Defame game

Silver, Isidore

The courts & the press DEFAME GAME LIBEL: THE MIDAS TOUCH THE CURRENT, raging controversy about defamation suits by public officials, ex-public officials, and public figures against the media has...

...The issue of punitive damages a hotly debated one, in the case of public figures is beyond the purview of this article...
...In Time, Inc...
...the resulting verdicts are often in the millions of dollars, without much evidence or proof of harm...
...Immediately after the failure of the first attempt to dismiss the action, the plaintiff should be required to present evidence in a "mini-trial" solely on the issue of damages...
...In the most perfect of possible worlds, this proposal would be unnecessary, since, in theory, only real damages should be awarded...
...The result has often been that juries, apparently inflamed by the grossness of defendant's alleged conduct, are ready to award almost anything demanded by the plaintiff...
...Although the Sullivan decision itself did not limit damages awards, as many had hoped, ten years later the Supreme Court held the traditional common law rule that "presumed" damages in libel actions to be unconstitutional...
...This proposal would help insure that such proof is presented in a rational atmosphere...
...While many, probably most, of the bizarre, even outrageous, jury determinations have been reduced either by trial or appellate judges, one cannot be confident that this will continue, especially when both judges and juries become convinced that, in fact, the media have violated the apparently "liberal" Sullivan standards governing the merits of the action...
...Commonweal: 100 The present configuration of a libel suit involves: (a) a complaint alleging that something written was false, harmful, and malicious (in both the traditional sense of ill-will or personal vindictiveness and the Sullivan sense of "knowing or reckless'' falsity...
...Perhaps an amount awarded that is high but not outrageous would be used to negotiate a lower "settlement'' of the action...
...What presently exists is a virtual presumption that, if a media attack on an individual is severe enough, there will be, in reality, "presumed" (and very heavy) damages...
...Inflation has had its way in libel suits, as elsewhere...
...At the minimum, judges instructing damages juries should pay close attention to these rules and charge, at least, that public figures should be reasonably expected to be "thick-skinned" about attacks upon them...
...For damages other than emotional distress, traditional rules are probably adequate...
...in both cases, however, the traditional interest in reputation, long thought to be the gravamen of a defamation action, was simply ignored...
...c) lengthy "discovery" proceedings where each side spends considerable sums to learn the other side's case before trial...
...The defendant would also have to make certain basic decisions whether to settle for the figure awarded, thus ending the case...
...On balance, I believe, there would be greater pressure on plaintiffs than on defendants...
...Clearly, any gains in media protection offered by this proposal would be diminished in practice if the rules of damages, especially those for emotional distress, were not narrowed...
...Of course, a defendant will still have the option of litigating the matter, though with full knowledge of the upper limits of its legal liability should it lose...
...Once potential damages have been established, both parties will be in a better position to determine their strategies...
...b) an unsuccessful motion to throw the case out...
...Indeed, a defendant but not the plaintiff would have the further option of introducing evidence at either the mini- or the main trial to mitigate damages...
...Any award would be more realistic than the present system, since the jury has not had the opportunity to build up the kind of animus that accompanies protracted, often overheated, courtroom litigation and its pyrotechnics...
...There will be no need to go through a full trial to arrive at the kind of symbolic victory often sought by outraged plaintiffs...
...Perhaps an award of damages, if high, at an early stage of the proceeding would harm the defendant in the eyes of the public, especially since many may not realize that only the question of possible damage and not that of basic liability has been resolved...
...Despite this somewhat belated concern with the subject of damages, the major libel decisions of the last twenty years have revolved about such esoteric issues as just who is a ' 'public figure'' and what is "malice" in the constitutional sense (the question which ultimately defeated Sharon's case...
...The Alabama police chief who sued in New York Times v. Sullivan only had the limited imagination to claim $500,000 as compensatory damages (the jury agreed) although, as Justice Black noted in that 1964 landmark case, in reality the claim that Sullivan participated in violations of civil rights probably enhanced his reputation among southern whites...
