Wednesday, August 24, 2011

Tony's hot mess: libel law is one of the great conundrums of free speech and the Internet only makes the dilemma worse

Time to weigh in on the legal “hot mess” Tony Botello at Tony’s Kansas City has gotten himself into.

Despite his bravado, I’m pretty sure I know how Tony feels. As a green reporter I wound up looking down the barrel of a similar threat because of a careless green reporter mistake. Like Tony, my buddies were quick to offer legal advice – the most memorable was that since what I did was clearly stupid I probably couldn’t be sued.

What I remember was my stomach turning over and sinking to the bottom of the lake as I discovered all the air I needed to breathe had been sucked out of the room. It felt, now that I think about it, a lot like drowning.

My whole career, both years of it, passed before my eyes. I had a wife and a kid and a dog... well, no dog, but I might want to have one some day, and I was sure it was all over.

Libel law is scary. It’s meant to be scary.

We have no prior restraint in this country. Only on a few occasions has anyone been legally restrained from publishing. Persuaded not to publish, sure. Ordered by an editor or publisher not to publish, sure. But through legal action… I think you could count the times on one hand.

But, the law does allow punishment instead of prevention, and libel law is one of those punishments. Libel law only infringes on free speech by intimidation.

Libel law is a real conundrum for folks who cherish free speech because it can have such a chilling effect, which those of us who value free speech hate. But it’s a conundrum because, on the other hand, libel law is meant to protect a person’s reputation. And a person’s reputation is the single most important thing he or she possesses. Once a reputation is broken… well, try the old Gerry Spence demonstration. Hold a pencil at both ends and pretend you are standing in front of a jury. Now, snap the pencil in half. Tell the jury if it were possible to put that pencil back together, we wouldn’t be here asking you for money.

Now comes the Internet and suddenly defamation is everywhere. The Internet has let loose tons of good and not-so-good ideas, tons of criticism, tons of free speech. It has truly democratized publishing – if you count venues and not readers. It is a free speech advocate’s dream. And I'm a strong advocate of free speech. I love the way the Internet has made the workings of the human mind transparent. And, as a journalist, I love the way it has made information as plentiful as dandelions in spring.

But what about reputations? You only have one reputation. If you are the person whose reputation has been snapped in half by all that free speech – often cowardly anonymous free speech (this is definitely not the case with Tony) – you might not be so happy about what the Internet has wrought. You can neither deny – for whatever good that does – nor refute. And, in all likelihood – as the Star take on this today points out – you probably have no remedy.

Now, for me, the key to understanding this dilemma is responsibility. In my opinion, censorship and self-censorship are two entirely different animals. I am dead set against censorship. But I am strongly in favor of reasoned and compassionate self-censorship.

Somebody has to take responsibility when a reputation is damaged – actually, before a reputation is damaged. Somebody has to take what anonymous tipsters say and check it out. Everybody in the profession knows that some tips are true and most are not. In either case, the tipster more than likely has an axe to grind. If you are going to publish tips or rumors or scuttlebutt, it is your ethical responsibility to make a conscientious effort to discover the truth of it.

It makes a huge difference, legally and ethically, if the person being libeled is a public person or a private person. The law is much kinder to private folks… and for good reason. But that doesn’t mean you don’t have to make SOME effort where public people are concerned. You still have to demonstrate an absence of malice, and that is pretty easy to do. I’m no lawyer, but my understanding of the law is, bottomline, all you have to do is make some effort to just call the guy and ask him if the rumor is true.

Now, again, I’m no lawyer. And I think anyone who thinks he knows libel law and isn’t a libel attorney, is both naïve and dangerous. So please don't try to take this to the bank... or, god forbid, to court.

I sincerely hope Tony gets through this mess unscathed. I love his “awesome” blog, to borrow one of his more endearing phrases. As a former reporter, I have an unending appetite for rumor and motive and documents not meant for public consumption. I have to admit to dialing up Tony’s Kansas City a couple of times a day because I’m more likely to know what’s going on there than if I read just about any other local source. And, having been a reporter, I have a natural skepticism about what Tony writes.

This lawsuit may put Tony in the limelight for fifteen minutes – maybe even on a national scale. Good. It may turn out to be a great favor to him. But I hope it also shines a light on the great conundrum of the Internet and on the fact that where you have the most freedom, you need the most responsibility.

I’ve was never particularly fond of the editors I worked for as a reporter – on a professional level anyway. But this blogging business has given me a new appreciation for the frustrating, sometimes pedantic, questions they asked. Writing and publishing without an editor scares the living shit out of me. And, frankly, it should.


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  1. If you're dialing up his blog twice a day isn't it troubling to you you have to distinguish what's true and what isn't? There are a whole raft of "stories" he's done that are just pure fiction. Doesn't that bother you at all? Knowing that why would you go there more than once or twice, knowing its veracity is wholly unreliable?

    Here, for example, is a story that is totally made up.

    In this case we are led to believe that Botello calls up a company which promptly spills their business plans to a complete stranger.

    Botello lost me a long time ago with his lies. It's incredible that anyone would try for three seconds and defend him. So I hope he totally is scathed by this.

  2. Well, you make a Big League point. I tried to address that near the end. I think I have a pretty good sense of what is fabricated and what may have legs. But, unless I see the document, I reserve judgment. See, the problem is, I kind of do the same thing with the Star. The problem in the blogosphere is admittedly greater by a factor of 10, but I'm also suspicious of mainstream journalism stories. I look for the signals in the story that point me to something legit. Like documents. I'm trying not to get into a Matrix thing here -- but healthy skepticism is critical.

  3. By the way, that is a great example. Thanks.