"You can’t print a lie...That’s a crime in the state of Kansas..." Extra! Extra! Kansas City Newspaper Convicted of Criminal Defamation

"Is gossip that [Carol] Marinovich lives in Johnson County true?"

It is not, and the politically-charged question posed by The New Observer, a free, periodically published Kansas City, Kansas newspaper, could land the paper’s publisher and editor behind bars.

Carol Marinovich, who last year was narrowly re-elected mayor of the unified government of Kansas City and surrounding Wyandotte County, is a frequent target of criticism by the Observer. According to The New York Times, David Carson, the Observer’s publisher, and Edward Powers, its editor, readily admit to using the paper and corresponding website to "conduct an extremely aggressive exercise in the First Amendment applied to local politics in Wyandotte."

County prosecutor Nick Tomasic (himself no stranger to Observer attacks) believes Carson and Powers crossed the line when they inaccurately reported during Marinovich’s re-election bid that she and her husband, a district judge, lived outside of Wyandotte County in the more affluent Johnson County. By law, elected officials must live in the county where they hold office. Adding insult to injury, nearby Johnson County is viewed locally as elitist, say Marinovich supporters.

The day after the mayoral primary, Tomasic filed criminal charges against Carson and Powers. The men were accused of violating an archaic state anti-defamation law, punishable by up to a year in jail and a $2,500 fine.

The state Supreme Court assigned Judge Tracy Klinginsmith from Jackson County, Kansas, to conduct the trial after all Wyandotte County judges were forced to recuse themselves. Klinginsmith appointed a special prosecutor, David Farris, to argue the case in place of Tomasic, who was dismissed due to a "history of contentiousness" with the defendants.

On July 17, a six-person jury found Carson and Powers guilty of misdemeanor libel, marking the first time in nearly 30 years that a news organization in this country has been convicted of such a crime. A hearing on post-trial motions is scheduled for August 26.

"You can’t print a lie...That’s a crime in the state of Kansas and it’s a misdemeanor — some of us wish it was a felony," said Farris to the Associated Press.

According to the Reporters Committee for Freedom of the Press, Kansas is one of only two or three states that have criminal defamation laws, which require "actual malice" for a conviction -- meaning a newspaper would have to have published a story it knew, or should have known, was false. Most defamation cases are civil lawsuits, punishable by monetary damages only.

"We typically associate criminal defamation with authoritarian governments. There are a lot of Latin American dictatorships with criminal defamation statutes," argued the Reporters Committee’s Lucy Daglish to the Associated Press.

Carson, 85, and Powers, 61, are both former attorneys who were disbarred for "unprofessional behavior." According to The New York Times, Powers, who surrendered his license in 1988, was accused of "failing to account for thousands of dollars due to clients and associates," and Carson, who was disbarred last year, once accused a county judge of being "judgmentally impaired as a result of the abuse of alcohol."

Carson and Powers attribute rumors that Marinovich lives outside of Wyandotte County to unnamed "sources," such as an insurance company employee who claims to have viewed a jewelry and fur coat policy for Marinovich that listed an address outside of Wyandotte County. Neighbors of Marinovich in Kansas City, however, testified to her and her husband’s residency there.

The evidence seems overwhelming that Marinovich does, in fact, live in Wyandotte County, and it appears the Observer knew, or should have known, of her legal address before it published its story. Nevertheless, the Kansas statute is overreaching, and anytime one mixes politics with criminal defamation that’s a dangerous brew, with considerable potential for abuse. According to the U.S. Supreme Court, "the constitutional guarantee of the First Amendment has its fullest and most urgent application precisely to the conduct of campaigns for political office."

Where "actual malice" is concerned, intent, much like art, is in the eye of the beholder. And, it is difficult for a journalist to defend what he or she "should have known," particularly in today’s rapid fire, sensationalized world of mass media. Biased, irresponsible, go-for-the-jugular or execution by innuendo reporting are major public issues, but so are the stonewallings and prevarications of some politicians. Criminal prosecution for inaccurate information is a "chilling" prospect for the rights of, and our need for, a free press. Adequate redress of legitimate grievances for defamation, as most states have determined, is better left to our civil courts.

August 1, 2002
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