How to stop libel suits and still protect individual reputation.

How to Stop Libel Suits and Still Protect Individual Reputation

When a three-judge panel of the U.S. Court of Appeals for the District of Columbia last spring upheld a jury's determination that The Washington Post had libeled oil company executive William Tavoulareas, the press responded with fury and dismay. A.M. Rosenthal, executive editor of The New York Times, called the decision "garbage' and said his paper "will basically ignore it.' Not to be outdone, Times columnist James Reston paired Judge George E. MacKinnon, who wrote the decision, with V.I. Lenin, who wrote that governments should no more allow opposition by criticism than by lethal weapons. Striking a loftier and more familiar note, Haynes Johnson, a columnist for the Post, wrote that the implications of the decision "are a threat to the philosophical assumptions and constitutional guarantees underlying the First Amendment.'

The response to the Tavoulareas case, which is under review by the full D.C. federal appeals court, was not an isolated overreaction. This year the usual drumbeat of complaining about threats to the press's freedom has risen to a crescendo. Martin Farbus, a New York attorney and former associate director of the American Civil Liberties Union, writing in The Nation, proclaimed that because of the "recent flood' of libel judgments, "free speech has been curtailed.' After the jury denied Ariel Sharon any monetary award in his suit against Time, the magazine alluded darkly to "the pernicious effect libel cases such as this are having on the First Amendment rights of the American press.' There is talk of public "attacks' on the press, and Time perceived an "open season on freedom of expression.'

Is there a basis for worrying about freedom of speech? Major libel insurance companies report that the number of libel suits filed has increased in recent years, but not drastically. What has emerged is a pattern of juries deciding more frequently against media defendants in a string of well publicized, high stakes cases. The visibility and drama of these confrontations increases the perception of a public attack and thus might indeed be "chilling' journalistic initiative. Before 1980 there had been only one libel award over $1 million. Since then, there have been more than 20 such awards, including Carol Burnett's $1.6 million recovery from the National Enquirer and a $9.2 million judgment against the diminutive Alton Telegraph. One study conducted by the Libel Defense Resource Center indicates that 90 percent of libel trials held in the last five years have resulted in jury verdicts going against the press.

Journalists' fears of hostile juries therefore have a substantial basis. A recent national opinion survey conducted by the American Society of Newspaper Editors found that three-fourths of American adults doubt the credibility of newspapers and a fifth are "deeply' distrustful. Common complaints revealed by the survey are that the press doesn't "worry about hurting people' and that it "takes advantage of victims of circumstance.' The question is not whether the press is under attack, but why the attack is occurring now.

It was more than 20 years ago, in New York Times v. Sullivan, that the Supreme Court sharply limited traditional state libel laws. The Court held that to establish libel and collect damages, "public officials' must prove not only that a story was false and defamatory but also that it was printed with knowledge of its falsity, or with "reckless disregard' for the truth. These special protections, which were later expanded to make it difficult even for private individuals to protect their reputations, were designed, in the Court's words, to assure that "debate on public issues should be uninhibited, robust, and wide-open.' It is after two decades of sustained judicial enforcement and enlargement of the protections created in Sullivan that many perceive a resurgence of the "pall of timidity and fear' that the Court intended to prevent.

A growing number of journalists and civil libertarians argue that the legal protections first created by Sullivan are too weak. Some criticize the decision for permitting inquiry into journalists' states of mind, and others note that its protections foreclose many adverse verdicts but not the threat of litigation itself. The American Civil Liberties Union argues that on matters of social or public concern, public figures should not be permitted to recover even if falsehoods are printed knowingly or recklessly.

Before urging judges to build the legal walls even higher, however, we should consider a different explanation for the puzzling timing of the current sense of siege. Although in some important ways Sullivan did invigorate public debate, it is also possible that journalists' tendency to exaggerate the importance of legal protections may be having the perverse result of undermining free speech values. Understanding this possibility requires seeing how judicial decisions such as Sullivan gradually come to shape people's attitudes, sometimes with unexpected consequences.

