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Wrong case, wrong place, wrong result.


The press's reaction to the verdict in Ariel Sharon v. Time Inc. was astonishing. The New York Times proudly proclaimed that it affirmed "the law's special protections for a free press' and demonstrated that the Constitution "plainly aims to protect and promote fearless reporting and debate.' The Washington Post wrote that the decision upheld the Supreme Court's purpose in protecting free speech. Various First Amendment lawyers and media executives said the outcome of the case proved that juries are capable of determining if public officials should recover damages in libel suits. The consensus was that all is well with the First Amendment; we can breathe a sigh of relief.

On the contrary. The Sharon verdict proves that public officials who claim they have been libeled by a critical story should not be permitted to sue. Time and Gen. Ariel Sharon each claim that the other lost, but the loser was the public. If cases like Sharon's continue to be allowed to go to trial, the public will be deprived of critical information about matters of public controversy.

Twenty-one years ago, in the watershed case of New York Times v. Sullivan, the Supreme Court held that to prove libel, a public official must establish that the statements about him had been published with "actual malice'--that is, with knowledge that they were false or in reckless disregard of the truth. But the Sullivan rule has failed to protect the press adequately. There has been an explosion of lawsuits against the media; juries have awarded large damages (since 1980 there have been more than twenty cases in which damages exceeded $1 million); and the high legal costs incurred by defendants have been a warning to others, inducing self-censorship and reducing the flow of information to the public.

Sharon's suit, that of Gen. William Westmoreland against CBS and all the other actions brought by public officials are not attempts by individuals to win restitution for personal wrongs. They are attempts to vindicate their political positions and their conduct in office--to rewrite history. Whether Sharon or the political coalition he represented bore responsibility for the Beirut massacres should not be determined in a U.S. court. The Founding Fathers never intended America's courts to be used to settle political questions, especially not those of another country.

To make his point, General Sharon pounced on a minor error in Time's story about the final report of Israel's Kahan Commission. The commission had found the general "indirectly responsible' for the killing of several hundred Palestinians living in the Sabra and Shatila refugee camps. David Halevy, Time's correspondent in Jerusalem, testified under oath that several confidential sources told him that Sharon had a more direct involvement in planning the massacres. Midway through the trial, the magazine conceded that it had erred in reporting that allegations of Sharon's complicity appeared in the secret Appendix B of the commission's report, but that was an inconsequential mistake, one small detail in a single paragraph that was part of a long, devastatingly accurate story. Nevertheless, two of six jury members at first believed that Time was guilty of malice, the Halevy was "out to get' Sharon. If the jury foreman hadn't argued them out of that view, Time might not have been acquitted.

To be fair, the jury had an impossible task. In his meticulous sixty-six-page charge, Judge Abraham D. Sofaer asked them to determine not if they thought the key paragraph was defamatory or false but if "the average reader' would think so. They were asked to evaluate the "state of mind' of the senior editor who wrote the article, the state of mind of the numerous people who edited it and also what Time's words implied to the average reader. Those questions were difficult enough, but the jurors were also expected to ascertain who was responsible for massacres that occurred in Lebanon more than two years ago. Make no mistake about it: that was the key issue they had to resolve, for if they believed Sharon was responsible, they would find Time's story accurate.

On the question of malice, the jurors were instructed by Judge Sofaer to determine if Time had "exaggerated' the facts or "fabricated' them. They spent a total of forty-two hours poring over one paragraph. If a dozen writers spent the same amount of time attempting to come up with a description of Sharon's involvement, they each would produce many different versions, some that could be construed as exaggerations or distortions.

Twenty pages of the judge's charge were devoted to defining malice. Reading them is a painful experience. Although I have been a practicing lawyer for twenty-five years, specializing in libel law, I am not sure that I could apply the charge to the facts, and I am certain that a jury a could not. Most of us understand malice as meaning ill will, spite or hostility. That is not how the Supreme Court defined it in the Sullivan case. A reporter can love the person he is writing about and still be found guilty of malice; he can hate the person and be found innocent. The jurors in this case were understandably confused about the concept of malice. Richard Zug, the jury foreman, said they entered the malice stage of the deliberations with "almost all of us in the question-marks category.' That is too fragile a reed to support a free press.

The Sharon verdict does not increase one's confidence in the ability of even a properly instructed jury to comprehend present libel law. Moreover, people outside the profession have little idea how difficult it is for the media to establish and report the truth. Publishers bring out hundreds of books; television new programs present thousands of facts; newspapers publish complex stories under relentless deadlines. Reporters and writers are expected to locate the ultimate truth in a welter of controversial facts and charges. By definition, the stories most in need of protection by the First Amendment--those that expose wrongdoing or criticize the powerful--are the most likely to provoke litigation. The only way a publisher or news organization can be sure it will not be sued is not to publish controversial articles or books. The operative word is "controversial.' Thus the chief effect of the recent flood of libel judgments has not been greater accuracy in the media but greater timidity. Free speech has been curtailed; the flow of information to the public has been diminished.

