Late last month, and with very little fanfare, Salaheddin Barhoum and Yassine Zaimi settled their defamation lawsuit against the operators of the New York Post based upon that tabloid's infamous "BAG MEN" cover photo and related story of April 18, 2013, which the two said falsely implicated them in the Boston Marathon bombing.
We will never know the terms of the settlement -- according to the Associated Press, the parties described it as "amicable" -- but whatever money the duo may have received can probably never undo or compensate them for the harm they claim they sustained at the hands of a tabloid publication that linked them to a heinous act of terrorism.
As Erik Wemple of the Washington Post wrote, it is too bad the terms aren't known because "just what the New York Post did to make this civil action go away is a matter of great public interest." Wemple added that he was "hoping that the New York Post dished out a large sum for the misery it visited upon two innocent young people."
Despite the settlement, at least two legal lessons can be taken away from the case: 1) Sensational tabloid covers, replete with screaming headlines juxtaposed next to photographs, can indeed be defamatory; and 2) tiny cover-page disclaimers won't always get tabloids like the New York Post off the hook.
We know this because in March 2014, Massachusetts Superior Court Judge Judith Fabricant refused to dismiss the defamation causes of action filed against the New York Post.
In doing so, Judge Fabricant wrote that "a reasonable reader could construe the publication as expressly saying that law enforcement personnel were seeking not only to identify the plaintiffs, but also to find them, and as implying that the plaintiffs were the bombers, or at least that investigators so suspected."
[The issue's] publication occurred in the context of widespread media reports that police believed that the perpetrators had brought the bombs to the site in backpacks or duffle bags. In that context, the cover headline "BAG MEN," in large capital letters, across a photograph of the plaintiffs carrying bags, could fairly have been understood to imply that their bags were the ones that had transported the bombs. The repeated reference to one of the men carrying a backpack that was visible in earlier photographs but not in later ones could fairly have been understood to suggest that one of the plaintiffs had left his backpack at the scene, as the perpetrator was believed to have done.
The New York Post also argued that the defamation actions should be dismissed because, in tiny type in the bottom left corner of the cover page, there was a disclaimer stating there was "no direct evidence linking them [Barhoum and Zaimi] to the crime." The judge shredded this argument, making short shrift of it:
[T]his disclaimer, even if a reader noticed it amidst the much larger headlines, would have accomplished little to dispel the overall impact of the publication. "Direct evidence" is not necessary even to establish proof beyond a reasonable doubt. ... Still less is direct evidence necessary to convey to readers the impression that two people labeled "bag men" whom "Feds seek" were perpetrators of or at least suspects in a horrendous crime committed by means of bombs carried in bags.
Regardless of the legal issues, the case will be a staple for ethics classics in the nation's journalism departments and colleges for years to come. One lesson relates to the need to abandon the scoop mentality and jettison the desire to be first at all costs in reporting stories.
As Mark Little, the founder of Storyful, recently put it during an Innovators talk in the College of Journalism and Communications at the University Florida, the "concept of breaking news is broken. In age of social media, you won't be first." Little astutely added, "Let's compete to be first with the right story."
Ultimately, the ethical lessons related to the Boston Marathon bombing coverage are perhaps best encapsulated not by a journalism professor or academic but by FBI Special Agent Greg Comcowich. On behalf of the FBI, he issued the following statement to the new media on April 17, 2013:
Over the past day and a half, there have been a number of press reports based on information from unofficial sources that has been inaccurate. Since these stories often have unintended consequences, we ask the media, particularly at this early stage of the investigation, to exercise caution and attempt to verify information through appropriate official channels before reporting.
Too bad the New York Post didn't follow that sage ethical advice the next day when it fingered Barhoum and Zaimi.