-defamation area.

The suit stemmed from a June 1985 personal ad in Soldier of Fortune, which read in part: "Gun for hire: 37-year-old professional mercenary desires jobs. Vietnam Veteran. Discrete (sic) and very private. Body guard, courier, and other special skills. All jobs considered."

The man who took out the ad, Michael Savage, soon got a wide range of inquiries. Some were legitimate, but many asked him to commit crimes. At first he laughed them off, but soon devised a scam; he would say yes, take the money and then not commit the crime.

Eventually, Savage became entangled in a murder plot concocted by a caller, who wanted to kill Alabama businessman Richard Braun. Savage was one of several conspirators who went to Braun's house to kill him, though Savage did not pull the trigger. Braun's two sons, including one who was wounded in the attack, sued the magazine for "negligently publishing" the ad. An Alabama jury returned a $12.38 million verdict against the magazine, later reduced by a judge to $2 million. The Eleventh Circuit U.S. Court of Appeals upheld the verdict, ruling that the First Amendment did not immunize the magazine from liability for compensatory damages for an ad that "on its face, and without the need for investigation, makes it apparent that there is a substantial danger of harm to the public."

That standard of "substantial danger of harm," left in place by the Supreme Court's decision not to review, could force publishers to excise whole categories of ads from their pages.

Personal ads seeking romance, car ads that brag of fast acceleration, ads for cigarettes, guns, fireworks, even tampons, could fall under the Eleventh Circuit's rule, says Prettyman, Soldier of Fortune's attorney.

"The practical adverse impact of the ruling ... upon newspaper and magazine publishers, as well as upon the electronic media, cannot be overstated," Prettyman says in his brief. "Newspapers and magazines, which rely for their very existence upon the more than $37 billion in advertising revenues they receive annually, inevitably will be forced to screen their advertising and reject ads that seem borderline, ambiguous, questionable or obscure." While some might think this is a good idea, the cost of extensively checking the thousands of ads that appear in any day's newspaper, including classified ads, would be prohibitive, media executives say.

Even under the Eleventh Circuit's standard, Prettyman notes, the ad in question might have been considered by Soldier of Fortune to be a solicitation for legitimate business opportunities. "Must Soldier of Fortune now suffer fatal damages because of its failure to read the ad differently than its author intended it?" asks Prettyman.

The high court did not take the Soldier of Fortune case; if they had, the outcome would have set a broad, nationwide precedent. But without William Brennan Jr. and Thurgood Marshall, who were champions of the press, many believe the court will be receptive to a similar case that would set a precedent. One hopeful sign: Byron White, never a fan of the press, is leaving the court this summer and will likely be replaced by a liberal.

In the core areas of libel law and prior restraint, even the current conservative court has paid homage to precedents such as Tymes vs. Sullivan and Near vs. Minnesota and left the media alone.

But when the media come before the court with the same standing as just another negligent lawnmower company, the temptation to treat them that way may just be more than this Supreme Court can resist.
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Title Annotation:non-defamation torts now causing worry for newspapers in addition to libel
Author:Mauro, Tony
Publication:American Journalism Review
Date:Jun 1, 1993
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