Content-Type: text/html
RUNNING HEAD: LIBEL IN 48 POINT
LIBEL IN 48 POINT -
Libel in 48 Point:
How Courts Have Ruled Since Sullivan
on Allegedly False and Defamatory Headlines Atop Accurate Stories
Student paper
Submitted to the Law Division of AEJMC
for consideration for presentation
at the AEJMC 2000 Convention
Phoenix, Arizona
Susan Keith
University of North Carolina
1215 Cranebridge Place
Chapel Hill, North Carolina 27514
[log in to unmask]
Abstract
The U.S. Court of Appeals for the 9th Circuit ruled in late 1998 that a headline could be actionable for libel on its own, even when the story to which it referred was substantially accurate. This no doubt pleased the plaintiff in the case, actor Brian "Kato" Kaelin, who had sued the National Examiner, a supermarket tabloid, over the headline "Cops Think Kato Did It." However, the ruling also brought to the forefront the fact that some courts consider allegedly libelous headlines in context of the accompanying stories while others do not. This paper examined 24 headline libel cases from 1964 to 1999 in an effort to determine whether the ruling in the Kaelin case was part of a trend. Research showed that courts have been far more likely to consider allegedly libelous headlines in context of the stories they accompany, using one of two common-law approaches: the unit approach or the "fair index" rule. However, use of the "fair index" rule, which is somewhat tougher on media defendants that the unit approach, has expanded.
Kaelin v. Globe raises questions
"Cops Think Kato Did It!" blared a headline on the front page of a supermarket tabloid a week after a criminal court jury found O.J. Simpson not guilty of killing his wife and one of her friends. "Kato," of course, was actor Brian "Kato" Kaelin, who had lived in a guesthouse on Simpson's property and testified during his trial. To what did "it" refer? A front-page subhead and the story on page 17 of the National Examiner made it clear that the antecedent for "it" was "perjury," the crime some of Kaelin's friends reportedly thought police suspected the actor of committing.[1] According to Kaelin, however, the main headline suggested he had killed Nicole Brown Simpson and Ronald Goldman. He asked the tabloid to publish a retraction. It refused, and Kaelin filed suit in U.S. District Court for the Central District of California, charging that the headline libeled him, even though the story and subhead were substantially correct.[2]
The court was left to decide: What should be the outcome of a libel suit over an allegedly false and defamatory headline atop an accurate story? Must the headline be considered in the context of the story? Or should it be considered actionable on its own?
In Kaelin, as in many other cases involving allegedly false and defamatory headlines, the plaintiff's public/private figure status came into play. Globe Communications Corp., owner
of the National Examiner, filed a motion for summary judgment. To prevail against that motion, Kaelin - who conceded that he was a public figure - had to show evidence that a jury might find that the National Examiner acted with actual malice.[3] In the view of U.S. District Judge Dickran Tevrizian, who considered the main headline in light of the accurate subhead, Kaelin failed. Tevrizian granted summary judgment for Globe Communications.
Kaelin appealed to the U.S. Court of Appeals for the 9th Circuit, which viewed the case differently. In an opinion by Judge Barry Silverman, the appeals court said that even if the story was assumed not to be defamatory, [4] a jury could find that "the headlines are defamatory, and that the Globe's editors acted with actual malice in their decision to run a headline from which a reasonable juror could conclude that Kaelin was a murder suspect."[5] The court reversed Tevrizian's decision in a 3-0 ruling on December 30, 1998, and said Kaelin could take his case before a jury.
Kaelin settled out of court in in late 1999 for an undisclosed sum.[6] Nevertheless, his case provides a good illustration of the conflicting approaches courts take when considering libel cases involving defamatory headlines atop accurate stories. Some law and mass communication scholars have studied these approaches. However, because they have considered both cases in which only the headline was considered false and defamatory and cases in which allegedly libelous material in the story affected the ruling, they have been forced to limit their research to cases decided over 15 years or less. This paper reviews cases involving allegedly libelous headlines and no other defamation issue over 35 years, since New York Times v. Sullivan , to determine whether there is a pattern to how courts have approached false and defamatory headlines atop accurate stories.
This study is important because it sheds new light on an area that has financial implications for publications. As Deckle McLean wrote in 1989, "mistakes in headlines are probably more
likely to cause trouble for newspapers than mistakes in news articles. Errors on heads are more likely to be noticed; when noticed, less likely to be forgiven or ignored by those affected; when made the basis of lawsuits, less likely to be excused in court."[7] Attorney Bruce W. Sanford, an expert on libel, included false headlines among five types of news reports most prone to spark libel lawsuits.[8] If such cases reach trial, they can be costly for media defendants. A study of the outcomes of actual malice cases decided between 1974 and 1984, found that 29.4 percent of those involving inaccurate or misleading headlines were won by plaintiffs.[9]
Second, the ruling by the U.S. Court of Appeals for the 9th Circuit in Kaelin v. Globe Communications Corp. was a departure from the standard approach to allegedly libelous headlines: viewing them in the context of the accompanying story. It may influence lower courts and lure forum-shopping plaintiffs into the 9th Circuit.[10]
Third, how courts look at headlines in print libel cases may someday have important implications for libel cases involving Internet sites, where frequently only a few summarizing words are used to represent to a full text attached by hyperlink. Ricard M. Knoth notes that courts that consider headlines and stories together in print libel cases may establish precedent for considering allegedly libelous World Wide Web page headlines in context of the stories to which they are hyperlinked.[11]
Fourth, the results could have implications for editing instruction and the continuing education of copy editors. Newspapers and educators consider headline writing one of the most important copy editing skills.[12] They may not, however, have considered how often headlines land publications in legal trouble. An analysis of cases covering more than 30 years will provide perspective.
Literature review
Editors have long known that busy readers cannot be expected to dive into a story without some sort of flag relaying information about conditions ahead. The first newspapers published in Britain - as early as 1622, by one account[13] - featured headlines, though they were arranged more like the words on book title pages and did more to explain the functions of a news publication than to summarize news events.[14] In the nearly 400 years since, headlines have evolved to fulfill myriad functions. In a study published in 1999, Edward J. Smith found that textbooks and professional articles report at least 23 functions performed by headlines and leads, many of them shared.[15] A panel of journalists Smith gathered grouped these functions into three broad categories: functions related to conveying the meaning or content of the story, functions related to "selling" the story, and functions related to graphic design. Some of these functions serve readers; others serve editors and publishers.
Readers are served by headlines' meaning-related functions and graphic design functions. Headlines communicate meaning by summarizing story content,[16] conveying story tone, indicating by their size the relative importance of the story, telling the main ideas of the story,[17] and telling the reader something about the image of the newspaper. Headlines fulfill graphic design-related functions by separating stories on a page, which helps readers navigate visually, and by introducing white space, [18] which makes the page more attractive and may cause readers to linger.
