How to stop libel suits and still protect individual reputation.

• Author: Nagel, Robert F.

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...