Too Much Power of the Press

So shielded and privileged has the press become that a newspaper can falsely accuse a former public official of having taken a bribe ... and get away with it without penalty.

In an eye-opening decision May 17, the Wisconsin Court of Appeals dismissed a libel suit brought by Vincent R. Biskupic, who had been district attorney of Outagamie County from 1994 until January 2003. The decision upheld a lower court's ruling against Biskupic in a libel case he brought against the Shawano Leader for an article published in August 2004.

Moreover, it actually intensified the defeat ... the lower court had found that Biskupic was only a limited purpose public figure, since he no longer was in office when the article ran ... but the appeals court said no, he's a full public figure because of ongoing publicity about him ... that meant a slightly larger legal hurdle.

The article quoted Stacey Cicero, executive director of a domestic abuse prevention group, as saying Biskupic "was convicted of accepting bribes to dismiss cases."

Biskupic, while in office, had a policy of using payments to crime prevention groups and nonprofits as an alternative to criminal prosecution. He did not profit from the payments and was not affiliated with any organization that received them. He was investigated by an ethics board but not sanctioned.

Judges in that district later voted to halt the practice, and the Leader's article focused on that issue. Cicero's group had received such a payment. She went on to say, "Some of the money that defendants paid to have their cases dismissed went to organizations that he was involved in or into his own pocket."

The next day, the Leader ran a correction, and it ran another one in September in response to a demand letter from Biskupic. But off to court the matter went anyway. John C. Peterson, Biskupic's attorney, said he was especially troubled by the nature of the accusation ... bribery ... being leveled against a lawyer and former prosecutor, someone to whom integrity means so much.

Cicero, asked to explain, testified that she was quoted accurately but had gotten mixed up ... she had somehow confused Biskupic with Winnebago County District Attorney Joe Paulus, who was convicted of taking bribes in 2004. Cicero, in the article, mistakenly referred to Biskupic as being Winnebago County's DA, not Outagamie County's.

Biskupic had to show actual malice ... either knowledge the statements were false, or reckless disregard for the truth. He did not maintain that Cicero and the paper knew the statements were false, but there was reckless disregard in that, among other things, both Cicero and the reporter had plenty of time to check their facts but did not do so, and the paper hadn't bothered to interview Biskupic for his side of the story.

The court said no, this wasn't reckless disregard ... the mere fact of failure to verify information doesn't meet the legal standard ... and the reporter had no reason to question Cicero's motivation or ... incredibly ... the accuracy of her information.

The above facts come from an article by David Ziemer in the Wisconsin Law Journal.

Ziemer, in his case analysis, noted that "the reporter in this case could have conducted a Google search or visited the state courts or State Bar web sites and, in a matter of minutes, identified problems with Cicero's comment." He urged that the reckless disregard rule be re-examined in the light of modern technology. "Where the damage value of the false statements is extremely high, and the cost of verifying the truth of the statements is extremely low, a jury should be able to find reckless disregard for the truth."

It should also be noted that standard journalistic practice, from high school papers on up, requires reporters to check their facts and to give all relevant parties a chance to give their side of the story. If the failure to do so isn't "reckless disregard for the truth," it's hard to know what would be. The public is the poorer for not being able to be protected from shabby and perhaps dishonest journalism.

A second recent case also shows the public basically getting stomped on by the press. In this one, a federal appeals court in Richmond, Va., upheld the dismissal of a libel suit against the New York Times by Steven J. Hatfill, a former government scientist who specialized in biological weapons, and who had been identified by federal law enforcement officials as a "person of interest" in the investigation into the notorious anthrax mailings crime wave of 2001, which killed five people.