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October 27, 2014:
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John Garziglia

When Does Opinion Become Slander?

If you've been following the sordid Penn State story you might think graduate assistant Mike McQueary is a criminal. The sports press has convicted McQueary in the court of public opinion, vilifying him without having knowledge of all of the facts of this case. It turns out, they may have all been wrong. An example. For at least 2 days on ESPN Radio's nationally syndicated Mike & Mike morning show, co-host Mike Golic repeatedly tore into McQueary for "not doing enough to stop Jerry Sandusky." Golic came to that conclusion, he says, by what was not in the grand jury report. He relentlessly called McQueary a coward, challenged his manhood and nearly swallowed his tongue in anger over what he thinks McQueary should have done to stop Jerry Sandusky in the Penn State showers. What if Golic was wrong?

McQueary, with his reputation in tatters, on administrative leave and receving death threats over the incident was finally heard from yesterday. In an e-mail to former teammates he said he did stop the act he witnessed and he did talk to police, contradicting every critic who berated him since this story broke. Yesterday, Golic was quite silent on the issue stating there should have been more in the grand jury presentment if, in fact, McQueary did do more. He said he'd be the first to apologize if he was wrong, but really, can that cat ever be put back in the bag? A legal analyst on the Mike & Mike show stated more detail about what McQueary saw or did was not required to be part of any grand jury record. After all it's Jerry Sandusky being charged with these hideous crimes, not McQueary.

What does this all have to do with you? What kind of liability do you have when someone on your station - either live or syndicated - get it wrong and winds up slandering someone in the process? We are not saying that happened here, but what if it does? We asked attorney John Garziglia for the answer.


John Garziglia says:

Radio Ink’s question brings up the danger that lurks for any sportscaster which is that there is always a legal liability for what is said over the air, and the resulting harm or damage that statements made and opinions proffered may inflict on an individual or institution. 

I have not listened to what the network sportscaster reportedly said and even if I had, I would not want to comment specifically upon whether or not that sportscaster’s statements do, or do not, subject him and his network to legal liability.  Rather, let’s look generally at what can bring trouble for comments made by a sportscaster.

There are a variety of legal actions that can be brought against a sportscaster, broadcast station or network for the broadcast of damaging statements about an individual or entity.  There is the well-known legal action for defamation which is largely governed by state law.  The statement found to be defamatory must generally be false.  Further, if the person spoken about is a public figure or is involved in a public controversy, the person defamed must generally prove actual malice meaning that the sportscaster must have known that the statement was false, or that the sportscaster recklessly disregarded the truth or falsity of his statement. 

There are other legal actions that can be brought in some states to subject a sportscaster, or his station or network, to liability even if what the sportscaster stated was true.  These actions include statements which put an individual in a false light in the public eye, or statements that unreasonably intrude upon the seclusion or solitude of an individual. 

For more specifics, I turned to John Kerr of my law firm.  John has years of experience in media law defense of libel and slander actions against broadcasters and print media.  John states "I also did not hear the broadcast in question, but generally, print and broadcast media reporters have a qualified privilege to report on the contents of government documents. I have not seen the grand jury report reported in the media, but it appears the contents would be subject to the privilege. Reporters must be careful not to venture outside the privileged contents and give editorial comments that may later prove to be false and defamatory."

The best advice for broadcasters is to be sure that all programming is covered by media liability insurance, also known as libel insurance or errors and omissions insurance.  Being covered by a comprehensive insurance policy means that it will be the insurer, not the broadcast station, that bears the substantial costs of defense if a covered legal action is brought.  In addition, take a look at what the deductible is under that insurance policy. Often, the deductible is set high to keep premiums affordable.  Therefore, even with insurance coverage, a content-based lawsuit may cost a broadcast station several tens of thousands of dollars.  If broadcast station content is expected to venture into areas which may provoke a lawsuit, it may be prudent to investigate the possibility of media liability insurance with a lower deductible and higher premiums. 

When an emotionally-charged sports-related incident with alleged criminal conduct erupts, it never hurts for a sportscaster to be reminded by his or her broadcast station or network of the laws and guidelines on avoiding defamation.  A sportscaster who embarks upon commentary far afield from that of his or her usual chatter concerning the game and its players is a sportscaster who may be subjecting the broadcast station or network employer to unintended liability.  A refresher course in the dos and don’ts of defamation law in particular, and broadcast journalism guidelines in general, may keep a station or network from becoming part of a controversy rather than simply commenting upon it.

John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or jgarziglia@wcsr.com. Our thanks to attorney John Kerr forh is input on this story. Kerr canbe reached at  (843)720-4630 or jkerr@wcsr.com.

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