FAIRNESS AND DEFAMATION IN THE REPORTING
OF LOCAL ISSUES
A paper accepted for presentation before the Newspaper Division of AEJMC at the
Fico is professor in the School of Journalism at Michigan State University.
Simon is professor and director at the A.Q. Miller School of Journalism and Mass
Communications at Kansas State University. Drager is an assistant professor in
the Department of Communication at Illinois State University. ABSTRACT
Stories involving conflict and defamation during May 1994 in 16 mid-sized
randomly sampled dailies from around the nation were content analyzed. The
study examined the relationship of source type (government proceedings and
documents, other activities and documents, and interviews) to fairness, balance
and defamation in the reporting of conflict.
Some 38 percent of the 620 stories involving conflict contained defamatory
assertions. Contrary to expectations, stories relying on interview sources were
not more fair and balanced than stories relying on government proceedings and
documents. Also contrary to expectations, interview-based stories were twice as
likely as stories emerging from government proceedings or documents to contain
Stories containing defamatory assertions were also examined to assess legal
risk. The riskiest stories D those defaming private persons in contexts not
protected by the qualified privilege to report government proceedings and
documents D made up about 11 percent of defamatory stories.
News coverage of local conflict helps inform people about issues and problems
that may affect them, perhaps crystallizing political action or policy
decisions. A widely held standard is that news coverage of conflict should be
"fair and balanced," appropriately presenting conflicting perspectives.
Appropriate reporting of conflict, however, can be ambiguous. Appropriate
attention to policy recommendations could mean, for example, giving equal
treatment to all sides, or treatment appropriate to some standard of public
opinion, or treatment appropriate to some judgment of expertise or credibility.
Appropriate reporting becomes more complicated still when a conflict engages
the character and reputation of opponents. Journalistic decision making on
coverage must consider legal implications involving defamation and libel as well
as purely ethical standards. And among the possible outcomes of the coverage
are legal actions against news organizations for harm done to the reputations of
people defamed in news stories.
This study examines the relationship between fairness and balance in reporting
and character defamation in the coverage of local conflict. The study also
seeks to determine the degree to which stories containing defamation expose the
news organizations publishing them to legal challenge in libel suits.
Fairness and Balance in Reporting
All the codes of ethics of major news organizations and professional
associations command fairness.1 Courts in at least 10 states have adopted a
"neutral reportage" privilege in libel actions which protects journalists when
they have presented balanced assertions from competing sources in stories about
controversy.2 In addition, since most states apply a negligence analysis in
libel cases, evidence that reporters followed standard ethical norms may also
defeat a claim by showing due care.3 Reporting behaviors promoting balance and
fairness may therefore be drawn from both ethical and legal influences. Fair
and balanced treatment of opponents also may be a useful routinized defense
against potential criticism, a behavior Tuchman refers to as a "strategic
ritual" in journalism.4
But the notions of fairness and balance can be ambiguous in terms of actual
professional behaviors. For example, fair coverage of a science controversy may
differ from fair coverage of a political controversy. Matters of manifest fact
may merit a coverage different in fairness than matters of opinion.
Fairness and balance defined behaviorally as manifestly "equal treatment" of
contenders is especially useful, however, for assessing the risk of published
defamation. A lawsuit may emerge from a plaintiff's perception and showing that
story content is unequal. Conversely, a news organization's defense may be
strengthened by showing that the treatment contenders received was equal.
Manifest equality of coverage is also relatively easy to define and assess.
Content studies of fairness and balance have focused on such manifest
equality, assessing stories on such dimensions as inclusion of opponents and
space devoted to their assertions. Lacy et. al. found that prestige newspapers
such as the New York Times did a better job on fairness and balance than did
other large newspapers, but that significant imbalances nonetheless existed.5
Fico and Soffin found a similar pattern in prestige and Michigan newspapers.6
However, in a study of a 50,000 circulation daily and a community weekly, Fico
and Soffin found nearly equal treatment given to contenders in a local
Defamation and Qualified Privilege
Defamation is harm done to the reputation of an identified person or
organization.8 Journalistic liability for publishing defamation has been
limited by constitutional interpretations of the U.S. Supreme Court when public
officials or figures are involved. In most states, a negligence standard is
applied when private persons are involved.9 The negligence approach assumes
some standard of journalistic behavior that can be assessed for compliance. One
approach to libel law advocates applications of journalism codes of ethics in
libel since libel involves journalistic behaviors that ethics codes presumably
The linkage between behaviors recommended by ethics codes and defamation in
news coverage was explored in a study of prestige and large daily newspapers.
