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Wednesday, July 16, 2008

Bikini-clad reporters and academic freedom

After leaving Chicago last year, I don’t keep up much on the goings-on in that city, great city though it is. But earlier today, I ran across a juicy local news item. About a year ago, Amy Jacobsen, formerly a reporter for local Chicagoland station NBC 5 was covering the disappearance of area woman Lisa Stebic. Some time thereafter, CBS 2 ran a feature that included videotape footage of a bikini-clad Jacobsen poolside at the Stebic home. Recently, Jacobsen sued CBS 2 for defamation (although she didn’t sue her employer for wrongful discharge over the flap, at least not yet). This part isn’t particularly legally interesting. Even in light of the high “actual malice” standard that would likely apply to her claim, Jacobsen might be able to show that CBS 2 knowingly (and, she claims, falsely) edited the feature to make her seem romantically involved with Lisa Stebic’s husband, Craig.

What did catch my eye about this case (besides the hilariously tabloid-y title of the feature, “Bikini-clad Reporter Filmed at Home of Missing Mom”) is that Amy Jacobsen also named as a defendant Michele Whedon, an associate professor of journalism at Northwestern. The basis for suing Whedon appears to be a few relatively innocuous sound bites she provided for the CBS 2 feature. Specifically, “While [Jacobsen’s conduct] is not a heinous crime, it erodes all our credibility as journalists”, and “It’s going to make [the public] question what else she has done”. I’m not a torts guy, but this commentary seems to fall well short of defamation, especially under the high “actual malice” standard that would likely apply given Jacobsen’s status as a public figure. Whedon’s comments are opinion, so not really falsifiable, and they’re not even making any particularly negative characterization of Jacobsen, but are more generally about the implications of her conduct.

Some thoughts on why this case strikes me as particularly concerning from the perspective of academic freedom are after the fold.

Of course, plaintiffs rope in borderline-plausible defendants at the complaint stage all the time, but this seems different to me because of that common reaction to news items, “Hey, that could be me!” Now media outlets aren’t exactly breaking down my door for comments on cases of import (though I hope that someday some might), but I do have many colleagues who often comment on live cases in the news media. After all, it is a pretty standard thing for professors to do.

But if merely providing public commentary could render one subject to a defamation suit, it may well chill this form of dialogue. Consider Whedon’s case. Even if (or, more likely, when) she is dismissed as a defendant, merely being named as one is invariably costly, more so considering that law profs don’t earn at the same rate as practicing lawyers. It also has costs in terms of time and distraction, and since profs don’t get paid for providing commentary on news programs (right?), the risk averse but possibly rational reaction might be to stop providing commentary altogether. Why risk getting sued for such a small upside?

One might say, though, that this is simply a single outlier, and that it’s not likely to influence how academics interact with media outlets. But then again, I heard of this case not because I constantly comb the internet for vaguely sleazy-sounding local scandals (I swear), but when a colleague sent an email to the faculty with the subject header “Risks for On-air Commentators”, related the whole story, and concluded with the well-meaning but still ominous sign-off, “Be careful out there.”

But then even if one thinks this is a concern, what is to be done? The judge could sanction Amy Jacobsen and/or her counsel if (or, again, when) he dismisses Whedon as a defendant, sending a message to others who may be inclined to go after academic on-air commentators. And in California, we have an anti-SLAPP (Strategic Lawsuits Against Public Participation) law that creates a damages remedy against any plaintiff who is deemed to have sued a defendant solely to attempt to preclude them from exercising rights of speech or petition, and this lawsuit seems like a decent candidate (though I don’t think Illinois has a similar statute).

I doubt this single case will chill professors from rendering on-air opinions (ego alone will guarantee that this practice will continue), but it still bothers me, particularly because there’s not much to be done to prevent defamation plaintiffs from naming commentators as defendants just for the nuisance (and future deterrence?) value.

Posted by Dave_Fagundes on July 16, 2008 at 02:57 PM in Culture, Current Affairs | Permalink


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Law & Order apparently used this story as fodder for an episode earlier this year. I had no idea about the Chicago story, but reading this post immediately reminded me of the Law & Order episode.


Posted by: L&O Fan | Jul 18, 2008 5:22:58 PM

I understand the partisanship, but I think it is a stretch to claim "Academic Freedom" on the basis Whedon is a Professor and doesn't get paid, when the defamation is: "While [Jacobsen’s conduct] is not a heinous crime, it erodes all our credibility as journalists". It appears during the interview that Whedon didn't consider her position as academic positing a view for consideration. She seems to be upset that Jacobsen lowered the credibility of journalist like herself, Whedon.

Posted by: Leland | Jul 17, 2008 12:07:26 PM

Prof. Fagundes: Thank you for your thoughtful response. Your point that academics aren't paid for commenting in the media is an excellent one (although of course there are non-monetary benefits to public exposure). The fact that lawyers are in a better position to defend against these claims is true, but basically irrelevant because lawyers have near absolute privilege against defamation suits in the contexts you mention.

To be clear, I fully support the academic freedom argument, and I think this claim should be dismissed immediately. But it's important to note that the concerns you point out here (chilling effects, cost-of-defense concerns, apparently malicious prosecution, etc...), while rare in academia, are ever-present and have a significant marginal impact in modern American business.