Editors and publishers are served by the ways in which headlines "sell" stories. Smith's panel of journalists identified six: attracting attention to a story, conveying a sense of immediacy, encouraging reading, creating a vivid impression of the story, luring readers into the full story, and indicating a reward for reading the story.[19] Newspapers must accomplish that quickly. As Earl English reported, readers are often "shoppers" who glance at a headline for as little as a fraction of a second before determining whether they want to keep reading.[20] In that sense, Bob Staake could not have been more correct when he referred in 1986 to the New York Post's Vincent Musetto - who wrote the headlines "Headless Body in Topless Bar" and "Granny Executed in her Pink Pajamas" - as "in essence, the top salesperson at the Post."[21]
There are some readers, however, who rarely, if ever, can be lured beyond the big type. For them, headlines do not summarize the news. They are the news. Elmer Emig reported in 1928 that 192 of 375 respondents to a survey said they "based their opinions concerning the day's news on reading or skimming the headlines."[22] In 1980, Keith R. Stamm and M.-Daniel Jacoubovitch found that 110 participants in a study of newspaper readership read twice as many headlines as stories.[23] A year later, Judee K. Burgoon and Michael Burgoon reported that getting the day's headlines was the second most popular function of newspaper readership reported by readers of five mid-sized dailies.[24] This reliance on headlines may be misplaced, however, in light of research published in 1980 by Edward J. Smith and Gilbert L. Fowler Jr. They designed a telephone-interview study of 237 people who were read 10 newspaper headlines and asked to say, in as much detail as possible, what they thought the accompanying story had been about. [25] The responses were compared with the stories and scored on a three-point scale, with 3 indicating total accuracy. No headline received a mean score above 2.24, and the mean score for all the headlines was 12.64 out of 30. [26]
Other research indicates that even when readers see the entire story the power of the headline may lead them to form wrong impressions of the story's content. Although Gloria Leventhal and Susan J. Gray did not find this effect in an experiment in which 148 college students read simulated news stories topped by headlines containing various innuendoes,[27] it has been noted in at least three mass communication studies. In 1953, Percy H. Tannenbaum reported that students who read about a fictional murder defendant were significantly more likely to believe he was guilty if the story carried the headline "Admits Ownership of Frat Murder Weapon" than if the story was headlined "Many Had Access to Frat Murder Weapon" or "Approach Final Stage in Frat Murder Trial."[28] Steve Pasternack reported a similar effect in 1987 after conducting an experiment in which groups of undergraduates read various versions of a story and headline about a theft arrest.[29] Those who received a headline defaming the subject of the article atop a non-defamatory story rated the likelihood of the subject being a thief almost as high as those who received both defamatory articles and headlines about the subject.[30] Similarly, John G. Geer and Kim Fridkin Kahn reported in 1993 that 112 students' perceptions of the main points in a fictional story about the platform of a real Arizona gubernatorial candidate were influenced by the accompanying headlines in two-thirds of the cases.[31] The researchers also found that a negative headline about the candidate was far more easily recalled than a positive headline.[32]
The key idea in these studies - that headlines make a larger and more lasting impression on readers than stories - is echoed when courts rule, as the U.S. 9th Circuit did in Kaelin v. Globe Communications, that allegedly libelous headlines are actionable on their own, no matter what the attached story says. That, however, is just one of the three most common approaches courts can take to false and defamatory headlines atop accurate stories. Many courts consider headlines and accompanying stories together, following a common law rule known as the "unit rule"[33] or, more informally, as "reading headlines as parts of wholes." [34] Others use the "fair index" rule, stated more than 100 years ago in Lawyers' Co-op. Publishing Co. v. West Publishing Co. (1898).[35] This common law rule holds that if an allegedly defamatory headline, judged in conjunction with the story it accompanies, is generally supported by that story, it is considered a "fair index" of the story and is not actionable.[36]
The few studies that have investigated headline libel have concentrated on exploring which of these approaches have been taken by courts. In a 1989 article, Deckle McLean considered 18 cases decided between 1971 and 1986 in which the allegedly libelous material consisted of or included a headline. He noted that although most of the courts in those cases used the unit rule, some evaluated headlines independently of stories.[37] In an unpublished 1996 study,[38] Frank Fee considered 36 libel cases decided between 1983 and 1994 in which the allegedly false and defamatory material consisted of or included a headline. He found that 28 courts followed the unit rule. The value of the unit approach was challenged, however, by Pasternack's previously mentioned experimental study, in which seven of 10 students who read a defamatory headline atop a non-defamatory story said they thought the subject was guilty.[39]
In summary, research has shown that headlines are important devices for readers. For some, they are the news. For others, they help shape perceptions of the news. Courts, however, have been inconsistent in their readings of headlines. At some times they have said that headlines are logically read in context of the stories they accompany and so must be considered together. At other times, they have suggested that headlines create such a vivid impression that they may be considered actionable on their own.
Research questions
Although other studies have considered how courts have approached allegedly libelous headlines, no comprehensive research has considered the more specific topic of how courts have treated libel cases involving allegedly false, defamatory headlines accompanying accurate articles. Also, no study has considered the entire period since New York Times v. Sullivan constitutionalized libel law. This study, then, addressses two related questions:
1. What approaches have courts taken to allegedly false and defamatory headlines accompanying accurate articles since 1964, when the U.S. Supreme Court decided New York Times v. Sullivan?
2. Is the 9th Circuit's ruling in Kaelin that false and defamatory headlines can be actionable on their own an anomaly or part of a trend?
Methodology
This paper used traditional legal research methods to examine libel cases decided between 1964 and late 1999 in which the only allegedly defamatory material was a headline. The research attempted to locate all relevant reported federal and state cases since New York Times v. Sullivan . Cases were located in these sources: Media Law Reporter,[40]West Decennial Digests:,[41] the Lexis electronic database, and the literature reviewed.[42]
Findings
The research located more than 150 cases in which both a headline and some aspect of the story were alleged to be libelous. [43] In twenty-four of those cases, an allegedly libelous headline accompanied a story that was substantially accurate, clearly non-defamatory, considered by the courts to be non-defamatory, or not cited by the plaintiff as causes for action. It is this latter group of cases with which this paper is concerned.[44]
Most popular approach: Considering headlines as parts of a whole
The research demonstrated that although the U.S. 9th Circuit Court of Appeals' ruling in Kaelin v. Globe Communications was not without precedent, it marked a sharp departure from previous practice. In 21 of the 24 cases analyzed, courts considered the headlines in light of the stories that accompanied them. In 18 of those 21 cases, courts ruled in favor of the media defendant(s). However, the exact approaches used varied as courts modified their analyses to fit the facts of the cases.
Using the unit approach
In 15 of the 21 cases in which allegedly libelous headlines and accurate stories were considered together, courts took a "unit approach," reading the headline as just one part of a package that also included all the words in the story. These 15 cases, all but one of which produced a ruling in favor of the media defendant, can be divided into five groups:
- In three cases, courts determined that substantially accurate stories overcame the effects of headlines that portrayed apparently innocent plaintiffs as certainly or possibly involved in crimes or breaches of ethics.
- In six cases, courts ruled that accurate stories overcame the effects of headlines that portrayed plaintiffs who were facing some legal difficulty as being in worse trouble than they really were.
- In three cases, courts read the headlines in context of the accompanying stories and ruled that the headlines were protected opinion
- In two cases, courts read the headlines in context of the accompanying stories and found the headlines to be innocent constructions incapable of defamation.
- In one case, a court read a headline in light of the non-defamatory story and found the headline tainted the story.
In the earliest of the cases in the first category, Bray v. Providence Journal Company (decided June 14, 1966),[45] a teacher and teacher's alliance representative charged that he was falsely portrayed as guilty of perjury by the headline "Testimony Challenged, Alliance Head 'Lied,' Dr. Savoie Declares." The headline appeared in the Providence Journal, above a story about a Pawtucket, R.I., school committee's discussion of plans to consolidated two public high schools.[46] During that discussion, the chairman of the school committee, Dr. Savoie, mentioned an earlier state school board hearing, at which the plaintiff, high school math teacher and Pawtucket Teachers Alliance president William C. Bray, spoke against consolidation. According to the lawsuit, Savoie made "certain remarks questioning the veracity of the plaintiff and the accuracy of certain statements" Bray made at the earlier hearing.[47] It is not clear whether those claims were repeated in the story.[48] It is clear, however, that Bray was chiefly concerned about the headline. He charged, in part, that its use of the word "testimony" to characterize remarks he made at the hearing left the impression that that he had lied under oath. In fact, the state school board hearing did not take sworn testimony. The Rhode Island Supreme Court looked past this inaccuracy and ruled that the article "when read in its entirety, is not reasonably capable of conveying to the ordinary mind the defamatory meaning alleged."
The illegal activity in question was more serious in Molin v. Trentonian. Steven F. Molin filed that lawsuit after the daily newspaper in New Jersey's capital city printed a story about his 1993 arrest on a stalking charge.[49] The article, which was based on facts obtained from a police report, accurately related that Molin had merely been charged with, not convicted of, stalking.[50] However, the accompanying headline, "Stalker's Arrest Ends Year of Terror," labeled Molin a stalker. After the stalking charge was reduced to harassment and that charge was dismissed, Molin sued the newspaper, two writers, and an assistant editor, charging that he had been libeled. Although Molin correctly pointed out that he had "never, at any time, been found guilty of the crime of stalking,"[51] a trial court issued a summary judgment for the press defendants. When Molin appealed, a New Jersey Appellate Division court upheld the summary judgment because the article identified Molin as "the alleged stalker" and a cutline accompanying his photograph consisted of the word "charged" and his name.[52]
In similar fashion, the Hawaii Supreme Court ruled in Fernandes v. Tenbruggencate (1982)[53] that the headline "Brother Helps in Kauai Zoning Request" was not actionable. Although on its own the headline might have given the impression that the plaintiff city councilman used family influence improperly, the court said the headline was "cleansed" by a story the court ruled was substantially correct and not defamatory.[54] That article revealed that the plaintiff had actually tried to avoid a conflict of interest by asking the county board of ethics beforehand whether it was proper for him to vote on his brother's rezoning request.