Simon et. al. found that fair stories, as indicated by the presence of both
sides in a conflict, were less likely to be defamatory than stories using only
one side.11 Stories imbalanced in words attributed to opponents were also more
likely to contain riskier defamation per se. In general, per se defamation
refers to an assertion that "on its face" will cause harm to reputation.
Examples include charges of criminal acts of extreme immorality.
But the source through which such defamation emerges is crucial in assessing
libel risk. Certain sources such as governmental proceedings and documents give
journalists a "qualified privilege" protection when reporting is on judicial or
governmental proceedings, including legislative, executive and administrative
bodies.12 This protection exists no matter how false or defamatory the
assertions taken from official proceedings so long as the press quotes
accurately. A similar privilege applies when defamatory assertions are taken
from public records.13 Most states also recognize a qualified privilege to
report on "matters in the public interest" -- news that may materially affect
the public.14 This privilege, however, is less predictable than the proceedings
and records privileges, and so is less likely to influence how reporters put
news stories together.
As the U.S. Supreme Court has withdrawn from deciding libel cases, the state
courts have taken the initiative. More and more, those courts are looking for
"independent and adequate" state law rules to decide libel cases.15 High on
the list of state law rules are the qualified privileges, making them more
important for the press than any time since the mid-1960s.
The relationship between the use of sources covered by qualified privilege and
defamatory assertions in stories was examined in a reanalysis of data from the
Simon et. al. study. It was found that both defamation in general and per se
defamatory assertions were more likely to be included in stories citing official
documents and proceedings than when other sources were used.16 Further, stories
based on official sources were more imbalanced than those based on interview
Rationale for the Present Study
This study extends the research approaches discussed above with a broader and
more typical sample of newspapers. Prestige and/or large newspapers publishing
in large communities are not the norm in American journalism. Their resources
may enable their staffs to cover conflict in greater depth and, presumably, with
more attention to fairness than might be the case with smaller organizations.
However, the opposite can also be argued. Large organizations in populous
communities may be more insulated from source retaliation than small
organizations. Small news organizations in less pluralistic communities may be
more fair and balanced out of defensive needs.17 Empirical research is needed
to resolve the different possibilities.
Further, studies linking defamation and fairness did not explore the potential
libel risk of stories. Specifically, this study focuses on type of defamation,
the target of defamation and the context of defamation -- all factors
influencing a story's legal risk. Moreover, this study relates such libel risk
to fairness and balance in covering controversy. Such research may both extend
scholarship and provide practical guidance.
Reliance on Government Documents and Proceedings
Previous research suggests that reliance on government sources is related to
story imbalance and defamation. Three reasons may account for this. First,
government sources reliably produce news. Second, reporting defamatory
assertions emerging from such government contexts is usually protected from
libel actions. Finally, reporters under deadline or other constraints may
safely curtail any efforts to find information that may deter defamatory
publication or balance the published story's defamation.
H1: Stories relying on government documents and proceedings
are less likely to be fair and balanced than are stories
relying on other sources.
H2: Stories relying on government documents and proceedings are more likely
to be defamatory than are stories relying on other sources.
H3: Stories relying on government documents and
proceedings are less likely to be balanced in their defamation
than are stories relying on other sources.
Fairness and Balance in Reporting
Conversely, then, journalistic effort to be fair and balanced logically should
decrease the extent to which one side is able to dominate both substantive and
H4: Stories that are fair are less likely to be defamatory
than are stories using only one side.
H5: Balanced stories are less likely to be defamatory than
are imbalanced stories.
H6: Balanced stories are more likely to be balanced in in their
defamation than are imbalanced stories.
