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Libel case targets what TV news didn't report

By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee

Can a television station be liable for what it doesn’t say in a news report?

That’s the issue in Mohr v. Grant, one of the most significant libel cases ever to reach the Washington Supreme Court.

The state’s high court convened on May 14 at Yakima Valley Community College in Yakima, Wash., to consider this case. The choice of setting, as unusual as the issue was important, was part of the court’s effort to make its work more accessible to the public.

In Mohr v. Grant, Mohr is suing Spokane’s KXLY-TV for a broadcast report that, he claims, omitted key facts and falsely implied that he had bullied a man with developmental disabilities. The case reached the court after a state appellate court reversed a trial court decision dismissing the lawsuit.

In the 1998 broadcast, KXLY’s Tom Grant reported about the arrest of 44-year-old Glen Burson, who suffers from Down’s syndrome and has the mental age of a 5-year-old. Burson had visited Mohr’s interior-design store in Spokane Valley and offered to wash the windows in exchange for a piece of candy. When Mohr refused and asked Burson to leave, Burson became agitated. After Mohr called the sheriff’s office, deputies arrested Burson for first-degree trespassing and harassment. The charges later were dropped when Burson was ruled incompetent to stand trial.

For his report, Grant interviewed Burson and members of Burson’s family, and reviewed the court file, ticket and other incident reports involving Burson. Grant tried to interview Mohr, but Mohr refused. In the broadcast, Grant accurately reported the facts of the incident and said Burson did not have a history of violence or making threats.

Within minutes of the broadcast, several people telephoned Mohr’s store and complained about Mohr’s treatment of Burson. Some vowed never to shop at Mohr’s store again. In all, Mohr received about 30 calls.

Mohr then sued Grant and KXLY, alleging that Grant had falsely portrayed Mohr as a bully and that Grant had omitted from his story several facts that would have described more fairly the events that led to Burson’s arrest.

Specifically, Mohr complained Grant had not reported that Burson had been asked at least seven previous times not to wash the store’s windows, and that Burson previously had screamed at Mohr, threatened to shoot him and drew his finger across his throat in a slashing motion. According to Mohr’s attorney, all of this information was available to Grant in police records.

In dismissing the lawsuit, the trial judge relied on state court precedent holding that truthful information cannot be the basis for a libel action. In reinstating the case, the appellate court cited decisions in other states ruling that an accurate news report can support a libel claim if the report falsely implies facts about the plaintiff. Mohr’s claim was similar to those, the appellate court said, because Grant’s reporting contained “material omissions.”

Called “libel by omission” or “libel by implication,” cases like Mohr’s received their biggest boost in 1990, when the U.S. Supreme Court held in Milkovich v. Lorain Journal that a newspaper columnist could be liable for implying that a witness lied in a judicial proceeding. Rejecting the newspaper’s argument that expressions of opinion never could be the basis for a libel suit, the court held that the “dispositive question” is whether a reasonable factfinder could conclude that statements in the article implied a verifiably false statement of fact about the plaintiff. If so, the court said, the First Amendment would not protect the article from a libel action.

In light of this federal precedent, KXLY is relying on the free-press guarantees of Washington’s state constitution, which could be interpreted to provide speech more protection than the First Amendment affords. Without such protection, KXLY claims, judges and juries will be placed in the role of “super-editors,” able to use both hindsight and personal biases to decide whether a reporter should have included more information in his or her story.

A coalition of Washington state news organizations agrees and has filed a brief in the case urging the Washington Supreme Court to reverse the appellate court decision. Allowing Mohr and similar cases to proceed, the group argues, will allow judges and juries to “[sift] through a reporter’s research and interviews and impos[e] damages on a truthful publication simply because the reporter has failed to ‘spin’ the facts reported in the story in favor of the plaintiff’s viewpoint.” Such a result, the group says, would unnecessarily thrust judges and juries into the newsroom, a place courts historically have been loath to go.

The court’s reaction to these arguments appeared mixed. As reported in the Yakima Herald-Republic, Chief Justice Gerry Alexander seemed sympathetic, stating, “It is unprecedented to have judges and juries becoming editors of stories.” Several other justices, however, wondered whether a point existed at which a story lacking facts or context could become irresponsibly libelous and thus actionable. “Is there no limit,” Justice Richard Sanders asked, “to the half-truths a journalist can tell?”

After hearing the arguments in Mohr and another case, the justices spoke with the audience and fielded general questions concerning the court’s work. Their anxiously awaited answer to Justice Sanders’ question, however, likely will not be known for several months.


Man can't sue TV station over what wasn't in report

Washington high court rules 6-3 in favor of KXLY, but majority splits on question of whether omission in news story can be grounds for defamation case. 03.25.05

Libel & defamation

State constitutions

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