In six cases, courts applying the unit rule found that accurate, non-defamatory articles about plaintiffs who faced some legal difficulties mitigated headlines that suggested they were in worse trouble. In Reed v. Albanese (1966),[55] the court found that Chicago's North Loop News had "fairly, substantially and accurately" reported in a story that Nathaniel J. Reed Jr., the registered agent of a building corporation, had been ordered by a Chicago municipal court to pay $2,400 in code violation fines or face jail. However, the headline on that story, "Reed Jailed for Housing Violations," inaccurately reported that he already was in jail and thus implied that he had not paid the finds. Reed, an attorney, sued for libel, but the Appellate Court of Illinois considered the headline and story together and found that as a whole they were not libelous.
The South Carolina Supreme Court drew a similar conclusion in Ross v. Columbia Newspapers (1976).[56] It found that the headline "Man Questioned in Wife's Death Released From Jail" was not actionable even though the woman in question, the victim of a shooting, was alive and recuperating in a hospital. In Graham v. New York News (1977),[57] The New York Supreme Court for New York County ruled that although the headlines "Cops Goof, Free Slay Suspect" and "Cops Grab and Lose Figure in 2 Rubouts," might "imply that plaintiff knowingly caused the release of a murder suspect, such meaning cannot be gleaned from the article as a whole."[58] The court dismissed the case. In Swanton v. Ute City Tea Party Ltd. (1994),[59] the Colorado District Court of Pitkin County conceded that the Aspen Daily News headline "Bar Closes for 30 Days, Owners Admit Drug Sales" could, if read alone, suggest that the owners of an Aspen bar sold illegal drugs or knew of past illegal drug sales as they were taking place. However, taking the headline in the context of the story, the court said, "there is no room to conclude that the gist of the article is that the owners were admitting they knew the sales were taking place. The most consistent conclusion is that they admitted the sales occurred, but denied knowledge of them."[60]
In two cases involving plaintiffs portrayed as being in worse legal trouble than they were, courts used the unit approach to determine that accurate stories took the sting out of headlines that used the word "theft" to describe actions that were not, strictly speaking, thefts. Maryland State Police Officer Dennis Seymour sued four newspapers that he maintained accused him in headlines of theft, a criminal charge, when he actually faced only administrative charges of conversion and misappropriation of state property, use of official position for financial gain, and securing secondary employment without approval. Taking the unit approach inSeymour v. A.S. Abell Company (1983),[61] the U.S. District Court for Maryland ruled that because all the articles "expressly said" that the investigation was a internal police probe, not a criminal investigation, and noted that the charges were administrative, not criminal, no jury issue was present. It granted summary judgment for the media defendants. Similarly, in Reiter v. Manna (1994),[62] the Pennsylvania Superior Court found that the erroneous use of "theft" in a headline about the unauthorized moving of campaign signs did not constitute, in light of the accuracy of the accompanying article, evidence of actual malice on the part of the New Castle News. That newspaper had published a headline that read "Judge: Sign Theft is a Civil Complaint" atop a story that accurately explained that no criminal charges had been filed.[63]
In three cases, courts relying on the unit approach found that headlines were protected statements of opinion. The three rulings were made during a 13-month period in 1987 and 1988. Two originated in the same court, the U.S. District Court for Rhode Island, and two involved the "Hard Times" section of Penthouse magazine.
The first of these unusual rulings was made in McCabe v. Rattiner (1987).[64] Thomas McCabe, the owner of a timeshare development, sued for libel after Daniel Rattiner published in the Block Island Times a story about his experiences listening to time-share pitches. It was not the article or the main headline, "Selling Timesharing on the Street," to which McCabe objected. Instead, he contended he had been libeled by the jump headline, the single word "Scam," that was placed atop the portion of the story continued on a later page. Rattiner testified that although the word was inserted by mistake by his assistant, it did, in fact, represent his opinion of the time share enterprise. The U.S. District Court for Rhode Island ruled that the jump headline represented protected opinion. When Rattiner appealed, the U.S. Court of Appeals for the 1st Circuit examined the jump headline "in the context of Rattiner's article,"[65] which, the court pointed out, was written "in first person narrative style [which] . . . puts the reader on notice that the author is giving his views."[66] The court agreed the jump headline was opinion and found it not actionable.
McCabe was cited as precedent in two 1998 cases involving the "Hard Times" feature in Penthouse magazine. In the first case, Fudge v. Penthouse (1988),[67] the 1st Circuit ruled that the headline "Little Amazons Attack Boys" did not defame the schoolgirls to which it referred, pupils at a Rhode Island school where fights between boys and girls had broken out during recess. The court considered the headline in context of the story, which appeared above an accurate story, to be opinion.
We think that Penthouse's "Hard Times" column, in which the article about the girls appeared, is an example of a well-recognized genre: articles or fragments gleaned from the nation's press, appearing under satirical headlines penned by a magazine's editors and followed by the editor's wry comments. . . . This genre is by now common enough, across a broad spectrum of publications, that the average reader understand that the headline is the editors' ironic comment upon, rather than a literal representation of, what appears in the story reprinted from another source. Here, the editors' use of the genre, and their closing comment that "in the battle of the sexes, we'd certainly score this one for the girls," clearly signaled that reader that the headline . . . was satirical opinion rather than fact.[68]
In Grimsley v. Guccione (1988),[69] the U.S. District Court for the Middle District of Alabama cited Fudge and found the Penthouse headline "Birth of a Hemorrhoid" non-actionable. As in Fudge, the headline - about the birth of a son to a woman whose doctors told her she was suffering from hemorrhoid problems - appeared with wry commentary. "There is no question," the court wrote, "that the headline was merely an ironic comment upon that which appears I the text of the story."[70]
In two cases, Shapiro v. Newsday (1980)[71] and Jefferson v. Winnebago County, Illinois (1995),[72] courts found that allegedly libelous headlines were, when viewed in the context of the story, incapable of imputing wrongdoing to the plaintiff and thus not actionable. In Shapiro, the owner of a business in the Jackson Heights section of Queens charged that he was libeled when Newsday ran a photograph of his business' sign under the headline "Jackson Heights: Cocaine Captial" The New York Supreme Court for Queens County found there was no way the headline, which referred to the neighborhood, could be considered "of and concerning" the plaintiff or libelous in nature. InJefferson v. Winnebago County, Illinois, the plaintiff, probation officer Giles Jefferson, said he was defamed by publication of an article about his criticisms of law enforcement on a talk radio show under the label "crime." The U.S. District Court for the Northern District of Illinois applied the state's common law "innocent construction" rule[73] and found that the heading was not actionable. The court wrote, "While the report has a subheading "CRIME," nothing in the body of the article suggests that the plaintiff had engaged in criminal conduct."
In only one of the cases where courts could be considered to have used a simple unit approach did the ruling favor the plaintiff. That case, Buratt v. Capital City Press,[74] arose from the publication of an article about gifts to public officials in which the owner of a road maintenance firm said he had been asked to work on roads in an Ascenion Parish, Louisiana, subdivision owned by the plaintiff, a parish manager. Buratt did not find the article, which contained his denial that he had ever developed property in the area, to be defamatory. He believed, however, that a defamatory impression was created when the article was read with the headline "Records Reveal Gifts to Police Jury Members," prefaced by the words "Gestures of Friendship in Ascension." The Louisiana Court of Appeal agreed and remanded the case for trial.
A "fair index" of the story
In six of the 21 cases in which headlines and stories were considered together, courts applied the "fair index" rule. The rule works like this: Courts look at the headline and the story. If the headline is considered to be a fair summary of the story, it is considered not to be actionable. If the headline is not a fair summary of the story, "then the headline must be examined independently to determine whether it is actionable under general principles of libel."[75] This rule proved less favorable to media defendants than the unit approach: Courts using the approach ruled for the press in only two-thirds of the cases.
Three of the fair index cases won by media defendants were heard in the New York Supreme Court Appellate Division. Applying the rule in Gunduz v. The New York Post Inc. (1992),[76] the court found that the headline "Public Enemy No. 1," which appeared with a subhead "City moves to yank license of Apple's 'worst taxi driver,'" was not actionable. Because the accompanying truthful story explained that the driver involved had received more summonses than any other in New York City, the headline was considered a fair index of the story. Similarly, in Seldon v. Shanken (1988),[77] a critical headline that appeared in one wine magazine over a story about the editorial practices of another was ruled not actionable. In that case, the headline "Editorial Space for Sale in Vintage" was determined to be a fair index of a Wine Spectator article that reported its competitor's widely publicized plan to offer "in depth editorial coverage" to wineries that purchased advertising. The fair index rule was also used by the court in Von Gerichten v. Long Island Advance (1994)[78] to reverse a lower court order that had denied summary judgment to a newspaper that covered an altercation and arrest after an automobile accident.
