The First Amendment on the wall of the Newseum in Washington, D.C. flickr/baekken
by Matthew L. Schafer
Understandably, most people are not acquainted with ins and outs of our legal system except for the most basic concepts. For that reason, legal reporting, like other types of specialized reporting, must be undertaken carefully with an eye toward informing readers as to the facts and context, but, at the same time, not bogging readers down with unnecessary minutiae. Unfortunately, and all too often, reporters fail at this task.
“Legal journalism is foundering,” the American Bar Association wrote in the late 1990’s. “And the consequences are worse for the legal profession than for journalism.”
The ABA is not alone in its assessment of the state of legal journalism. Others, from lawyers to judges to interested parties, often complain that legal journalists are under-informed or focus too much on the horse race of a trial without explaining to the audience the process itself.
David Shaw, a former giant at the Los Angeles Times, who was often critical of the media, once said that legal reporters often “make serious mistakes, miss good stories, overlook important legal issues, misinterpret major court decisions and fail to follow up their stories.”
Misstatements by journalists can be especially dangerous in today’s media environment. Often news outlets – stressed for resources – will simply rewrite another news outlet’s story that contained a factual error. In this environment, factual errors can spread like wildfire.
One recent example is especially telling: Recently, the Fourth Circuit Court of Appeals affirmed a district court judge’s decision to deny a motion to dismiss as to a man’s First Amendment claim.
The motion to dismiss came in a case where a man, shortly before entering a body scanner at an airport, removed his sweatpants (revealing gym shorts) and his t-shirt to reveal the Fourth Amendment written on his chest. The man believed the scanners violated his constitutional rights. Because of his actions, he was detained and later arrested. In his lawsuit, the man requested $250,000 in damages from TSA agents and airport police officers, among others, for his detention and subsequent arrest.
The district court dismissed all claims at issue (originally the man claimed a violation of the First, Fourth, and Fourteenth Amendments) against the police officers and two other federal defendants, but refused to dismiss the First Amendment claims against the TSA agents.
The remaining federal defendants appealed the decision that could have potentially kept them on the hook for damages, arguing that the lower court erred because, among other things, “Mr. Tobey did not allege a facially valid First Amendment claim . . . .”
In rejecting the federal defendants’ appeal, the Fourth Circuit explained, “While the sensitive nature of airport security weighs heavily on the Court, protest against governmental policies goes directly to the heart of the First Amendment.”
The coverage of this case has been relatively light. Only a dozen or so outlets wrote a story about it. Unfortunately, some of the outlets that covered the case got the story wrong – or at the very least misled readers.
Wired reporter David Kravets was one of the first reporters to cover the Court’s decision. He titled his article, “Man With 4th Amendment Written on Chest Wins Trial Over Airport Arrest.”
The problem with this headline is this: no trial has been held yet so the man cannot have won his trial.
The problem with this headline is this: no trial has been held yet so the man cannot have won his trial. As mentioned above, the case was before the Fourth Circuit on a motion to dismiss. A motion to dismiss is, by definition, a pre-trial motion. It is only after a motion to dismiss, in most cases, that a case will proceed to trial.
Despite this, Kravets begins his article writing, “A Virginia man who wrote an abbreviated version of the Fourth Amendment on his body and stripped to his shorts at an airport security screening area won a trial Friday in his lawsuit seeking $250,000 in damages for being detained on a disorderly conduct charge.”
Of course, this language would lead most readers to believe that this Virginia man is $250,000 richer. He is not though – at least, not yet.
A few things could actually happen now. The government could ask for a rehearing in front of the entire Fourth Circuit or the Fourth Circuit could order one. These are, however, uncommon. More likely, the case could go back to trial court for discovery and a motion for summary judgment. Only after surviving this likely motion from TSA agents will the case continue to trial.
In Kravets’ defense, he would later go on to write that the case would be “sen[t] . . . to trial, unless there’s a settlement.” This important information, however, is found four paragraphs into the story and only after the misleading information.
The other news outlets that covered the story after Kravets’ article illustrate how easily journalists can spread errors and misinformation through linking back to an original story with an error like the one in Kravets’ article.
For example, one outlet, which cited to the Kravets’ Wired article, explained in its own article that “[a] Virginia man won a trial Friday in his lawsuit seeking $250,000 in damages for being detained on a disorderly conduct charge.”
Another, also citing Kravets’ article, titled its article, “TSA Protester With 4th Amendment Written on Chest Wins Trial Over Airport Arrest.”
And yet another citing Kravets explained, “Man Detained by TSA for Having 4th Amendment Written on Naked Chest Wins Case.”
All of these sentences leave the impression that the man has actually won his case. Of course, he has not. They are plainly inaccurate.
As the Fourth Circuit said, “The question of whether Mr. Tobey’s conduct was so ‘bizarre’ and ‘disruptive’ that Appellants’ reaction was reasonable or whether Mr. Tobey was targeted because of the words on his chest cannot be decided [on a motion to dismiss].” The Court would go on to suggest the the federal defendants could raise alternative arguments further down the procedural road or challenge the man’s view of the facts.
Luckily other news outlets fared better. An Australian news outlet explained, “A PASSENGER who was arrested after partially undressing as part of an airport protest is a step closer to winning a $250,000 lawsuit over the incident.” (This article did make a mistake, however, suggesting that the lower court had dismissed all of the man’s claims.)
Words mean something and failing to use the right words in the right places can leave readers with the wrong idea.
A different news outlet said it this way: “Airport Protest, First Amendment Lawsuit Moves Forward.” This article does not appear to have cited Kravets Wired article either.
Finally, Business Insider, which cited Kravets, was nonetheless more clear about the proceeding. It did not say that the man won his lawsuit. Instead, the headline read: “Guy’s Fight With The TSA Over ‘Magic-Marker Protest’ Will Likely Go To Trial.”
The author of this article contacted Kravets about correcting his error. I wrote, in part, “Just because the appellants lost their motion [to dismiss] does not mean that the arrested man won his trial. They will still have to go through discovery, a motion for summary judgment, and only then to trial. . . . Just thought you may want to add this clarification.”
Kravets refused to make the correction. In a short email, he instead argued that his article was accurate. If something can be both accurate and misleading then perhaps Kravets is right, but this is not the case.
Kravets refused to make the correction. In a short email, he instead argued that his article was accurate. If something can be both accurate and misleading then perhaps Kravets is right, but this is not the case.
As explained, even though Kravets’ article goes on to clarify one potential result of the decision, his headline and his lede are both inaccurate and deceptive. This is especially the case when readers only read the title of an article or the first few paragraphs, which tends to happen. As one report found, “A full 44 percent of visitors to Google News scan headlines without accessing newspapers’ individual sites.” (Wired is available via Google News.)
There should be little excuse for refusing to correct such a glaring error. Frankly, it is irresponsible. Now, because Kravets has refused, both readers and other reporters will continue to fall victim to inartful and inaccurate reporting. Hopefully, Wired corrects the misleading headline and lede before more readers and journalists are led to believe that this man won his trial.
Legal reporting is tricky business. It takes time and an understanding of the legal system. It requires reporters to make judgment calls about how much information is too much information. More to the point, it demands that reporters use the right words. Words mean something and failing to use the right words in the right places can leave readers with the wrong idea. Unfortunately, the wrong judgment calls were made in this case.
Edited for typographical errors at 7:40 PM, 1/30/2013 and for a more serious omission at 12:35 AM, 1/31/2013, where the article originally omitted the “court” from the following sentence: “More likely, the case could go back to trial court for discovery and a motion for summary judgment.” As always, I regret these errors and omissions.
