COURT WATCH
Suing the Source
From Cincinnati, a new strategy for libel plaintiffs could chill the press
When the owner of a Cincinnati-based chain of dental clinics filed suit in August, claiming that a series of stories broadcast by WCPO-TV had defamed him and his company, he did not name the reporter or the station as defendants. Rather, he sued the former employees and patients whose charges of financial and professional chicanery formed the basis of WCPO's investigation.
Why? Only J. Michael Fuchs, who owns Family Dental Care Associates, can say for sure, but press watchers are sounding the alarm over what they say is a new strategy for libel plaintiffs that seems designed, in essence, to divide and conquer. By suing the source but not the media outlet, the argument goes, the plaintiff denies the source the protection afforded by the media outlet's much deeper pockets. The isolated sources, says David Sanders, a First Amendment lawyer with the Chicago firm Jenner & Block, could be more easily coerced into a settlement or, worse, into renouncing their charges, leaving the media outlet with a damaged reputation and future sources with second thoughts about talking to the press. Suing sources "is a commonly used tactic by hyperaggressive and well-represented plaintiffs," says Sanders. But typically the publication or broadcaster is also a defendant, he says.
In a series of stories broadcast by WCPO from February to June, former patients and employees alleged that, among other things, Family Dental Care Associates double-billed patients and insurance companies, skimped on patient care, and used improperly sterilized instruments. Fuchs challenged the stories, and filed suit August 8 in the Court of Common Pleas of Hamilton County, Ohio. Fuchs's lawyer, Richard Creighton, a partner with Keating, Muething & Klekamp of Cincinnati, would not comment on the legal strategy of suing only the sources.
The Society of Professional Journalists issued a statement calling the action a new type of "strategic lawsuit against public participation," — or SLAPP suit — and said it is "a blatant, if indirect, attempt to punish the media by throwing up a barrier of fear between journalist and source." Within weeks of the suit's being filed, WCPO petitioned the court to join the list of defendants. On October 3, Judge Dennis Helmick granted WCPO's request.
But this is little comfort to Charles Davis, who runs the University
of Missouri's Freedom of Information Center and is co-chair of
SPJ's FOI committee. He worries that the new strategy could gradually
take hold, much the way SLAPP suits became popular. "You
sue a source for libel and this might be the first time they've
ever been sued in their life," he says. "It puts the
fear of God in private citizens."
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