OLYMPIA – In a case that hinged on how much of the truth is the whole truth, the state’s highest court on Thursday threw out a defamation lawsuit against former Spokane TV journalist and mayoral candidate Tom Grant.
“The case was really about whether KXLY was required to report the story in a way that made every subject of the story feel good about the story,” said Laurel Siddoway, an attorney for the station.
For a news organization, she said, that’s virtually impossible.
The 6-to-3 ruling, however, also seems to open a new legal avenue to sue broadcasters and publishers for what a story doesn’t say, rather than for what it does say. That worries some First Amendment advocates, as well as Chief Justice Gerry Alexander.
“In my view, only words can defame … directly or by implication,” Alexander wrote. “The absence of words, however, can never defame.”
The prospect of being able to sue journalists for what they leave out will “chill free speech in this state,” predicted Michelle Earl-Hubbard, an attorney for Allied Daily Newspapers, a trade organization that weighed in on Grant’s defense. The Spokesman-Review is a member of the group. Reporters will shy away from tough stories, she said, if they face the prospect of judges, years later, second-guessing editorial decisions about what’s fair.
Not so, said attorney Ryan Beaudoin, who represented the Spokane businessman who sued Grant.
“It provides a greater incentive to provide balanced reporting,” he said.
The case the court ruled on Thursday stems from a 1998 KXLY broadcast about Glen Burson, a middle-age man with Down syndrome and the mental development of a 5-year-old. Burson was charged with first-degree trespassing and harassment after he got into a confrontation with Eliot Mohr, owner of a Spokane business called Kitchen Interior Showcase.
Burson had repeatedly come to the store and offered to wash the windows in exchange for a piece of candy. Mohr said he didn’t want his windows washed, and asked Burson to leave. Burson apparently grew angry, and police were called.
Grant says the story was mainly about Burson’s terrified reaction to a court system he couldn’t understand. The charges were eventually dropped.
“He had no idea what was really going on, what was happening to him,” said Grant, now a TV news anchor in Wyoming.
But Mohr – whose storefront was pictured in the Nov. 16 broadcast – felt that Grant’s story was a one-sided depiction that painted Mohr as a heartless bully. So, apparently, did the more than 30 people who promptly called his store to complain.
“The ‘gist’ of KXLY’s telecasts is that Eliot Mohr assaulted a retarded person and pressed criminal charges against him solely because he wanted a piece of candy,” Mohr’s attorney, Beaudoin, told the justices. It was, he said, “an egregious assault on the character of Eliot Mohr.”
Unmentioned, he said, were the death threats that Burson allegedly made against Mohr and his wife during previous confrontations at the store. Burson had allegedly threatened to shoot Mohr, screamed at him, drawn his finger across his throat in a slashing motion and kicked Mohr’s pickup truck.
But Grant had no way of knowing many of those things, Justice Mary Fairhurst wrote in the majority opinion. Before that first story aired, she wrote, Grant contacted the prosecutor on the case, her supervisor and Mohr. All refused to discuss the case.
Grant saw Burson’s court file, but much of the information that Mohr cites wasn’t in that file, Justice Fairhurst wrote. Mohr’s attorney says that many of the details were, in fact, in the file, and that he may cite that fact in a motion to reconsider the case.
Mohr agreed to be interviewed on camera the next day. The station aired the interview that night, including the allegations of death threats, Mohr’s fear for his wife’s safety, and the fact that Mohr tried to get prosecutors to drop the charges.
Grant said that journalists must be able to decide what details to include and what to leave out, particularly in a minute-and-a-half TV news story.
“We have to make some judgments,” he said.
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