Editorial Flip-Flop

Fields denies stonewalling Hylton. He says he did not set up interviews because the reporter only gave him the vaguest description of his line of questioning, with no details about specific issues. "He said he wanted to talk to somebody about the challenge of providing health care in a correctional environment," recalls Fields. Hylton stopped calling after Fields requested that he ask any prisoners he was interviewing to sign waivers, so that the company or a patient's representative could discuss their medical histories.

In the end, Hylton submitted no questions to CMS at all. Instead, he wrote a passage explaining his attempts to get a face-to-face interview. During the fact-checking process, Harper's editors sent 14 questions to Fields and included a few brief responses. Fields contends that Harper'sdid not provide enough detail for him to respond in full, and he was never told the names of any prisoners mentioned in the story.

John Sullivan, who edited the piece, says Hylton "went beyond the call in attempting to communicate with the company," which operates in a "culture of secrecy." Says Sullivan, "I don't doubt that there are enormous difficulties involved in providing health care to this group of people. It's just that I have yet to see CMS counter anything said in the piece in any substantive way." Asked who should make the next move, he said, "I think the ball's in their court."

Says Fields, "I don't think a short letter to the editor" would address all of CMS's complaints. Stay tuned.

Can the 'Times' Be Sued?

Should The New York Times have to pay damages to readers who were duped by its decision to publish the fraudulent work of Jayson Blair? So say Clay Calvert and Robert D. Richards, two lawyers who teach in the College of Communications at Pennsylvania State University, in an article that will appear in the fall 2003 edition of the Fordham Intellectual Property, Media and Entertainment Law Journal.

The article introduces the novel legal theory of "journalistic malpractice" whereby, in the Times' case, "the continued publication of Blair's stories, despite the serious doubt about his work entertained and expressed by his direct supervisors, points to reckless disregard for the truth by key personnel at the newspaper."

Given Blair's long trail of factual errors, the article argues, his editors either knew or should have known that he was "a frequent and deliberate liar." This raises some interesting questions: if a reporter is not meticulously accurate, does it follow that he might be stealing material and making things up? Did Blair's editors exercise "reasonable care" to prevent this from happening?

Author Calvert imagines a world in which media companies would be held legally accountable for telling the truth, and the Times could be forced to pay for every one of Blair's lies. As it is, he says, the journalism profession lacks meaningful oversight, and the Times is free to "fire its editors, issue this massive mea culpa, hire an ombudsman, and go on its way. We would say that that fault on Blair should be imputed back up the chain of editors and all the way to the top."

While admitting that it might be hard to prove in court that Times readers were damaged, Calvert defends his theory with this easy analogy: "If you owned the school bus company and you knew one of your drivers had a bad driving record, would you allow the person to continue to drive the bus? Blair was an accident waiting to happen."

A spokesperson for the Times declined to comment.

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