The Herald's Hatchet Job.

[Mall]

Frank Carlson is said to be a freelance reporter for the Miama Herald, though what that means is open to interpretation, as he appears to have written quite a few racing stories for the paper. Based on the portion of the press conf aired on TVG, Carlson\'s 1st step, a curious one which has received very little attention, was to send the now infamous photo to the CD stewards on Thurs. Fri am he talked to steward Rich Leigh, who was quoted in Carlson\'s article as saying the photo looked suspicious. When they finally got around to asking Leigh if he made that comment, he admitted that he had but, acting as if he was a victim, said he also commented that an investigation of the photo was called for, & Carlson did not include those comments in his story. It was readily apparent that Leigh did not understand that it is highly inappropriate for someone who will be judging all of the evidence to comment on what one item may or may not show prior to any hearing. By the look on his face, Mr Meeker does understand this, & look for Leigh to lose his job in a few weeks.

After talking to Leigh, Carlson called Santos & left a message, & Santos called him back Fri night. According to Santos, Carlson asked him if he had anything other than the whip in his hand, which led to the \"cue ring\" exchange. Put yourself in Carlson\'s shoes in this conversation. You\'re thinking of accusing someone with a clean record & history of a serious crime of dishonesty, & for language reasons cannot entirely understand what Santos is saying. Even if you make the absurd assumption that it would be difficult to find a Spanish-speaking journalist at a Miama paper, & even if Carlson himself doesn\'t know someone who speaks Spanish, is it conceivable that a decent & honorable person would go ahead & make the accusation if he or she was not certain of what Santos said? And even if you thought you heard \"cue ring\", wouldn\'t it occur to you that there might have been a misunderstanding when everyone else you check with later indicates that there is no such thing? In addition, Carlson did not send Santos the photo he was asking him about, & was apparently too lazy to check any of the other photos or the video before making the accusation in his column.

The reason as I interpret things is because Carlson seems to have already made up his mind before he called. Santos said today that Carlson accused him in the phone call, at which pt Santos said he didn\'t have time for such nonsense & hung up. As you have no doubt read, Carlson is \"standing by his story\", which in case means not that what he wrote bears any relationship to the truth, but that what he wrote about the cue ring was what he understood Santos to say.

Notwithstanding Gary Steven\'s view on the matter, there is very little that a public figure such as Santos can do in these circumstances. Remember the Paul Newman film Absence of Malice? The malice referred to is not the ill will or desire to harm another of everyday speech, but what a public figure like Santos must prove in order to have a libel claim against Carlson & the Miama Herald, namely knowledge that what was printed was false, or reckless disregard of its truth or falsity. It is, to put it very mildly, an extraordinarily high burden to overcome. And even if it could be overcome, actual damages would not amount to much, as it would be difficult to find anyone who knows Santos or the game who believed Carlson in a way that seriously harmed Santos\' reputation.

There is another interesting aspect to libel, one which allows me in this post to write, without fear of retribution, that in terms of being a journalist, this story shows that Frank Carlson is an incompetent idiot. The reason, you see, is that truth is an absolute defense to any claim of libel by Carlson against yours truly.

[TGJB]

Good job. Two quick points:

1- Dave Johnson said on the OTB show today that when Carlson heard cue ring \"for the outrider\", Santos actually said \"for the arthritis\".

2- I know all about how high the burden is to win that kind of case, and how tough it is to prove damages.

[The Kid]

Very good post, Mall. I\'m a journalist and I make a habit of tape recording all of my significant interviews -- meaning any time I want to quote or paraphrase anything.

This was a classic example of a newspaper putting something into print in which they had not run their traps. Simply watching the videotape of the end of the race would have sufficed. Or maybe deal with your photo shop instead of running the photo past an old coot like Walter Blum.

Just because you have a holy **** quote doesn\'t mean you actually have a holy **** story.

[rezlegal]

Although I agree with the sentiments expressed in Malls post, the comments do not, as a matter of law, amount to ant type of defamation. Carlson merely forwarded the photo to the stewards and reported, however incompetently, what his conversation was with Santos. The outrage here was Leighs comment about it looking suspicious, thereby setting off a maelstrom of publicity that would otherwise have not taken place. Unforunately, I would not hold my breath waiting for Leigh to be fired or even criticized by anyone connected with Churchill Downs. Also, kudos to Corey Black on tvg for demonstrating how difficult it would have been to switch hands with a whip while holding a foreign object.

[Mall]

My comments about libel were in response to a post in which Gary Stevens was quoted as saying that if Santos sued for slander he would end up owning the Herald, & were not intended to suggest that Carlson\'s piece was libelous per se. In fact, I went back & read the original article with that in mind & have to agree with you. That said, the article is, as is so often the case, constructed in such a way that it suggests dishonesty without actually coming out & saying it, probably with the help & advice of the Herald\'s libel lawyers. In other words, the Herald\'s conduct may very well be even more reprehensible than originally thought.

[MO]

Good job Mall!!

[OPM]

Atta boy, Mall

[Anonymous User]

I tend to think its a very good libel suit. YOu had a Herald reporter acting in his employee capacity and forcing official action upon reckless and negligently obtained information. The language barrier shouldn\'t insulate the Herald from accountability. A man\'s reputation has been called into question Nationally. The Herald owed Mr. Santos a greater duty of care. That\'s a negligence standard, but the libel was recklessly negligent and I like Santo\'s case.

CtC

[HP]

Chuckles, Santos has no libel case.

Carlson reported what he thought he heard -- \"cue ring.\" As I understand it (based on what I\'ve read in relation to this story), there\'s no rule against a jockey carrying certain objects, and there\'s no rule against a jockey carrying a \"cue ring.\" It\'s irresponsible to report something if you weren\'t sure of what the person said, but it\'s not inherently libelous. It would be different if Carlson reported that he heard Santos say he was carrying a buzzer (which is illegal/against the rules). If Carlson reported that Santos said he was carrying a buzzer and then claimed he misunderstood what Jose said, that might be libel. As far as I can see, reporting that Jose said he was carrying a cue ring is the same thing as reporting that he said he was carrying his house keys. So what?

You can\'t blame Carlson (entirely) for the fact that others assumed he was carrying a buzzer when he said \"cue ring.\" Carlson didn\'t force anyone to do anything, least of all the Kentucky officials who decided to look into it. Plenty of people saw the picture and thought he was carrying something. Seemed like a natural question, \"hey Jose, what was that?\" Jockeys have licenses and being questioned is part of the deal. The only reputations with lingering damage as far as I can see belong to the Miami Herald and Carlson.

I agree with everything else that\'s been said here (Carlson is an idiot). I think Mall is on the right track, and I believe what Carlson was trying to do was establish that Santos was carrying SOMETHING and then go from there.

HP