Legal Issues: Florida A& M and The Famuan

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Q&A with Student Press Law Center

The College Media Review’s Debra Landis asked Frank LoMonte, executive director of the Student Press Law Center, to weigh in on censorship and libel in the wake of a series of actions by Florida A&M in January involving the student newspaper, The Famuan. Among other things, the university temporarily halted publication, required editors who thought they had jobs for spring 2013 to reapply for their jobs, removed the editor-in-chief who had served in the top position fall semester 2012 and hired another student instead.

Asked how college media can avoid censorship, LoMonte says, “Getting your facts rights is the cheapest censorship insurance you can buy.”

Florida A&M officials have said the actions were based in part on a libel suit filed in December 2012 by Keon Hollis against The Famuan and the university. A December 2011 Famuan story incorrectly said Hollis was involved with the hazing death of drum major Robert Champion. The Famuan later published a correction and removed the story from online.

“We always, always emphasize that getting your facts right is the cheapest censorship insurance you can buy. You invite the censor in the door if you do sloppy journalism,” LoMonte said.

Of the libel suit, LoMonte said, “It’s not right to respond to a libelous story with censorship — after all, you can’t punish an entire innocent staff, not to mention the audience, in the anticipation of the possibility of future libel — but you lose the public’s sympathy.”

“We saw in the immediate aftermath of the freeze of The Famuan that the media narrative (to the extent that anyone covered it at all) was that FAMU was acting decisively in response to a lawsuit, not that it was violating individual rights. That was a good job of ‘spin’ on the university’s part, but it also was the understandable first reaction of non-lawyer outsiders,” he added.

Of the removal of The Famuan’s editor-in-chief, LoMonte said, “The main thing that was missing at FAMU that absolutely needs to be in place at every publication is a written, formal governance structure that establishes how editors are to be selected and how they can be removed. There should be a buffer of insulation so that the editor is not working in fear that one false move will mean firing.”

Ideally, LoMonte said, college media should have diverse and balanced governing boards that are not beholden to one single decision-maker and include substantial representation from the student body and from the professional news media.

“Leaving the hiring of editors solely in the hands of the adviser is an invitation to exactly this type of meddling by the adviser’s bosses. There should be very, very limited grounds under which an editor may be removed for cause, such as criminal activity, dropping out of school and so on, making it crystal clear that disagreement over editorial policies is never a good justification,” LoMonte said.

The libel suit names The Famuan, the university and board of trustees as defendants. Respecting the independence of the student press is important for colleges’ and universities’ self-interest, but FAMU may have robbed itself of this defense by “exerting excessive involvement in The Famuan newsroom,” according to LoMonte.

“In the small handful of libel cases against public colleges that have gone to court, the rulings have been uniformly the same — because the First Amendment precludes the college from controlling the editorial content, the college is not financially liable for the decisions of its students,” LoMonte said. “This is one reason that respecting the independence of the student press is so essential for colleges’ own self-interest.”

An adviser being singled out in a libel suit could happen, but such situations would have to involve negligent hiring or negligent supervision, according to LoMonte.

“The fact that students at a public college have a First Amendment right to make their own decisions should cut in favor of the adviser and the institution. The law generally recognizes that people can’t be held liable for acts they are powerless to stop,” LoMonte said. “I don’t believe that we have ever seen a serious attempt in the courts to hold an adviser liable simply for failure to provide the optimal level of training — and for that matter, we have not seen that arise in the professional media, either.”

In the professional world of news media, LoMonte said, “Anyone who was personally involved in the preparation of the story, or who supervised the preparation, can be held liable, although it would be necessary to show that each person actually fell short in exercising due care.”

“It’s not enough for personal financial liability to say that I’m the managing editor of the paper — you have to prove that I had a personal duty to avoid the mistake and I failed in my duty. You can always hold the “owner” legally responsible as the publisher — which is why people sometimes sue a board of regents or trustees, looking at them as being analogous to the owners of a newspaper, although that analogy is flawed,” he added.

Additional Q&A with Frank LoMonte on The Famuan, libel and censorship: 

CMR:: How often in the last five years has the SPLC heard of a university shutting down a student newspaper as Florida A&M did on a permanent and/or temporary basis for “training” or “to move in a different direction”?    

LoMonte: This type of shutdown, honestly, is unprecedented in our memory. We’ve certainly seen newspapers de-funded and occasionally seen individual issues confiscated or impounded, but we can’t ever remember an administration at a public university commandeering a newspaper in this manner. It’s something that you might expect to see at a high school — although even a lot of them would have been more circumspect — and not at a four-year public university. Most institutions have legal counsel to keep them from overreaching in such an extreme manner.

It’s become pretty clear, I think, that the training rationale was a complete ruse and that the university’s real agenda was to purge the newsroom of anyone who seemed strong-willed or independent-minded. I am hopeful that the new editor stands up for her rights and the rights of her staff, but unfortunately the precedent has been established that the journalism college thinks of the newspaper as its property and thinks it can swoop in and assert control at any time, which is a terribly intimidating atmosphere.

CMR: How unusual is it for a student newspaper to be sued for libel? 

LoMonte: I don’t know that precise statistics exist, but we’re aware of only four that have been filed in the last five years, and that includes a couple that were immediately dismissed as unfounded. Journalism is in fact not an especially lawsuit-prone profession, stereotypes and myths aside. The law is very protective of the rights of publishers and of the ability to make the occasional honest, good-faith mistake. We are not aware of any recent case that has gone all the way to trial in which a college publication has been found liable and forced to pay damages. It’s possible that it has happened in the distant past, but it’s extremely rare. Irate people very commonly threaten to sue, but the number who actually show up at the courthouse is miniscule.