Posted by: JP | Jul 17, 2008 11:02:40 AM

I think the "academic freedom" concept is a good one, because the prof's comments examine the theory and ethics surrounding a particular vocation -- here, journalism. Maybe that's a stretch, but it seems to me that academic freedom extends beyond actual scholarly publications and so forth. I don't know that classifying this situation in that way makes a big difference when the court steps in, but at the very least it adds weight to the argument that the situation at issue involves public-interest concerns.

As Dave said, though, this sounds like an easy defamation case. It'd be interesting to see if Jacobsen tries to sue someone for recording the video in the first place... though the news article doesn't make it clear where the video came from.


Posted by: Matt C. Sanchez | Jul 17, 2008 9:38:29 AM

"Actual malice" does not change the analysis of whether the statement itself is defamatory. If the statement seriously questions the reporters ability to do her job, it may automatically qualify as defamatory. As to it being factual - it could reasonably be understood as a factual statement that the reporter lied and deceived her viewing public. This is particularly true if the way the comment is written implies that the writer knows more than she is saying. Where the actual malice standard will doom her is in having to prove by clear and convincing evidence that this woman knew her comments to be false. That can be a factual question - scary in many state court systems. But if she relied on information from channel 2 that was not obviously (to her) fabricated the actual malice standard will save her. Some states have fee-shifting statutes that allow a party to propose a settlement, and if the other party does not ultimately do better than the offer they have to pay fees from the time of the settlement offer. That can be much more effective than having to prove the intent of the lawsuit - as I imagine becomes the case in the anti slapp suits.

Posted by: Ephraim | Jul 17, 2008 7:10:08 AM

And in California, we have an anti-SLAPP (Strategic Lawsuits Against Public Participation) law that creates a damages remedy against any plaintiff who is deemed to have sued a defendant solely to attempt to preclude them from exercising rights of speech or petition, and this lawsuit seems like a decent candidate (though I don’t think Illinois has a similar statute).

Illinois does have the "Citizen Participation Act,", which actually goes further than California's anti-SLAPP law. Unlike California's law, which simply triggers a summary judgment-like preliminary proceeding on the merits immediately upon a showing that the suit arises out of an act in furtherance of free speech or petitioning, Illinois's law actually contains substantive immunity provisions: "Acts in furtherance of the constitutional rights to petition, speech, association, and participation in government are immune from liability . . . ." In California, the anti-SLAPP statute only gets you to the merits earlier, but you still have to prevail on those merits.

On the other hand, it would seem not to apply to this case...Illinois's statute seems aimed pretty squarely at "participation in government." A professor talking smack about a journalist probably doesn't count, right?

Posted by: Andrew Carlon | Jul 17, 2008 12:04:50 AM

Fair points, I think my post does beg the question why this situation is different than any other defamation accusation against a talking head. The distinction seems to me that part of an academic's job is to produce interesting ideas that can (in some contexts at least, often legal ones) bring them to bear on current events in order to enrich dialogues. They're different than, for example, reporters and news stations, who report on facts for their livelihood. Defamation serves an important check for journalists so they don't get sloppy and say false things for sensationalist purposes (a concern that I just don't think is true for academics, who are asked not to state facts that possess truth or falsity in themselves, but rather are simply there to illuminate related points to the story itself). Plus, the fact that academics aren't paid for these appearances makes them particularly vulnerable to chilling effects. Raise the costs of public commentary even a bit, and you're likely to overwhelm the benefits.

And I'm not sure that we can so readily say the academic's job ends in the classroom. The job consists of much more than that--attending conferences, writing articles, and participating in public dialogue related to one's field (which could take the form of writing an op-ed or as in this case, commenting on television). While lawyers may do something similar, their social function is different (they speak to the media to cultivate and defend clients for the most part) and they're in a much better position to handle the costs of defending a flimsy defamation allegation.

Admittedly, much of my reaction to this case is based on my perception that naming Whedon as a co-defendant was a gratuitous swipe rather than a move reflecting real concern about the content of her commentary. Her being named as a co-defendant seems to me more about spite or threat than truly seeking redress. So I certainly don't think there should be a different standard for defamation for academics, but I remain concerned about the practical effect of this kind of suit. As I said in the original post, though, I also can't think of a ready solution.

Posted by: Dave | Jul 16, 2008 8:31:31 PM

Hmmm... How about a loser-pays rule, that would not only limit the extent to which meritless litigation might give an academic second-thoughts about commenting on TV, but might also limit the extent to which meritless litigation keeps businesses, non-profits, and governments from providing goods and services to the public?

Posted by: JP | Jul 16, 2008 6:05:56 PM

Why does this come under the rubric of "academic freedom?" This isn't about a prof talking to his or her class, or even publishing scholarly work; this is about a prof who decided to offer a comment on what really was an example of tabloid journalism (albeit about a journalist).

Should profs get some sort of protection against defamation claims when they speak to the media? And if so, why? Lawyers are a good parallel, aren't they? Lawyers can say pretty much anything in a courtroom and be immune from a defamation claim, but they shed their protections when they decide to hold a press conference or hold themselves out as a commentator for a media outlet. Why shouldn't the same hold true for a prof--speaking to a classroom should (generally) be a protected exercise of academic freedom, while engaging the media is a whole new ballgame?

Posted by: Donald | Jul 16, 2008 5:35:29 PM

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