Legal Commentary

After leaving Chicago last year, I don?t keep up much on the goings-on in that city, great city though it is. But earlier today, I ran across a juicy local news item. About a year ago, Amy Jacobsen, formerly a reporter for local Chicagoland station NBC 5 was covering the disappearance of area woman Lisa Stebic. Some time thereafter, CBS 2 ran a feature that included videotape footage of a bikini-clad Jacobsen poolside at the Stebic home. Recently, Jacobsen sued CBS 2 for defamation (although she didn?t sue her employer for wrongful discharge over the flap, at least not yet). This part isn?t particularly legally interesting. Even in light of the high ?actual malice? standard that would likely apply to her claim, Jacobsen might be able to show that CBS 2 knowingly (and, she claims, falsely) edited the feature to make her seem romantically involved with Lisa Stebic?s husband, Craig.

What did catch my eye about this case (besides the hilariously tabloid-y title of the feature, ?Bikini-clad Reporter Filmed at Home of Missing Mom?) is that Amy Jacobsen also named as a defendant Michele Whedon, an associate professor of journalism at Northwestern. The basis for suing Whedon appears to be a few relatively innocuous sound bites she provided for the CBS 2 feature. Specifically, ?While [Jacobsen?s conduct] is not a heinous crime, it erodes all our credibility as journalists?, and ?It?s going to make [the public] question what else she has done?. I?m not a torts guy, but this commentary seems to fall well short of defamation, especially under the high ?actual malice? standard that would likely apply given Jacobsen?s status as a public figure. Whedon?s comments are opinion, so not really falsifiable, and they?re not even making any particularly negative characterization of Jacobsen, but are more generally about the implications of her conduct.

Some thoughts on why this case strikes me as particularly concerning from the perspective of academic freedom are after the fold.

Of course, plaintiffs rope in borderline-plausible defendants at the complaint stage all the time, but this seems different to me because of that common reaction to news items, ?Hey, that could be me!? Now media outlets aren?t exactly breaking down my door for comments on cases of import (though I hope that someday some might), but I do have many colleagues who often comment on live cases in the news media. After all, it is a pretty standard thing for professors to do.

But if merely providing public commentary could render one subject to a defamation suit, it may well chill this form of dialogue. Consider Whedon?s case. Even if (or, more likely, when) she is dismissed as a defendant, merely being named as one is invariably costly, more so considering that law profs don?t earn at the same rate as practicing lawyers. It also has costs in terms of time and distraction, and since profs don?t get paid for providing commentary on news programs (right?), the risk averse but possibly rational reaction might be to stop providing commentary altogether. Why risk getting sued for such a small upside?

One might say, though, that this is simply a single outlier, and that it?s not likely to influence how academics interact with media outlets. But then again, I heard of this case not because I constantly comb the internet for vaguely sleazy-sounding local scandals (I swear), but when a colleague sent an email to the faculty with the subject header ?Risks for On-air Commentators?, related the whole story, and concluded with the well-meaning but still ominous sign-off, ?Be careful out there.?

But then even if one thinks this is a concern, what is to be done? The judge could sanction Amy Jacobsen and/or her counsel if (or, again, when) he dismisses Whedon as a defendant, sending a message to others who may be inclined to go after academic on-air commentators. And in California, we have an anti-SLAPP (Strategic Lawsuits Against Public Participation) law that creates a damages remedy against any plaintiff who is deemed to have sued a defendant solely to attempt to preclude them from exercising rights of speech or petition, and this lawsuit seems like a decent candidate (though I don?t think Illinois has a similar statute).

I doubt this single case will chill professors from rendering on-air opinions (ego alone will guarantee that this practice will continue), but it still bothers me, particularly because there?s not much to be done to prevent defamation plaintiffs from naming commentators as defendants just for the nuisance (and future deterrence?) value.