Nuts and Bolts: The Recklessness Case Against Deadspin
Tuesday, January 29, 2013
Editor

It may surprise some that journalists can get in trouble for the accusations that appear in their sources, but consider the following example:

You're writing a profile on Frank. You speak with an old acquaintance of Frank's who says he's a liar, a thief, and an adulterer. You print, "According to an anonymous source, Frank is a liar, a thief, and an adulterer." However, you ignored significant warning signs that your source might not be reliable. Your source is an ex-girlfriend of Frank's, and they had a nasty breakup. You confirmed the quote with another source, but this source was friends with the girlfriend. The accusation turns out to be false, but now it has echoed throughout the media. You, as the journalist, might be on the hook for libel.

So how close is what Deadspin did to this hypothetical case? The answer: surprisingly close.

"For public figures, the rule is that there is no liability unless the statement about the person is made with 'actual malice,'" says John Goldberg, Eli Goldston Professor of Law at Harvard Law School, "which means that it is made even though the person making the statement actually knows it is false, or has been reckless with regard to its falsity."

"An example of recklessness," adds Goldberg, "would be a reporter who prints the quotation even though the source is notoriously unreliable, and even though all other circumstantial evidence contradicts the source's claim."

For Deadspin, the standard under question is whether they have been reckless with regard to a source's falsity -- that source being the anonymous "friend of Ronaiah Tuiasosopo" who was "80 percent sure" that Te'o was "in on it" and, according to Deadspin's paraphrasing, "perpetrated Lennay Kekua's death with publicity in mind."

Goldberg outlines two criteria for determining reckless use of a quotation: whether the source is "notoriously unreliable," and whether "all other circumstantial evidence contradicts the source's claim."

Let's start with the first. Was Deadspin's source notoriously unreliable? It comes close. The source is identified as a "friend of Ronaiah Tuiasosopo," who at the time was known to be the hoax's perpetrator. Deadspin cites one other person to corroborate the claim, identified as "another relative of Ronaiah's." In other words, Deadspin's sources are an anonymous friend and an anonymous relative of a known fraud. They make claims indicating that their friend/relative is not as blameworthy as it would otherwise seem.

As for the second, a considerable amount of circumstantial evidence contradicted the source's claim. For one thing, there was no tangible evidence tying Te'o to the hoax, nor has any emerged. In fact, a number of sources in the wake of Deadspin's article emerged with convincing claims in the other direction. "Got to believe Te'o was the victim here," former Stanford football player Matthew Masifilo tweeted immediately after Deadspin's article was published. "He would always ask us if we knew his mystery girl after we'd play them." Deadspin seemed to make little effort to contact potential sources like Masifilo, who would have been able to shed additional light on the claims. As for getting Te'o's side of the story, the extent of Deadspin's efforts seems to have been calling what turned out to be a non-functional number for Te'o and contacting Notre Dame the afternoon they published the piece.

What "evidence" did exist mostly had to do with Te'o's character and the application of common sense. Both rendered the claims of Deadspin's sources extremely questionable.

For one, Deadspin cited another friend of Tuiasosopo's saying that Tuiasosopo (here Deadspin is paraphrasing) "created Lennay in 2008" and "Te'o wasn't the first person to have an online 'relationship' with her." Logically, this contradicts the notion that Te'o created his girlfriend. This should have been a red flag regarding the veracity of the accusation.

For another thing, there were significant questions regarding motive. Why would an All-American linebacker on the most visible college football team in the country, a projected first-round draft pick in the NFL, need to gain publicity? Wouldn't this enormously convoluted scheme have much more potential downside than up? The only explanation anyone ever generated for Te'o needing publicity was his Heisman candidacy, but that theory is quite a stretch: the award honors the best player on the field, and risking one's entire career to marginally improve one's chances at winning it, especially when one's entire career was already made, seems an outlandish proposition at best.

Then there is the question of Te'o's character. There were only two possibilities in light of the hoax: Te'o was largely the victim, or Te'o was a world-class fraud. Not a single person in the world stepped forward with evidence supporting the latter character judgement, while many stepped forward with the former. The question was this: was it more plausible that a busy athlete from a religious family going to a religious school was naive and romantically immature, or was it more plausible that he'd deceived everyone he'd met in his life? Believing the accusations of Deadspin's anonymous sources required the considerable logical leap of the latter.

Even by Professor Goldberg's high standard of "all other circumstantial evidence contradict[ing] the source's claim," we see that this is a surprisingly close call. Beyond the source in question, of all the evidence available to Deadspin at the time, none tangibly tied Te'o to the hoax. A significant amount threw doubt on the claim.

These are some of the considerations that led Professor Goldberg to say that "whether there would be any liability is a close call."

As far as a case would proceed in practice, he added two caveats: first, as he explained in my feature, courts since the Sullivan decision have generally looked to limit defamation liability and protect speech. Second, recklessness "has to be kind of staring you in the face -- all the signs are this was really something you ought not to rely on, and yet you're still relying on it." He speculated that, for most judges, Deadspin's actions (assuming they involved mere reliance on an anonymous source without strong indications of unreliability) would fall shy of this standard.

David Ardia, Co-Director of the Center for Law and Media Policy at the University of North Carolina and a fellow at Harvard's Berkman Center for Internet and Society, largely agreed with Goldberg.

"Could Deadspin have some risk here of defamation liability? Certainly," he said. "Would a case like that be likely to succeed against them? I think that's very unlikely. But I think it depends on the kind of information available to Deadspin at the time they published, and what their state of mind was when they published."

What exactly was the state of mind of Deadspin's authors? On this we can only speculate. Deadspin's subsequent commentary, however, indicated a greater investment in "embarrassing" Te'o or proving his guilt than one might guess.

In one particularly striking example, which I did not point out to Goldberg and Ardia but was raised by the Columbia Journalism Review, the original authors of Deadspin's story wrote:

"Manti Te'o's apparent defense is that he had no reason to think his twice-undead dead long-distance girlfriend, whom he never met or saw outside of photographs, whose funeral he never thought to attend, might have been a phony. Regardless of whether he's telling the truth, he'll soon see just how big embarrassment can get."

In another piece for Deadspin by Cord Jefferson, the author asked, "Did Manti Te’o Violate Notre Dame’s Stringent Code of Conduct By Lying About His Dead Girlfriend?":

"It seems as if there are far too many holes in Te'o and his family's narrative of how they grew to know Kekua to make sense, which would mean that, indeed, Te'o had a big hand in an action that had a "negative or disruptive" impact on Notre Dame. Almost anyone can see that. Anyone but Notre Dame officials, that is."

The author proceeded to call Notre Dame and repeatedly ask whether there were plans to punish the student.

Deadspin also co-published a piece with Bloomberg View titled "Manti Te’o Joins Notre Dame’s Long Tradition Of Bullshit" in which the author compares Te'o's actions to those of Joe Paterno:

"Last year, we watched a mythic college football program—Joe Paterno's Penn State—unravel in a horrific child-sex- abuse scandal. Now we're watching another unravel in a screwball comedy that could have been scripted by Mel Brooks."

N.B.: In my original piece, I occasionally use "claim" interchangeably with "quotation" when referring to the accusation printed in Deadspin's article.

Jamie Berk

Article originally appeared on American Circus: A Journal of Creative Nonfiction (http://www.amcircus.com/).
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