Pop-quiz: What is the only for-profit business that can recklessly injure someone without having to pay tort damages? Answer: The news media.

The law immunizes the media from defamation damages if they recklessly misrepresent facts about a public figure – even if that public figure is truly injured by the misrepresentation.

Some people might feel that regardless of the law they have a moral duty to compensate people who are injured by their negligence. But guess how many dollars the news media voluntarily paid to people that they injured.

Now it is true that timely retractions often mitigate the injury of misrepresentions – but don’t kid yourself. If a newspaper recklessly prints that a restaurant has a rat infection or that someone is a suspected child molestor, the timely retraction does not make the person whole (people who didn’t hear about the retraction or question its accuracy are likely to stay clear).

Many people will argue that the production of news is special. A newspaper only captures a fraction of the social benefits that it creates – so that we can’t expect it to pay its full costs. But the same is true of car manufacturers and we don’t give them a free ride. [Indeed, why don’t we also immunize the newspaper delivery truck if it negligently injures someone while it is disseminating the news]. It’s fine for the government to subsidize the public good of news. But there’s not a reason in the world that this should be done on the backs of individuals who are harmed.

But it turns out that the immunizing 1st Amendment rule laid in New York Times v. Sullivan is contractible. That’s right citizens are free to contract for compensation if they’re harmed by news media misrepresentations.

Imagine what would what would happen if news sources responded to interview requests with the following email:

I would be happy to be interviewed. But I am concerned about the ability of the print media to harm people by negligent misrepresentations of fact without compensating them for their injury. I therefore propose the following contract that I've offered in the past:

Agreement to Compensate for Negligent Misrepresentation

In this agreement: ______ shall be referred to as “the reporter”; ______ shall be referred to as “the publication”; and ______ shall be referred to as “the source.”

In return for the participation of the source as an interviewee, the publication promises to compensate anyone who is damaged by a factual misrepresentation printed in an article that expressly quotes the source. Compensation for factual misrepresentations is to be measured by the dollar amount required to make the damaged person whole, but in no event shall be less than $100. Damages might be mitigated by timely retractions of the misrepresentation. Any one explicitly named in the article is an express third party beneficiary of this contract and thereby has a right to directly sue the publication if it breaches its promise to compensate. The publication and the source intend for this to be a legally binding agreement. The reporter in agreeing to this contract on behalf of the publication represents that the reporter has actual and apparent authority to enter into this contract on behalf of the publication.

To accept this contractual offer (and thereby create a legally binding contract between the publication and the source), please reply to this email with a subject line that states “On behalf of the publication, I accept the Agreement to Compensate for Negligent Misrepresentation”

This simple contract would protect anyone who was named in an article quoting the source. Of course, if you’re the only source that offers this contract, the newspaper is going to worry that you will be an overly sensitive, high-maintenance, pain in the ass and will avoid you with a ten-foot pole. I know I’ve offered this contract and you should hear the shock and indignation in the voice of the reporters.

This is un-American. It would cripple newspapers.

Okay, the news media may have a constitutional right to print reckless misrepresentations without paying compensation, but you and I don’t have to cooperate with the enterprise. Imagine how sources might react if every interview began with the reporter’s disclaimer: I can recklessly misrepresent facts about you without any legal duty to compensate you.”

Would you eagerly participate?

And let’s be clear, contracting for compensation is clearly constitutional. If it is constitutional for Michael Jackson to sell an interview for an unconditional payment, it is constitutional for me to sell an interview for a conditional payment to cover my costs of injury from falsehood.

Indeed, it would be a very strange that free speech prohibited people from opting to stand behind the truthfulness of their statements. It would further the first marketplace of ideas because listeners could give more credence to reporters who promised to pay if the negligently misrepresented the truth.

What do you think of this idea or comment?
(You can change your vote at any time)

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I disagree