Libel revival

...The Burger Court has "whittled" away at Sullivan in at least two respects, one involving the letter of the decision and the other its spirit...

...After all, in general, the law of defamation should punish the calculating and malicious libeler who seeks only to hurt another through falsehood...

...ISIDORE SILVER (Isidore Silver is a professor of constitutional law and history at John Jay College of Criminal Justice in New York City...

...As at least some of the recent major libel cases clearly demonstrate, "innocent defendants" are often faced with "as rigid and extreme" liability "as anything found in the law" while, on occasion, there remains "a blind and almost perverse refusal to compensate the plaintiff for real and very serious harm...

...Nor shall I discuss the tangled, though fascinating, history of the development of the law in this area, save to note that much of its traditional confusion lies in the fact that judges have harbored an aristocratic distaste for press"excesses" and have not acted so much to vindicate aggrieved plaintiffs as to put an allegedly licentious press in its place...

...When "X" sues, he will not, under prevailing standards, be deemed to be a public figure and any mistake at all in the expose will subject his critic to substantial damages...

...Indeed, the revival has apparently engendered a change in the media's heretofore general policy of refusing to settle suits brought by public officials...

...While, as I have said, the mass media can take care of itself-through appeals, insurance (with fairly high premiums), and the like-it is the small crusading (or merely inquisitive) media which suffer most from the presence of two infirmities, a narrow definition of "public figure" and the recklessness loophole...

...These reforms - which would have to be legislated by either Congress or the states, given the Supreme Court's present proclivities - will be necessary to truly realize the spirit of Sullivan and to insure that "media hunting" by the powerful not become, once again, both a national sport and a national disgrace...

...Even if "X" loses, he usually can afford his costs, while the winner may incur debilitating expenses for which (in America, though not in England), it cannot obtain recompense...

...I think that it has and, in the one realm of suits against the smaller media, would propose that the allegedly "tough" Sullivan standards be made even more formidable against the plaintiff...

...CBS, clearly aware of the trend, recently settled two such claims by agreeing to pay somewhere between $350,000 and $500,000 to two Gary, Indiana, police officers and Philadelphia Mayor William J. Green...

...While, presumably, the truly mass media can take care of themselves in libel litigation, present standards of legal liability can only insure that local newspapers and small magazines (let us say, of less than 150,000 circulation) will be faced, as some have been, with ruinous costs whenever they become the least bit venturesome, costs which they will have to bear even if they prevail in court...

...Perhaps, as an added protection, all of defendant's costs and expenses, legal and otherwise, should be chargeable to the losing plaintiff, at least where the defendant is economically vulnerable...

...If the term "chilling effect on the press" has any meaning, it will be precisely at this juncture...

...Thus, it would seem that an immediately needed reform of present libel "principles" (and I use the term most advisedly) would be to modify Sullivan in appropriate cases to eliminate "recklessness" as a standard of legal liability...

...If he is a public figure, juries will often find recklessness where there is, at most, simple negligence, and this will occur even where the judge has carefully instructed them about the difference between the two standards...

...One might have assumed that, following the landmark 1964 decision in New York Times v. Sullivan, libel suits-at least by public officials or public figures- would have become an exotic rarity...

...Since the latter statement refers mainly to the law of slander (oral defamation), I shall not further advert to it now...

...The Court has simply refused to find that many people one might think of as public figures were such, and it has encouraged trials (rather than dismissals) of libel actions even in cases where it was fairly clear that the plaintiffs could not win...

...Like a posse swarming through a mountain pass after a fugitive, the Washington Post jury rode through and found such recklessness in a story about a public figure which was, without much question, honest though not in all respects true...

...In full recognition of this, the Sullivan decision basically and simply held that libel suits by public officials against their critics could only succeed if the plaintiff proved that the allegedly defamatory statement was made with "knowing" or "reckless" falsity...

...It is obviously time to inquire into the nature of the beast, one with more than nine lives historically, to ascertain whether the Supreme Court, since Sullivan, whittleth away too much...

...The courts & the press LIBEL REVIVAL THE DANGER OF 'MEDIA HUNTING' THE RECENT JURY LIBEL AWARD of $2.08 million to Mobil Oil Company's president against the Washington Post exemplifies the (newly coined) adage that "What the Supreme Court Giveth, the Supreme Court Can Whittleth Away...

...but, as a spate of heavy awards against Time Inc., Penthouse, and some local newspapers demonstrates, this venerable form of legal action is alive, well, and even flourishing...

...It has also "honored" Sullivan's great loophole-the ability of a jury to find "reckless" falsity even where there is no calculated intent to harm by falsehood...

...Often, it will be a local newspaper or magazine of small circulation which claims that "X"-an unknown or little known citizen-is a local powerholder who has misused that power...

...Sullivan, it should be noted, did say that the identity of the parties should make a difference in result - certain types of plaintiffs suing certain types of defendants should have higher burdens than other parties...

...The Court well appreciated that "whatever is added to the field of libel is subtracted from the right of free speech...

...The Sullivan rule was designed not to enunciate an immutable principle of moral law but simply to permit greater leeway (not the greatest conceivable leeway, incidentally) to political criticism or other commentary of great social importance...

...Sullivan was a practical decision, engendered by the scarcely unknown fact that Southern juries were awarding large judgments (Sullivan got $500,000) to public officials against media critics of their civil rights policies and actions...

...It contains anomalies and absurdities for which no legal writer ever has had a kind word...

...Later cases extended the requirement to "public figures" (whoever they are...

...For a time, libel suits by the prominent were discouraged, and those that were brought were dismissed at early stages before costs could rapidly mount...

...The basic problem is that, since Sullivan, the Supreme Court has jumbled the law of libel so badly that this area of law has returned to its customary state, one which, as the leading scholar in the field once said, "makes no sense...