When perceived libel gets deadly

My July column for the South Carolina Press Association:



There is obviously no justification for the shootings at the Capital Gazette in Annapolis, Md., which killed five of the newspaper’s staff and injured two. But in the aftermath of the incident many have looked for causes, including President Trump’s anti-media diatribes and the troubled history of the alleged shooter, Jarrod Ramos.

Ramos had a long running dispute with the newspaper, stemming from a 2011 column about his guilty plea for criminal harassment of a high school classmate online. He sued the newspaper, its editor and the columnist for libel, representing himself. His lawsuit was dismissed in 2013, primarily because the statements in the column that Ramos claimed harmed his reputation had come directly from court and other official documents, and because Ramos had not shown that the statements were false. The Maryland Court of Special Appeals upheld the dismissal in 2015. The appeals court wrote that Ramos’ suit “reveal[ed] a fundamental failure to understand what defamation law is and, more particularly, what defamation law is not.” The state’s highest court rejected two efforts by Ramos in 2015 and 2016 to further appeal the decision.

The majority of defamation lawsuits actually are dismissed prior to trial: studies that I conducted for the Media Law Resource Center found that 72.9 percent of cases filed against media entities on defamation and related claims were dismissed soon after they were filed. Of those that survived a motion to dismiss, summary judgment was fully granted in 78.3 percent of cases. Since 1980, an average of only 17.1 cases have actually proceeded to trial each year.

But it’s important to remember that every case, including the ones that are dismissed, involves someone who is aggrieved about something that was published in the media. Legally they may not have a case. But the media item likely still has had an impact, maybe even a profound personal and/or professional impact, on the person, people or institution(s) mentioned.

Again, this does not excuse the horror that Ramos caused in Annapolis. But it’s important to remember that while the law provides extensive protection to the media against libel and other legal threats, it also implicitly imposes an obligation on the media to be responsible and fair in their coverage, and cognizant of the impact that they have.

New Ruling Offers Cell Location Privacy: Last month I wrote about the Justice Department’s accessing of reporter Ali Watkins’s e-mail and phone records as part of a leak investigation, and mentioned that whenever there is any third party involved in a communication that has a record that the communication occurred, the government can access that information relatively easily, based on the theory that the reporter has willingly shared the information with a third party and thus has no reasonable expectation of privacy in this information.

As one example of such a scenario, I mentioned cell phone records. Since call and data information—numbers called, the duration of each call, data sent and received, and the location where the phone was located during these transfers—is retained by the cell phone company for billing and other purposes, I said it was accessible by law enforcement in leak and other investigations.

But last month the U.S. Supreme Court ruled that the “third party” doctrine does not apply to cell phone location records, and that law enforcement agencies seeking such information must obtain a warrant from a judge, rather than simply request it from the cell provider. Requiring a judicial order means that privacy and First Amendment concerns will now receive some level of consideration before the information is turned over, and that a reporter whose records are being sought can now have the opportunity to challenge the request for the records.

"Just because you have to entrust a third party with your data doesn't necessarily mean you should lose all Fourth Amendment protections in it," Chief Justice John Roberts wrote for the majority in the case, Carpenter v. U.S. The case involved the FBI’s collection of four months of cell phone location data of a robbery suspect, whose phone was found to be in the vicinity of four robberies.

The new requirement applies only to government efforts to obtain cell phone location information, other information retained by cell phone providers—particularly call and text message senders and recipients, and call duration—can still be obtained by law enforcement without a warrant. So the new decision offers some privacy, but only for one type of information that cell phone providers collect.