Did The N&O show ‘actual malice’ toward SBI agent? NC Supreme Court now must decide.
The N.C. Supreme Court heard arguments Monday over whether to uphold a Wake County jury’s decision that The News & Observer and one of its former reporters libeled a State Bureau of Investigation agent in 2010.
After a three-week trial in 2016, the jury concluded that The N&O and former N&O reporter Mandy Locke defamed agent Beth Desmond in stories about ballistics analysis and testimony in a 2006 murder trial in Pitt County. The jury awarded Desmond $6 million in compensatory and punitive damages.
The state Court of Appeals upheld the decision last year, concluding that evidence in the case “tended to show that the primary objective” of Locke and The N&O was “sensationalism rather than truth.”
But The N&O’s attorney, Bradley Kutrow, told Supreme Court justices Monday that both lower courts failed to properly apply New York Times v. Sullivan, a 1964 U.S. Supreme Court decision that says the First Amendment to the U.S. Constitution limits defamation claims by public officials. To prove defamation, Kutrow said, public officials must establish that journalists acted with “actual malice” toward them, rather than simply published incorrect information.
“The teaching of Times v. Sullivan is that in order to serve the purpose the First Amendment protects, reporters and news organizations must have protected breathing space to publish critical information about government officials,” Kutrow said.
That protected breathing space, he added, must be maintained “even if some errors occur and misjudgments are made” in reporting.
Much of Desmond’s case surrounds an article published Aug. 14, 2010, by Locke and former N&O reporter Joseph Neff that was the last in a four-part series about the work of the SBI called “Agents’ Secrets.” The article cites “independent firearms experts” questioning whether Desmond knew what she was doing when she analyzed bullet fragments in the Pitt County shooting case that killed a 10-year-old boy.
“Worse, some suspect she falsified the evidence to offer prosecutors the answer they wanted,” the article says.
Those experts later said they had, in fact, made the statements attributed to them by Locke. But they said they weren’t criticizing Desmond’s work in the Pitt County case but were speaking more generally about the difficulties in tracing bullet fragments to a specific gun.
Kutrow and Locke’s attorney, Wade Smith, told Supreme Court justices that to act with actual malice toward Desmond, Locke must have had doubts about whether what she was writing was true. Smith described Locke as a “dedicated, devoted journalist” who was called to her work.
“This is not like a person who would sit down and write a story that she knew was not true or that she had deep doubts about whether it was true,” Smith said.
But Desmond’s attorney, Jim Johnson, said that one of Locke’s experts, William Tobin, a former chief metallurgist for the FBI, sent Locke an email 11 days before the article was published that said he was not in a position to render an opinion about the Pitt County case. By that time, Johnson said, drafts of the article already quoted Tobin saying, “This is as bad as it can be. It raises questions about whether she did an analysis at all.”
Despite the email, Johnson said, those quotes remained in the article.
That, Johnson said, was evidence that a jury could cite to determine that Locke knew she was going to misrepresent someone. He said the jury concluded there was actual malice, after hearing all four firearms experts testify that they did not express the opinions Locke attributed to them.
He also said a re-examination of the evidence confirmed Desmond’s conclusions four months after The N&O article was published.
The N&O argues that the ultimate outcome of the bullet analysis was irrelevant to Locke’s state of mind at the time her articles were published.
Other news organizations have closely followed the case against The N&O. Several filed briefs with the appeals court that said if the jury’s decision stands it would result in “intolerable self-censorship” by journalists who might hold back on coverage critical of public officials.
Smith, Locke’s attorney, echoed those sentiments in court Monday.
“It relates to whether we will have investigative journalism, which we absolutely have to have,” he said. “I think it says to journalists all over North Carolina, ‘Just don’t bother to criticize public officials. Leave ‘em alone. You’ll get sued. You can be sued.’”
This story was originally published November 4, 2019 at 8:35 PM with the headline "Did The N&O show ‘actual malice’ toward SBI agent? NC Supreme Court now must decide.."
