It’s no surprise that the media make mistakes, but sometimes irresponsible reporting runs afoul of the law. The “facts” reported during the coverage of the Duke lacrosse rape case turned out to be less than factual and, from a legal perspective, this case poses interesting issues.

Don’t miss the Vanderbilt Journal of Entertainment and Technology Law’s Fall 2008 edition, which contains A Libel Law Analysis of Media Abuses in Reporting on the Duke Lacrosse Fabricated Rape Charges, in Vol. 11. No. 1. The following are excerpts from the Article’s introduction:

The broad outlines of monumental injustices involved in the Duke lacrosse rape-that-never-happened case are well known. An unethical local prosecutor, Michael B. Nifong, for partisan political reasons, pursued the Duke lacrosse team and ultimately indicted three of its members based almost solely on the accusations of a wholly unreliable, self-proclaimed victim. Nifong received generous support and sustenance from many left-leaning, politically active Duke faculty, an extraordinarily inept (or worse) Duke administration, and almost the entirety of the mainstream media. Ultimately, following a detailed analysis by his office, North Carolina Attorney General Roy A. Cooper publicly excoriated Nifong in concluding that the three students wrongfully accused by a “rogue prosecutor” were innocent; there had never been any credible evidence to support the charges. Nifong was disbarred and generally disgraced.

So far, no one has sued the [New York] Times or other media entities for libel. Maybe no one will. Nonetheless, media misfeasance and malfeasance, viewed through the microcosm of the Times coverage raises some basic issues of libel law that future litigants in parallel “rush to judgment” scenarios might find helpful. Were the accused Duke lacrosse players (and other lacrosse players) private persons or involuntary public figures under the Supreme Court’s jurisprudence? Were Nifong’s and others’ munificently quoted statements entitled to either fair report or neutral reportage protection? Did the Times engage in reportage outside the panoply of First Amendment protection, knowing or reckless disregard of falsity, i.e. “calculated falsehood,” particularly as to its much ridiculed “body of evidence” article published on August 25, 2006? Each of these issues will be discussed hereinafter.

Article Author: David A. Elder

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