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At a time when the airwaves are crackling with minute-by-minute updates from the array of reporter “embeds” and the front-line war coverage is written at a tempo faster than most readers can keep pace with, the legal ramifications for civilian journalists at the heart of the action may yet be realized. For the two Newsday journalists reporting from Baghdad who lost contact with their families and employer March 24, the ending was a happy one when they safely surfaced on last week in Jordan. But in other cases, injury — or worse — is a very real occupational hazard, leaving some to ask if there is more to consider than merely the risks of war when assigning blame. “It’s a new world out there,” said Richard Larkin, in-house counsel and assistant executive director of the American Federation of TV and Radio Artists, New York local. “This is the first time that you’re getting this type of coverage.” Although Larkin said he knew of no lawsuits against news organizations stemming from a journalist’s injuries or death while reporting from a war zone, he observed that the situation presents uncharted legal waters. “This is a really novel, first-time thing,” he said. “Ask me in five years.” High-profile broadcast journalists are usually armed with carefully crafted executive contracts containing significant protections in the event of injury or death, said David Gregory, a professor at St. John’s University School of Law. “These are standard features,” noted the professor, who teaches labor and employment law. Well-known personalities such as Ted Koppel, Dan Rather and others are likely to have arrangements, as did the Walter Cronkites of past conflicts, Gregory explained. But for many print reporters or other lesser-known journalists, such contracts are unlikely. Instead, losses generally would be covered by standard benefits packages that include insurance and disability provisions for either at-will employees or labor union members. Workers’ compensation is another avenue, Gregory said, but with a maximum recovery rate at $400 per week under New York law, journalists injured on the job, or their families in cases of death, may look to other sources for recovery. The New York Times has about 12 embedded reporters in Iraq. George Freeman, assistant general counsel for the newspaper, said that its journalists have no special contractual relationship with the paper. They do, however, have an agreement with the U.S. government. He explained that embedded journalists are required to sign a release absolving the government from liability for any injuries incurred at any time while they are moving with the troops or training to do so. “It doesn’t seem terribly negotiable,” said Freeman, adding that the agreement even covers liability in case vaccinations are negligently administered. Although Times reporters do not have special war-zone agreements, Freeman said it has done “everything humanly possible” to ensure their safety, from providing training beyond that required by the government to outfitting them with bullet-proof vests. He also said the paper had more volunteers than positions available for those assignments. “Everyone wants to be out there,” he said. It is not likely that reporters who volunteer for war-zone assignments will turn around and sue their employer, explained Michael Grygiel, an attorney at Albany, N.Y.’s McNamee, Lochner, Titus & Williams, which represents several news organizations across the state. “A reporter goes to cover incidents in a war zone with the colossal First Amendment interests at stake,” he said. However, Grygiel observed that with an unprecedented number of reporters entrenched in the action, the legal consequences are uncertain. And while journalists themselves may have zealously volunteered and accepted a war assignment, the surviving family members may view that employer much differently should the journalist end up injured or dead. FACTORS FOR RECOVERY Grygiel pointed to a variety of factors that could come into play if plaintiffs were to pursue recovery beyond the employer’s benefits or workers’ compensation. First, situations in which reporters volunteer for war-coverage positions may involve an “assumption of risk” type of element, he said. In other words, reporters go in with the understanding that their tasks could turn ugly, and they accept those risks. “Responsible news organizations expect their reporters to cover the news, but they do not expect their employees to put their lives at stake,” Grygiel said. But he also observed that news organizations receive a benefit from having reporters in the war zone. And while many news groups defer to their reporters in making a decision about safety, the question remains as to whether the employer has exempted itself from liability, especially in light of their interest in getting as much coverage as possible. If reporters or their families seek to recover more than what employee benefits allow or what is available through workers’ compensation, they most likely must prove recklessness on the employer’s part, explained Gregory, the law professor. To demonstrate a clear case of recklessness, he used the fictitious scenario of reporters sent on an assignment in which they are transported over Niagara Falls in a barrel. The news agency’s desire is to have detailed coverage of the experience, but putting reporters in those circumstances as a condition of their employment falls outside of what is reasonable. The issues for war-time reporters, then, is whether they volunteered, whether they were fully apprised of the situation and whether the employer also knew the risks. Another consideration is whether the reporter is a staff employee or a free-lancer. The staffer generally has more protection due to death benefits or disability, and could possibly pursue an action if the employer’s conduct is shown to be reckless in sending the reporter into a hazardous situation, Gregory said. Free-lancers, however, would most likely have no cause of action against a news organization because of their independent contractor status, but could receive benefits from a free-lancer’s union if they belong. Another emerging legal issue is whether news groups can be held responsible if their reporters reveal information that hinders the efforts of U.S. troops. For example, the Pentagon last week accused Fox News correspondent Geraldo Rivera of breaching rules that forbid reporters from revealing certain troop operations. On April 1, Fox announced Rivera was leaving his position at the Pentagon’s request. Such a situation could lead to a possible prosecution against the reporter and its news group, though the government’s burden would be formidable, Gregory said. Wrongful-termination claims brought by staff journalists are also possible when they are let go. Recently, NBC fired Baghdad-based reporter Peter Arnett after he claimed that the U.S. war strategy had “failed” and that the Bush Administration had “underestimated the determination” of Iraq. Arnett could not likely pursue a claim against NBC because he free-lanced for the network, but staffers could do so, Gregory explained.

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