By Jon Cassidy | Watchdog.org
Texas state Sen. Judith Zaffirini worries a bill protecting journalists who work with whistleblowers from libel charges could be abused by “evil,” “malicious” journalists “not worthy of the title… who are biased and unfair and perhaps have an axe to grind.”
Considering that Watchdog.org ranked Zaffirini first on its nationwide list of “Worst People of 2014,” not so much for her influence-peddling at the University of Texas as for her efforts to disinherit a woman she’s supposed to be serving as a trustee, we wouldn’t claim to have a neutral view of the Laredo Democrat, but she does have a point. A law meant to protect “professional” and “ethical” reporters also would “protect the unethical, and perhaps those who do not work in the traditional media.”
A bill by state Sen. Joan Huffman, R-Houston, would protect journalists from libel lawsuits over stories they publish repeating “allegations made by a third party regarding matters of public concern,” even when those allegations turn out to be untrue.
This apparently minor point could have profound implications: the worst-case scenario if the bill passes is that “yellow” journalism explodes in Texas; the worst case if it fails is that the media get even more afraid of doing investigative work and just wait for the official version before publishing anything.
To understand the issue, start by putting yourself in a reporter’s shoes.
You get a call from an apparently credible whistleblower well-positioned to know what’s really going on inside an institution. If he can leak you documents, emails or other records proving his complaint, you’re golden.
But leaking can be illegal and is usually a firing offense, so the source will often just tell you what to request through public records law. Sometimes this works. Sometimes you get nothing, or records redacted into uselessness.
Meanwhile, you make some calls, verifying some of the details, learning nothing about others.
Finally, you might have to decide whether to publish a controversial story based largely on one person’s account. The answer at most news outlets is usually no, but there are exceptions when you’ve got a highly credible source and a very important story.
Sig Christenson of the San Antonio Express-News gave a legislative committee the example of a story he’d published during the Veterans Administration hospital scandal of 2014.
“As part of the reporting after that story broke, a physician called me, and he told me about a man that he treated named Anson Dale Richardson who had cancer,” Christenson said. “He never did get in to get his cancer treatment. There was one mistake after another. And nobody will ever know whether he might have been saved or not. But because of that doctor who talked to me, we had a story, and then more than one story.
“In that man’s case, we did not have anything other than a whistleblower. We didn’t have a lawsuit. We didn’t have paper. We didn’t have any kind of documentation. It was from the whistleblower.”
Huffman’s bill is meant to protect that sort of whistleblowing, but it would end up covering a lot of gray area, too.
Are you going to report that the police chief’s been drinking on the job based on no more than the say-so of the union rep? You’re covered under Huffman’s bill. The union rep wouldn’t be, but if you grant him anonymity, the chief wouldn’t know whom to sue for libel.
Media associations testified for the bill because it offers clear protection that wouldn’t take endless lawsuits to resolve. (Truth is an absolute defense against libel claims, but it’s not a very practical one, as it often takes a lot of litigation to prove a story true to the courts.)
Zaffirini said she was worried the bill would grant “blanket immunity to someone who maliciously either distorted information or maliciously omitted information.”
The question Huffman’s bill actually addresses is what responsibility a reporter bears for repeating an allegation that turns out to be false. Since a 1990 ruling in the state Supreme Court, witnesses testified, the state media have been working under the belief that they’re protected from liability, so long as they accurately quote the lie, so to speak; a 2013 ruling cast doubt on that belief that the bill’s meant to address.
In most of the country, reporters work under the opposite assumption, that anyone who repeats a libel is as guilty as the original defamer.
Zaffirini’s own history offers an interesting example of the problems that rule presents; that is, what should a reporter do when the subject of a story is making vicious and unsubstantiated allegations — avoid them, repeat them or point out that they are unfounded?
This is how Watchdog.org dealt with accusations of sexual depravity that Zaffirini and her husband Carlos made against Vidal Guerra, the husband of Rocio Guerra, whose nine-figure inheritance is controlled by the Zaffirinis and their associates.
First, we reported that Carlos Zaffirini “viciously attacked the Guerras and their children, even though he was godfather to one of them.”
“During depositions, Carlos Zaffirini asked Vidal Guerra if he was gay, if he had ever been caught having an affair with another man and if he molested his children.
“The questions had no conceivable bearing on a case about a trust fund, the Guerras’ attorney objected. Zaffirini was just bullying them.
“Zaffirini asked Rocio Guerra if her son paraded around the house naked in front of others and if she allowed her daughter to play with her vibrators.
“Her daughter was 9 years old at the time; her son, 10.”
Later, we reported on Zaffirini’s testimony.
“In court testimony last week, state Sen. Judith Zaffirini rejected the idea that she has any selfish financial motives for wanting to administer a $150-million estate, or in contesting lawsuit after lawsuit to keep control.
“Everything she has done in this affair, she said, has been to protect her second cousin once removed, Rocio Gonzalez Guerra, from her husband Vidal Guerra, whom she portrayed as a homosexual embezzler whose two-decade marriage is really a con to get the family fortune ….
“Zaffirini’s support for the accusation of homosexuality was an allegation of 20-year-old rumors.
“‘People told us he was only interested in (Rocio) for the money, that he would seek to gain control of the companies,’ Zaffirini said. ‘They told us he could not possibly be interested in her because he was gay. They gave us the names of his boyfriends,’ which Zaffirini did not share with the court.
“Those alleged rumors notwithstanding, the Guerras have two teenage children together and remain married.”
Lawmakers may well agree with Zaffirini that it’s undesirable to give blanket immunity to purveyors of maliciously distorted information — the problem of false witness is an old one, and unlikely to be resolved by an Austin committee.
Yet they might want to keep in mind that there’s a distinction between uncritically repeating a claim and discrediting one, although the distinction seldom appears in mainstream news reporting, where the “professional” and “ethical” thing to do is to refrain from judgment.
Contact Jon Cassidy at [email protected] or @jpcassidy000.