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34 Comm. Law. 1 (2018-2019)

handle is hein.journals/comlaw34 and id is 1 raw text is: Communiccihons Publication of the Forum on Communicat ons Law American Bar Association Volume 34, Number 1, Fall 2018 COVER STORY: Close Enough for Jazz? Characterizing the Disposition of Criminal Cases in News Reports... 1 From the Chair .............................. 2 Courts Weigh Validity of Injunctions Against Speech as Summer Brings Wave of Prior Restraints .............. 4 Weighing Public Safety and Caller Privacy: Why the FCC Decided to Amend Its Caller ID Rules .......... 8 FOIA Wars: The Government Strikes Back ................................. 16 Close Enough for Jazz? Characterizing the Disposition of Criminal Cases in News Reports BY ROBB HARVEY AND KEVIN ELKINS T he pressure of the 24/7 news cycle leaves media profession- als with competing demands of getting the news out quickly and ensuring that the published/broad- cast story is right. The substantial truth doctrine provides some comfort but is no guarantee against a lawsuit. This is especially the case in report- ing about the disposition of criminal charges, where reporters are expected to appreciate the distinctions between various devices created by state leg- islatures that few lawyers can define. These include divining the niceties of, among others, convictions, guilty pleas, nolo contendere (no contest) pleas, best interest pleas, Alford pleas, Kennedy pleas (in West Virginia), deferred convictions,' judicial diver- sions, and deferred sentences. Criminal defendants frequently take offense to reporting-even accu- rate reporting about their offenses. It is a short hop from criminal defendant to libel plaintiff. This article addresses some recent lawsuits in which a plaintiff asserted libel and other claims based upon a news outlet's reporting of a judicial diversion or deferred con- viction as a conviction based upon a determination of guilt. Although the name and particulars differ from jurisdiction to jurisdic- tion, deferred sentences, deferred convictions, and judicial diver- sions are synonymous descriptions for the discretionary method by which a judge may choose to defer proceedings against a qualified defendant and place the individual on probation. Whether a criminal defendant qualifies for deferral depends upon applicable state statutes. In Tennessee, for example, individuals qualify for deferrals if they have been found guilty or plead guilty or nolo con- tendere to certain classes of felonies and misdemeanors.! Upon the completion of a successful probationary period, the court dismisses the deferred charges, and the individual can petition the court for an order expunging all recor- dation relating to the person's arrest, indictment or information, trial, finding of guilty, and dismissal and discharge.2 As such, judicial deferrals act as a sec- ond-chance opportunity for certain offenders. In Molthan v. Meredith Corp. and Raycom Media, Inc.,' the magistrate- judge recommended, and the district judge recently agreed, that the libel/ false light plaintiff's claims should be dismissed. In an earlier criminal case, the libel plaintiff had been accused of Continued on 21 Robb Harvey has been defending content providers for more than 30 years. Kevin Elkin's media practice focuses on representing newspapers and television stations in First Amendment and Open Records Act cases. Note: The authors represent the defendants in the Molthan case. Fall 2018 El Communications Lawyer El 1

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