Judge, Jury, ... Editor?

May 14, 2004

JEFF HALLER/Yakima Herald-Republic

Washington State - Washington Supreme Court Justice Tom Chambers fields a question from the audience after hearing arguments in two cases at Yakima Valley Community College on Thursday. Chambers was raised in Wapato and attended the community college.
Letting a Spokane business owner sue a TV station for defamation-by-omission will have a chilling effect on the media and make "super-editors" of judges and juries, the state Supreme Court was warned Thursday.

In a special appearance at Yakima Valley Community College, the court heard oral arguments in a libel case that media throughout the state fear will broadly expand the definition of libel.

At issue is whether an otherwise accurate news story was defamatory not because of what a TV reporter said, but because of what he didn't say.

"The media have recognized this is a tremendous threat to do their business in this state," attorney Laurel Siddoway, who represents defendant KXLY-TV of Spokane, told the court.

Chief Justice Gerry Alexander seemed to agree: "It is unprecedented to have judges and juries becoming editors of stories," he said.

In the past, state law has held that truthful information cannot be the basis of a libel or defamation claim.

The case at hand stems from a lawsuit brought by interior design store owner Eliot Mohr, who argued a KXLY-TV news story was one-sided and created a false impression he had bullied a man with Down syndrome.

In a three-day series, reporter Tom Grant focused on the case of Glen Burson, a 44-year-old man with the mental abilities of a 5-year-old who was charged with harassing Mohr's business in 1998.

Grant reported that Burson, who went to the store to wash windows for candy, was arrested after refusing to leave and then threatened Mohr and his wife by making a slashing gesture across his throat.

JEFF HALLER/Yakima Herald-Republic
Washington Supreme Court Justices Susan J. Owens, left, and Bobbe J. Bridge listen to arguments in the case of Eliot B. Mohr v. Tom Grant & Jane Doe Grant on Thursday at Yakima Valley Community College.
In his lawsuit, Mohr contended the story made him look like a bully by omitting key details that were available from police reports and court files. Among them: Burson once threatened to shoot the Mohrs in the head and had been repeatedly warned before for disorderly conduct at their business.

Although he had refused requests for interview for the first installment of the series, Mohr appeared in followup stories and described his earlier problems with Burson. Even so, more than 30 viewers called to complain and said they would boycott the store.

A Spokane County judge initially threw out the case, but Mohr appealed and a state appeals court reinstated the lawsuit last year. The TV station then appealed to the Supreme Court.

Mohr's attorney, Ryan Beaudoin, argued the lawsuit should be allowed to proceed because the gist of the story was "provably false" because of facts available to the reporter that weren't included in the story.

But Siddoway, the TV station's attorney, countered that Mohr could have saved himself some heartache and thus was partly responsible for his situation had he simply returned the reporter's calls seeking comment.

Michele Earl-Hubbard, a Seattle attorney representing media interests in the case, complained the case sets a precedent that would make second-guessing "super-editors" out of judges and juries.

"You are telling journalists that they have to guess (on deadline) what facts a judge or jury might think is important two or three years down the road," she said.

But several justices questioned the standard at which point a story becomes irresponsibly libelous, not because of blatant falsehoods but because it is missing pertinent facts and therefore lacks context or, worse, creates an inaccurate context.

"Is there no limit to the half-truths a journalist can tell?" Justice Richard Sanders asked.

A number of media groups filed a friend-of-the-court brief in the case supporting Grant and KXLY-TV. Among them were the Yakima Herald-Republic and its sister paper, The Seattle Times.

Media groups contend the defamation-by-omission claims violate the state Constitution's protections for speech and worry that reporters would be unable to write critical stories about anyone.

After the series ran, Burson was ruled incompetent and the criminal charges were dismissed. Grant no longer works for KXLY and lost a race last year for mayor of Spokane.

A ruling is expected in three to six months.

The Associated Press contributed to this story. For more information, visit the Supreme Court's Web site at http://www.courts.wa.gov. The case is Mohr v. Grant.



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