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50 Years after Sullivan: a modest proposal.

When Richard Nixon wasn't getting ready to "sock the press right in the puss" for its critical coverage, he was whining about being a media victim. Nixon complained that the 1964 New York Times v. Sullivan decision gave the press carte blanche to denigrate good public officials--such as himself.

Nixon once said the Times decision allowed the news media to publish calumnies ranging from Watergate conspiracies to accusations that he was having "an affair with a countess in Spain." He said the press had this leeway because under the Times decision, a public official must not only prove the falsity of an allegation in a libel action but must also show negligence and "actual malice."

By "actual malice," the U.S. Supreme Court meant "reckless disregard of the truth" or knowledge the material printed was obviously false. Nixon said that was an impossible standard. The Times decision essentially immunized the news media from lawsuits over stories about public officials, whether or not the stories were actually true.

Forty years after the resignation of Richard M. Nixon as U.S. President-and with knowledge of the breadth of the corruption in his administration-it is difficult to work up much sympathy for his indictment of a venal news media, as well as the cover provided by the landmark New York Times v. Sullivan decision.

However, depending on your own political leanings, it may be easier to work up sympathy for other political figures who have been attacked with impunity, in part, because of the New York Times v. Sullivan protections.

Think: Hillary Clinton and the wild allegations regarding her lesbian affairs, her profiting off sleazy real estate deals such as Whitewater and, of course, her plot to kill Vince Foster.

Think: John Kerry, who some think lost the 2004 election after being "swiftboated" with charges that he shirked his duty during the Vietnam War, failed to aid his brothers under fire, concocted tales of heroism and lied to get elected.

And now, think: Internet. As this publication pointed out in its Spring issue, every Tom, Dick and Harry now poses as a citizen journalist on the Worldwide Web. And these journalists are publishing despicable attacks, outrageous falsehoods and senseless bullying.

So, it now may be time to rethink or reform the tenets of New York Times v. Sullivan. Fifty years after that decision, should we question the wisdom of Justice William J. Brennan Jr. and his suggestion that it is necessary to provide "breathing space" for democracy by permitting the media to make mistakes in the vigorous pursuit of truth through journalism?

Pulitzer winner's take

A decade after the Times decision, I went to work for Pulitzer Prize winner Jack Anderson, a well-known investigative reporter in Washington, D.C. His columns appeared in more than 1,000 daily newspapers and many more weekly publications.

Anderson was constantly dogged by libel lawsuit threats and, occasionally, by real lawsuits demanding tens of thousands of dollars in actual damages and millions of dollars in punitive damages. These lawsuits were filed after Sullivan, the case that supposedly immunized the news media from suits for facts gone astray.

Anderson became so frustrated by the costs of libel litigation and the harassment involving astronomical claims of punitive damages that he was willing to make a trade. He would go back to the pre-Sullivan standard of truth as the primary defense in libel, in exchange for an end to any filings for outrageous sums for punitive damages--no more punitive damages.

Columnist Anderson enlisted me to research and to ghost write an article oudining his proposal. The opinion piece would be published in Penthouse magazine, where Anderson had a most receptive ally in Bob Guccione. (Guccione, founder and publisher of the infamous adult magazine, had his own problems with lawsuits filed against him over the years.)

Anderson put me to work researching cases and talking to other journalists who had suffered from libel suit abuses and outrageous claims. In some cases, these media practitioners were put out of business by the cost of defending themselves--even as they won the cases filed against them.

Among the publishers I interviewed was Dave Mitchell of the Point Reyes Light, Calif. His California weekly took on the Synanon cult and won a Pulitzer Prize with its reporting of illegal Synanon activities.

For all of its meritorious public service, the Light was hit with six lawsuits by Synanon, with claims totaling in the hundreds of millions of dollars. Only a pro bono defense from the law firm Heller Ehrman White & McAuliffe, which was successful, saved the Light and publisher Mitchell from financial ruin.

Open season

The Anderson article in Penthouse, entitled "Open season on journalists," used the Point Reyes Light example, and several others, to make the case for a reform of American libel law. His point was that frivolous lawsuits, the harassment of subpoenas and other legal demands and the excessive punitive damage claims were effectively intimidating the news media.

For example, the San Francisco Examiner dropped its own coverage of Synanon after the cult's many lawyers threatened libel suits. It was up to the tiny Point Reyes Light to "keep the faith" in the publics right to know and to uncover the many illegal activities of Synanon and cult members.

