David vs. Goliath in Tulsa
Why Tulsa's daily paper will regret suing the city's alternative weekly for libel.
Thanks to the megaphone that is Romenesko, I learned today that the daily Tulsa World is suing the alternative weekly Urban Tulsa—along with the weekly's publisher and one of its writers, Michael Bates—for alleged libel in Bates' column this week. A newspaper suing another newspaper for libel? Most newspapers are so opposed to libel suits that they would rather drown in printer's ink than file one. What's gotten the World's laces in such a tangle?
According to the World's news story, the suit—which I have not seen—alleges that the Bates column falsely claims "that the World had misled advertisers about the newspaper's circulation." World Publisher Robert E. Lorton III tells the World's reporter, "When a firm purportedly in the news business makes a claim that we have misled our advertisers, they call into question our integrity, and we cannot and will not let that stand." According to the World article, the suit—which, remember, I have not seen—says that Urban Tulsa knowingly published the false information in an attempt to "gain commercial advantage."
Lorton could be absolutely right, except here's what Bates actually wrote:
The steep drop between the paid consultant's March 2005 [circulation] count and the March 2006 ABC numbers suggest that the World was inflating its circulation by as much as 20 percent.
Bates also states that the World's circulation drop was "concealed for a time" because the World moved its circulation audit from one company to another.
Does this smell like libel to you? In my opinion, you could feed a starving Cub Scout troop with the fudge Bates packs into his piece: "suggest" and "as much as" give Bates an excess of wiggle room to fend off a suit. And he's not putting a specific number to the hypothetical inflation but stating a maximum estimate of 20 percent.
Nor does Bates write that the World fraudulently inflated its circulation. Newspaper and magazine publishers rely on all sorts of techniques sanctioned by the industry to increase—or, depending on your view, inflate—their audited circulations. For example, when Newsday got busted for circulation fraud in 2004, the paper's news staff reported how generous the Audit Bureau of Circulations' standards were, especially to a newspaper keen on increasing its audited circulation. From the July 19, 2004, Newsday:
The definition of what is paid circulation is liberal. It includes copies given away to employees (at Newsday, that's about 5,500 per day, with a percentage comparable to other major papers) and a small percentage of bad-debt accounts, where subscribers are late in paying for copies received. … Also eligible to be counted as paid circulation are additional copies distributed at no extra cost to households that subscribe for a couple of days in hopes they will sign up for the entire week.
Publishers are permitted to exclude from circulation statements the instances where sales were unusually low. A maximum of 40 days—holidays and the days immediately before or after—can be excluded if each day's sales were at least 5 percent below the same day from the week before.
The same holds for an unlimited number of days when production problems, severe weather or news events affected sales. (Newsday omitted 31 days from its report for the 12 months ended September 2003, the most recent available.) ...
John Payne, ABC's senior vice president of communications and strategic planning, acknowledged that the group's rules could appear less stringent to a layperson. "There are some rules that don't appear logical," he said, noting copies given away to a publisher's workers are counted as paid circulation because they are judged to be part of employee compensation.
(For a well-reported overview of the 2004 circulation scandals, see the New York Times piece by Jacques Steinberg and David Carr.)
My unsolicited advice to Bates and Urban Tulsa: Call a press conference, pass out party hats, and say that you welcome the World's suit! Tell the Tulsa press corps you're dying to use the power of discovery to dig deeply into the World's circulation numbers to determine precisely how accurate its audits have been over the last 20 years. Oh, and make sure to enlist one of the World's big, regular advertisers as your ally. They'll be very interested in getting a close-up of the paper's circulation numbers.