Current libel law leaves press free to be irresponsible.

Byline: GUEST VIEWPOINT By Kyu Ho Youm For The Register-Guard

On June 25, 2002, University of Oregon sociology professor Douglas Card was listed by columnist Daniel Pipes, now a Bush-appointed member of the U.S. Institute of Peace, and Jonathan Schanzer, Pipes' research assistant, among six anti-Israeli extremists on campuses in the United States.

Pipes and Schanzer claimed in their New York Post column that Card `called Israel a `terrorist state' and Israelis `baby killers' and insisted that students agree with his view that Israel `stole land' on the final exam.' They quoted one student in Card's class as saying that, `Card bashed Israel and Jews `at every opportunity.' '

Now, two years later, Card is facing a court order that he pay $5,000 in attorney fees to Pipes and Schanzer. On June 22, U.S. District Judge Michael Hogan held the award `reasonable" for Pipes and Schanzer had won in their `special motion' to dismiss Card's lawsuits for libel and intentional infliction of emotional distress.

Hogan found in March that Card's libel claim was time-barred and that his emotional distress argument could not be supported with `substantial evidence' under Oregon law.

The case of Card vs. Pipes illustrates how tightly restricted Ameri- can libel and related law can be in balancing reputational interests with freedom of the press. This is all the more telling in that June 25 marked the 30th anniversary of the U.S. Supreme Court's landmark libel case, Gertz. vs. Robert Welch, Inc. In it, the court found the individual's right to reputation `reflects no more than our basic concept of the essential dignity and worth of every human being.'

Card decided to sue Pipes and Schanzer when his assiduous effort to have them retract their New York Post column turned into a futile exercise. Pipes dismissed Card's character evidence as `irrelevant.' Further, he countered that he would retract his statement if Card would reciprocate with an essay `condemning political bias in the classroom.' Pipes also rebuffed Card's proposal to write an op-ed article against anti-Semitism.

Neither Hogan's decision to dismiss Card's libel suit nor his awarding of the $5,000 attorney fees to Pipes and Schanzer addressed the threshold issue of the case: Was the Pipes and Schanzer column of the New York Post false and defamatory? Simply because the statute of limitations had run before Card sued Pipes and Schanzer, Hogan granted the defendants' motions to dismiss the lawsuit.

Hogan did note that Pipes' and Schanzer's statements were defama- tory if they were false. He held that the `limited' documentary evidence showed that `defendants published the damaging ... statements based on hearsay, while rejecting plaintiff's proffered character evidence.'

Regardless of the truth of the statements at issue, he continued, Pipes' conduct could create a chilling effect on academic speech when he demanded the class list of Card's students and a copy of his final exam.

Also significant: Hogan's decision to award less than 10 percent of Pipes and Schanzer's request for $58,712.90 in attorney fees and court costs.

To Card, his $1.1 million claim against Pipes and Schanzer may have been a reality check on libel law, which is deliberately skewed in favor of people such as Pipes. Indeed, he most likely will consider the current libel law `a legal license to lie,' especially if Pipes continues to defame him with immunity.

The First Amendment to the U.S. Constitution and Article 1, Section 8, of our state Constitution allow freedom of speech and the press to play an important role in the resolution of public issues. The special position of free speech and a free press in our political system proceeds from a still-debatable premise that defamation law inhibits the otherwise open marketplace of ideas in our society.

The plaintiff-unfriendly premise, which underlay the Gertz decision 30 years ago, nonetheless needs to be critically re-examined when our libel law is often perceived to be responsible for bad journalism and unfair attacks on people in public and private life. This argument is more compelling now than ever.

The law of libel poses little threat to the First Amendment rights of Pipes and others. As law professor David Logan cogently observed, `The image of the contemporary media, cowed by the threat of libel claims, is unsupported by the available evidence.'

If our constitutional values of speech and the press are embedded in the Brandeisian precept of `more speech, not enforced silence,' Card vs. Pipes has been a missed opportunity thus far. Like many libel actions, it has focused on procedural issues more relevant to lawyers than on our broad societal interest in truth.

In this context, the case showcases a growing need to reform our libel law, in which the search for truth is conveniently put aside as a nonissue.

Kyu Ho Youm holds the Jonathan Marshall First Amendment Chair at the University of Oregon School of Journalism and Communication.