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Libel: Subtle censor of the press

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org

01.04.99

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Two federal appeals courts went their separate ways in recent high-profile libel cases, proving once again that what the legal world considers settled law is anything but that to the press and the public.

In fact, there is much unsettled and unsettling about an area of law that so profoundly affects how journalists do their jobs and how the people get their news. On the one hand, libel suits are a necessary recourse for those who believe they have been wronged by the press. On the other, even the threat of a libel suit can serve as a subtle censor of the press.

A libel suit is a cumbersome, expensive and too-often-unsatisfactory tool for people trying to protect personal reputations and for news organizations trying to defend news coverage for the public good. There is a great gap between what juries want to do with media defendants and what the First Amendment allows them to do. In recent years, juries have handed down huge dollar awards, sometimes in the hundreds of millions, only to see appeals courts drastically reduce or throw out the verdicts in three out of four cases.

Late last month, Kato Kaelin, O.J. Simpson's former housemate, got a leg up on his libel suit when the 9th Circuit Court of Appeals in California reversed a lower court that had granted a motion for summary judgment by the National Examiner. (A summary judgment means there is no trial because even if the facts were undisputed the defendant still would prevail as a matter of law.) Kaelin has sued the tabloid newspaper over a headline that he claims defamed him.

About the same time in Texas, the 14th District Court of Appeals reversed a lower court's verdict in favor of a Houston mayoral candidate who claimed a television station defamed him.

The facts and circumstances in the two cases are very different, of course, but they do illustrate how unpredictable such cases can be.

In the Kaelin suit, the appeals court's ruling came as a surprise to some because California law normally requires that headlines be read in the context of the stories that accompany them. However, in this case, the headline — "Cops think Kato did it! ... he fears they may want him for perjury, say pals" — was on the front page by itself, and the story was 17 pages away inside the paper. Rather than grant summary judgment, the appellate court said a jury should be allowed to decide whether Kaelin had been libeled.

In Houston, Sylvester Turner, a Texas lawyer and politician, had won a $5.5 million award (later reduced to $3.25 million by a judge) against KTRK-TV and reporter Wayne Dolcefino. Two broadcasts by the local station had raised questions about whether Turner knew that one of his law clients planned to stage his death in an insurance-fraud scheme.

A number of other recent developments put libel law in flux and the public and press in a quandary:

  • As criticism of the press increases and press credibility decreases, some scholars — and even some journalists — are saying that the landmark Supreme Court libel decision of Times v. Sullivan may grant too much protection to the press, making journalists too aggressive and irresponsible.

  • Even journalists are filing libel suits. Late last summer, a reporter at The Philadelphia Inquirer filed suit against his editor, and in Phoenix, reporters who had lost their jobs during a downsizing sued their former editor for libel.

  • A recent court ruling holding the Globe tabloid responsible for passing on libelous statements from a book could have real implications for reporting on controversial statements and views.

  • And even some First Amendment advocates say the courts went too far the other way in a ruling absolving AOL from responsibility in a libel action against Internet gossip columnist Matt Drudge.

    In the meantime, more people are willing to sue the press, more juries are willing to find in their favor, more courts are willing to sanction multi-million-dollar awards, and, ominously, more scholars, journalists and citizens are willing to accept the notion that when it comes to libel, the press simply has too much freedom.

    That's why free-press advocates believe this issue is too important to leave to the lawyers or to the less-than-tender mercies of the policy-makers. They are looking for other approaches.

    The American Society of Newspaper Editors is pushing state-by-state adoption of a model law that would limit a news organization's liability in libel suits to actual damages if a correction is published within 45 days after a complaint is received.

    ASNE decided to endorse the Uniform Correction or Clarification of Defamation Act only after much deliberation. The risk is that hostile legislators in some states might hijack the model law and bend it to their own uses. And there are concerns by some that such a law might encourage publishers or editors to avoid tough coverage or to leave their reporters twisting in the wind on a tough call.

    Another approach advocated by media lawyer Richard N. Winfield would make libel litigation less expensive and time-consuming for all parties. This approach, too, would involve changing the law, in this instance to allow the argument of appeals when the news organization is denied summary judgment. In most jurisdictions now, when a lower court denies a motion for summary judgment by a defendant in a libel suit, the case goes right to trial.

    That means that both sides bear litigation expenses that could have been avoided if the summary-judgment appeal had been argued first. This is no small matter in a situation where the odds favor the plaintiffs in the trial but favor the defendants in the appeal.

    No doubt there are other ways to bring more order and less litigation to the situation, not the least of which is better journalism. Until that day comes, the public suffers along with the press as the vagaries of court decisions and the cost of lawsuits serve as a subtle — and sometimes not-so-subtle — censor of the public's news.

    Fewer corrections or retractions are made by news organizations — or the ones that get made are tortured and confusing — because journalists legitimately worry that they might be used against them in a libel suit as proof of error or negligence.

    Community newspapers worry about publishing on the Internet because it might make them vulnerable to out-of-state legal actions.

    Editors and news directors don't publish or broadcast whole reports or key parts of them, not because they think they're wrong but because they don't want to spend the money and time defending them.

    For those who favor letting things stay the way they are, consider the outcomes in the two most recent cases.

    For Kato Kaelin, his legal battle began shortly after the National Examiner published its headline on Oct. 7, 1995. Three years later, he gets the go-ahead for an actual trial. The Houston case is based on broadcasts made in 1991. In other words, in libel cases, justice seldom comes quickly for either side.

    There's got to be a better way for both the press and the people who feel wronged by the press.

    Paul McMasters can be contacted at pmcmasters@freedomforum.org.

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