Free Speech

...Orders from our lawyer...

...Also essential in understanding the libel maze is Robert D . Sack's Libel, Slander, and Related Problems, available from the Practising Law Institute, 801 Seventh Avenue, New York, N Y 10019...

...Well, the law of libel is not egalitarian in that respect, either...

...Actually, the "average" citizen is not likely to be able to get a libel suit going...

...After all, he wrote nothing about Nader's private life...

...Legal expenses before trial—much of that aimed at preventing a trial from ever taking place by asking for summary judgment—are $20,000 to $35,000...

...That's why we have libel laws: What is the average citizen to do if one sudden morning terrible things about him or her are printed in the newspaper...

...Ralph Nader could not have sued Ralph de Toledano...

...If the Douglas-Brennan-ACLU position were ever to prevail in the Supreme Court, the only permissible libel suits would concern charges of defamation against private citizens on private matters...

...Take the enormous weight of punitive damages, for instance...

...De Toledano had interpreted a long, dense Senate subcommittee report as indicating Nader had "falsified and distorted evidence" to make his case against the General Motors Corvair...

...You know, all these years I've been a journalist, people have disagreed with me politically, but I had a hell of a good reputation for integrity...

...At a sizable urban weekly, I recently asked one of the editors about a growing tenants' movement in the city and why I hadn't seen any letters from tenants in the paper...

...He explained: "Science, economics, business, art, literature, etc...

...But even more undesirable are trials to decide which speech should be suppressed...

...He has also been forbidden by his syndicate, Copley News Service, to mention Nader's name in any context, even if he were planning to propose Nader for beatification...

...The late Supreme Court Justice Hugo Black, for example, would have abolished everyone's right to sue for libel, under any conditions...

...Those sums are usually much higher than awards for actual damage to reputation, and they give jurors the vengeful power to punish unpopular ideas, unpopular newspapers, unpopular writers...

...Seven lucky plaintiffs went over the $1 million mark in punitive damages...

...Ninety-five per cent of all complainants therefore now face libel suits...

...But, like Ralph Nader, she has access to a variety of public forums, and could have struck back at Mary McCarthy by using her own stingingly expressive powers...

...Additional alternatives to libel suits inelude forms of arbitration that could lead, like the German system, to findings of truth and also to the voluntary agreement of a newspaper or broadcast station to run the result of the arbitration...

...The tenants aren't going to sue us, but a big landlord could bleed us...

...No suit has even been filed by the police," Glasser notes, "but the threat of a suit to someone without the means to defend it is sufficient...

...The threat of libel, and of being unable to bear the cost of defending oneself against an action, no matter its merits, becomes part of the calculus of whether or not to file a complaint...

...So are lower-court judges...

...He tells of a Policemen's Benevolent Association on Long Island that "hired a lawyer to sue every citizen who files a misconduct complaint against the police which is subsequently found to be 'unsubstantiated' by the Police Department's Civilian Complaint Review Board...

...Instead, he filed a libel suit against de Toledano, seeking $5,000 in compensatory and $1 million in punitive damages...

...That's why I've been fighting this case so long...

...In a recent survey on the effect of libel suits on newspapers, Gil Cranberg, professor of journalism at the University of Iowa, quotes the editor of a paper in a small Louisiana town: "I have to ask myself sometimes, Is this story worth $30,000 in attorneys' fees...

...Ralph de Toledano's ordeal has finally ended...

...American Civil Liberties Union's new policy on libel, October 22,1982 Ralph de Toledano, a syndicated columnist of decidedly conservative bent, criticized Ralph Nader in a 1975 piece...

...Recently, he was advised by his lawyers that juries are giving libel defendants a harder and harder time...

...How much does it cost to defend a libel suit...

...the subject is one of public concern...

...all are matters of interest to the general public...

...Freedom of speech can indeed be dangerous, he added, "but I do not believe there is any halfway ground for protecting freedom of speech and press...

...He smiled...

...Ah, but that must result in more care about how everybody is treated in the media...

...Black's view is too "absolutist," it is said, to be accepted in this nation...

...Therefore, "the weak are more likely to be defamed than those with power or wealth...

...And if not here, where...

...Nat Hentoff writes every month about music and occasionally about First Amendment issues...

...Hers is for $2.25 million...

...Not long ago, at a New York meeting of the Authors Guild, Jim Silberman, publisher of Summit Books, said matter-of-factly, "The editing process is now a collaboration between writer, editor, and lawyer...

...This means that no public official or public figure should have the right to sue for defamation concerning anything said or written that is related to his public office or public status...

...Libel suits and libel awards are becoming ever more abundant...

...It would be necessary, of course, to try to ensure wide distribution of the court's finding of truth so that whatever reputational damage was caused by the original publication might be substantially diminished...

...If you say it is half free, you can rest assured that it will not remain as much as half free My view is, without deviation, without exception, without any ifs, buts, or whereases, that freedom of speech means you shall not do something to people either for the views they have or the views they express or the words they speak or write...