Landmark use of the fair index rule was made in 1999 by the Indiana Supreme Court, which adopting the rule in its opinion on a long, drawn-out libel case, Bandido's Inc. v. Journal Gazette Co.[79] That case began more than 10 years earlier, after a Fort Wayne Journal Gazette copy editor editing a story about the closing of a Mexican restaurant wrote the headline "Health Board Shuts Doors of Bandido's," which appeared with a subheadline "Investigators find rats, bugs at north-side eatery." The problem with the headline - as the newspaper explained a day later in a follow-up story - was that investigators had found only "evidence of rodents," not the presence of rats. Bandido's sued. A trial court jury awarded the owner $985,000, but that ruling was over turned by the Indiana Court of Appeals, and the restaurant owner appealed to the Indiana Supreme Court. In a lengthy opinion, a divided Indiana Supreme Court announced that it would adopt the fair index rule:
We agree with the minority of jurisdictions that follow the "fair index" rule _ and adopt this approach when deciding whether a headline is defamatory. We believe this to be the best approach because in many respects, a defamatory headline may be much more injurious to a party than a defamatory article where the false statements may be buried in the story and go unnoticed by the average reader. This is especially true when an individual reads only the headline and not the story. In Indiana, a defamatory headline will be actionable even if the story following it is accurate, unless the headline is a fair index of the accurate article.[80]
Applying its new rule, the Indiana Supreme Court found that substitution of the word "rats" for "rodent droppings" did not constitute actual malice and ruled 5-3 for the newspaper. [81]
Media defendants do not, however, always win headline libel lawsuits in which the fair index rule is applied. In Burgess v. Reformer (1986),[82] the Vermont Supreme Court, using the fair index rule, reversed a trial court decision for summary judgment in connection with a Brattleboro Reformer headline the court found "at the very least . . . ambiguous." The headline, which was printed above a story about the investigation of alleged embezzlement by the former president of Mark Hopkins College, read "Grand Jury Probes Embezzlement: Burgess Denies Getting Funds." Burgess, the college's former treasurer and, at the time of the suit, the Brattleboro town agent, alleged that the headline made it look as though his conduct was being investigated.
In Schermerhorn v. Rosenberg (1980),[83] a case often cited by New York courts, the New York Supreme Court Appellate Division affirmed that the headline "Schermerhorn says NDDC Can Do Without Blacks" was not a fair index of remarks by a New York state senator about the composition of the Newburgh Development District Corporation. The court ruled that plaintiff Richard E. Schermerhorn, who said he had merely expressed his wish that the most qualified people available get seats on the NDDC, was libeled by the Middletown Times Herald Record and reporter Ron Rosenberg.
Considering headlines separately
In three of the 24 cases studied, including Kaelin v. Globe Communications Corp ., courts considered headlines to be actionable on their own. In each case, headlines implied that the libel plaintiffs had committed an act that was far worse than what they had actually done. In each case, the court ruling favored the plaintiff.
Forrest v. Lynch (1977) was the result of a lawsuit against The New Orleans States-Item by engineer Joel I. Forrest, who had been hired by a New Orleans architectural firm to prepare design plans and specifications for the Louisiana State School of the Deaf in Baton Rouge. The newspaper accurately reported in an article that state officials liked his plans, but wrote to Forrest in 1973 saying that they were concerned that "the nature of these specifications seem somewhat proprietary to certain manufacturers."[84] The headline, however, made Forest's behavior appear much worse. It read: "Bid Specs Reported 'Rigged.'"[85] After a non-jury trial in 1976, a state district court judge found the headline false and defamatory and ordered the newspaper to pay Forrest $10,000 in damages.[86]
On appeal, the States-Item argued that the headline and story must be viewed as a whole in determining whether any libel has been committed and claimed that in such context the headline could be understood to essentially repeat what had been said in state officials' letter to Forrest. To accept that argument, the Louisiana Court of Appeal ruled, one would have to believe that "the word 'rigged' was used as a synonym of or a paraphrase of 'proprietary' or 'closed' specifications."[87] The court could not accept that reasoning and affirmed the lower court judge's verdict.
In Whitten v. Commercial Dispatch (1986)[88], an unusual case involving a headline about the transport of cattle across state lines, the Mississippi Supreme Court said it would consider the headline and story together, then did just the opposite. The Commercial Dispatch of Lowndes County, Mississippi, accurately reported that three men had pleaded guilty federal misdemeanor charges of transporting cattle from Alabama to Mississippi, without having the animals tested for brucellosis, a bacterial disease. The headline, however, read "Three Plead Guilty in Cattle Thefts." The men sued the newspaper, claiming they had been libeled. The trial court dismissed the complaint, and the men appealed to the Mississippi Supreme Court. The high court stated "[w]e reject the defendant's argument that the headline and article must be considered separately because we think no ordinary reader would logically separate the headline from the text."[89] Nevertheless, the court appears to have considered only the headline when it ruled that "it is possible that an ordinary reader would entertain doubts as to the nature and extent of the plaintiff's criminal involvement because of the erroneous headline."[90] It remanded the case for trial.
Back to Kaelin
In Kaelin v. Globe, the U.S. Court of Appeals for the 9th Circuit based its ruling, in part, on two previous 9th Circuit opinions. One predated Sullivan ; the other, much more recent, involved a supermarket tabloid.
The older case, Empire Printing Co. v. Roden,[91] resulted from a story about ferry financing published in the Alaska Daily Empire in 1952. The territorial government of Alaska purchased the Chilkoot Ferry, which linked the city of Juneau to the highways of Alaska and the United States, in 1951 after its private owners decided not to continue operating it. For one season, ferry expenses were paid out of the territory's road and harbor appropriations, and ferry revenues were placed into the territory's general fund. That depleted the road and harbor appropriations too quickly, so the next year, a plan was devised to place ferry revenues into an earmarked Chilkoot Ferry account, from which expenses also would be paid.[92]
In writing about the new account, the Daily Empire implied that Territorial Gov. Ernest Gruening, Territorial Treasurer Henry Roden, and Territorial Highway Engineer Frank A. Metcalf were guilty of wrongdoing. One headline read: "Gruening, Metcalf, Roden Divert 'Chilkoot' Cash to Private Bank Account." The accompanying story likened the situation to the case of a former territorial treasurer "now serving a prison term . . . for violating the law in the receipt and disbursement of public funds."[93] The officials sued. A jury awarded each $1 in compensatory damages and $5,000 in punitive damages.
On appeal, the 9th Circuit affirmed the judgments. It noted that "[w]hat a newspaper article actually says or carries to its readers must be judged by the publication as a whole."[94] Then, citing a 1912 Michgan Supreme Court opinion,[95] it produced the statement that other 9th Circuit judges cited in Kaelin v. Globe: "The headlines alone may be enough to make libelous per se an otherwise innocuous article."
The Kaelin court also cited its own 1997 ruling in Eastwood v. National Enquirer, Inc.[96] Actor Clint Eastwood sued the tabloid after it published a 1993 article, purported in two headines to be the result of an "Exclusive Interview,"[97] about the actor's new baby and his relationship with actress Frances Fisher. Eastwood said he never spoke with the writer whose byline appeared on the story or with a different writer from whose published work the Enquirer eventually said it adapted the story. The 9th Circuit upheld a U.S. District Court ruling for Eastwood, noting in its opinion the unique way in which supermarket tabloids are often read: "[T]he editors falsely suggested to the ordinary reader of their publication - as well as those who merely glance at the headlines while waiting at the supermarket checkout counter - that Eastwood had willingly chatted with someone from the Enquirer."[98]
In Kaelin, the 9th Circuit made a similar assertion about the layout of supermarket tabloids and the way they usually are displayed that suggests the court wishes to see them as a group of publications for which the normal rules of headline libel do not apply. The court noted that Globe attorneys had argued that the story would clear up any confusion about the meaning of the front-page headline:
The Kaelin story was located 17 pages away from the cover. In this respect, the National Examiner front page headline is unlike a conventional headline that immediately precedes a newspaper story, and nowhere does the cover headline reference the internal page where readers could locate the article. A reasonable juror could conclude that the Kaelin article was too far removed from the cover headlin to have the salutary effect that Globe claims.[99]
Conclusion
In the overwhelming majority of the cases examined (21 of 24, or 87.5 percent), courts read headlines and stories together. In all but three of the cases in which headlines and stories were considered together (18 of 21, or 85.7 percent), courts ruled in favor of the media defendant. The only cases besides Kaelin v. Globe in which headlines were ruled to be actionable on their own were decided in 1977 and 1986. That indicates that the 9th Circuit's ruling in Kaelin v. Globe Communications is not part of an ongoing trend. However, several important observations can be gleaned from the research findings.
