Triple Reverse

When Washington Post Reporter Patrick Tyler was researching a 1979 story charging that then Mobil Corp. President William Tavoulareas had used his corporate post to "set up" his son Peter in business, Mobil executives refused to be interviewed. After the article was published, however, Tavoulareas went to the Post to confront Tyler's boss, Executive Editor Benjamin Bradlee. What followed was a libel suit that has cost the Post alone more than $1 million in legal fees and seen as many turns of fortune as did Pip in Great Expectations. Last week the Post won what legal experts said may be the final victory.

In July 1982 a federal jury in Washington found that the Post had defamed the elder Tavoulareas, though not his son, and awarded $2 million in damages. But Federal Judge Oliver Gasch threw out the verdict. While critical of the Post -- "The article falls far short of being a model of fair, unbiased journalism" -- Gasch ruled that Tavoulareas had been unable to meet the exacting standard of proof required of public figures: "actual malice," meaning that those who published the article had knowledge of its inaccuracy or recklessly disregarded the truth.

In the next round, a three-judge U.S. appeals-court panel reinstated the jury verdict, using reasoning that alarmed journalists everywhere. The very facts of a reporter's "sophisticated muckraking" and a publication's penchant for "hard-hitting investigative stories" could be taken as evidence of actual malice, wrote Senior Judge George MacKinnon in an opinion joined by Antonin Scalia, now a U.S. Supreme Court Justice. First Amendment lawyers said the ruling would penalize the press for performing its most crucial duties.

Last week the full appeals court agreed and reversed the reversal of the reversal by a resounding 7-to-1 vote, with only MacKinnon in dissent. Said the majority: "We agree with the Post that the First Amendment prohibits penalizing the press for encouraging its reporters to expose wrongdoing." In a further blow, the judges not only found the Post story essentially accurate but used language that was, if anything, even more forceful than that in the original article. Said the opinion: "The record abounds with uncontradicted evidence of nepotism in favor of Peter . . . No reasonable jury could, on this record, find that the 'set up' allegation was false."