...Meanwhile, at newspapers, magazines, and book publishing houses, lawyers are increasingly part of the editorial process...

...If somebody's reputation is blighted by a newspaper or on the air, say the defenders of libel law, there has to be recourse...

...Accordingly, "a businessman, professional, or mobster poses a more serious risk to a newspaper or television station than a housewife, student, or worker...

...Over the eight years this case has been in the courts, de Toledano has lost nearly all his savings— $30,000...

...Not surprisingly, however, Nader was much exercised by de Toledano's contribution to the free marketplace of ideas...

...No longer able to afford a lawyer to defend himself against a charge of having spoken too freely, de Toledano last year was given pro bono help by Richard Schmidt Jr., general counsel of the American Society of Newspaper Editors, and Arthur Hanson, general counsel emeritus of the American Newspaper Publishers Association...

...Another illustration of how the law of libel has made larger and larger incursions into allegedly protected free speech is provided by Ira Glasser, executive director of the American Civil Liberties Union...

...Until the composition of the Court is significantly changed, there's more likelihood the law of libel can be changed in state legislatures...

...But I was bled white...

...Furthermore, says the A C L U , no one, including a private person, should have the right to sue for libel if the context of the alleged defamation is "a subject of public concern...

...But redeeming their speech also costs them a lot...

...And de Toledano has...

...If there's a dispute, for instance, about desegregating a local school system, and a citizen claims his views have been distorted by the press or by someone on the other side to the point of defamation, no suit would be justified under the A C L U policy...

...There will be prickly and unanticipated difficulties in all these attempts to find a way out of the libel thicket...

...You won't," he said...

...It is true that when media defendants appeal, they often do better in the appellate courts, having the judgments reversed or lessened...

...The A C L U , however, says the right to sue for libel violates the First Amendment whenever the alleged defamation takes place in the course of public debate...

...Some people are badly damaged by false and reckless speech, and it is quite possible that none of the alternative possibilities will succeed in assuaging their wounds as much as the hefty damages now available to them if they succeed in their suits...

...But if the threat of libel were removed from all discussion of public affairs—whether by public or private persons—we might at least stop the dangerous inflation in the price of free speech that may, indeed, leave us less than half free...

...The lawyer doesn't care about those...

...When translated into A C L U policy, this attack on the law of libel is not as absolute as that statement sounds...

...The Libel Defense Resource Center in New York monitored fifty-four defamation and invasion-of-privacy cases brought against the media since 1978 and found that in forty-seven of those cases, the plaintiffs were awarded damages...

...That's about as broad as you can get...

...He will have to pay Nader $5,000, which he'll have to borrow somewhere, and he has signed a statement of surrender on the question of whether that column, back in 1975, could have been taken "in a fashion" to be defamatory...

...And there will be injustices...

...This Police Review Board," Glasser continues, "is not independent, but rather is a subdivision of the police department, and has been widely criticized for years for insufficient investigation of complaints and whitewashing...

...The theory is that people who bring defamation suits largely to cause defendants distress might restrain themselves after contemplating the economic distress they'll feel if they lose...

...That, Justice Hugo Black used to say, is one of the dangers of living in a free society...

...So, his lawyers said, settle...

...Justice William Brennan agreed: "If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved...

...And while, let us say, The Washington Post and Penthouse can afford the often astounding legal fees, many publications cannot...

...By and large, then, the citizen of limited income is priced out of the libel market...

...With alliances between A C L U affiliates and media, other states might be added to the list...

...Free Speech The price is going up BY NATHENT OFF " 'Here's this morning's New York Sewer!' cried one...

...And if you are faced with defending yourself against charges of having defamed someone, it makes no sense to go to anything but a top-notch firm...

...It means "anything having an impact on the social or political system or climate...

...What does that mean...

...What about letters from landlords attacking tenants...

...Punitive damages—aimed at punishing the defendant rather than compensating the plaintiff for actual suffering and loss of income—were awarded in thirty of the cases, with seventeen of those plaintiffs getting punishment money of $250,000 or more...

...However, in eight states, no punitive damages are allowed in libel suits...

...Last October, the American Civil Liberties Union took the lead...

...I don't have any resources left...

...The Center is at 708 Third Avenue, 32nd floor, New York, N Y 10017...

...He was recently named winner of the American Library Association's annual Immroth Memorial Award for outstanding contributions to intellectual freedom...

...But if the present libel contagion continues to spread, only the brave or foolhardy may eventually engage in the robust exchange of ideas that the Founders themselves so delighted in...

...As a very public figure, Nader had many ways of using his own free speech to tear apart the offensive column—op-ed page pieces, television interviews, and more...

...Ninety-five per cent of all complaints are found 'unsubstantiated,' even though witnesses are often not interviewed...

...So, even if the well-heeled, angry plaintiff eventually loses the libel action, there can be compensatory satisfaction in what the defendant has had to pay in money and anxiety...

...But again, what of those who are truly damaged in these robust exchanges...