First, although most courts take a "unit rule" approach to allegedly defamatory headlines atop accurate stories, use of the more restrictive "fair index rule" has spread, which is moderately bad news for media defendants. The unit rule is highly favorable to media defendants because it allows legal leeway for mistakes in headlines made by copy editors working under the dual pressures of meeting deadlines and accurately summarizing stories in a small number of words. When courts take a unit approach, a clearly false and defamatory headline can be determined to be non-actionable because the attached story is accurate. In contrast, the fair index rule sets a higher bar for media defendants. It requires that the headline be a fair summary of an accurate story to be found non-actionable.
As the cases examined here indicate, use of the "fair index" rule has spread beyond the rule's jurisdiction of origin, New York. Not only has it been used in Burgess v. Reformer, a Vermont case, and several Michigan cases, [100] it also was formally adopted in 1999 by the Indiana Supreme Court. Adoption of the fair index rule in Indiana is particularly significant because even private person plaintiffs in that state must prove actual malice if the alleged defamation involves a matter of public or general concern.[101] Although the fair index rule affords some protection for misleading headlines, it should make it easier for such Indiana plaintiffs to meet the state's heightened standard of fault.
Second, although the research indicates that there is no way to determine which courts will consider headlines to be libelous on their own, California courts and the U.S. Court of Appeals for the 9th Circuit bear watching. As the 9th Circuit noted in Kaelin v. Globe, California courts have not yet issued an opinion on whether a headline alone can be the basis of a libel lawsuit. The U.S. 9th Circuit, on the other hand, has indicated in its Kaelin and Eastwood rulings that it takes seriously the defamatory potential of eye-grabbing headlines on the covers of supermarket tabloids. Given that the 9th Circuit takes appeals from California courts, in which celebrities often file their libel suits against supermarket tabloids, the appeals court is likely to have other chances to rule on headline libel.
Third, the research shows that stories that traditionally have posed a libel risk for media defendants - those involving allegations of criminal or unethical activity, especially by public officials or law enforcement officers - also pose a risk of headline libel. Nineteen of the 24 cases examined here involved allegations or implications of criminal or unethical behavior by people who appear to have been innocent or in considerably less trouble. This finding has implications for how copy editors should work, particularly when editing stories about criminal or unethical activity. Rather than editing the story, writing the headline, then immediately moving on to the next task, copy editors should pause - if only for a few seconds - to compare the charges and level of fault in the headlines with those cited in the story.
Bibliography
Abbasi, Kamran. "Headlines: More Perilous than Pills?" British Medical Journal 316,
no. 7124 (January 3, 1998): 82.
Auman, Ann, and Betsy B. Alderman. "How Editors and Educators See Skills Needed for Editing." Newspaper Research Journal 17, no. 1-2 (winter/spring 1996): 2-13.
"Behind the Headlines." The Economist, 7 February 1998, 86. Vol. 346, no. 8054
Blood, Deborah J. and Peter C. B. Phillips. "Recession Headline News, Consumer Sentiment, the State of the Economy and Presidential Popularity: A Time Series Analysis 1989-1993." International Journal of Public Opinion Research 7, no. 1 (spring 1995): 2-22.
Burgoon, Judee K. and Michael Burgoon. "The Functions of the Daily Newspaper." Newspaper Research Journal 2, no. 4 (July 1981): 29-39.
Cooper, Brian. "Keep the Reader With Interesting Perspective." The American Editor 780 (November 1996): 25.
___________. "When Toys Become News, Heads Become Fun." The American Editor 783 (March-May 1997): 24.
Deary, Ian J., Martha C. Whiteman, and F.G.R. Fowkes. "Medical Research and the Popular Media." The Lancet 351 no. 9117 (June 6, 1998): 1726-1727.
Emig, Elmer. "The Connotation of Newspaper Headlines." Journalism Quarterly 4 (January 1928): 53.
English, Earl. "A Study of the Readability of Four Newspaper Headline Types," Journalism Quarterly 21: 217-219.
Fee, Frank. "Getting the Big Type Right: How Libel Courts Read the Power of Headlines." Unpublished paper presented at the Association for Education in Journalism and Mass Communications Southeast Colloquium, Roanoke, Va., March 14-16, 1996.
Fenichel, Michael, and Peter Dan. "Heads from Post and Times on Three-Mile Island." Journalism Quarterly 57 (Summer 1980): 338-339, 368.
Fry, Don. "You Can Lead Readers to a Story, But It's the Writing that Makes Them Drink It in." ASNE Bulletin (May 1993): 10-12.
Garrison, Bruce. "The Electronic Gatekeeper: Editing on the Copy Desk of a Metropolitan Newspaper." Newspaper Research Journal 1, no. 3 (May 1980):
7-17.
Geer, John G., and Kim Fridkin Kahn. "Grabbing Attention: An Experimental Investigation of Headlines During Campaigns." Political Communication 10 (1993): 184.
Goldsmith, Adolph O. "Comprehensibility of Initials in Headlines." Journalism Quarterly 34 (spring 1958): 212-215.
Griggs, Harry H. and Nick Carter. "Why Reporting Errors?" The Florida Press. Reprinted as "Causes of Story, Headline Errors," in New Research for Better Newspapers 3, Chilton R. Rush, ed. (1968): 79-80.
Harrigan, Jane T. The Editorial Eye, (New York: St. Martin's Press, 1993).
Hartnick, Alan J. "Dealing With Libelous Headlines." New York Law Journal, 5 April 1988.
Hilliard, Jerry and Randall W. Hines. "Opinions of Journalists on Headline Traditions." Newspaper Research Journal 15, no. 4 (fall 1994): 2-12.
Hines, Randall W. and Jerry Hilliard. "A Study of Tennessee Newspapers' Use of Traditional Headline 'Rules,'" Journalism & Mass Communications Quarterly 72, no. 3 (autumn 1995): 698-705.
Knoth, Richard M. "Big Trouble in Bold Letters: 9th Circuit Decision Says Headlines, Taken Alone, Can Be Libelous." Fulton County Daily Report, 15 March 1999.
Laurance, Jeremy. "This is What the Game is All About." The Lancet 351, no. 9117: 1727-1728.
"Lets Libel Judgment Stand for Misleading Head on True Story." News Media and the Law 3, no. 1 (January 1979): 12.
Leventhal, Gloria, and Susan J. Gray. "Can Innuendos in Headlines Affect Perceptions?"
Psychological Reports 69 (1991): 801-802.
Lundlow, Lynn. "Headlines: The Unappreciated Art." ETC: A Review of General Semantics 45 no. 3 (fall 1988): 236-245.
Mazier, E. E. "Allegedly Defamatory Headline Must Be Read with its Article." New Jersey Lawyer, 10 February 1997, 22.
McLean, Deckle. "Libel Consequences of Headlines." Journalism Quarterly 66 no. 4 (winter 1989): 924.
McNulty, Henry. "Keep Headlines Straight Ahead." Editor & Publisher, 15 August, 1992, 5-6. Vol. 125 No. 33
Middleton, Kent R., Bill Chamberlain, and Matthew D. Bunker. The Law of Public Communication 4th ed. (City: Publisher, 1997).
Morley, John. Truth to Tell: Form and Function in Newspaper Headlines. (Bologna: Cooperativa Libraria Universitaria Editrice Bologna, 1999).
Neff, Craig, and Robert Sullivan. "Metaphorical Overkill: NFC Championship Game Called a War in NY Post Headlines," Sports Illustrated, 19 January 1987, 12
Pasternak, Steve. "Headlines and Libel: Is the 'Unit' Approach the Most Effective?" Newspaper Research Journal 8 no. 2 (winter 1987) 33.
Bruce W. Sanford. Libel and Privacy: The Prevention and Defense of Litigation (New York, Washington, D.C.: Law & Business, Inc./Harcourt Brace Jovanovich, 1985.
Seligman, Daniel. "Unamazing!" Fortune, 6 September 1993, 127.
______________. "It Must Be August." Fortune, 22 August 1994, 213.
______________. "It Must Be August," Fortune, 21 August 1995, 120.
Smith, Edward J. "Leadlines May be Better than Traditional Headlines." Newspaper Research Journal 20 (winter 1999): 55-64.
Smith, Edward J. and Gilbert L. Fowler Jr. "How Comprehensible Are Newspaper Headlines?" Journalism Quarterly 59 (1982): 305-308.
Soloski, John. "The Study and the Libel Plaintiff: Who Sues for Libel?" Iowa Law Review 71 (October 1985): 217-220.
