SELF-LOVE AND LIBEL

...In tiny Takoma Park, Maryland, a bar called the Whistle Stop sued a local citizen’s group for calling it “shady...

...Why believe the New York World when it might be flatly contradicted by the Herald-Tribune...

...Even those of us who don’t speak out against these obstacles to a fair allocation of social positions harbor a vague suspicion that many of the people who have found their way to the top didn’t get there on merit...

...Now, under a chief justice who seemed to share with his patron, Richard Nixon, a distaste for the liberal press, the Supreme Court began to offer greater access to libel plaintiffs...

...It is interesting to compare this fretfulness about “image” with the attitude of, say, the robber barons...

...To appreciate how much libel litigation has 1 altered our society in recent years, consider this curiously out-of-date observation made by David Reisman, the noted legal scholar and sociologist, back in far-off 1942 "The American attitude toward reputation is unique...

...Robert Welch, Inc...

...But public duties more urgent press on the time of public servants, and the offenders have therefore been left to find their punishment in the public indignation...

...To be sure, Gould had a hard time living up to that stoic ideal, but when he finally lost his patience with one of his harshest critics, the New York World, he went not to court but to the bank, buying out the World in order to silence it...

...Despite the triviality of this and other inaccuracies, an Alabama jury awarded Sullivan $500,000 against the New York Times, an award affirmed by the Alabama Supreme Court...

...SULLIVAN’S TRAVELS Passionate defenders of the First Amendment are correct to view Times vs...

...The Court ruled that they were not privileged, and a new legal battlefield opened up...

...Martin Luther King, arrested him seven times, and had persecuted black protestors demonstrating on the Capitol steps in Montgomery...

...In Richmond, Virginia, a schoolteacher sued a newspaper that quoted complaints from students and teachers about her teaching...

...Of course, Jefferson had more extreme legal means than libel litigation with which to harass his enemies...

...And rather than react to criticism through a verbal counterattack-or a swift punch in the nose-Americans have increasingly sought refuge and vindication through litigation...

...But while no comprehensive surveys comparing libel litigation before and after Sullivan have ever been compiled, my own informal research indicates that in the two decades since Sullivan, libel litigation has not only held steady in many states, but actually risen in others...

...This is all the more surprising when you consider that not too long ago, it looked as though changes in libel law had put libel suits on the road to extinction...

...Or take John D. Rockefeller, the man who built Standard Oil...

...The list of recent libel plaintiffs reads like a random sampling from Who’s Who: Ralph Nader, Norman Mailer, Carol Burnett, Wayne Newton, William Westmoreland, and MobiL Oil President William Tavoulareas, among others...

...at the very least, the volume of libel cases could be expected to thin out...

...We’ve all observed the increasing selfishness that has been the hallmark of the seventies and eighties...

...According to Jacqueline Thompson, editor of Thompson’s Directory of Personal Image Consultants, an image consultant can help you “lower the pitch of your voice, remove your accent, correct your ‘body language: modify your unacceptable behavior, eliminate your negative self-perception, select your wardrobe, restyle your hair, and teach you how to speak off the cuff or read a speech without putting your audience to sleep!’ The idea is that in the volatile world of corporate promotion and headhunting, such superficialities will make the crucial difference between success and failure...

...why then, the need to pay so much attention to reputation, a fickle barometer of fickle fortunes...

...There are two major reasons libel suits continue to be filed...

...But in a sense Sullivan was really a civil rights decision...

...This malady is particularly acute at the highest level of American life-the very level that “public figures” are likely to inhabit...

...The turning point came with the landmark 1964 case of The New York Times vs...

...The Court first reversed itself in 1974, deciding in Gertz vs...

...In New York, for example, the number of libel decisions handed down by the highest court has risen from 37 in the decade before Sullivan to 57 in the period since 1974- an increase of over 60 percent...

...Other Alabama officials were waiting in line to sue the Times when the United States Supreme Court decided to review the case...

...The Court then pried open the door to libel litigation a little wider by exploring the subtleties of “actual malice” in Herbert vs...