Defamation and Risk:
Clearly the legal risk of defamatory stories will depend on a mix of factors,
one being the protection given by qualified privilege. But other factors are
also at work. One is the type of target of a defamatory assertion. First
Amendment interpretations have made public officials and public figures,
including people temporarily in the spotlight, less risky targets for defamation
than private figures.18 The type of content of the defamatory assertion may
also affect risk. Defamation per se is more clearly harmful to reputation than
are defamation per quod which may require proof that readers would consider
Riskier stories are therefore likely to involve defamation per se assertions
targeted against private persons in contexts NOT protected by qualified
privilege. Defamation type, defamation target, and defamation context in a story
can be jointly analyzed to illuminate whether news organizations practice "safe"
or "unsafe" defamation.
RQ 1: What are the relationships among defamation
type, target and context in stories containing
Fairness, Balance and Defamatory Risk
Obviously even risky defamation may be necessary in news reporting. In these
cases, reporting that is manifestly fair and balanced may mitigate the risk or
possible awards for damages.
RQ 2: How do fairness and balance relate to the
defamatory risk of stories?
Sixteen newspapers were randomly selected from newspapers with circulations
between 50,000 and 100,000, the largest category of U.S. newspapers. Each
newspaper's stories for May 1994 were examined by three researchers to identify
locally produced stories involving conflict and the kinds of sources involved.20
Police and crime stories were not included; although usually defamatory, these
stories are nearly always protected by privilege and thus present little risk
for news organizations. Stories involving conflict on issues of public policy
were chosen based on previous research as most important in terms of risk based
on the presence or absence of balance, fairness and defamation. Conflicts were
indicated when cited sources took positions opposed to one another in one or
more stories on a topic.
Continuous coverage from each newspaper was necessary for the research goals
of this study because topics had to be followed from day-to-day to identify the
emergence of a conflict or issue. Many such conflicts are covered by only a
single story. But some stories on a continuing issue seen in isolation may not
even suggest that a conflict is in progress. A continuous month therefore
permitted a more valid identification of conflict, and thereby of fairness and
Fairness and Balance Measures
Stories with conflict were analyzed to determine the principal type of sources
used. Principal types of sources included public meetings and documents (e.g., a
council meeting), other kinds of meetings or documents (e.g., a rally or march),
and interviews gathered independently of such events or documents.
Fairness was assessed for each story according to whether only one or both
sides in a conflict made quoted or paraphrased assertions attributed to them.
Five qualities in each story assessed balance. Specifically, each story was
analyzed to determine (1) how many opponents on each side were cited; (2) total
column inches devoted to the attributed assertions of story opponents; (3)
whether opponent assertions were cited in story leads; (4) whether opponent
assertions were cited in the second through fifth paragraphs; and (5) whether
opponent assertions were cited in the first half or last half of the story.
For each of these balance measures a story was assessed as favoring one side,
the other side or as balanced. For example, if one side in a story got more
column inches of attributed assertions than the other side, the story's
column-inch measure would be considered to favor that side. If no side's
assertions were in a story's lead, that measure would be considered irrelevant.
If both sides' assertions were contained in a story's lead, the lead measure for
that story would be considered to be balanced. The overall balance of the story
was determined by whether one side dominated a majority of the relevant balance
This balance index differs from previous studies that have employed space
measurements only. Specifically, three of the components of the index emphasize
the prominence given a side's assertions in a story. The reason is that people
read stories from the top down, and may never encounter the opposition's point
of view if it is at the bottom of the story.
The presence of defamatory assertions by opponents was determined following
general tests used by courts. Defamation is considered an assertion capable of
injuring the reputation of an identifiable individual or organization.21 If
defamation was found, the assertion was further examined to determine if the
defamation was per se, or capable "on its face" and without further
interpretation of harming reputation.22 The story was then further analyzed to
determine whether the first target of the defamatory assertion was a public
official, a public figure or a private person. Finally, the story was analyzed
to assess whether the defamation occurred in a "protected" context involving
government documents and proceedings.
Reliability and Validity of Measures
A coder reliability test was conducted using randomly selected stories. The
variables assessing principal type of source used and story fairness achieved a
100 percent agreement in the reliability test. The validity of the source type
measure depends on the reporter's public attribution to sources such as
meetings, documents or interviews in the analyzed story. The validity
assessment of the fairness measure relies on simple logic. Assuming controversy
over some issue, fair news coverage must entail giving contenders at least one
opportunity in at least one story to make their case.