Staake, Bob. "The Man Who Writes Those Headlines." Editor & Publisher 24 May 1986, 14-15. Vol. 119
Stamm, Keith R., and M.-Daniel Jacoubovitch. "How Much Do They Read in the Daily Newspaper: A Measurement Study." Journalism Quarterly 57, no. 2 (summer 1980): 238.
Tannenbaum, Percy H. "The Effect of Headlines on the Interpretation of News Stories." Journalism Quarterly 30 (1953): 189-197.
[1] See attachments, Kaelin v. Globe Communications Corp., 162 F.3d. 1044-1045 (9th Cir. 1998).
[2] Id., at 1039.
[3] The level of fault public figures must prove to prevail in libel lawsuits as a result of New York Times v. Sullivan , 376 U.S. 254 (1964), and its progeny.
[4] The 9th Circuit noted that "Kaelin complains about the first sentence of the article" (Kaelin, at 1039), which read, "Kato Kaelin is still a suspect in the murder of Nicole Brown Simpson and Ron Goldman, his friends fear." Id., at 1045. The court asserted, however, "[W]e assume for the purposes of this appeal that the text of the story is not defamatory. This case is about the headlines, especially the one appearing on the cover" (Id. at 1039).
[5] One of those editors, National Examiner news editor John Garton, said of the main headline in a deposition, "Journalistically I didn't think it was the best headline in the world."Id., at 1038.
[6] 'Kato' Kaelin Settles Libel Suit with Tabloid, L.A. Times, Oct. 9, 1999, at B4.
[7] McLean, supra note 38, at 924.
[8]
Bruce W. Sanford, Libel and Privacy: The Prevention and Defense of Litigation 46-47 (1985).
[9]
Brian C. Murchison, John Soloski, Randall P. Bezanson, Gilbert Cranberg & Roselle L. Wissler, Sullivan's Paradox: The Emergence of Judicial Standards of Journalism, 73 N.C. L. Rev. 112 (1994).
[10]
Richard M. Knoth, Big Trouble in Bold Letters: 9th Circuit Decision Says Headlines, Taken Alone, Can Be Libelous. Fulton Co. Daily Rep., 15 March 1999.
[11]
Id.
[12] Ann Auman & Betsy B. Alderman, How Editors and Educators See Skills Needed for Editing, Newspaper Res. J., Winter/Spring 1996, at 2. The study found that both top newspaper editors and journalism school editing instructors ranked headline and cutline writing among the four most important of eight skills taught in editing classes.
[13] "The prize is normally given to The Weekley News, in that it was the first officially licensed newspamphlet with a date and number. . . . Issue Number One was published on 23 May 1622." John Morley, Truth to Tell: Form and Function in Newspaper Headlines 1 (1999).
[14] Morley's book reproduces the front page of a 1643 British newspaper that bears these words in large type: "Merurius Civicus Londons [sic] Intelligender or, Truth impartially related from thence to the whole Kingdome [sic], to prevent mis-information." Id., 1-2.
[15] Edward J. Smith, Leadlines May be Better than Traditional Headlines, Newspaper Res. J., Winter 1999, at 55.
[16] Headlines are so often assumed to accurately summarize stories that they are used by researchers as a method of measuring news content. See Deborah J. Blood and Peter C.B. Phillips, Recession Headline News, Consumer Sentiment, the State of the Economy and Presidential Popularity: A Time Series Analysis 1989-1993, 7 Int'l J. of Opinion Res. 2 (1995).
[17] Id.
[18] Smith, supra note 15, at 57.
[19] Id.
[20] Earl English, A Study of the Readability of Four Newspaper Headline Types, 21 Journalism Q. 217 (1945).
[21] Bob Staake, The Man Who Writes Those Headlines, Editor & Publisher, May 24, 1986, at 14.
[22]
Elmer Emig, The Connotation of Newspaper Headlines, 4 Journalism Q. 53 (1928).
[23] Keith R. Stamm & M.-Daniel Jacoubovitch, How Much Do They Read in the Daily Newspaper: A Measurement Study, 57 Journalism Q. 238 (1980).
[24] The markets were Salinas and Stockton, Calif.; Binghampton and Niagra Falls, N.Y.; and Rockford, Ill. Judee K. Burgoon & Michael Burgoon, The Functions of the Daily Newspaper, 2 Newspaper Res. J., July 1981,
at 29.
[25] Edward J. Smith & Gilbert L. Fowler Jr., How Comprehensible Are Newspaper Headlines? 59 Journalism Q. 305 (1982).
[26] Id. at 306. Being read a headline over the phone obviously is not the same experience as reading a headline to oneself. Smith and Fowler note, however, that subjects were read the headlines "slowly and clearly."
[27] Gloria Leventhal and Susan J. Gray, Can Innuendos in Headlines Affect Perceptions? 69 Psychol. Rep. 801 (1991). Sixty-seven male and 81 female undergraduate students were given three simulated news stories, each of which concerned a different crime. Each student received a headline for each story that was designed to be favorable to the aggressor, unfavorable or neutral. No correlation was found between subjects' opinions of the parties involved and which headline they received.
[28]
Percy H. Tannenbaum, The Effect of Headlines on the Interpretation of News Stories, 30 Journalism Q., 1953, at 189. Tannenbaum found a less significant effect when students read stories about an education council's consideration of revisions to university academic calendars. This should not surprising to present-day readers of the academic calendar story Tannenbaum used. It addresses a complex issue - whether a trimester, quarter, or semester calendar is best - in only seven paragraphs, and at least one of the quotes supplied in support of a position is vague.
[29] Steve Pasternak, Headlines and Libel: Is the 'Unit' Approach the Most Effective? Newspaper Res. J., Winter 1987, at 33. Ten of the students received a defamatory article topped by a defamatory headline; 10 received a defamatory story topped by a non-defamatory headline; 10 received a non-defamatory article with a defamatory headline; and 10 received a non-defamatory article and headline.
[30] Id. Students were asked to rate the likelihood that the protaganist was a thief on a scale of 1 to 10, with 10 being very likely. Students who received a defamatory headline atop an accurate story had a mean score of 6.4. Those who received a defamatory headline atop a defamatory story had a mean score of 7.1
[31] John G. Geer & Kim Fridkin Kahn, Grabbing Attention: An Experimental Investigation of Headlines During Campaigns, 10 Pol. Comm. 184 (1993). Students who read a headline about the candidate's anti-drug stand were more likely to say that was the main point of the story than were students who read headlines about his experience or his reduced lead in the polls. There was a similar correlation between the poll headline and students' perceptions that the main point of the story was the horse race, though no such correlation was found for the headline focusing on the candidate's experience.
[32] Id. 185.
[33] Steve Pasternak, Headlines and Libel: Is the 'Unit' Approach the Most Effective? Newspaper Res. J., Winter 1987, at 33.
[34] Deckle McLean, Libel Consequences of Headlines, 66 Journalism Q. 927 (1989).
[35] 32 N.Y. App. Div. at 590. "Defamatory head lines [sic] are actionable though the matter following is not, unless they fairly indicate the substance of the matter to which they refer . . . unless they are a fair index of the matter contained in a truthful report."
[36] Although the unit rule and the fair use rule both call for the headline and story to initially be read together, what each rule does something different with that reading. The unit approach generally allows the large plus of an accurate story to offset the smaller minus of an errant headline. The more conservative fair index rule uses a more subtle comparison. It allows for some differences in interpretation between story and headline but stresses the need to find common ground to avoid liability.
[37] McLean, supra note 39, at 924-925.
[38] Frank Fee, Getting the Big Type Right: How Libel Courts Read the Power of Headlines (unpublished paper presented at the Association for Education in Journalism and Mass Communications Southeast Colloquium, Roanoke, Va., March 14-16, 1996).
[39] Pasternack at 38. For comparison, nine of the 10 students who received defamatory articles topped by defamatory headlines said they thought the subject of the story was guilty.
[40] All cases discussed under Libel and Slander subsection 11.0507 "Defamation - Defamatory content - Headlines" were examined.
[41] The Libel and Slander subsection 19, "Construction of Language Used," in the Seventh (1956-1966), Eighth (1966-1976), Ninth Part I (1976-1981), Ninth Part II (1981-1986), Tenth Part I (1986-1991), and Tenth Part II (1991-1996) digests was examined to locate libel cases that mentioned a headline. Cases from the Seventh Decennial Digest that were decided before 1964 were eliminated.
[42] Although an effort was made to locate all cases decided since 1964 in which a headline was the only allegedly defamatory material, inconsistent reporting methods make it almost impossible to say that all cases of any type have been considered in any study.
