The Great Freedoms

By WILLIAM A. HENRY III

When Mobil Corp. President William Tavoulareas sued the Washington Post for saying he used his corporate position to "set up his son" in a shipping business, the jurors on the case reportedly proceeded on three intuitive assumptions. First, if a news organization accuses someone, it ought to be able to prove its charges. Second, a public figure whose career depends on his reputation ought to enjoy, if anything, greater protection from unsubstantiated attack than an ordinary citizen. Third, documented disagreement within a newsroom about a story's validity -- followed by its publication -- shows the news organization doubted the story's accuracy.

Those assumptions might seem persuasive not only to the jurors in the Tavoulareas case -- who voted him $2.05 million in damages -- but also to many other Americans. As a matter of law, however, they are wrong. The 1982 verdict against the Post was overturned, first by the trial judge and again on appeal. Libel law is often what scholars call counterintuitive: its tenets sometimes appear to contradict common sense and even common courtesy. The clash between legal principle and public perception may explain why libel verdicts so persistently get reversed and why legal scholars and a growing number of libel plaintiffs are concluding that going to court usually amounts to a frustrating waste of time.

Freedom of the press finds its broadest charter in the First Amendment but has been clarified over the years by the courts. In the 1964 Supreme Court ! decision in New York Times v. Sullivan, the Justices held that vigorous comment about public officials' performances of their duties was vitally deserving of protection. So it added to the traditional elements of libel -- falsity and damage to reputation -- a third factor involving the journalist's state of mind: "actual malice." In order to prevail in court, public officials would have to show that a reporter knew the story to be false or showed "reckless disregard of whether it was false." That provision turned out to have some unforeseen negative consequences for media defendants. It has allowed plaintiffs to review journalists' notes, internal memorandums, video-tape outtakes and other raw materials in an effort to reconstruct the entire reporting-and-editing process, adding greatly to the length and complexity of pretrial discovery of evidence.

A flurry of headline-grabbing libel cases over the past several years, most followed by protracted legal preliminaries, prompted fears about the effectiveness of the First Amendment. Now that the dust has settled, however, it seems clear that the news media have prevailed, at least in the court of law. While many news organizations have lost their first-round libel verdicts, the media have won most major cases that went through the full appellate process. Moreover, while juries have rendered more than 30 verdicts in excess of $1 million since 1980, according to the Libel Defense Resource Center, not one judgment has topped even half that sum after appeals. The word seems to be getting through to potential plaintiffs. Says veteran First Amendment Attorney James Goodale: "Libel litigation is at the lowest level that I have seen it since the period that followed the Sullivan case in the 1960s."

People still bring suits, though; prominent among them are cases involving public figures who should know exactly how arduous a battle they face. Televangelist Pat Robertson is in the early stages of a case brought against Representative Andrew Jacobs Jr. and former Representative Paul McCloskey Jr., who accused Robertson of evading combat during the Korean War by using the influence of his father, the late U.S. Senator A. Willis Robertson. The Milwaukee Journal is being sued by a former Democratic state representative, the Chicago Sun-Times by a former president of the city council, and WCCO-TV, the Minneapolis affiliate of CBS, by a county attorney.

In Pennsylvania, which may have the most litigious political hierarchy in the nation, media organizations, large and small, have repeatedly been sued. The hardest hit: the Philadelphia Inquirer and its sister paper the Daily News face pending suits by two of the seven judges of the Pennsylvania Supreme Court, a state appellate judge, the president of the Philadelphia city council, a former Philadelphia mayor, a former district attorney and a former U.S. attorney.

Why do plaintiffs so often persist, and why do juries find for them in cases that judges then throw out? Perhaps because jurors, like much of the rest of the public, think the press needs some restraining. Or perhaps because libel law is simply hard for laymen to grasp. While the target of a tough story may feel that he is the beleaguered party, in libel law he becomes the plaintiff and takes on the legal burden of disproving the offending story. In the conflict of rights between freedom of the press and preservation of reputation, the legal scales are deliberately tipped.

Although media companies are now some of the largest, most influential and most profitable -- many would say most arrogant -- institutions in U.S. society, the Constitution does not envision the press primarily as part of an establishment from which individuals need protection. It instead sees the press as standing in for the individual citizen in keeping government and other institutions honest, and allows plenty of margin for genuine error -- even when the error is damaging, intrusive and unconfessed. "Libel law gives an enormous protection to the media, which, when it's explained to people, they don't much like," says Washington Attorney Bruce Sanford. "The public loves the ((media)) product but hates the process."

Whatever the odds, libel plaintiffs, especially public figures, often contend that suing is the only way to clear their reputations, that their denials will ring hollow unless accompanied by a court suit. "If I am elected President," says Robertson, "how could I ever order a young American into combat if the record is not absolutely clear that I never shirked military duty?" In other instances an embattled public official may calculate that litigation is the best way to discourage further damaging coverage. Inquirer Executive Editor Gene Roberts believes this is happening in Pennsylvania. Says he: "Public officials are using libel suits to silence their critics."