Four of the five variables assessing story balance achieved a 100 percent
agreement in the coder reliability assessment. The measure assessing the
balance in column inches given sources achieved a 90 percent agreement (Scott's
Pi of .81) The balance index created from these five measures achieved a .60
Alpha reliability. Since this is a relatively modest reliability for an index,
relevant analyses were also run using just two component measures, source number
and total column inch, to confirm patterns found using the index.
The validity of this balance index measure relies on the logic by which news
stories are read. The measures of source number and total column inches devoted
to sources relates to the probability that a reader will encounter one or the
other side's arguments. The three positional measures (lead position, graf 2-5
position, and first-half story position) similarly relate to that likelihood.
The variable assessing the simple presence of defamatory assertions in a story
achieved an 80 percent agreement (Scott's Pi of .73.). Variables assessing type
of defamation, target of defamation and context of defamation all achieved a 90
percent agreement (Scott's Pi of .85, .82 and .96 respectively). The validity
of these measures emerges from actual case law establishing definitions from
Analysis of Results
Statistical generalization beyond the stories examined is unwarranted since
findings from May 1994 in these newspapers may be atypical of coverage in
unknown ways. Nonetheless, these are typical newspapers from around the nation.
Findings based on their stories may usefully give context and direction to
future research. Further, because a census of stories is used, findings for the
month examined do not require statistical tests of significance. News
organizations wishing to assess some ongoing controversy may find this approach
A total of 620 stories meeting the study criteria were found during the sample
month. Defamatory assertions occurred in 235 stories, about 38 percent of the
total 620 stories. About 26 percent of the 235 defamatory stories contained
defamatory assertions from both sides.
Hypothesis 1 predicted that stories relying on government proceedings or
documents were less likely to be fair and balanced than stories relying on other
sources. The hypothesis was contradicted. Some 93 percent of stories emerging
from government proceedings or documents include both sides compared to stories
that emerged from other types of activities or documents (See Table One).
Similarly, stories relying on official government proceedings or documents were
more likely to be both fair and balanced (See Table One).
Hypothesis 2 predicting that official government contexts would be more likely
to generate defamatory assertions also was not supported. Only 27 percent of
the stories relying on government proceedings or documents contained defamatory
assertions, compared to more than 40 percent of stories based on the other
sources (See Table One).
Hypothesis 3 predicting that defamatory stories emerging from government
proceedings or document contexts would be the least likely to have balanced
defamation was partially supported. Defamatory interview stories were least
likely to be balanced (25 percent of defamatory stories), followed by defamatory
stories based on government proceedings or documents (28 percent balanced) and
defamatory stories based on other activities or documents (32 percent balanced).
Hypotheses 4 and 5 relating fairness and balance to defamation were not
supported. Some 40 percent of fair stories contained defamatory assertions,
compared to 20 percent of the unfair stories. Some 43 percent of balanced
stories contained defamatory assertions, compared to 38 percent of imbalanced
However, Hypothesis 6 predicting that balanced stories would be more likely
than imbalanced ones to contain balanced defamatory assertions was supported.
About 32 percent of balanced defamatory stories also contained defamatory
assertions from both sides compared to 26 percent of the imbalanced defamatory
Defamation Context, Target and Type
Considered jointly, defamation context, target and type define the relative
risk posed by defamatory stories. Only 3 percent of the 235 defamatory stories
(1 percent of the 620 total stories) contain the most dangerous mix of
defamation: private persons defamed per se in contexts not protected by the
privilege to cover government proceedings or documents (See Table 2). If the
distinction between per se and per quod defamation is ignored, the percentage of
risky stories D those defamatory stories targeting private persons in
non-privileged contexts -- increases to 11 percent of defamatory stories and 5
percent of all stories generally.
Defamation, Fairness and Balance
The libel suit or award risk of even the most unsafe stories may be minimized
by coverage that is demonstratively fair and balanced. Very few unfair or
one-sided stories also contained defamation -- some 6 percent of the 235
defamatory stories. Unfair stories targeting private persons in contexts not
protected by qualified privilege made up less than 1 percent of these defamatory
stories, and far less than 1 percent of the total sample of 620 stories.
However, while the vast majority of defamatory stories were fair, some 88
percent of the 235 defamatory stories were imbalanced in terms of the measures
used for this study. The riskiest stories D imbalanced defamatory stories
targeting private persons in non-qualified privilege contexts -- makes up 9
percent of defamatory stories generally and 4 percent of the total sample of 620
stories (See Table 3).
