Getting Even Without Winning

By Thomas Griffith

In a period when many newspapers feel that their readers don't love them, the increase in libel suits and costly verdicts may seem further evidence of reader (and juror) dissatisfaction. But the situation may not be all that bad.

Concerned about the credibility of the press, the American Society of Newspaper Editors in a poll of readers found that about two out of three consider their local paper reliable. But perhaps the most telling reader criticism was a feeling that reporters are too intent on "getting a good story and don't worry much about hurting people." People feeling hurt is what makes libel suits.

Some recent large libel awards against newspapers do not reflect an increased animus toward the press, in the opinion of Robert Sack, a libel attorney who represents the Wall Street Journal. He thinks that jurors get used to reading about large awards in injury or malpractice cases. Libel suits rarely show out-of-pocket losses, but "when the question turns on how much a man's reputation is worth," Sack believes, "round numbers will come to the juror's mind." What made a $50 million libel suit against the Boston Globe remarkable last week was a verdict that found five paragraphs of a story false and defamatory, but the "gist" of it true, and awarded no damages.

Even when fending off costly verdicts, newspapers are apt to feel besmirched by libel trials. The prudent course would be to mollify an aggrieved party before he sues, but just the opposite usually happens: a person who calls a newspaper to ask for a retraction or a correction finds his call impatiently shunted around the newsroom by people busy getting out the next edition. He was hurt and upset when he placed the call; when he hangs up he is angry and ready to sue. What began as a "golden opportunity for the press" ends up as one for a lawyer. This is the conclusion of three professors at the University of Iowa after studying nearly 900 libel suits filed over a ten-year period.

Can libel cases be headed off? They often can, argued Gilbert Cranberg, Gallup professor of journalism at Iowa, summarizing the Iowa study at a convention of the Organization of News Ombudsmen in Minneapolis. The ombudsman, clumsy title and all, is usually an older editorial hand delegated to hear out and judge reader complaints. This can be a touchy assignment. Since he was not involved in the original story and does not feel defensive about it, he may be readier to recommend a correction or even an apology. Though there are about 1,800 daily newspapers in the U.S. and Canada, there are only 35 ombudsmen. Now that they have proved valuable in warding off libel suits, their number may increase.

Those who sue are not primarily after a lot of money, the Iowa study showed (though their lawyers, often hired for a contingency fee, ask for large sums). They sue "to correct the record and to get even." Most tend to be public officials highly visible in their community. Their chance of winning in court is only one in ten. They persist against these odds because they want vindication.

In the Boston case John R. Lakian, a wealthy businessman, sued the Globe over a story that appeared when he ran for Governor of Massachusetts in 1982. The jury agreed with the Globe that Lakian had falsely claimed to have taken graduate courses at Harvard, and that his campaign literature falsely claimed he had won a battlefield promotion in Viet Nam. But Lakian was able to take advantage of a Supreme Court decision (New York Times vs. Sullivan), originally hailed as a great triumph for the press. Under this decision, what matters most is what a writer or editor thought to be true at the time of publication. So libel cases are now minute inquiries into a writer's mind.

"The actual truth or falsity of that which was published is rarely addressed," the Iowa study says. The harm done to the plaintiff's reputation "is even more rarely explored." Nine times out of ten, after going to tremendous expense, the newspaper wins but often on grounds that seem a technicality to the public. In the Lakian case, the truth was addressed, and Lakian was unable to rebut the strongest charges made by the paper. Still, he claimed vindication. Few plaintiffs any longer "sue to win," the Iowa study concludes, "they win by suing."

From such muddles it becomes clear that the courts have not yet found the proper balance between freedom of speech and protection of reputation.