[43] Such cases included but were not limited to Perugini v. Journal Publishing Co., Inc., 1999 Conn. Super. LEXIS 419 (Conn. Super. Ct. 1999); Medure and Medure v. The New York Times Company, 60 F. Supp. 2d 477; Daniel Goldreyer Ltd. v. Dow Jones & Company, 27 Media L. Rep. 2247 (N.Y. App. Div. 1999); Elder v. Gaffney Ledger Inc., 27 Media L. Rep. (BNA) 1855 (S.C. Ct. App. 1999); Weinstein v. Friedman, 24 Media L. Rtpr. 1769 (S.D.N.Y. Sup. Ct. 1996); Sissler v. Gannett Co., Inc., 516 A.2d 1083; 13 Media L. Rep. (BNA) 1577 (N.J. 1996); Weiser v. Gannett Suburban Newspapers, 25 Media L. Rep. (BNA) 2174 (N.Y. App. Div. 1996); Pope v. The Chronicle Publishing Co., 24 Media L. Rep. (BNA) 2384 (7th Cir. 1996); Knaeble v. Cowles Media Co., 25 Media L. Rep. (BNA) 1860 (Minn. Ct. App. 1997); Gamler v. Akron Beacon Journal , 23 Media L. Rep. (BNA) 1845 (N.D. Ohio 1995); Morningstar Inc. v. Los Angeles Superior Court, 22 Media L. Rtpr. 1513 (Cal. Ct. App. 1994); Patten v. Minneapolis Star Tribune, 21 Media L. Rep. (BNA) 1385 (Minn. D.Ct. 1992); John v. Journal Communications, Inc., 801 F. Supp. 199, 20 Media L. Rep. (BNA) 1425 (E.D.Wis. 1992); Becher v. Troy Publishing Co. Inc., 20 Media L. Rep. (BNA) 2033 (N.Y. App. Div. 1992); Crall v. Gannett, 20 Media L. Rep. (BNA) 1987 (S.D.O. 1992); Locricchio v. Evening News Association, 20 Media L. Rep. (BNA) 1065 (Mich. 1991); Moyer v. Amador Valley Joint Union High School District, 18 Media L. Rep. (BNA) 1602 (Cal. Ct. App. 1990); Lee v. The Columbian, 16 Media L. Rep. (BNA) 1261 (Wash. Super. Ct.); Straitwell v. National Steel Corp., 16 Media L. Rep. (BNA) 1329 (4th Cir. 1989); Haberstroh v. Crain Publications, 545 N.E.2d 295 (Ill. Ct. App. 1989); Stone v. Banner Publishing Corp., 15 Media L. Rep. (BNA) 1698 (D.Vt. 1988); Stevens v. Independent Newspapers Inc., 15 Media L. Rep. (BNA) 1097 (Del. Super. Ct. 1988); Prescott v. Newsday Inc., 14 Media L. Rep. (BNA) 2170 (N.Y. Sup. Ct. 1988); Blake v. Gannett Co. 15. Media L. Rep. (BNA) 1561 (Mich. 1988); Contemporary Mission v. New York Times, 15 Media L. Rep. (BNA) 1180 (2nd Cir 1988); Salerno v. Philadelphia Newspapers Inc., 15 Media L. Rep. (BNA) 2416 (Pa. Super. Ct. 1988); Herron v. Tribune Publishing Co., 14 Media L. Rep. (BNA) 1097 (Wash. 1987); Roux v. Thoroughbred Owners and Breeders Association, 13 Media L. Rep. (BNA) 1943 (N.Y. Sup. Ct. 1987); Dunn v. Gannett New York ,14 Media L. Rep. (BNA)1871 (3rd Cir. 1987); Wecht v. PG Publishing Company, 13 Media L. Rep. (BNA) 1020 (Pa. Super. Ct. 1986); Langston, individually and as trustee of the Three L Trust, et al, v. Eagle Publishing Company 719 S.W.2d 612 (Tex. Ct. App. 1986); Jadwin v. Minneaplis Star, 13 Media L. Rep. (BNA) 1126 (Minn. Ct. App. 1986); Owen v. Carr, 478 N.E.2d 658 (Ill. Ct. App. 1985), aff'd, 497 N.E.2d 1145 (Ill. 1986); Lavin v. New York News, 757 F.2d 1416 1985 (3rd Cir. 1985); Shipley v. Knoxville Journal,11 Media L. Rep. (BNA) 1099 (Tenn. Ct. App. 1984); Bryant v. Associated Press, 11 Media L. Rep. (BNA) 1090 (D.V.I. 1984); Antonelli v. Field Enterprises (Ill. Ct. App. 1983); Hunt v. Liberty Lobby, 10 Media L. Rep. (BNA) 1097 (11th Cir. 1983); Gurda v. Orange County Publications Division of Ottaway Newspapers, Inc., App. Div. 439 N.Y.S.2d 417 (N.Y. App. Div. 1982); Dostert v. Washington Post, 8 Media L. Rep. (BNA) 1170 (N.D.W.Va. 1982); Dannis v. Panax Newspapers, 9 Media L. Rep. (BNA) (Mich. Cir. Ct. 1982); Bellamy v. Arno Press 8 Media L. Rep. (BNA) 1420 (E.D.N.C., 1982); Fredericksen v. New York Post, 8 Media L. Rep. (BNA) 1799 (N.Y. Sup. Ct. 1982); Shutt v. Harte-Hanks, 7 Media L. Rep. (BNA) 2559 (E.D. Mich. 1981); Adreani v. Hansen, 400 N.E.2d 679 (Ill. Ct. App. 1980); Brophy v. Philadelphia Newspapers, 6 Media L. Rep. (BNA) 2419 (Pa. Super. Ct. 1980); Hein v. Lacy 616 P.2d 277 (Kan. 1980); Naked City, Inc., v. Chicago Sun Times, 395 N.E.2d 1042 (Ill. Ct. App. 1979); Dauw v. Field Enterprises, 397 N.E.2d 41 (Ill App. 1st Dist. 1979); DeLuca v. New York News, 4 Media L. Rep. (BNA) 2312 (N.Y. Sup. Ct. 1978); Cochran v. Indianapolis Newspapers, Inc. 372 N.E.2d 1211 (Ind. Ct. App. 1978); Sprouse v. Clay Communication, 1 Media L. Rep. (BNA) 1695 (WVa. Ct. App. 1975); McNair v. The Hearst Corporation 494 F.2d 1309 (9th Cir. 1974); and Jones v. Sun-News, 158 S.E.2d 909 (S.C. 1968).
[44] Bandido's Inc. v. Journal Gazette Co., 27 Media L. Rep. 2089 (Ind. 1999); Kaelin v. Globe Communications Corp., 162 F.3d 1036 (9th Cir. 1998); Molin v. The Trentonian , 687 A.2d 1022 (N.J. Super. Ct. App. Div. 1997); Jefferson v. Winnebago County, Illinois, 23 Media L. Rep. (BNA) 1641 (N.D. Ill. 1995); Reiter v. Manna, 22 Media L. Rep. (BNA) 2568 (Pa. Super. Ct. 1994); Swanton v. Ute City Tea Party Ltd., 22 Media L. Rep. (BNA) 2560 (Colo. Dist. Ct. 1994); Von Gerichten v. Long Island Advance, 609 N.Y.S. 246 (N.Y. App. Div. 1994); Gundez v. The New York Post Co. Inc., 20 Media L. Rep. (BNA) 2071 (N.Y. App. Div. 1992); Grimsley v. Guccione, 16 Media L. Rep. (BNA) 1659 (M.D. Ala.); Seldon v. Shanken, 15 Media L. Rep. (BNA) 1871 (N.Y. App. Div. 1988); McCabe v. Rattiner, 13 Media L. Rep. (BNA) 2309 (1st Cir. 1987); Fudge v. Penthouse International ,14 Media L. Rep. (BNA) 1238 (D. R.I., 1987), 14 Media L. Rep. (BNA) 2353 (1st Cir. 1988); Burgess v. Reformer Publishing, 12 Media L. Rep. (BNA) 1856 (Vt. 1986); Whitten v. Commercial Dispatch , 12 Media L. Rep. (BNA) 2227 (Miss. 1986); Seymour v. A.S. Abell Company, 9 Media. L. Rep. (BNA) 1098 (D. Md. 1983); Fernandes v. Tenbruggencate, 8 Media L. Rep. (BNA) 2577 (Haw. 1982); Burrat v. Capital City Press 7 Med. Law Rep. (BNA) 1695 (Wva. Ct. App. 1975); Shapiro v. Newsday 5 Media L. Rep. (BNA) 2607 (N.Y. Sup. Ct. 1980); Schermerhorn v. Rosenberg, 6 Media L. Rep. (BNA) 1377 (N.Y. App. Div. 1980); Graham v. New York News, 2 Media L. Rep. (BNA) 2356 (N.Y. SUP. CT. 1977); Forrest v. Lynch, 3 Media L. Rep. (BNA) 1187 (La. Ct. App. 1977); Ross v. Columbia Newspapers, 221 S.E.2d 770 (S.C. 1976); Bray v. Providence Journal Co. 220 A.2d 531 (R.I. 1966); and Reed v. Albanese, 223 N.E.2d 419 (Ill. Ct. App. 1966).