The most serious impact has been on investigative journalism, which has decreased in recent years. Most investigative reporting is anti-establishment. Although portrayed as leftist in origin, the scope is much greater. Journalists seek to reveal corruption in City Hall, to expose official lies about foreign policies, to uncover double-dealing in Washington. It is no surprise that expensive libel suits are often backed by conservative elements, which tend to support the power structure. Indeed, the media has become a prime target of the right--witness Senator Jesse Helms's call for a conservative takeover of CBS--and libel suits are a favorite instrument to attack it. Both Sharon and Westmoreland represent a specific political viewpoint. In Sharon's case, it is the rightist forces in Israel who support his political comeback; in Westmoreland's, it is conservatives in this country who hold that the Vietnam War was lost because of opposition on the home front.

Libel suits inhibit journalists by making them excessively cautious about having the facts. Obviously, they should base their reporting on the facts, but sometimes all the facts are not available because a government or a corporation refuses to divulge them. In such cases, journalists should be free to make inferences about public issues. During the Nixon Administration, the speculation and hunches of newspaper reporters led to the Watergate exposes. Skepticism about official statements on the progress of the Vietnam War drove the press to smoke out the facts that turned the public against the war. When the secret policies of the government were revealed in the Pentagon papers, many of the journalists' inferences were proved correct.

Reporters frequently rely on evidence that would not hold up in court--and that is proper. Take, for example, Strobe Talbott's Deadly Gambits, which describes secret arms negotiation talks in the Reagan Administration, and Carl Bernstein and Bob Woodward's All the President's Men, which describes the events that led up to Watergate. Those books were pieced together by authors who were not at critical meetings; they were often based on fragmentary information and confidential sources. So long as authors explain their methodology and let their readers know the limitations of their research and sources, they should be permitted to draw even wrong conclusions without the threat of a libel suit hanging over them.

As the Supreme Court recognized long ago, in Board of Education v. Barnette, "compulsory unification of opinion achieves only the unanimity of the graveyard.' As Prof. Lawrence Tribe of Harvard Law School put it, the genius of the First Amendment is its recognition that more speech is the cure for misleading speech. All that government may demand is that the dialogue be expanded, not that the offending remark be stopped or that the publisher be shut down.

Self-censorship often arrives insidiously. Editors, executives and attorneys who check manuscripts for libel problems are frequently evaluated on their ability to avoid lawsuits. The criterion for deciding to print a controversial article becomes not whether the company could successfully defend a libel suit; it is whether the plaintiff could keep it alive and force the company to bear the expense and burden of frivolous litigation. If the latter seems likely, the natural tendency is not to publish.

Publishers routinely deny that they kill articles because of the risk of libel, but the chilling effect is well known to lawyers who work with the media. Publishers who once asked me whether the target of an article could win a lawsuit now simply ask, Will he sue? More and more, I see unflattering adjectives removed, incisive analyses of people and events watered down, risky projects dropped.

Similar experiences are reported by other attorneys when libel issues are discussed. At a board meeting of the American Civil Liberties Union, a number of case histories of libel suits that led to self-censorship were analyzed. One publishing house canceled the second printing of a book and the paperback edition after being hit with a libel suit that was eventually shown to have no legal basis.

Those who sue for libel are usually large corporations or wealthy individuals--not cranks or ordinary people. Few attorneys will take a libel case on a contingency-fee basis. Lawyers for the networks and major publishers know how to run up litigation costs to try to drive the plaintiff from the courthouse. It is people like the owners of Rancho LaCosta resort, currently suing Penthouse--they claim they were wrongly identified as being connected with organized crime-- who can afford to pay the fees lawyers usually demand to take on the likes of Penthouse. Time spent more than $1 million on its defense against Sharon; Penthouse has spent more than $20 million in the ten-year LaCosta suit.

One reason for the rash of libel suits and claims in the last few years is a more general litigation frenzy. It has encouraged individuals who fancy themselves defamed to peddle their grievances to groups (usually on the right) that will underwrite their expenses. Widespread negative feelings about the press have infiltrated the jury room, resulting in megaverdicts in libel suits. Juries have great discretion in deciding the merits of such cases and the amount of money to award.

After trying hundreds of cases before juries, I've learned that they are ruled by emotion. As a result, I am skeptical when I hear jurors give their rationales for a verdict. The jurors in the Sharon case were under great pressure to appear objective and meticulous; in the post-trial interviews they gave the impression that they had engaged in a dispassionate search for the truth. But some of their remarks revealed the prejudices that had erupted in the jury room. Why, for example, did the jurors feel obligated to state, "certain Time employees, particularly correspondent David Halevy, acted negligently and carelessly in reporting and verifying the information'? Who asked them? Why did juror Patricia DeLoatch say, in justifying the statement, "We didn't want Time to think they're so lily white that they don't make mistakes?'

Justice Hugo L. Black, in his opinion in the Sullivan case, wrote, "I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials.' His doubt does not appear to be uppermost in the minds of the majority of the American people, today's journalists or Supreme Court Justices. As a result the media continues to operate in a state of siege. Our Founding Fathers' vision of a free and vigorous press is in danger of being destroyed. Fidelity to their visionary document, the Constitution, requires that public officials be barred from bringing libel suits.
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Title Annotation:libel trials have a chilling effect on investigative journalism
Author:Garbus, Martin
Publication:The Nation
Date:Feb 16, 1985
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