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The New York Times would have a tough time mounting a defense if subjects of disgraced reporter Jayson Blair’s plagiarized and fabricated stories can claim injury to reputation or feeling, according to prominent media lawyers. Even the higher standard required of libel suits by public figures, who need to demonstrate actual malice on the part of a newspaper that printed defamatory untruths, would be easily satisfied in a case in which a reporter simply made things up, said Victor A. Kovner, a First Amendment lawyer and senior partner in the New York office of Davis Wright Tremaine. “The principal defense available to newspapers would not be available here,” said Kovner, whose clients have included CBS, McGraw-Hill and Wenner Media. Martin Garbus, a partner at Davis & Gilbert in New York, noted that because Blair was a staff reporter and not a free-lancer, the newspaper was fully responsible for his actions. Evidence that warning signs about Blair’s recklessness were ignored could prove damaging, he said. “Certainly in this case, they had advance knowledge,” said Garbus. “They could conceivably have stopped this.” Both Kovner and Garbus cautioned that the vast majority of Blair’s plagiarism and fabrications would likely prove non-defamatory. Moreover, the Times‘ ongoing re-examination of Blair’s stories and any resulting corrections or retractions will likely mollify many potential litigants. “Frequently all people want is an apology and a retraction,” Kovner said. Because Blair’s journalistic transgressions involved subjects in many parts of the country, potential suits could be based on laws that differ by jurisdiction. For instance, Kovner said New York law recognizes a tort for libel but does not recognize a separate claim for portraying someone in a false light, as most other states do. False light differs slightly from libel in that the former addresses itself more toward injury to feeling, or emotional distress, and the latter addresses itself to injury to reputation, said Kovner. In most states, including New York, both claims are barred one year from the date of publication. In some states, the statute of limitations has been lengthened to two or three years. The most common example of portraying someone in a false light would be cropping a photograph to create the appearance that two people are together, Kovner said, but he noted that inventing quotes and interviews that did not take place would also be “classic false light.” Among those who may be able to maintain they were depicted in a false light are law enforcement officials and others involved in the capture and prosecution of last fall’s Washington, D.C.-area snipers. In one high-profile story from that time, Blair cited unnamed sources in reporting that Maryland U.S. Attorney Thomas DiBiagio interrupted the interrogation of sniper suspect John Muhammad just as Muhammad was on the verge of confessing. That story was included in the examination of Blair’s actions published in the Times this past Sunday. The Sunday report quoted officials who monitored the interrogation and said Muhammad was not on the verge of confessing. Garbus said the Times would also have a case themselves against Blair for breach of contract though he said the worth of bringing such a suit was questionable. A call requesting comment from the Times legal department was not returned by press time. FEDERAL ACTION Federal prosecutors may be more eager to make an example of Blair. The Times reported Wednesday that it had received an informal request for information from Southern District of New York U.S. Attorney James Comey. The possibility of a criminal charge against Blair has surprised many lawyers, though he would not be the first reporter to face criminal charges for what otherwise might be regarded as breaches of journalistic ethics. Wall Street Journal columnist Foster Winans was convicted of mail, wire and securities fraud for trading on information from his column prior to publication. The U.S. Supreme Court upheld Winans’ conviction on the grounds that the column was the newspaper’s “property” and it was stolen. White-collar criminal defense lawyer Richard A. Greenberg of Newman & Greenberg said the only tenable case against Blair would have to be based on a similar finding that the Times had a property right that was misappropriated. Prosecutors could claim, he said, that Blair deprived the Times of their right to his “honest services” as a reporter, in violation of federal mail fraud statutes. The 2nd U.S. Circuit Court of Appeals is presently considering the constitutionality of the “honest services” provision in a case involving personal injury lawyers who bribed expediters for insurance adjusters in order to secure larger settlements. Greenberg filed an amicus brief in the case arguing that “honest services” cases were unconstitutionally vague. He said he believes any attempt to prosecute Blair under such a theory would set a dangerous precedent. “The Times is quite capable of handling this and has been,” said Greenberg. “To call this a federal crime really muddies the waters.”

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