CONCLUSIONS AND IMPLICATIONS
One goal of this research was to investigate fairness and defamation in news
coverage by news organizations that are more typical than the prestige or large
dailies previously studied. Most of the hypotheses in this study derived from
that previous research were not supported. Community and news organization size
may make substantial differences in the way conflict and defamation occur in
news stories, and should be further explored in research.
Community size may influence both the amount of conflict and the forum for
such conflict. Large, diverse communities such as New York or Los Angeles may
have more conflict compared to smaller communities. In large communities,
government proceedings and documents may also more likely be the repository for
such conflict than in smaller communities. If so, then news organizations
covering such bodies would report more conflict from that source.
Differences in the size of the news organizations in this and in previous
research may also account for differences in source reliance. The smaller news
organizations in this study certainly have fewer staff members. One possible
result is that limited staff cannot be deployed to lengthy government meetings.
Reporters may more frequently use interviews with contending sources, resulting
in more defamation emerging from that type of source.
Participant observation and surveys should supplement content analysis in
future investigations linking source reliance and defamation. Content analysis
uses coding rules to reliably assign content to categories based on defined
cues, such as those signaling source type (e.g., "Jones said during the
meeting", or "Jones said in an interview.") But absent such explicit
identification of source type, the degree to which a defamatory assertion poses
risks for the publication may be ambiguous. Of course, the reporter who covered
the story could easily supply the needed information, or the researcher may
observe it directly.
This study's findings on defamation context, target and type can provide both
comfort and alarm for news organizations. The comfort is that the overwhelming
majority of stories were relatively safe in terms of libel risk. However, alarm
is also appropriate because news organizations generate large numbers of
defamatory stories on a continuous basis. The riskiest defamatory stories are
therefore likely to occur with predictable frequency. The average of high-risk
local conflict stories at each paper is just under two per month. For news
organizations with relatively limited resources, such as those in this study,
even defending these stories in court D much less losing a judgment D may cause
considerable financial harm.
One solution for news organizations is to routinely monitor their conflict
stories along the dimensions used in this study. The discernment of defamation
context, target and type would not be difficult for news personnel doing the
story, and certainly would not require day-to-day consultation with legal staff.
Both past research and the present study indicate that journalists are aware of
and act on the basis of both their ethical principles and the protections
provided by law. But a small number of risky stories appear regularly
nonetheless. When news staffs know that a very risky story is emerging, special
efforts to guarantee fairness and balance can be employed. At the very least,
the risks can be run knowingly.
1. Louis A. Day, Ethics in Mass Communication. (Belmont, Calif.: Wadsworth
Pubg. Co., 1991), 38-39; Todd F. Simon, "Libel as malpractice: News Media Ethics
and the Standard of Care," Fordham Law Review 53:449-490, 472-476) (1984).
Several of these codes are listed in the appendices of William L. Rivers, Wilbur
Schramm and Clifford Christians, Responsibility in Mass Communication (N.Y.:
Harper & Row, 1980. "Be fair, unbiased, accurate, complete, factual,
professional, aggressive and compassionate," the ASNE advised in Newspaper
Credibility: Building Reader Trust. (Washington, D.C.: American Society of
Newspaper Editors, April 1985), 11.
2. Ralph Holsinger & Jon Paul Dilts, Media Law 4th ed. (New York: McGraw-Hill,
3. See, e.g., Pearce v. Courier-Journal and Lousiville Times Co., 22 Media L.
Rptr. 1730 (Ky.App.1993).
4. See Gaye Tuchman, Making News: A Study in the Construction of Reality. (New
York: Free Press, 1978). Gaye Tuchman, "Objectivity as Strategic Ritual."
American Journal of Sociology. 77 (January 1972); 660-79.
5. Stephen Lacy, Frederick Fico and Todd Simon, "Fairness and Balance in the
Prestige Press," Journalism Quarterly 68 (Fall 1991): 363-370.
6. Frederick Fico and Stan Soffin, "Fairness and Balance of Selected Newspaper
Coverage of Controversial National, State and Local Issues," Journalism and Mass
Communication Quarterly 72 (Autumn 1995):621-633. Frederick Fico, Stan Soffin
and Linlin Ku, "Fairness, Balance of Newspaper Coverage of U.S. in Gulf War,"
Newspaper Research Journal 15 (Winter 1994): 30-43.