[45] 220 A.2d 531 (R.I. 1966).
[46] It appears that the school committee was analogous to other jurisdictions' school boards.
[47] 220 A.2d 533 (R.I. 1966).
[48] The Providence Journal story is not reproduced in the Rhode Island Supreme Court opinion.
[49] Molin v. The Trentonian 687 A.2d 1022 (N.J. Super. Ct. App. Div. 1997), cert. denied704 A.2d 20 (1997), cert. denied, 119 S. Ct. 239 (1998); reh'g denied, 119 S. Ct. 585 (1998).
[50] E.E. Mazier, Allegedly Defamatory Headline Must Be Read with its Article, N.J. Lawyer, Feb. 10, 1997, at 22.
[51] Id. at 22.
[52] Id.
[53] Fernandes v. Tenbruggencate, 8 Media L. Rep. (BNA) 2577 (Haw. 1982).
[54] " Reading the headline and the body of the article as a whole, we believe that the publication is incapable of supporting the defamatory inference that appellant acted unethically," the court wrote. "While the headline may raise questions in the minds of its readers, the article specifically states, '[u]nder the County's ehtics [sic]regulations, a government official acting on something in which his brother has a financial interest is not considered in conflict.'"
Id. at 2580.
[55] Reed v. Albanese 223 N.E.2d 419 (Ill. App. Ct. 1966).
[56] Ross v. Columbia Newspapers, 221 S.E.2d 770 (S.C. 1976).
[57] Graham v. New York News, 2 Media L. Rep. (BNA) 2356 (N.Y. Sup. Ct. 1977).
[58] Id., 2358.
[59] Swanton v. Ute City Tea Party Ltd., 22 Media L. Rep. (BNA) 2561 (Colo. Dist. Ct. 1994).
[60] Id. at 2563. After the Aspen Police Department filed a complaint alleging that the bar "had a reputation for being a place where cocaine and other illegal drugs could be obtained" (at 2561), the city council, acting as the Aspen Liquor Licensing Authority, negotiated a settlement in which the bar's liquor license was suspended.
[61] Seymour v. A.S. Abell Company, 9 Media. L. Rep. (BNA) 1098 (D. Md. 1983).
[62] Reiter v. Manna, 22 Media L. Rep. (BNA) 2568 (Pa. Super. Ct. 1994). The case was consolidated with an appeal from Papa v. Manna 22 Media L. Rep. (BNA) 1144 (Pa. Ct. Common Pleas, Lawrence Co., 1993).
[63] Patricia Allen, a candidate for district justice, accused Alfred Papa and Robert Reiter - the husband of one of her opponents in the race, Mary Ann Reiter - of taking Allen's campaign signs from a Shenango Township, Pa., property and placing them on property owned by Papa. Allen attempted to file a criminal complaint about the matter, but District Attorney William M. Panella disallowed the filing, saying the case belonged in civil court. The story in question centered on a judge's ruling that Panella had acted properly.
[64] McCabe v. Rattiner, 13 Media L. Rep. (BNA) 2309 (1st Cir. 1987).
[65] Id. at 2311.
[66] Id. at 2312.
[67] Fudge v. Penthouse International, 14 Media L. Rep. (BNA) 1239, 14 Media L. Rep. (BNA) 2353
(1st Cir. 1988).
[68] Id., at 2356.
[69] Grimsley v. Guccione, 16 Media L. Rep. (BNA) 1659 (M.D. Ala.).
[70] Id., at 1661.
[71] 5 Media L. Rep. (BNA) 2607 (N.Y. Sup. Ct. 1980).
[72] 23 Media L. Rep. (BNA) 1641 (N.D. Ill. 1995).
[73] As first stated in Chapski v. Copley Press, 442 N.E.2d 195 (Ill., 1982), that rule says that a statement "is to be considered in context with the words and the implications given their natural and obvious meaning; if, as so construed, the statement may reasonable be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se."
[74] 7 Med. L. Rep. (BNA) 1856 (La. Ct. App. 1981).
[75] Schermerhorn v. Rosenberg, 6 Media L. Rep. (BNA) at 1382 (N.Y. App. Div. 1980).
[76] Von Gerichten v. Long Island Advance 202 N.Y.2d 246 (N.Y. App. Div. 1994).
[77] Seldon v. Shanken 15 Media L. Rep. (BNA) 2071 (N.Y. App. Div. 1988).
[78] Von Gerichten v. Long Island Advance 609 N.Y.S. 246 (N.Y. App. Div. 1994).
[79] Bandido's Inc. v. Journal Gazette Co., 575 N.E.2d 324, 19 Media L. Rep. (BNA) 1178 (Ind. Ct. App. 1991), reh'g denied, 19 Media L. Rep. (BNA) 1479, rev'd, Journal-Gazette Company Inc. 672 N.E.2d 969, LEXIS 1595 (Ind. Ct. App. 1996), trial court rev'd, 27 Media L. Rtpr. 2089 (Ind. 1999), cert. denied Bandido's Inc. v. Journal-Gazette Co., et al, 68 U.S.L.W. 3325 (1999).
[80] Journal-Gazette v. Bandido's Inc., 27 Media L. Rep. (BNA) 2100.
[81] Bandido's attempted to take the lawsuit to the U.S. Supreme Court, but certiorari was denied November 15, 1999, U.S. Lexis 7548, U.S.L.W. 3325 (1999).
[82] Burgess v. Reformer Publishing, 12 Media L. Rep. (BNA) 1856 (Vt. 1986).
[83] Schermerhorn v. Rosenberg, 6 Media L. Rep. (BNA) 1377 (N.Y. App. Div. 1980).
[84] Forrest v. Lynch 3 Media L. Rep. (BNA) 1187 (La. Ct. App. 1977). See also Lets Libel Judgment Stand for Misleading Head on True Story, News Med & the Law, January 1979 at 12.
[85] "Lets Libel Judgment Stand" at 14.
[86] The States-Item appealed to the Louisiana Court of Appeals, which affirmed the lower court decision in June 1977. The Louisiana Supreme Court refused to review the case, and on April 17, 1979, the U.S. Supreme Court denied certiorari without comment.
[87] Forrest, supra note at 84, at 1189.
[88] 12 Med. L. Rep. 2227 (Miss. 1986).
[89] Whitten, at 2229.
[90] Id.
[91] 247 F.2d 8 (9th Cir. 1957).
[92] Id., at 10.
[93] Id., at 11.
[94] Id., at 14.
[95] Gustin v. Evening Press Co. 137 N.W. 674 (Mich. 1912). The Michigan Supreme Court found actionable the headline "Goes to Australia: Alpena Man Turns Over Assents and Seeks New Country." It appeared above a story that apparently accurately reported that the plaintiff, lawyer Harry K. Gustin, planned to visit his brother, the U.S. consul at New Castle, New South Wales, for three or four months "to rest." The story said that Gustin owed $40,000 to $50,000 as the result of poor returns on timber investments but had assets worth $200,000, was leaving an associate in charge of his business affairs, and "has not defrauded anyone." The court said that the "display headlines contain the sting of the libel" and upheld a ruling for the plaintiff.
[96] 123 F.3d 1249 (9th Cir. 1997).
[97] Id., 1256.
[98]
Id. The Kaelin court cited a similar case involving a supermarket tabloid, Selleck v. Globe Int'l, 212 Cal. Rep. 838 (Calif. Ct. App. 1985) when it discussed how courts should take headlines into account when considering the allegedly defamatory nature of an article. In Selleck, actor Tom Selleck's father sued over an article that created the false impression he had granted an interview to a Globe reporter.
[99] 27 Med. L. Rep. 1146.
[100] See Locricchio v. Evening News Association, 438 Mich. 84, 476 N.W.2d 112, cert. denied, 20 Media L. Rep. (BNA) 1065. This case, and others like it, were not included among the cases analyzed in this paper because the material that was alleged to be defamatory included parts of the story as well as the headline.
[101] Court Affirms Acual Malice Standard in Cases of Public Concern, News Med. & the Law, Summer 1999, 28-29.