April 22, 2013

One of the glories of journalism is openness. Want to file a story and publish it? Go right ahead. There are no government licensing requirements, no independent board, no regulatory hurdles, no nothing. Accordingly, there are no official sanctions applying to journalists who screw up, who mangle facts, who libel innocent youngsters hanging around at the finish line of the Boston Marathon.

So journalists at the New York Post should be extra appreciative of the First Amendment these days. No one can revoke their journalistic licenses for their most heinous act of last week — publishing a cover photo of two guys at the marathon under the headline “Bag Men: Feds seek these two pictured at Boston Marathon.” They can continue mangling journalism for as long as the paper remains in circulation. It’s a great country.

That’s not to say there are no countermeasures. The victims of the New York Post’s scurrilousness may avail themselves of another great constitutional amendment — the seventh, which entitles people access to the courts “in suits at common law, where the value in controversy shall exceed twenty dollars…”

In other words, the young men in the New York Post cover photo can seek millions or even billions of dollars in damages from the paper. And let the Erik Wemple Blog express our firm support for this course of action.

Unlike other cases examined in this space, the “Bag Men” case presents a straightforward matter of media law, for the following reasons:

1) The two fellows in the photograph are anonymous individuals. Our legal system makes it harder for public figures — politicians, celebrities and the like — to sue media outlets, a rule designed to protect “robust” debate about matters of civic interest. Plus, those who thrust themselves into the spotlight must accept a certain amount of errant scrutiny. Not so for the so-called “Bag Men.”

2) “Bag Men.” New York Post editors clearly thought this headline riff would be clever given that the two young gentlemen were equipped with a backpack and a duffel bag, respectively. Authorities were seeking individuals carrying bags that could have held the sort of pressure-cooker bombs that turned the marathon into a scene of terror. In light of those circumstances, affixing the headline “Bag Men” amounts to an accusatory affirmation. It describes the work of an agent in your average mafia organization.

Writes Jack Shafer at Reuters:

Evidence that the Post was up to mischief with its headline was detected by Gawker’s Tom Scocca, who noted the tiny, caption-size type on the page that qualified the accusatory headline. It reads, “There is no direct evidence linking them to the crime, but authorities want to identify them.” The Post essentially libels the two guys with big type and takes it back with the small.

3) Implications. The text of the New York Post story handles the case of the two young men with some caution. It states merely that authorities had been circulating the photo and were seeking their identities. It stops short of labeling them suspects, as New York Post’s top editor Col Allan stressed in a statement:

We stand by our story. The image was emailed to law enforcement agencies yesterday afternoon seeking information about these men, as our story reported. We did not identify them as suspects.

A judge and jury would likely get a good chuckle out of that limp excuse.

Here are the pivotal words in the New York Post’s “Bag Men” story:

Investigators probing the deadly Boston Marathon bombings are circulating photos of two men spotted chatting near the packed finish line, The Post has learned.

In the photos being distributed by law-enforcement officials among themselves, one of the men is carrying a blue duffel bag. The other is wearing a black backpack in the first photo, taken at 10:53 a.m., but it is not visible in the second, taken at 12:30 p.m.

L. Lin Wood, a prominent Atlanta-based attorney who represented Richard Jewell in his famous cases against media outlets over coverage of the 1996 Atlanta Olympics bombing, sees a stack of plaintiff-friendly facts: “Based on what I see here, I would think this is definitely a case of defamation by implication. Looking at the totality of the article in conjunction with the headline and the use of the photograph, what it would suggest is that this man is a suspect and may have been a potential suspect, and I think that is defamatory.”

The New York Post, incidentally, is among the media outlets sued by Jewell after he was wrongly suspected of involvement in the Olympics bombing. “The New York Post is about as loose as a mainstream publication can get to being properly likened to tabloids such as the National Enquirer, the Globe and the National Examiner,” says Wood.

Clay Calvert, a University of Florida professor who teaches media law, describes how defamation by implication can tarnish a reputation, even through the use of confirmed facts: Mr. Jones was seen walking into a hotel room with a woman, and the hotel is smack in the middle of a neighborhood rife with prostitution. What are we to think of Mr. Jones?

“The term ‘Bag Men’ and the story itself add up to a defamatory implication,” says Calvert, a frequently quoted authority on this blog.

The New York Post would have a far better defense against a libel claim in this situation if only it had:

1) Not used the term “Bag Men”;

2) Explained in the text that authorities were distributing a whole bunch of photos taken at the Boston marathon finish line;

3) Done the necessary research to track down the identifiable young man in the photo, who turned out to be a completely innocent 17-year-old track athlete from Revere, Mass.

4) Bagged the darn story altogether.

The New York Post’s adult supervision has spent recent days rendering itself a more juicy target for civil litigation. As a previous post discussed, the issuance of an apology and retraction to wronged parties can reduce damages in defamation cases. In the case of the “Bag Men,” the paper is moving in the opposite direction. In response to a question from Joe Strupp of Media Matters, Allan said:

“Common sense would suggest if the FBI emailed pictures of these men standing around the Boston marathon to law enforcement offices asking for information about them it might be newsworthy. We made no judgment about the men. We simply reported the facts. Their photos were emailed by the feds. Information about them was sought. If it is your idea that we or anyone else in the media wait until the complete truth is clear then there is little need for journalists. Only historians. “

Not a lot of regret in that passage.

And Rupert Murdoch, the ultimate boss of the New York Post, tweeted on Saturday:

Just how did the New York Post “withdraw” a photo that ran on its cover? That’s a question that could be answered in a civil proceeding, along with many others.

Erik Wemple writes the Erik Wemple blog, where he reports and opines on media organizations of all sorts.