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Student editors face legal exposure

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Frank Schultz
November 10, 2013

WHITEWATER—Andrea Behling was in the midst of final exams last spring when she received notice she was being sued.

The suit named her, as editor of the UW-Whitewater student newspaper, as being responsible for articles published two years earlier.

Behling then found out the university would not represent her in court.

The story reveals the largely unrecognized legal liability that college journalists face and the strange relationships between colleges and their student newspapers.

The relationships put student journalists in danger of being sued, and that threat could have chilling effects on their journalistic efforts—as it has in this case.

The story begins in 2011 when the UW-W student paper, The Royal Purple, published articles about university faculty member Zhengnan “Charles” Shi.

The articles repeated allegations made in court documents, which alleged Shi had made threatening comments to colleagues. Those allegations and others led to Shi being banned from campus for much of 2011, according to court documents.

Court documents indicate Shi had difficulties with colleagues and superiors, and the statements he was accused of making apparently reflected his frustrations with that situation. The allegations were later found to be without merit, and the ban was lifted in December 2011.

Shi subsequently was fired in 2012 for what Chancellor Richard Telfer told him was poor teaching. Shi appealed his firing, and that lawsuit is now before the state District 4 Court of Appeals.

Shi, representing himself, filed a separate lawsuit against Behling in May 2013, alleging the Royal Purple's inaccurate articles harmed him in 2011.

Behling was not editor when the articles were published, but she is editor now, and that is why Shi sued her.

“I have to name the current top officer as the entity for my litigation,” Shi said in an email, and Behling happened to be the editor at the time he filed his suit.

Shi said in an email that he tried to resolve the matter before taking it to court.

Behling said Shi had approached her in summer 2012 and asked her to publish a follow-up article. He apparently wanted it known that the 2011 allegations had been found to be without merit.

Behling said the UW-W administration would not comment, so she decided not to publish a story that did not have the administration's side of the story and could not verify Shi's side.

Shi kept asking what was going on with the article, and the newspaper's adviser at the time, a faculty member, advised her not to respond, saying Shi would go away, Behling said.

Shi's last message to Behling was “I'll see you in court,” Behling said. That day, she took the old articles off the newspaper's website.

Months later, Behling received the court summons.

She went to UW-Whitewater Communication Department Chairman Kim Hixson, who said he would refer the matter to higher authorities.

“I thought this was something the university would deal with,” Behling said.

She called the Wisconsin Newspaper Association, which advised her to talk to the university. She also called the Student Press Law Center, which offered to help her get a lawyer if the university did nothing.

Behling turned to UW-W Vice Chancellor Jeff Arnold, who told her UW-W could not represent her but could offer legal advice.

“Jeff Arnold said, 'I'm really sorry you're in this situation, but we can't help you because our attorney is not allowed to represent newspapers,'” Behling recalled.

Behling was feeling desperate. It didn't help that this came the same week as final exams.

“There were a lot of tears,” she said.

Behling said she went to the chancellor's office unannounced and told them, “You guys need to help me.”

Arnold and Chancellor Richard Telfer talked to her and called Godfrey & Kahn, a Wisconsin law firm that specializes in media law. One of the firm's attorneys, Sherry Coley, agreed to represent Behling for free.

In the paper's last edition that spring, Behling published a retraction, just to be safe, she said.

Coley, meanwhile, bargained with Shi, offering him publication of a letter to the editor in the fall. Shi did not agree, but he asked for financial statements from Behling, the Royal Purple and Behling's parents, Behling said.

The suit went to a July 22 hearing in Walworth County Court, where Coley successfully argued that Shi had not met the requirements of the state defamation statute. Coley argued that Shi had failed to meet most of the law's requirements for requesting a retraction and showing exactly what the untrue statements might have been, and the judge agreed.

The judge dismissed the case, but Shi appealed, and the appeal is pending.

Coley agreed to represent Behling for the appeal only if she paid a fee and if the Royal Purple would buy libel insurance, Behling said.

Hixson told her the Royal Purple could pay the $1,000 toward her lawyer fee. The paper's new adviser is working on buying the insurance.

University officials would not comment on the events surrounding the suit against Behling, on advice of the UW System's legal counsel.

The university provides offices and pays utilities for the paper. It provides an adviser, covers the paper's printing costs and handles the paper's accounts, officials said.

But the university is not the paper's publisher. It doesn't exercise editorial control, said university spokeswoman Sara Kuhl.

The UW System's general counsel's office says student organizations are not directly a part of the system, so the system cannot represent them, Arnold told The Gazette.

The relationship between the paper and university is odd but not unusual, said Frank LoMonte, executive director of the Student Press Law Center.

A university cannot be a student newspaper's publisher because that would take away the paper's editorial independence, LoMonte said.

When lawsuits against universities get to court, the judge always throws them out because the universities can't be held responsible for the newspapers' content, LoMonte said. Then the people bringing lawsuits see the papers have no money, and the cases are dropped.

Except in this case.

LoMonte said it's unheard of for an editor to be sued for something that didn't happen on her watch.

“At end of the day, I think that she'll quite clearly be able to escape personal liability because she had no connection to the defamatory statements,” LoMonte said. “… But, unfortunately, she's going to have to go through the motions of fighting it in court to prove that.”

Looking back, Behling thinks it was irresponsible for the paper not to have libel insurance, but LoMonte said many student papers don't have it.

The problem with insurance is that it could make the paper a target because the insurance could pay where the paper could not, LoMonte said.

The Royal Purple faculty adviser, Carol Terracina-Hartman, said she is working on a form that student editors would sign, advising them that they and their parents could be sued for something in the paper.

“I guarantee you they are not aware of that structure, and that's something they need to be aware of,” Terracina-Hartman said.

Staff reporters who work for the paper as part of a university class have some legal protection from the university, but editors do not, said Terracina-Hartman, who has been associated with several student publications at universities.

Behling, meanwhile, is still the editor, and she said this experience has made her careful about choosing news article topics.

She said she asked her staff to talk to her if they're not comfortable about putting something in the paper. She's nervous about editorials, too.

“We're almost trying to avoid any possible situation that would have an outcome that would anger someone,” she said.


This story was revised Nov. 21, 2013, to reflect the following correction:

POOR TEACHING WAS REASON GIVEN FOR SHI'S FIRING

An earlier version of this story did not accurately report the circumstances that led to UW-Whitewater professor Zhengnan "Charles" Shi being banned from campus in 2011 and fired in 2012.

According to court documents and Shi, this is the proper series of events:

-- In 2010, Shi was accused of making threatening statements and was investigated by local and federal law enforcement officials, who found no reason to arrest him.

-- In February or March 2011, Shi was banned from campus, apparently in connection with the same allegations involving threatening statements. These statements were later found to be without merit. The ban was lifted in December 2011.

-- In 2012, UW-Whitewater fired Shi. Chancellor Richard Telfer cited poor teaching as the reason for Shi's dismissal. Shi rejects that characterization of his teaching and is contesting his firing in court. The case has not been resolved.



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