Sedition 

Despite popular veneration for landmark cases, the Supreme Court cannot simply decree that a constitutional value such as free speech will be adequately protected. Like other public institutions, the Court's decisions are tentative and ambiguous guesses about how laudable objectives should be achieved. The meaning of important opinions is not fully revealed in the Court's written words. The meaning develops slowly, as the public and its institutions try to understand and react to the Court's complicated pronouncements.

The Sullivan case was brought by the police commissioner of Montgomery, Alabama during the height of southern resistance to the civil rights movement. The commissioner sued The New York Times over a political advertisement that in florid and sometimes inaccurate terms complained of police harassment of black protesters, including Dr. Martin Luther King, Jr. The advertisement never mentioned the plaintiff, Sullivan, although it did refer to "police and Southern violators.' On this thin reed, Sullivan claimed he had been personally libeled. A state court awarded him $500,000 in damages.

The most important part of the Supreme Court's reversal of the Alabama court's opinion emphasized the need to protect "the citizen-critic of government.' Writing for the Court, Justice William Brennan compared Alabama's libel laws to the Sedition Act of 1798, which had made it a crime to publish false writings "against the government of the United States.' Noting that fines paid under the Sedition Act had been repaid by an act of Congress and that President Jefferson had pardoned those convicted, the Court concluded that the unconstitutionality of such statutes "has carried the day in the court of history.'

Since the advertisement in the Times never mentioned Sullivan's name and could only tortuously have been thought to refer to him, the suit involved the equivalent of a fine imposed for criticism of the municipal government. At its core, then, Sullivan meant that citizens are free to be mistaken when criticizing their government and its policies. Today it seems natural to associate the First Amendment with libel cases. But Sullivan was the first occasion on which the Supreme Court made this connection.

A new shield

The decision, rejoiced Alexander Meiklejohn, the First Amendment theorist, was "an occasion for dancing in the streets.' Professor Harry Kalven of the University of Chicago wrote that the opinion "may prove to be the best and most important [that the Supreme Court] has ever produced in the realm of free speech.' Academics were thrilled at the prospect of a bold campaign by the Supreme Court to invigorate public debate. The excitement spread quickly to journalists. Whereas before Sullivan a news report was libelous in its treatment of a government official if it tended to injure him in his public capacity, suddenly journalists had a constitutional shield when they attacked officials. No longer could a careless factual error risk libel liability; the press merely had to avoid recklessness or knowing misstatement. Reporters felt free to probe more deeply, revealing important examples of bad governance--from Vietnam to Watergate. While Woodward and Bernstein turned the job of investigative reporter into the 20th century version of knighthood, Sullivan itself took on mythic proportions. To many, the decision came to stand for a promise of nearly total insulation from liability for writers.

Perhaps emboldened by the unaccustomed praise, the Court embarked on a 10-year expansion of Sullivan. The evidentiary burdens imposed on public officials were enlarged. The Court declared that "reckless disregard' for the truth required proof that the writer had in fact entertained "serious doubts as to the truth of his publication.' Therefore the failure to investigate the accuracy of a story or the reputation of a source could not by themselves amount to "recklessness.' One lower court determined that a reporter had not been reckless because the falsity of his article resulted from failing to check the contents of his own clipping file. Soon the restrictions were applied not only to public officials but to "public figures,' which courts defined to include college football coaches, union officials, defeated candidates for public office, and just about anyone speaking out on public issues. Eventually, a court held that a spouse of a public figure was also a public figure, as were the children of Julius and Ethel Rosenberg. By 1974, Sullivan had been extended to provide some protections for defamatory statements about private individuals.

During this period, the kinds of defamatory materials protected also changed. No longer did Sullivan insulate only criticisms of government or of government officials; its protections extended far beyond the limits of political debate. Moreover, writers were not protected only in libel actions. Life magazine, for example, was protected from liability for its allegedly inaccurate story about events depicted in a newly opened play. The play, based on real life, was about a family who had been held hostage by three escaped convicts. Both the Life article and the play sensationalized the story by describing violent conduct and sexually abusive remarks directed at members of the family. The family, which had refused television appearances and had even moved to a different state to avoid publicity about the ordeal, sued for invasion of privacy. Asserting that the "guarantees for speech and press are not the preserve of political expression or comment on public affairs,' the Court applied Sullivan protections to the Life article because it involved a "matter of public interest.'