...More importantly, the courts should now require that issues of damages be litigated first, not last, at least when public figures are suing...
...This would partially mirror the traditional notion that defamatory writings, irrespective of falsity, can cause great harm (the basis for the now outmoded requirement that truth was a defense to be proven by the writer...
...In the event that the action is continued, a different jury should be chosen to try the case on its merits since the damages jury may be unduly influenced either way by its previous assessment of damages...
...d) usually, another motion to dismiss the action using the accumulated materials so "discovered'', and (e) extensive and expensive trials after the (by-now predictable) denial of the second attempt to dismiss the action...
...Obviously, this is not what has happened since 1974, nor is it happening now...
...This proposal will enable a jury to measure only damages separately, and will diminish the opportunity to make each libel action a continuing referendum on media practices (a referendum the media often loses...
...It might be argued that this would put pressure on media defendants to settle cases they would ordinarily fight, but this pressure is present in any libel action...
...The twin threats to the media the costs of litigating, and frequent awards of high damages are compounded by the costs of an appeal (which may not necessarily be won) These problems can be reduced by requiring an initial determination (before expenses have skyrocketed) of the maximum amount of damages allowable to a plaintiff...
...Indeed, Jerry Falwell has just recovered $ 100,000 in damages for emotional distress alone for a media defendant's parody deemed not to be libelous for other reasons...
...It is time to focus again on the issue of damages...
...and today, it is not uncommon for plaintiffs such as General Westmoreland and Ariel Sharon to allege damages in the millions, if not the hundreds of millions...
...Since the plaintiff s claim will be assumed to be true, solely for the purpose of this proceeding, the jury can fully and undis-tractedly concentrate on the narrow issue before it...
...Presumably, the media would have an interest in educating the public on the significance of any ruling on damages...
...At least in Firestone, the plaintiff was required to show both falsity and harm, while Falwell involved only outrageousness and harm...
...v. Firestone it permitted a damages award to a plaintiff who apparently did 22 February 1985: 101 not have much of a reputation to protect (and who indeed specifically withdrew the issue of reputation from her claim of emotional distress and other similar damages...
...Also, the''damages" jury's decision would focus public attention on the vital issue of just how much, if at all, the defendant has really been hurt...
...ISIDORE SILVER (Isidore Silver teaches constitutional law and history at John Jay College of Criminal Justice...
...Unfortunately, the "rules" about permissible damages are biased against valid determinations of actual damages, in part because the Supreme Court in 1976 widened the scope of such damages to a degree which has often proved vague and even intolerable...
...The courts & the press DEFAME GAME LIBEL: THE MIDAS TOUCH THE CURRENT, raging controversy about defamation suits by public officials, ex-public officials, and public figures against the media has completely ignored a critical element the requirement that any libel action be accompanied by provable and measurable damages...
...Any election of payment under these circumstances , absent a full trial on the merits, would function as only a limited admission of liability much like a consent decree in a civil action ("I don't admit to having done it, but I won't do so again") or a "nolo contendere" plea in a criminal action...
...The plaintiff may be encouraged to see things more "realistically'' and may even decide that a "symbolic" award of damages is sufficient much like the old English rule that permitted a penny award to vindicate the plaintiffs name in the absence of real damages...
...Prior to this, limited' 'discovery'' proceedings solely on this issue would be allowed, if the parties so desire...
...Perhaps, finally , for many plaintiffs eager to jump onto the great bandwagon, the game will not be worth the candle...
...After presentation of the relevant evidence by both sides, the jury would determine the maximum amount of damages possible subject, of course, to the judge's present right to reduce the finding...
...The important psychological aspect of this proposal is that it will give the issue of damages the scrutiny it deserves and frequently does not receive...
...yet, it also accords with the modern view that damages cannot be "presumed" and that the plaintiff must show them by "clear and convincing" proof...

Vol. 112 • February 1985 • No. 4


 
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