The End of Libel

...Perspectives THE END OF LIBEL BY JOHN P ROCHE ??ohn P Roche, the self-^ * I styled social democrat, was I in 1939-40 actually a mem-^ ber of a pro-Nazi youth movement His whole career is a deception As a member of the 10th Mountain Division in Italy, he was court-martialed for cowardice, at Cornell University he paid someone to write his doctoral dissertation, and he was quietly fired from President Johnson's staff for stealing golf cuff links from the White House " Quite a story' Before you think I have been born again and confessed all, let me add it is wholly fictitious I was in the Socialist anti-World War II movement called "pro-Nazi" by the Stalinists before and after their hero embraced Hitler I just missed court-martial in the Pacific Division of the Air Transport Command for telling some officers what I thought of their character and ancestry No one would write my thesis for any sum It was a legitimate horror And I never found out where Lyndon hid the cuff links So much for the "confession " The point of this exercise in simulated masochism is that if a television commentator on a program called, say, Personalities, let fly with the above indictment, the odds are a thousand to one I could get no legal redress If he were a member of a responsible news organization, a retraction might be obtained But assuming I wasn't satisfied with that, my only recourse would be to break his jaw and throw myself on a jury's mercv There is historical irony here Although civil libel actions were invented to supplant duels, the Supreme Court has now gutted our law of libel Moreover, if a recent decision of the Federal Appeals Court in New York is sustained, a so-called "public figure" will be fair game for any sort of defamation The case began in 1973, when Lieutenant Colonel Anthony Herbert, who had been denouncing alleged American atrocities in Vietnam far and wide, was the focus of a CBS Sixty Minutes program Since our concern here is with the law, not the merits of this particular case, suffice it to say that Herbert, believing he had been defamed by the treatment he received, brought a libel action against CBS Without confusing The New Leader with a law review, it is vital to stop at this point and briefly investigate the Supreme Court's remarkable antics regarding the traditional American law of libel The Founding Fathers accepted the British common law rules of defamation with one significant amendment Truth was made a tull defense Upon the expiration of the Sedition Act of 1798, the Federal government went out ot the libel business for a century and a half, all actions for defamation had to be brought at the state level Matters continued peacefully enough until 1964, when libel procedures were changed Before that year, if someone called me a Communist, I could sock him with a libel suit In contrast, if this occurred in 1965, all I could do in practical terms was look up the Chaplain and have my "TS" (Tough Situation) card punched Admittedly, the old libel law was abused, particularly as a technique of invisible censorship In the late '50s, for example, I had a manuscript of some 800 pages ready to go to press Entitled Studies in Infiltration, it consisted of a series of scholarly essays on how the Communists operated in various liberal organizations The collection, which included a long study by me of the struggle within the American Veterans Committee, where we beat the Stalinists to a frazzle, was meticulously documented But suddenly the publisher turned on the red light "Our lawyers say there is one libel action per page in that compendium " I was furious "Truth is a full defense1" They smiled sardonically and said, "Sure, but we don't want to pay for litigation even if we wm " I still have the manuscript, and no affection for the old law Now, though, we have moved to the opposite extreme What happened9 To make a long story short, some white segregationists in Alabama had a bright idea Its end product was an enormous libel judgment against the New York Tunes A neat set-up You could spot it from Los Angeles on a foggy day The Alabama decision was appealed to the Supreme Court, which, for techmcal reasons, could not review its equity Therefore, this sandbagging would be legally enforceable unless the Court found a constitutional rationale for throwing it out A shrewd judge, like Chief Justices John Marshall or Charles Evans Hughes, or Justice Robert Jackson, could probably have found a way of disposing of the Alabama holding without emasculating the law of libel Unfortunately, the Warren Court had no patience with subtleties In 1964 it invoked the First and Fourteenth Amendments to declare the libel action a violation of freedom of the press, and went on to establish open season on any "public figures " The core of the argument was that if individuals, or groups, entered the ring —that is, engaged in public controversy—they had to take their lumps In other words, unless Dwight Eisenhower refused to be a public figure, or, on a lower level, John Roche declined to write a syndicated newspaper column, the normal rules of defamation were irrelevant However, there was one limiting footnote If an individual who claimed he had been defamed could demonstrate "malice," he would still be able to go through with his action In non-legal terms, if I could prove the character who said I had been court-martialed knew the charge was false when he published, or uttered, it, I could still sue despite my status as a public figure "Malice" is, of course, a state of mind and extremely hard to demonstrate Maybe if I could turn up five witnesses who heard him say, "Sure it's a crock, but he'll have to spend the rest of his life disproving it," a jury would give me a favorable verdict Yet, to obtain any such evidence, I would have to explore intensively his actions and comments at the time the statement was made—a difficult task indeed That brings us back to Colonel Herbert's case against CBS In the Federal District Court where Herbert brought his original action, his counsel demanded access to a mass of the network's internal memorandums, hoping they would show that the boys decided to give the Colonel the leather The judge agreed and CBS immediately appealed, claiming that such a search would virtually destroy the freedom of the press, and be a noose around the neck of editorial autonomy This neatly circumvented the patent fact that to prove malice, Herbert had to show the presentation was rigged deliberately That, in turn, obviously required m-depth investigation of the thoughts of the producers, particularly any written material on the subject Nonetheless, Federal Circuit Judge Irving R Kaufman's "Catch-22" decision held that any inquiry into the motivation of the producers of Sixty Minutes would strike "to the heart of the vital component of the editorial process " The knowledge that they might later be tested for malice would chill "the very process of thought " Such an "inquisition" would be an intolerable Constitutional violation It was a moving opinion But after you wipe your eyes, meditate a moment on its impact If a public figure's sole salvation from defamation is to prove malice, and he is barred from access to critical evidence of the possible bias of his opponents, what recourse remains9 Should we return to General Andrew Jackson's modus operandi of pistols for two and coffee for one7 Unless the Supreme Court does something to revitalize the law of defamation, pistols are obviously in order It would seem wiser, though, to bring back the view of the Founding Fathers that the press must be both free and responsible A good beginning would be to reverse Judge Kaufman's decision That at least would permit an adequate search for proof of "a condition of the mind showing a heart regardless of social duty and fatally bent on mischief"—the classic definition of malice...