In subsequent years, some of these extensions of Sullivan were modified by the more conservative Burger Court. Nevertheless, the overall record of the Court for two decades has been to enforce and expand Sullivan's protections. This, no doubt, has made the press more secure about publishing important and provocative material. But it also has encouraged a dangerously exalted view of the press. For decades, judicial opinions have argued that the job of providing information is so significant that reputations and privacy may have to be sacrificed to it. The Sullivan decision itself repeatedly linked "self-censorship' to the destruction of democratic accountability. It suggested that all forms of criticism--even "sharp attacks,' "exaggeration,' "vilification' and "erroneous statements'--are essential to the preservation of "First Amendment freedoms' and "the security of the Republic.' In short, in Sullivan and in many other decisions, the Court has legitimized the idea that the press, even when grossly irresponsible, is on a crucial mission.

No one doubts that a vigorous press is essential to democracy. The problem is that journalists, like everyone else, are only too eager to believe fervently in their own importance. Anyone with a crucial role in society naturally finds it difficult to be bothered with the normal human decencies. Lawyers, for example, who believe tht their every adversarial maneuver is important to "the administration of justice,' are able to browbeat witnesses and obscure the truth at trials.

Similarly, journalists poke microphones and blazing lights in the faces of distraught victims of disasters claiming that the public needs to know. A broadcaster, Phil Donahue, harbors a man accused of kidnapping a child and then does not tell the child's mother about the child's location with the excuse that a grave public issue, after all, needs airing. In defending Donahue's behavior, Bob Greene of Newsday explained in court testimony that journalists pledge confidentiality to those committing crimes when, in the reporter's opinion, "on a case by case basis, the information that they may be able to give is far more important to the public in our democratic society [than the nature of the criminal conduct].' Greene himself once observed 40 school students buying heroin and did not reveal the names or the identity of the pusher. The parents of those children might be forgiven some qualms about having journalists decide when our democracy needs information about public issues more than it needs information relevant to protecting victims or apprehending criminals.

Time magazine abundantly illustrated journalistic hubris during the Sharon trial. When it was found to have negligently and falsely impugned Sharon's character, Time responded by claiming that the jury did not understand the evidence and by describing its own inaccuracies as "minor.' Apparently, those engaged in great enterprises make no apologies. When the trial was over and Time claimed to have "won,' it nevertheless asserted that "the case should never have reached an American courtroom.' Echoing--you guessed it--the Court in Sullivan, the magazine suggested that putting "journalists on the defensive in a courtroom [might result in a] dimmer light cast on critical issues.'

Scorn

Journalists are wringing their hands because Americans do not seem to understand the importance of the fearless dissemination of information. But information is not the issue. Usually the public is eager to purchase information. And sometimes journalists are less than eager to disseminate it--for example, when the information is about their sources or editorial decisions. One reason the public is "attacking' the press in the nation's courtrooms may well be that many journalists seem to want to be responsible only to themselves. Even winning a lawsuit is too great an imposition because it involves answering to someone else. Libel trials have taken on the added status and ritualistic importance that attends a "constitutional case.' They have become symbolic encounters where plaintiffs, and often juries, seek to reestablish the principle that the press is not a law unto itself.

Distrust of powerful news organizations that enjoy broad legal protection has intensified because the First Amendment has become increasingly foreign and unintelligible to everyone except lawyers. Until 1964 the general understanding, as manifested by the libel laws in every state and confirmed by the courts, was that the "freedom of speech' protected by the Constitution did not protect false and defamatory statements from civil liability. As the Court said in Sullivan, popular dissatisfaction with seditious libel laws indicated an additional understanding that freedom of speech provides a broader protection of criticism aimed at the government and public officials rather than private individuals. But judicial interpretations of the First Amendment quickly swept past this boundary. This headlong rush reflects a theory of the First Amendment that dismisses the public as ignorant and unsympathetic to free speech.