Anderson looked to Congress to consider his proposal for a reformation in libel law. He argued that there was nothing to be gained in the judiciary, which he said was dominated in the early 1980s by Nixon appointees who were hostile to the press.

The legislative relief that jack Anderson sought from Congress seemed to draw on the British media law system: substantial truth as a defense with no "breathing room" for error, with formulas involving proof of malice or extreme negligence.

Among the additional tenets of the Anderson proposal:

* Libel cases must be brought to speedy trial; endless filing and re-filing of new motions should be prohibited.

* Defense costs should be paid by plaintiffs when they lose. This would discourage plaintiffs from filing suits primarily meant to harass and quiet the news media.

* Stop the practice of punitive damages against the news media. Extreme awards are, in effect, a fine for publishing and as such are of questionable constitutionality.

Bringing it home

After completing my reporting stint in Washington, D.C., which was done on an academic leave from Webster University, I gave little thought to Anderson's proposal for reforming libel law--at least, for about 10 years.

Then in 1992, St. Louis Journalism Review (SJR) and I were named in a libel suit brought by a candidate for public office. An SJR article that I authored offended him. I was served with the lawsuit and a summons to offer a plea on its merits within 30 days in the Circuit Court of St. Louis County.

An officer of the court handed me these documents, ironically, as I was leaving a reporting class I taught at Webster University. In the hallway, I perused the suit, which asked for what appeared to be actual damages of $500,000 and punitive damages of $7 million.

I immediately wondered whether SJR's libel insurance was paid up. I considered whether I was on my own in this suit as the writer, or whether SJR would mount a mutual defense. Additionally, I mused whether I should call my wife and ask her to go easy with the credit card, since we faced $7 million in punitive damages.

SJR did have libel insurance and attorney Lewis C. Green represented both SJR and myself in court. Without going into all the details of the case, suffice it to say the candidate's action was a frivolous lawsuit on its face.

Green argued as much in his motion to dismiss, contending that there was nothing defamatory in the article and that it was substantially true. A few inaccuracies noted were simply immaterial to the alleged libel.

Defendants St. Louis Journalism Review and Don Corrigan won the libel case at the Circuit and Appeals levels. A request then to have the case heard in the Missouri Supreme Court was not successful. Although the lawsuit was clearly frivolous, we were dragged through months of litigation, attorney correspondence and occasional stress.

Jack Anderson revisited

I know some veteran reporters who contend you are not a real journalist--and you have not earned your spurs--until you find yourself in court over a libel lawsuit. I would prefer to remain without spurs and without this piece of personal judicial histoty.

On the other hand, the lawsuit--provided me with--first-hand experience to draw on when teaching media law at the college level. Also, this legal encounter moves me further in the direction of supporting Jack Anderson's less-than-modest proposal for a "re-do" of libel law in this country

On the 50th anniversary of Times v. Sullivan, many in the press are heralding it as a landmark victory and an expansion of First Amendment protections for the news media. It's also being cited as a victory for the kind of robust discussion necessary in a democracy

I am not so sure. Allow me to make a few observations:

* What's wrong with returning to "substantial truth" as the primary defense in libel? Perhaps a return to this standard would make us more careful and accurate reporters?

* As a democracy, what have we gained with the "breathing space" that allows politicians and public figures to be smeared without recourse? Perhaps this leeway for insult and invective is one reason the American populace has simply checked out of a very nasty political process.

* Substantial truth as the primary defense in libel may seem inexact, but can any legal scholar say the court interpretations of "actual malice" and "extreme negligence" over the past 50 years have had the mark of clarity?

* Internet discourse adds a whole new facet to this discussion of libel. As a newspaper publisher of the Webster-Kirkwood Times, I am extremely uncomfortable with the venomous free-for-alls that take place on my paper's website and others. We take the worst posts down, but perhaps there "ought to be a law"--say, libel.

* Finally, my experience with those months of litigation in the early 1990s makes me naturally disposed to the late Jack Anderson's call for an end to exorbitant punitive damage claims in libel cases, and, an end to news media defendants bearing defense costs in frivolous lawsuits that amount to little more than harassment or gold digging.

Fifty years after Times v. Sullivan, it's time for another look at libel law. Count me in as a journalist willing to go back to the pre-Sullivan standard of truth as the primary defense in libel, in exchange for an end to filings for outrageous punitive damages, an end to frivolous lawsuits and perhaps a healthier democratic discourse.
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Title Annotation:First Amendment
Author:Corrigan, Don
Publication:Gateway Journalism Review
Date:Jun 22, 2014
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