Kansas tabloid in rare libel battle over local election coverage

By The Associated Press

05.09.01

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KANSAS CITY, Kan. — For months before the election, a tiny political tabloid picked at Mayor Carol Marinovich — claiming, among other things, that she didn't even live in the mostly blue-collar county she represents.

Marinovich won re-election to a third term in April, but it was close. Now, her political allies are trying to ensure that the free tabloid pays for what Marinovich has called "an out-and-out lie."

District Attorney Nick Tomasic charged the editor and co-publisher of The New Observer with criminal defamation under a rarely used libel law that could land both in jail for a year if convicted.

The criminal-libel case "is the first one filed directly against the media in a long time," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Arlington, Va.

Editor Edward H. Powers Jr. and co-Publisher David Carson pleaded not guilty April 10 and are to return to court in July.

Powers has declined to comment on the case, saying he would let the tabloid do the talking. And it has.

"Marinovich-Tomasic show true objective: jail anyone gutty enough to expose them!" read a March 16 headline.

Tomasic "boldly stabs the First Amendment of the United States Constitution in the back and calls it 'justice,' " the paper said March 1, the day Powers and Carson were charged.

The New Observer is a randomly published, four-page free tabloid that is mailed unsolicited to thousands of homes. It focuses on local politics in Democrat-heavy Wyandotte County, just north of the wealthier Republican suburb of Johnson County. A new issue hasn't appeared since Marinovich was re-elected mayor of the unified government of Wyandotte County and Kansas City on April 3.

Carson, once an attorney for the county's Board of Public Utilities, is known for backing candidates opposed to incumbents. Powers is a former lawyer who was disbarred in 1988 after complaints over his handling of clients' money and his own bankruptcy filing.

Eight of the 10 misdemeanor counts filed against them stem from four issues of the paper that contained the accusation that Marinovich and her husband, District Court Judge Ernest Johnson, have a house in Wyandotte County but actually live in Johnson County.

If that were true, Marinovich could not be mayor.

Marinovich did not return phone calls from the Associated Press but she had said frequently during her campaign that Powers and Carson were trying to get her out of office. The pair want more political influence, she said.

The mayor, who grew up in Wyandotte County, said she and her husband live in the southeast corner of the county.

In January, The New Observer issued a correction for an address it gave as Marinovich's home in Johnson County. The paper apologized to the real homeowner, but stuck to its claim that Marinovich lived outside Wyanodotte County.

The two other criminal charges stem from the paper's February issue, which said two aides to Marinovich's campaign — a former NAACP local chapter president and a former Kansas City (Mo.) Star reporter — were "hired to lie for Carol Marinovich."

"I filed the charges because the publications that were made are false and malicious and that is what the statute provides," Tomasic said.

Kansas is one of 25 states that still have criminal defamation statutes, although in Kansas they have not been used since 1993.

"These are usually civil lawsuits, and we have had those, but a criminal charge is an extremely unusual circumstance," said Ron Keefover, spokesman for the Kansas Supreme Court.

That's true across the nation, said Dalglish, adding, "It is even more unusual that anyone wins one of these cases."

Media experts say Tomasic may have a difficult time winning because he has to prove actual malice, which means he has to prove that the defendants knew their story was untrue, or that they showed reckless disregard for the truth. Prosecutors must also show the story caused Marinovich serious harm.

Update

Kansas newspaper, staffers convicted of criminal libel
First Amendment proponents decry verdict; 'We typically associate criminal defamation with authoritarian governments,' says Reporters Committee chief.  07.18.02

Related

Defamation and the First Amendment
Research package for Defamation and the First Amendment: Balancing Reputational Harms Against Free-Expression Rights, by David Hudson.  08.20.01