Professor Thomas Emerson of the Yale Law School gave this condescension its most influential voice. He wrote that "Most men have a strong inclination for rational or irrational reasons to suppress opposition.' Referring darkly to "public fear and hysteria' and to government censors with "excessive zeal' and "ulterior purposes,' Emerson sometimes portrayed the public and their officials as the inevitable enemy of free speech. When in a less dismal mood, Emerson argued that the theory behind freedom of speech was "highly sophisticated' and that its "logic . . . may not be immediately apparent to untutored participants.' The prevailing academic view was neatly expressed by another prominent civil libertarian, Ronald Dworkin, who dismissed the idea that the public might understand rights such as free speech as a "bizarre proposition.'

Distrust of ordinary people's judgment on free speech issues is pervasive in the judiciary. Estimates are that three out of four decisions by juries to award damage in libel cases are overturned by judges. In one libel case in Colorado, a judge refused to read the First Amendment to the jury. The state's supreme court upheld his decision on the grounds that the words of the Constitution "could only have misled the jury.'

As the reaction to the Sharon trial indicates, the press has allied itself with this scorn for the judgment of the ordinary people. New York Times columnist Anthony Lewis predicted, "The average person will say: isn't there something wrong with our system of justice if after a meticulous libel trial a man proves he was defamed, and the information was false, and he still loses?' A television journalist made the point more clearly: "What bothered me was that . . . it came down to the malice issue and [that] will focus attention on the fact that a story can be inaccurate and irresponsible and still not be libel.' Why should it be worrisome that the Sharon trial focused attention on the constitutional rules that now protect the press? Isn't public understanding of such matters something the press should encourage? Not if, as Lewis implied, "the average person' is not capable of assessing the information. Apparently only judges and journalists can be trusted to understand the First Amendment.

This elitist view is itself a misunderstanding of the First Amendment. The theory behind freedom of speech is that, if given uncensored access to information, people can be trusted to control their government. Under this theory, ordinary people must be trusted to assess information about every public issue, from nuclear war to Federal Reserve policies. But under the strange version of freedom of speech reflected in modern reliance on judicial protection, the public is not trusted to understand free speech.

For all of its apparent hostility to the modern press, the American people have enjoyed a history of public debate as robust as any in the world. This history is rooted as much in popular support for courageous dissenters as in legal protections. For example, the Sedition Act of 1798 could not prevent criticism of the government, and, in fact, its unpopularity contributed to the election of Thomas Jefferson. The arrest of newspaper editors during the Civil War could not block vigorous reporting about the war because such arrests often increased circulation. After the Supreme Court upheld the conviction of Eugene Debs in 1919, the Mayor of Toledo refused to allow Socialists admission to city hall to hear a speech by Debs. Thousands of Debs followers stormed the building shouting, "To hell with the mayor.' At times, of course, Americans have forgotten the value of free speech; the attempt in Alabama to quash criticism of racist authorities that led to Sullivan is but one such example. But rather than assuming that people will choose censorship over free expression, defenders of the First Amendment should appeal to the public's better instincts. Elitist distrust of the judgment of ordinary people will ultimately be self-fulfilling. The public can be trusted if it is appealed to and educated rather than avoided and disdained.

Consider, for example, the self-discipline of the jury in the Sharon case. The Time article that the jury found to be partially false described a meeting between Sharon and the family of Lebanese President-elect Bashir Gemayel, who had just been assassinated. Time reported that Sharon told the Gemayels that "he expected the Christian forces to go into the Palestinian refugee camps . . . [and] take revenge for the assassination.' In the light of the subsequent killings of hundreds of civilians in two refugee camps, this was a horrific charge. The trial produced evidence that David Halevy, Time's correspondent in Jerusalem, had initially written that Sharon "gave them the feeling' that he understood the need for revenge. The article, as revised by a writer in New York, however, had Sharon "discussing' the need for revenge. Halevy testified that "gave the feeling' could have included "a body movement,' "silence,' or "indifference.' But when the report was read back to him, he had not objected to the substitution of the word "discussed' because he had not believed there was any difference between "gave the feeling' and "discussed.' More important, a secret Israeli report, "Appendix B,' which Halevy had relied on as a source in his article, turned out to contain no mention of any discussion of revenge. Halevy had not seen Appendix B before filing his story. To make matters worse, Halevy had once been an adviser to Sharon's political rival, Shimon Peres, and during the trial made no secret of his hostility toward Sharon.

