NPR is being hammered this week for its reporting on right-wing extremists attacking peaceful protesters.  The news organization previously showed images of a female motorist who struck a protester on Wednesday as an example of “Right-wing extremists are turning cars into weapons.”  Despite the video released quickly by the police (and the fact that police found she was fleeing a protester with a gun and did not charge her),  the woman was described as part of a pattern of protesters being innocently mowed down.  These cases often raise difficult legal questions in torts on issues of defamation and false light (combining two of the favorite subjects of this blog: media and torts).

Despite my great respect for NPR as a news organization, I have recently criticized NPR for the accuracy of reporting.  To its credit, NPR admitted the error in this case. That is more than some other media outfits. For example, the Washington Post has never corrected a false reporting of the actual holding of a court in a column by Jennifer Rubin.  Of course, Trump cannot sue over the erroneously description of a court ruling, even one that is expressly contradicted by the opinion itself.

According to local media accounts, the woman was surrounded by protesters around 8:30 a.m. and she was blocked by a protester later identified by police as Darius S. Anderson, 21, who stood in front of the car.  The police said that protesters “began to reach into her car, scratching her vehicle window … and assaulting her, pulling her hair (pulling out a dreadlock) causing pain to victim.”  She said that a gun was pulled out and that she fled, striking a man.  The protesters pursued her and,, when she stopped for a red light, Anderson allegedly approached her car, racked a handgun and pointed it at her.  Louisville Metro Police detective said he saw Anderson pass the handgun to Brioanna Richards, 19, “who then hid the gun in a vehicle … to conceal evidence of the crime. ” Both Anderson and Richards were arrested at the scene.

NPR however offered a different take.  It included a picture of the incident in a tweet stating “Right-wing extremists are turning cars into weapons, with reports of 50 vehicle-ramming incidents since protests erupted nationwide in late May.” The linked story was titled “Vehicle Attacks Rise As Extremists Target Protesters,” and also featured an image of the incident.

After various commentators lashed out at NPR for the error, it removed the image and published a note, which reads, “A previous version of this post and story included a photo of a protester being struck by a car in Louisville, Kentucky. The photo, chosen by editors, does not appear to be an example of the assaults described in the story, and has been replaced.”

An apology would have been nice for the woman but many have asked whether NPR can or should now be sued.  That bring us, thankfully, to the area of torts. There is no question that labeling a woman as an example of right-wing extremists mowing down peaceful protesters is defamatory as well as other potential torts. Those torts include false light where an image or association with story creates a false account.  The Kentucky Supreme Court adopted the tort of false light invasion of privacy in 1981. See McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882 (Ky. 1981). Such a claim requires (1) that the false light in which she was placed would be highly offensive to a reasonable person; and (2) that the statement placing the plaintiff in a false light was published with knowledge that the statements were false or in reckless disregard for the false light in which the statements placed the plaintiff.

However, like many such cases, a defamation or false light case is not that easy.

First, the woman’s identity is not revealed in the stories. She is generally identified as a the 46-year-old woman.  Other news reports identify her as an African American. While her car is shown, it is not clear that she would suffer actual damage to her reputation. She can raise a per quod case where defamation occurs by reference to extrinsic facts. It is not clear if her identity has been widely disseminated.

For libel or per se slander, such injury does not have to be shown through special damages.  News broadcasts (and certainly twitter) are treated as libel, which traditionally covered written forms of defamation. However, even slander was considered inherently damaging if it fell into one of a number of “per se” categories.  Those traditional categories include allegations of criminal conduct, moral turpitude, and other highly damaging acts.

Second, she would have to sue a media organization.  She is also not public figure, so she is not subject to the higher standard set out in New York Times v. Sullivan. Public officials are placed under a higher standard for defamation in the case: requiring a showing of actual malice or knowing disregard of the truth. The public figure standard is the same and was established in Curtis Publishing v. Butts (1967).

However, the Supreme Court applied the higher standard in cases against the media in a variety of tort claims from intentional infliction of emotional distress, disclosure of private fact, and false light.  See Hustler Magazine v. Falwell (1988); Florida Star v. B.J.F. (1989); and Time Inc. v. Hill (1967).

Third, NPR issued a correction.  Kentucky is one of many states with the retraction statute.  Kentucky’s Code (411.051) states:

Thus, she would not be able to receive punitive damages against NPR.  If her identity was not disseminated, damages could end up as de minimis.

Thus, in my view, it would seem that the correction in Kentucky should protect NPR from serious damages for the story.