Speaking out: state's strict SLAPP statute allowing easier dismissal of libel cases is making life difficult for Barry Langberg, attorney to the stars. (People).

When the National Enquirer ran a story in 1976 claiming that Carol Burnett was "boisterous" and inebriated in a Washington D.C. restaurant, the television personality caller her lawyer, William Hayes.

Hayes handed the case to his associate, Barry Langberg, a former probation officer and public defender then only 34. Langberg won what became a landmark case, one of the first to successfully meet the higher standard of libel for a public figure. Though the initial judgment totaled $1.6 million, an appellate court reduced it to $150,000.

Langberg went on to run his own law firm and is now a partner at Stroock & Stroock & Lavan LLP, representing Martha Stewart (but not in her current problems), Steve Wynn, Stevie Wonder and Aretha Franklin, who sued Star magazine last November for $50 million. That case is still pending.

Now 59, Langberg says his job has become more difficult since 1992 legislation granted defendants, like newspapers, sued for exercising constitutionally-protected speech the right to seek dismissal of the case if the suit has no probability of succeeding. The law is a reaction to the "strategic lawsuit against public participation," or SLAPP, used by some to chill speech by neighborhood activist groups, newspapers and others.

Question: Is there a balance between free speech rights and the right to sue for libel?

Answer: There are two interests at stake. The First Amendment is the most important right we have, but the U.S. Supreme Court said the right to reputation is one of the essential factors of an ordered democracy.

If you're a public figure, and you bring a libel case, besides proving the statements are false, you have to prove either that the publisher knew the statements were false when he published them or that he had serious doubts of the truth or falsity when he published them. You can see how hard that is because you're dealing with a subjective state of mind. It's not often a publisher stands up and says, 'I knew it was false.'

The SLAPP statute, as interpreted by the courts of California, has completely skewed the balance in favor of the media to an extreme.

Q: Is that burden of proof in bringing a libel case fair?

A: For public and private figures both, the U.S. Supreme Court has set a fair standard. But the SLAPP statute is completely unnecessary as it applies to the traditional libel case. The statute could be revised and more narrowly drawn.

Q: Why does this statute make your job difficult?

A: In the Carol Burnett case, you had various drafts of the article, you had changes that were made, and you had hand-written notes. After all that, we were able to prove a case of constitutional malice. With the SLAPP statute, you don't have the opportunity to do that. You don't have time to do the investigation. The discovery process is what gives you evidence of constitutional malice.

Q: Would you have won the Burnett case today?

A: I'm not sure that we could have overcome a SLAPP motion in that case.

Q: Have you seen a change in the way the media cover stories?

A: The tabloids have been emboldened. And newspapers in general, during the last 10 years or so, have moved closer to tabloid journalism. They changed their journalism to be more appealing, and some of that appeal has been more tabloid-style journalism. And as they've done that, they've seen the SLAPP statute as a friend in that regard. They can take more liberties knowing that statute is there to protect them.

Q: But the media still face an increasing number of libel suits.

A: Sure, the media deals with libel with increasing frequency. And I'm sure some of the libel suits are not valid. But the media now has so much protection that it can be negligent, and it's OK.

Q: Why did you leave the public defender's office?

A: A judge whose courtroom I was assigned to had recommended me to Sorrell Trope (of Trope & Trope), who was looking for an associate. I interviewed with him and took the job. I was interested in civil practice, but I was torn. I had been with the probation department and with the public defender's office. I was a bit burned out on criminal law.

Q: How did you get into libel law?

A: When I went to work for Bill Hayes, I was the only person in the firm doing litigation. Carol Burnett called up very upset about the article in the National Enquirer, and that's how I got into libel law.

Q: Did you know at the time that you were handling such a high profile case?

A: No. We knew it by the time we got to trial. But when we filed it, and the years leading up to it, we had no idea.

Q: What do you like about handling these cases?

A: I like the intellectual challenge. Libel law, because it's involved with constitutional law and ethics, and because it varies so much from state to state, is intellectually challenging. Also, most of the clients I'm involved with are really hurt by the defamatory article, and it really has affected them. To try and help alleviate the damage and reconstruct their reputation by going into court and proving this is false, that's satisfying for me as well.

Q: What portion of the cases that could be subject to an anti-SLAPP motion do you take?

A: Five percent. Sometimes a case can be brought in a jurisdiction that doesn't have the SLAPP statute. But in many cases you have to say, "Look, you have a legitimate case here, but I can't recommend you bring it because of the SLAPP motion law."

Q: Is libel your sole practice?

A: I do a lot of other work besides libel cases. I do other entertainment litigation and commercial litigation. I still do more libel cases than any other plaintiff's lawyer in the country.

Q: How have public figures changed how they handle the media since anti-SLAPP motions were allowed?

A: I don't think people understand it. I've seen the Enquirer and the Star and other tabloids in California become somewhat emboldened by the fact that they have the SLAPP statute working for them. The media is well aware of it, but the Hollywood and entertainment community as a whole has no knowledge of it whatsoever.

Why is that?

A: It's a technical, legal issue to understand. And it hasn't been that highly publicized in the entertainment media.

Q: Besides the Burnett case, which do you find the most notable?

A: Steve Wynn, the chairman of Mirage Resorts, vs. Barricade Books, in 1997. He was accused of being a front man for organized crime. The case was critical to his livelihood, to having a gaming license in Nevada and New Jersey. That was a case also where we had to prove that he wasn't connected with organized crime, and it's hard to prove a negative. We proved it. There was also a case that didn't involve a public figure. My client was a very successful doctor in Orange County in the Vietnamese community. An Orange County Vietnamese newspaper published a series of articles about him that were very scandalous, basically saying he didn't have any qualifications to be a doctor. And all of a sudden his business dropped off significantly. We filed a lawsuit, and the case went to trial, resulting in what was at the time the largest libel verdict ever in California.

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Barry Langberg

Title: Partner

Organization: Stroock & Stroock & Lavan LLP

Born: Baltimore, 1942

Education: Bachelor's Degree in history, University of San Francisco, 1964; University of San Francisco School of Law, 1968.

Career Turning Point: Visiting lawyer uncle at age eight; working for J. William Hayes at Hayes & Hume.

Most Admired People: Mentors J. William Hayes, Sorrell Trope.

Personal: Divorced, three children

Hobbies: Sailing, baseball