Professional journalists themselves were abashed by these revelations. Nevertheless, the jury dutifully followed the instructions of the court and distinguished between the normal meaning of "reckless' and its legal meaning. The jury concluded that the falsehoods, although defamatory and negligent, were not sufficiently intentional to justify a verdict for Sharon.

Juries, of course, are often not so scrupulous in protecting the legal rights of the press. This does not, however, necessarily indicate hostility toward basic free speech principles. After all, the broad legal protections now available to the press are often presented to the public as an affront to common understanding and common sense. Here is the advice Bruce Sanford, counsel to the Society of Professional Journalists, proffered in a recent Wall Street Journal op-ed article:

"Libel trials can be conducted correctly if judges . . . banish the word "fairness' from the courtroom and instruct jurors to use the rules of libel law, rather than their sense of fair play.'

Academics, judges, and journalists cannot help educate people about freedom of speech until they begin showing them some respect. A first step would be to reemphasize the core meaning of New York Times v. Sullivan. Those who criticize government or public officials need special protection from excessive damage awards. We tolerate certain types of defamation even when based on erroneous information, not because the press deserves the privilege of being negligent, but because we value criticism of authority so highly. As the Supreme Court noted in the 1964 decision, people who enter public life must be willing to absorb a healthy dose of heckling. But the extension of constitutional protections to areas far removed from political debate may have eroded public support for freedom of expression more than it protected it. Certainly those who propose building the legalistic fortifications higher should think again.

We should also begin exploring avenues to resolve libel questions involving public officials without relying so heavily on judicial decision making. The goal would be to reaffirm the value of journalistic accuracy while precluding the possibility of huge libel awards which inhibit ambitious reporting. For example, it might make sense to permit public officials and others willing to forego suing for monetary damages an option to sue simply for a court's declaration of the truth or falsity of the defamatory report. In such a simplified action, the jury would not consider the ambiguous issues of negligence or recklessness. A plaintiff would have an opportunity to repair his reputation without threatening a defendant publication with crippling financial loss. A publication in error would be publically embarrassed and unable to claim victory, as Time did after being found negligent and in error. As in many civil proceedings, the loser in such an action could be required to pay the winner's legal fees.

A news organization that is too poor to afford even legal fees in such cases should have the option of settling a libel case by publicly retracting false, defamatory statements, thus avoiding both monetary damages and trial expenses. Such proposals, which have been discussed by some First Amendment experts, would probably require action by state legislatures or Congress in an area of legal development traditionally left to the courts. But it is just this kind of involvement of the public and its institutions that we need. Open debate about the purposes and parameters of libel law, with an eye toward simplification and balance, would be healthy. Journalists might abandon some of the elevated rhetoric that has attended constitutional argument; they might explain in commonsense terms the inevitablility of error in the imperfect business of searching out official misconduct. The public could give expression to its legitimate concerns and might press reporters to find better ways to police themselves. And citizens--the prospective jurors--could participate indirectly in shaping libel law they understand.

The Constitution, including the First Amendment, is the people's document. It must evoke their loyalty and support. Constitutional protections must be kept somewhere within the reach of the public's sense of proportion and decency. If legal protections are designed and explained with due regard for the public's sense of fairness, the First Amendment and the press can gain the strongest protection available--the protection of popular support. Individuals would sue, not to establish a principle of journalistic accountability, but simply to repair personal harm. People would rally around, rather than attack, brave critics among the press. Juries would fulfill their proper function of protecting, not punishing, criticism of government policies.