Perhaps the biggest reason for turning to the courts is that libel suits really involve two trials: one in court, which the plaintiff may lose, and another in the court of public opinion, where the plaintiff may well prevail or, at least, succeed in besmirching the news organization that aggrieved him. Though Israeli Cabinet Minister Ariel Sharon lost his case against TIME, he won a moral victory of sorts when the jury found that the story had defamed him and appended the statement that some of the magazine's employees had "acted negligently and carelessly."

A plaintiff in a punitive frame of mind may also take great pleasure in imposing on a news organization the steep cost of a libel suit, especially if he can handle much of his own legal work or can solicit ideologically motivated backing to defray his fees. A typical price tag for defending a libel suit is $150,000, but in protracted cases the cost soars into the millions.

Compounding these costs are libel insurance fees that for many organizations have doubled or tripled in the past couple of years -- a particularly heavy burden for smaller publications. Insurers are unmoved by the likelihood that their clients will prevail in the end; some 80% of what they pay out is for legal costs that must be covered whether the media defendant wins or loses. Some insurance companies have dropped out or refused to accept new clients. Others have increased the deductible and required the media company to share part of the remaining loss. Argues Henry Kaufman of the Libel Defense Resource Center: Insurance costs and availability "could have a greater impact on how libel cases are defended than any ruling by the U.S. Supreme Court."

Editors report that they submit stories far more frequently for legal review and far more often hear out complaints about coverage. Publications, by and large, are quicker to print corrections and give them prominent display. All of this is an improvement and should have come without the pressure of libel litigation.

What is less apparent is whether libel litigation has actually reduced news coverage of controversial subjects. Executives of major news organizations generally insist not. "We are no less aggressive," says Editor John Driscoll of the Boston Globe, which has faced libel suits from three recent gubernatorial hopefuls. CBS News Correspondent Mike Wallace, the on-camera reporter for the documentary that resulted in a suit by General William Westmoreland, says, "I don't think that has chilled us for one instant as far as undertaking tough investigative stories is concerned." On the other hand, San Francisco Examiner Executive Editor Larry Kramer, whose paper recently won reversal of a $4.5 million libel judgment, concedes, "That lawsuit had a very chilling effect on this newspaper." In particular, he said, editors are far more cautious about even sending reporters out to cover "borderline" stories.

Media executives are particularly leery of stories about individuals or organizations known to be prone to sue. Surveys by the Columbia Journalism Review and other organizations have found the impact greatest on smaller publications, on marginal stories and in indirect ways like excessive editorial scrutiny that can discourage reportorial enterprise. After repeated libel suits (which he has almost always won), Irvin Lieberman, publisher of a group of suburban Philadelphia newspapers, has "emasculated" his papers' investigative zeal. "I'm a hell raiser, and I think a lot of hell needs to be raised," he says. "But I can't jeopardize my family business just to exercise my First Amendment rights."

Perhaps the most instructive information that has emerged recently, notes Nashville Tennessean Editor John Seigenthaler, is that "libel suits can be brought on because plaintiffs are infuriated by the cavalier treatment they get from the newspaper staff." What many libel plaintiffs really seek is an apology, a means of reply, or even just a respectful hearing -- which more of the press is grudgingly beginning to offer.

A potentially quicker and better way to achieve all that is arbitration, now being tested in a Libel Dispute Resolution Program at the University of Iowa, run by three professors, including Gilbert Cranberg, a former editorial- page editor of the Des Moines Register. In some 30 cases to be handled over the next two years, both sides must waive the right to file suit. In exchange there are supervised negotiating sessions, a possible factual hearing on whether a statement was false and damaging -- without considering whether the error met the legal "malice" standard -- and ultimately arbitration. Remedies imposed against a media defendant might include compulsory airing of the arbitrator's findings but would not include money damages. Says Iowa Journalism Professor John Soloski: "The program will take a four-year court process down to two or three months."

Arbitration is quicker and cheaper than a trial or settlement out of court. * It is structured to focus on questions of fact and, potentially, fairness, rather than legal subtleties. Thus it offers all parties, including the public, a chance for meaningful judgment about the validity of important disputed news coverage. Still, some worry. Without litigation as an effective means of redress, warns Attorney Goodale, "pressure would build in the social system and backfire against the press."

Arbitration aside, how can the current law be improved? One common response from media executives is to compel the loser to pay the winner's legal bills, a standard British practice. Because most plaintiffs ultimately lose, that would greatly reduce the media's expenses but could also have the practical effect of cutting off litigation, except to the best-financed plaintiffs.

Hardly anyone is happy with the present libel system. "Current libel law simply doesn't work," says Attorney Floyd Abrams, who has defended the media in dozens of cases. "It doesn't really protect individual reputations, and, on the other hand, it does chill freedom of expression." But with the still- to-be-tested exception of arbitration, no major change would clearly make things better. Like other mechanisms in American society that balance one set of rights or concerns against another, libel law probably must remain fluid, never satisfying anyone's Platonic ideal. As a regulatory device on a press that U.S. society wants to be free -- yet not too free -- libel law is cumbersome, costly, at times restrictive, but in the final analysis probably not dangerous to anyone's freedom.

With reporting by Naushad S. Mehta/New York and Barrett Seaman/Washington