Imagine writing a review about a controversial book. You repeat the author's claims in your piece.
The target of those claims, an individual, then comes back to sue you and your newspaper.
It was you, says the target, who had the duty and the obligation to conduct your own investigation into allegations made by others.
Would that be the law?
The California Court of Appeals is holding in a recent decision that there was such a duty in Khawar v. Globe International Inc.
SPJ, The New York Times, and the Reporters Committee for Freedom of the Press to name only a few, have joined in asking the California Supreme Court to review this decision.
The Globe is a weekly tabloid magazine with a circulation of 1.3 million.
Under California law, lawyers must first ask the state Supreme Court to review the case. If the court declines to hear the case, it will be requested that the court "depublish" the decision. If stricken from the books, then it could not be cited as precedent in other lawsuits.
In the most troubling aspect of the appellate decision, the court found that allegations in the book were so "glaringly false … it makes assertions that on the surface seem extraordinarily improbable" that Globe editors must have avoided the truth.
The court's ruling worries media lawyers who say the decision presupposes an obligation by the Globe to re-investigate the assassination theories.
"If that theory were to hold, the press will not be able to report allegations made by others without conducting their own investigations," said Terry Raskyn, vice president of development and strategic planning for the Globe. "Day 2 of Watergate could not have been reported beyond The Washington Post—nor would book reviews ever see the light of day."
The plaintiff, Khalid Khawar, sued the Globe after it printed a story in April 1989 reporting allegations that it was Khawar who assassinated Robert Kennedy and not Sirhan Sirhan.
The Globe reported that the allegations were made by Robert Morrow in his book "The Senator Must Die: The Murder of Robert Kennedy." The book was published in 1988.
Morrow, a former CIA agent, presented the theory that Sirhan was actually a decoy or an Iranian plot to kill Kennedy. Morrow says the that a man identified as "Ali Ahmad" was the actual killer and he includes in the book a photograph of the man he says is Ahmad.
The Globe reprinted the allegations and the photo.
But the man in the picture is Khalid Khawar, a photojournalist at the time.
Ahmad, also a plaintiff in the case, is Khawar's father.
Both plaintiffs settled with the book's publisher before the trial. A default judgment was entered against the author. A jury trial entered claims against the Globe with an award of $1.175 million in compensatory and punitive damages in April 1994 for Khawar.
The court also held that there was evidence of actual malice—that the newspaper published Morrow's theories knowing they were false.
The Libel Defense Resource Center, in its June newsletter, notes how the court interpreted the testimony of the Globe's managing editor.
"The court cites testimony of the managing editor that he failed to contact any of the 2,300 people who were present on the night of the assassination as evidence supporting a finding that the Globe was purposefully avoiding the truth."
Ironically, SPJ's own code of ethics is quoted in the court's decision.
How many newspapers could afford such considerable investigations?
For fear of lawsuits, a controversial subject would more likely be ignored no matter how fat the publisher's pocketbook.
Robert Lystad, First Amendment counsel for the society, said the ruling is "outrageous."
"It would impose a new obligation on the press to re-investigate novel theories espoused by researchers, academicians, scientists, and other authors, not to mention charges of misconduct leveled by any number of sources however reliable they may be," said Lystad. "There are dire implications for the press if this decision is allowed to stand."