Is libel law worth reforming?

AuthorAnderson, David A.

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INTRODUCTION

The remnants of American libel law provide little protection for reputation. The actual malice rule of New York Times v. Sullivan(1) does not adequately protect the press, so courts have imposed many other constitutional limitations on the libel action.(2) Cumulatively, these make the remedy largely illusory. Most victims of defamation cannot meet the actual malice requirement and many who can are thwarted by other constitutional obstacles.

Nonetheless, libel law continues to exact a price from speech. The constitutional protections are designed to, and often do, encourage the media to defame. Outraged juries frequently return six- or seven-figure verdicts. Although such verdicts are usually reversed on appeal, defamation victims continue to sue. While the likelihood of success is minuscule, the amount at issue is usually large, so the media defend vigorously. Because many of the constitutional issues do not lend themselves to preliminary disposition, even the least meritorious cases can require extensive discovery on both sides. Those actions that go to trial often produce plaintiffs' judgments that are eventually reversed on constitutional grounds. Libel law, as modified over the past twenty-five years, produces expensive litigation and occasional large judgments, and therefore continues to chill speech.(3)

As it stands today, libel law is not worth saving. What we have is a system in which most claims are judicially foreclosed after costly litigation. It gives plaintiffs delusions of large windfalls, defendants nightmares of intrusive and protracted litigation, and the public little assurance that the law favors truth over falsehood. If we can do no better, honesty and efficiency demand that we abolish the law of libel.

Much can be said for that course. Since our forebears abandoned licensing, libel has been the principal legal threat to freedom of the press. Abolishing libel law is the only way to completely eliminate the chilling effect that it exerts on the press. To paraphrase Judge Edgerton, whatever is subtracted from the field of libel is added to the field of free debate.(4) Abolition would leave victims of defamation little worse off than they are today. A few would give up recoveries, but many would be spared the costs, emotional as well as financial, of hopeless litigation. The public would get the benefit of information that is now suppressed by the chill of libel law, and would be disabused of the inferences that may be drawn from a mistaken belief that defamatory falsehoods are generally actionable.

No matter how much it values speech, however, a civilized society cannot refuse to protect reputation. Some form of libel law is as essential to the health of the commonweal and the press as it is to the victims of defamation. Without libel law, credibility of the press would be at the mercy of the least scrupulous among it, and public discourse would have no necessary anchor in truth.

From the point of view of the defamed, the defamers, or the public, the law of libel is obviously ripe for reform. Many proposals have been offered over the past decade,(5) but so far all have been stillborn because of opposition by the media bar(6) and the absence of any organized support. Now, however, the reform movement has, if not a political constituency, at least an institutional protagonist. The National Conference of Commissioners on Uniform State Laws is preparing a proposed Uniform Defamation Act, to be voted on by the Conference in 1992.(7) In the pattern of previous reform proposals, the proposed uniform act (1) retains present constitutional restrictions on monetary recovery, (2) further restricts the availability of presumed and punitive damages, and (3) requires many defamation victims to accept alternative remedies, namely retraction or a declaratory judgment of falsity, in lieu of damages.

Like its predecessors, this approach to reform is too modest. Instead of correcting the evils of the present libel law, it seeks to circumvent them through alternative remedies that are likely to prove ineffective. If libel law is to be worth saving, it must provide not merely nominal remedies, but remedies that protect reputation effectively, at the least possible cost to speech. Vindicatory declarations and other alternative remedies could supplement an effective and efficient system of libel law. But because of the realities of financing litigation against the legal and financial might of the media, monetary awards must continue to be the primary remedy. The principal opportunities for reform lie in abandoning some shibboleths about jury trials and in reducing the scale of libel litigation.

My objective in this Article is to show how the current law of libel affects the media, the victims of defamation, and the public, and how it might be changed. To appreciate these matters, one must come to grips with some arcana that is stock-in-trade to the libel bar but is little known to others. To understand that the constitutional law of libel is a rule requiring public officials and public figures to prove actual malice, or even that it is a system of fault-based rules that vary for different classes of cases, is to have an illusion of understanding. The constitutional law of libel has evolved far beyond the well-known fault requirements. The "actual malice" rule of New York Times v. Sullivan has been subsumed into an intricate complex of substantive, procedural, and evidentiary rules, some of which have little to do with "actual malice" and much to do with judicial power to reject jury findings. Virtually all libel litigation is now governed by the strictest constitutional limitations, rules conceived for libel suits by public officials. The perception that the actual malice regime is an exceptional one, applying only to a few libel plaintiffs, is a myth. Because of expansive definitions of public official and public figure, and because financial realities compel even private plaintiffs to seek presumed and punitive damages, the actual malice standard, with all its ancillary restrictions, is the rule rather than the exception. Part I explains how little protection of reputation remains under this system.

Understanding how these rules work in litigation is essential to understanding why they fail to adequately protect freedom of speech (the subject of Part II), and why they exact too great a sacrifice of the individual and societal interests in reputation (the subject of Part III). Part IV discusses the directions reform might take and the obstacles it faces. I conclude that only the Supreme Court can bring about the reform of libel law.

  1. THE CONSTITUTIONAL LAW OF DEFAMATION

    1. Actual Malice

      The rule created by New York Times v. Sullivan,(8) still the cornerstone of constitutional defamation law today, is that the First Amendment "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not."(9)

      From the outset, the Court made it clear this requirement would not be easy to meet. It was not met by evidence that the New York Times had in its own files materials showing the falsity of some of the charges against Sullivan; by the Times's Secretary's admission that he suspected one of the charges was false; or by the fact that the newspaper failed to retract at Sullivan's demand, though it had retracted the same charges on the demand of the Governor of Alabama.(10) Gradually, the Court made it clear that neither malice nor recklessness, in the common law sense of those terms, suffices. Proof of ill will is not enough,(11) nor is proof that the defendant published without investigating despite an obvious risk of serious harm to reputation.(12) Instead, what must be shown is a subjective awareness of falsity: that the defendant knew what he was saying was false, or "in fact entertained serious doubts as to the truth of his publication."(13) Moreover, knowledge of a merely technical falsehood is not enough; thus, deliberate alteration of quotations is not proof of knowledge of falsity unless the alteration materially changes the meaning of the quotation alleged to be defamatory.(14)

    2. Convincing Clarity

      To reinforce this constitutional fortification, the Court greatly expanded judges' control of juries--a development that has had far greater practical effect than the actual malice rule itself. This expansion of judicial control began in New York Times, which intimated that "actual malice" must be proved with "convincing clarity."(15) This means the jury must be instructed that although other issues are controlled by the usual preponderance-of-evidence standard,(16) actual malice must be shown by "clear and convincing proof."(17) The importance of this rule lies not in its effect on juries, however, but in its effect on judicial review. New York Times also held that judges--from the trial judge to members of the Supreme Court--must engage in independent review of a jury finding of actual malice to satisfy themselves that the evidence is constitutionally sufficient.(18) In making this sufficiency judgment, judges must determine not merely that the finding is supported by competent evidence, or that a reasonable person could find actual malice, but that it is shown with convincing clarity. The Supreme Court has never explained what that phrase means, but it obviously enhances judges' power to overturn jury verdicts that under usual rules would have to be accepted. The convincing clarity standard also provides the measure by which the genuineness of the actual malice issue must be judged on defendant's motion for summary judgment under the federal rules.(19)

    3. Independent Review

      The independent review requirement abrogates the usual rule that jury determinations...

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