...Preparation of summary judgment papers alone costs between $10,000 and $15,000...

...At my paper, the Village Voice, three—and sometimes more—attorneys share the weekly work of reading copy before it's printed...

...I said once in some interview that every word she writes is a lie, including 'and' and 'the.' " Understandably, Hellman was rather put out...

...Whether it's Mary McCarthy or Ralph de Toledano or The Texas Observer—SL valuable muckracking paper which came very close to going under because of a disastrous libel suit—something needs to be done about the increasingly constricting effects of the law of libel...

...But like Nader, she chose to file a libel suit instead...

...Anyone who writes, edits, practices, or teaches law or communication should have this book by way of selfdefense...

...We [the local A C L U ] issue a press release promising to defend such libel suits, but the number of complaints go down during the next few months...

...And lawyers are going to be an even more important factor in deciding what you read and what you don't read...

...Here's all the New York papers.' " —Charles Dickens, "Martin Chuzzlewit" "Speech cannot be restricted without the danger of making the government the arbiter of truth...

...On a television interview with Dick Cavett, McCarthy had called Hellman "a bad writer and dishonest writer...

...Cranberg also talked to a New Jersey editor who spends at least 10 per cent of his editorial budget for lawyers: "If these suits keep up, advocacy journalism of any kind will be dead...

...Three years ago, for instance, Lillian Hellman sued Mary McCarthy for defamation...

...Its board of directors noted: "False and reckless speech is undesirable...

...She is not, by any means, wealthy...

...Another approach toward lightening the libel burden is to adopt the British system, under which a losing plaintiff in a libel suit must pay the defendant's legal fees as well as his own...

...This is also the position that William O . Douglas held while he was on the Supreme Court: the First Amendment protects all public discussion of public affairs...

...yet even with pro bono lawyers, the defendant still has to pay printing and other costs, and those can be stiff...

...I am sick at heart," de Toledano said when it was all over, "but I just couldn't take it any more...

...As Gil Cranberg notes, "Unless the victim of an alleged libel who has limited resources can find a lawyer to take his case on a contingency-fee basis, he gets no day in court...

...Then, if there is a trial, the sums reach six figures...

...David Anderson, professor of law at the University of Texas, points out that newspapers, broadcast stations, and other media know that "a person who has access to lawyers and is accustomed to using the legal system to achieve his goals is more likely to sue than one who has no experience with the legal system...

...Twelve per cent went over $250,000, and 9 per cent topped $1 million...

...Anthony Lewis of The New York Times, in a speech last October at the Columbia University Law School, mentioned, as a further alternative to the American lust for libel damages, the West German system which does away "with damages altogether and merely provides a legal forum for establishment of the truth when someone claims to have been libeled...

...In his case, the lawyers cautioned, there was no way of telling which way the jury would jump...

...Some years back, when the Supreme Court refused to review a denial of summary judgment in this case—de Toledano had claimed it should have been thrown out on First Amendment grounds—the printing costs for the unsuccessful appeal papers were $5,000...

...The police program of suing citizens for libel accomplishes its purpose: Free speech is abridged and criticism suppressed...

...De Toledano's was not the only possible reading of that report, but it was a reasonable reading...

...In 30 per cent of those awards, the damages exceeded $100,000...

...And expenses, which are the obligation of the client, may be so high as to preclude legal action even if an attorney can be persuaded to accept a contingency-fee arrangement...

...That information on the eight advanced states, by the way, is contained in the invaluable Libel Defense Resource Center 50- State Survey 1982, a comprehensive, lucid report on defamation and privacy law around the nation...

...And the First Amendment was not enacted only for the brave and foolhardy...

...This plaint, however, does not appear to win much sympathy from citizens who are not associated with the media...

...The figures that follow are New York rates, though the first-class law firms around the country may not be appreciably lower...

...And the defendant publication or book firm, whether it wins or loses, is sure to be more cautious in the future about what it prints...

...Usually, all of this strife takes a long time...

...The current Court, however, shows no signs of liberating the media and diverse individuals from fear of libel suits for commenting on public affairs...

...Indeed, any matter of sufficient general interest to prompt media coverage may be said to be a public affair...

...And if you want to choose the most formidable libel lawyers, it could cost you even more...

...The general practitioner of the law is no more qualified to deal with the very tricky business of libel than a practitioner of general medicine is to deal with leukemia...

...By the time the trial begins, estimates I get from libel lawyers are that defendant McCarthy will have spent around $50,000 in legal fees...

...We do not run letters from tenants attacking landlords...

...but previous juries in Washington—as in many other cities—had been showing increasing hostility to the press in such suits...

...If he lost below, he could always appeal, of course...

...In view of the costs involved, there would not be many such suits...

...And if there's a lot of pre-trial "discovery"—lawyers for each side asking long lists of questions—the legal fees can be quite handsome indeed...

...On the other hand, many of those who can sue have the money to keep the action going long enough to do considerable monetary damage to all but the wealthiest media defendants...