Challenge to Hard Reporting

By James Kelly

By now, even casual trial followers are aware that a public figure who sues a newspaper or magazine for libel must prove not only that the story is false but that it was published with reckless disregard for the truth. This test of "actual malice" was meant to safeguard the press, but in practice it has proved a complex standard that is open to wide interpretation by juries. In recent years, seven out of every ten libel cases lost by the media have been overturned on appeal. However, in an unexpected reversal last week, a federal appeals court in Washington, D.C., reinstated a jury verdict against the Washington Post for libeling William Tavoulareas, a former president of Mobil Oil Corp. In so doing, the judges offered a seemingly astonishing definition of what may contribute to actual malice. In the view of many editors and First Amendment experts, the ruling could threaten the future of investigative reporting.

The case involves a 1979 Post story that implied Tavoulareas had improperly "set up" his son in a London shipping company and then channeled millions of dollars in Mobil business to the firm. A jury found that Tavoulareas had been libeled and awarded him $2.05 million. Judge Oliver Gasch, who presided at the trial, threw out the jury's verdict on the ground that there was no proof of actual malice, though he noted that "the article falls far short of being a model of fair, unbiased journalism." In reversing Gasch, the appeals court ruled 2 to 1 that the Post's penchant for investigative stories could be a factor in determining if the paper had disregarded the truth.

In his 88-page opinion, Judge George MacKinnon cited testimony presented at the trial that some Post employees "deliberately slanted, rejected and ignored evidence contrary to the false premise of the story." In addition, he singled out Bob Woodward, the supersleuth of Watergate, who helped oversee the story. "A reasonable inference is that Woodward, as editor, wanted from his reporters the same kind of stories on which he built his own reputation: high- impact investigative stories of wrongdoing," wrote MacKinnon. "Regardless of whether one chooses to characterize this policy as conducive to . . . 'sophisticated muckraking,' it certainly is relevant to the inquiry of whether a newspaper's employees acted in reckless disregard of whether a statement is false or not."

The implication of the ruling is that a publication's emphasis on aggressive reporting could be submitted to a jury as evidence that it was inclined as a matter of policy to be malicious. "If you say, 'I'm a hard-hitting newsman,' that establishes that you hit maliciously," said H. Brandt Ayers, editor- publisher of Alabama's Anniston Star. "It's utterly ridiculous." Observed Richard Smyser, president of the American Society of Newspaper Editors: "A newspaper's reputation is a subjective matter. It has no place in a court ruling."

One of the sharpest criticisms came from the panel's dissenting judge, J. Skelly Wright, who called his colleagues' interpretation of actual malice "a startling revision." If the jury verdict is upheld, Wright predicted, "the effect on freedom of expression will be incalculable. The message to the media will be unmistakable--steer clear of unpleasant news stories." The Post is expected to ask the full ten-member appeals court to hear the case.

In another reversal for the press last week, a federal appeals panel in St. Louis overturned a judge's decision and reinstated a $10 million libel suit by South Dakota Governor William Janklow against Newsweek magazine. In a February 1983 article, Newsweek--which is owned by the Washington Post Co.--recounted Indian Activist Dennis Banks' charge that Janklow had raped a 15-year-old girl, and reported that federal authorities had found insufficient evidence to prosecute. Janklow argued that the article then falsely implied he had prosecuted Banks on riot and assault charges in reprisal for the rape accusation. A federal judge in South Dakota had ruled that any such implication would be an expression of opinion protected by the Constitution, but the appeals court said that it was a factual assertion that could be considered libelous.

With reporting by Hays Gorey/Washington and Bob Koenig/St. Louis