CMR:  If a potentially libelous or slanderous error is made, what steps should a college newspaper, TV or broadcast station take in addition to running/broadcasting a correction?  Perhaps allowing the individual who was possibly defamed to write a guest commentary or letter to the editor or have her/his attorney write something? 

LoMonte:: The first thing to remember if you are fearful of a defamation suit is to say as little as possible to the aggrieved person and have all communications channeled through a responsible and trained editor.

You never want to fall all over yourself acting like you were careless. I’d of course consider inviting the person to write a guest column clearing the air, but ideally you want to reach a written understanding (with the help of counsel, if the threat is serious) that publishing a correction and guest column will result in the satisfaction and release of all legal claims.

It’s very important to go back internally over what happened and why. You want to, of course, make sure that anyone involved in the mistake gets retraining if there was a lapse, and it may be advisable if the mistake is egregious or repeated to remove that person from the staff, although you want to do that only after very careful consideration.

The nightmare scenario for a defense lawyer would be to have the fired staff person turn against the publication and agree to testify for the other side, attesting to all of the ways in which the publication was negligent or acted maliciously.

CMR: In the Florida A&M case, what will the plaintiff have to prove to win the libel suit?

LoMonte: To prevail on any libel suit, it’s the plaintiff’s burden to prove a false statement of fact that identifiably referred to him, which was published to some outside audience with some degree of, at the very least, negligence.

It’s not 100 percent certain that this plaintiff will be deemed to be a private figure for purposes of this suit, because his name had appeared in a number of prior media accounts about the hazing. It’s possible that for purposes of stories about hazing at FAMU, he has attained the status of a limited public figure. As a public figure, his burden would be to prove not merely a negligent misstatement of facts but a reckless disregard for the truth of the story — basically, that the publication had every reason to believe the facts were wrong but proceeded full speed ahead anyway.

CMR: How could college media found to have committed libel or slander and ordered to pay restitution pay such fines? What are your opinions of libel/slander insurance?

LoMonte: I am not personally a huge advocate of libel insurance, only because the actual incidence of libel suits against college publications is so low, but neither am I strongly opposed if it provides some psychological comfort.

The fact is that most lawsuits either are dismissed entirely or go away with some small token payment that the publication can afford as a nuisance settlement.

To get hit with a crushing judgment that cripples the publication is going to require some “perfect storm” of terrible facts in which you recklessly go out and destroy the reputation of an innocent person. The main argument against libel insurance, which I’m not sure I buy entirely, is that it becomes a magnet for lawyers who know there is a pot of money to go after. I think that’s pretty rare, because either the case is good or it’s not, and I don’t envision a lot of lawyers bringing claims that are otherwise ill-founded just because of the insurance. But that perception definitely exists.

CMR: In college media libel cases where someone from off-campus is suing the school  and the college media, should the college media and the university have the same legal counsel in libel cases?  Or should the college media try to find their own legal counsel who would work at vastly reduced or pro bono rates?

LoMonte: As a practical matter, administrators are very often going to want the students to use the lawyer picked by the university’s insurance company, and if the college has control over the publication’s budget, they may not want to pay for separate legal counsel. So, it may be that the publication is given no real choice.

The SPLC has a stable of volunteer media lawyers around the country and we have successfully placed libel cases with media-law firms free of charge, so it’s always worth trying the SPLC for help.

I would definitely advocate using separate counsel unless the students can get totally comfortable that the university’s counsel is a capable media expert and that they will have some say in any settlement. That is the single biggest risk in using the university’s lawyer — the publication may feel strongly that is has a valid defense, but if the university is paying the lawyer, then the university controls the strategy decisions, including the decision whether to settle. The individual journalist or the publication may not even necessarily be consulted on the settlement decision, and certainly would not be given veto power. So hiring your own lawyer makes you the master of those strategy calls and makes sure that no settlement can take place without your say-so.

We just saw a case resolved against college journalists at St. Michaels in Vermont (http://www.splc.org/news/newsflash.asp?id=2510) where the student journalists had separate legal counsel that proved to be extremely valuable. The students got expert media counsel that knew the ins and outs of Vermont’s anti-SLAPP law, which provides for the expedited dismissal of frivolous lawsuits, and they were able to use that law successfully to get the case thrown out and their attorney fees awarded.

CMR: The story prompting the libel suit is said to have relied on unnamed sources. What sort of policies should college media have in place regarding use of unnamed sources?

LoMonte: I don’t think there should be a rigid, one-size-fits-all rule about unnamed sources. If you have a really sensitive story — let’s say, rape victims who say the police wouldn’t investigate their cases, or drug dealers who admit they sell drugs to schoolchildren — then you’re probably going to be stuck with unnamed sources. That’s not always automatically a terrible thing, although certainly you want to do everything possible to get information on the record or find documentable confirmation.

Not all unnamed sources are created equal. There’s a difference between relying on a known source — for instance, maybe a prominent student government insider leaks you a confidential memo — as opposed to an unknown source. If it’s literally a mysterious voice on the phone or a mysterious author sending you emails, then your confidence in the reliability of the information is necessarily lower and you’ll need much more confirmation if the story involves serious wrongdoing.

Where you really get into high-risk area of libel is when you have accused named individuals — not just a college, but named employees personally — of wrongdoing or illegality. That’s when you should most skeptically view the word of your anonymous sources, consider any ulterior motives, and bend over backward to give the accused person ample response time. A lot of this can also be dealt with in the writing, by not coming off as more certain than you really are. You don’t “convict” someone in a story based on unproven accusations of others.

 

 

 

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