7. Frederick Fico and Stan Soffin, "Covering Local Conflict: Fairness in
Reporting a Public Policy Issue," Newspaper Research Journal 15 (Fall 1994):
8. Donald M. Gillmor, Jerome A. Barron, Todd F. Simon & Herbert A. Terry,
Fundamentals of Mass Communication Law (St. Paul, Minn.: West Pubg. Co, 1996),
9. Ibid at 59.
10. Kassel v. Gannett Co. Inc., 875 F.2d 935 (1st Cir. 1989).
11. Todd F. Simon, Frederick Fico and Stephen Lacy, "Covering Conflict and
Controversy: Measuring Balance, Fairness and Defamation in Local News Stories,"
Journalism Quarterly 66 (Summer 1989): 427-434.
12. Wright v. Grove Sun Newspaper Co. Inc., 873 P.2d 983, 22 Media Law Rptr.
1801 (Okla. 1994).
13. Bruenell v. Harte-Hanks Communications, Inc., 23 Media Law Rptr. 1378
(Mass. Super. Ct. 1994).
14. Brown v. Kelly Broadcasting Co., 244 Cal.Rptr. 531, 198 Cal.App.3d 1106, 15
Media Law Rptr. 1337 (1988).
15. Hinerman v. The Daily Gazette Co.,Inc. 423 S.E.2d 560, 20 Media Law
16. Frederick Fico, Todd Simon and Stephen Lacy, "Reporters' Use of Defamatory
Source Material in Qualified Privilege Contexts," Newspaper Research Journal 12
(Winter 1991): 34-45.
17. Phillip J. Tichenor, Community Conflict and the Press
(Beverly Hills, Calif.: Sage, 1980).
18. Kessler v. Zekman, 620 N.E.2d 1249, 22 Media Law Rptr. 1236 (Ill.App.
19. Donovan v. Fiumara, 442 S.E.2d 572, 22 Media Law Rptr. 2173 (N.C.App.
20. In general, courts have considered elected or appointed public employees
with hiring authority or spending authority a public official. Police officers,
as the most visible embodiment of government power, are always treated as public
officials. The courts have identified several types of public figures -- all
purpose, limited-purpose, vortex and involuntary -- that all share in having
stepped forward (intentionally or not) to make themselves heard on public issues
or general fame and notoriety. Everyone else is a private figure. Donald M.
Gillmor, Jerome A. Baron, Todd F. Simon and Herbert A. Terry, Mass Communication
Law: Cases and Comments, 5th ed. (St. Paul, Minn.: West Pubg. Co., 1989),
21. William M. Prosser, Law of Torts, 4th ed. (St. Paul, Minn.: West Pubg. Co,
1971) pp. 739-744.
22. Arthur B. Hanson, Libel and Related Torts. (New York: American Newspaper
Publishers Foundation, Inc., 1969), 22-24.
Table One: The Relation between Principal Source Type of Stories
And Fairness, Balance and Defamation in Stories
(Percent of stories relying on source types.)
Principal Source Type
Govt. Docs./ Other Docs./ Interviews
(N=164) (N=65) (N=391)
(All = 620)
Fair 93% 80% 90%
Balanced 16% 8% 9%
Defamation 27% 48% 41%
Table Two: The Relation between Defamation Context, Target
and Type (Percent of Stories with Defamation. Percent
in bold type indicates relatively riskier stories.
Percent in bold type and underlined indicates the riskiest
Qualified Privilege No Qualified Privilege
Defamation Type Defamation Type
Per Se Per Quod Per Se Per Quod
Pub. 97% 87% 74% 85%
Private 3% 14% 26% 15%
Story N 32 44 31 128
Table Three: The Relation between Story Balance, Defamation
Context and Defamation Target (Percent of Stories
with Defamation. Percent in bold type represents
relatively riskier stories. Percent in bold type and
underlined indicates the riskiest stories.)
Imbalanced Stories Balanced Stories
Defamation Context Defamation Context
Qual. Priv. No Priv. Qual. Priv. No Priv.
Target 94% 84% 66% 74%
Target 6% 16% 34% 26%
Story N 67 140 9 19