...Sullivan, an elected Montgomery commissioner, claimed that the advertisement damaged his reputation and was inaccurate in many of its details: for example, King had not been arrested seven times, but four...

...But the Court’s decisions are only part of the explanation...

...Tavoulareas has a career to protect, and while it is impossible to know for sure what his exact motives were in bringing suit, it’s hard to believe that “image” was far from his mind...

...Would the outcome have been the same if Commissioner Sullivan had libeled the civil rights activists, and if it had been they who had collected in the Alabama cobrts...

...The forced retreat began in the mid-seventies under the increasingly conservative Burger Court...

...Minor deviations from the literal truth were enough to justify libel action, and good motives were no excuse...

...for the rest of it, we need to set aside the casebooks and take a look at American culture...

...The premise was that the subject matter of the investigation involved a matter of public interest, even if the person defamed could not be called a public figure...

...In the wake of the Sullivan decision, many learned commentators predicted that libel cases would soon disappear...

...Although most of us have come to believe this as a matter of course today, before Times vs...

...Tavoulareas was not arguing in this case that his son’s success in the shipping business had nothing to do with the father’s position...

...Unfortunately, this is a sentiment rarely echoed among prominent citizens today...

...If Tavoulareas and his company didn’t care about image, why would Mobil bother to regularly take out Op-Ed ads trumpeting its support for public television and the Museum of Modern Art...

...The law of libel is consequently unimportant...

...What Tavoulareas was arguing was along narrower lines: the Post was wrong to use the words “set UP his son” in its description of Tavoulareas’s actions, and wrong to otherwise suggest that Tavoulareas had not observed the various rules Mobil had in place about conflict of interest, The real question raised, in admittedly clumsy way, by the Post articlesthe legitimacy of corporate nepotism-was never debated...

...And the trend is by no means limited to the upper reaches of society...

...But while a plaintiff certainly deserves his day in court when he’s been the victim of a false and hurtful story and has no other means to make his case, too few of today’s libel plaintiffs really fit that description...

...What explains the persistence of libel suits in the wake of the decision that was supposed to make them harder to win...

...Given this newfound arrogance, it’s easy to see the attraction of libel action: it’s a way to take on the big boys when they start to act like bullies...

...In decisons that followed the Sullivan case, the Supreme Court pushed the public figure argument to extremes that it would later regret...

...In both cases, the plaintiffs and society would have been better served had the victims taken advantage of their access to the media...

...hence the ready market for both honest criticism and slander of public figures, and hence the compulsion to file a lawsuit every time a public figure is criticized...

...Competition also had the beneficial effect of keeping reporters’ salaries low, which ensured that they could never attain complete respectability...

...But as Nicholas Lemann recently pointed out in this magazine (“Community Without Conformit$’ September 1983), corporations subsequently created a highly mobile class of professionals who place their own advancement before that of whatever company they happen to be working for at the moment...

...But where tradition is capitalistic rather than feudalistic, reputation is only an asset, ‘good will’ not an attribute to be sought after for its intrinsic value...

...Firestone, in which the Court narrowed the definition of a public figure...

...From 1976 to 1980 there was only one...

...Even when you adjust for inflation, and acknowledge that most of these awards are modified on appeal, it’s hard not to be struck by the growing sympathy juries are showing to libel plaintiffs...

...These abuses might have been corrected by the wholesome punishments,provided by the laws:’ he told the young nation...

...Firestone was not a public figure and that Time was thus not entitled to the protection of the Sullivan standard-even though she had held several press conferences during the course of her divorce litigation, and subscribed to a press clipping service to chronicle her media exposure...

...Ralph Nader ought to have held a press conference reviewing the evidence on the Corvair to disprove deToledano’s allegations, while Tavoulareas ought ta have had the imagination to cook up a good corporate Mobil adperhaps one that raised the question, “What did Katherine Graham do for Donnie...

...No longer do we strike the rough and ready posture of the rugged entrepreneur, less concerned about defending his reputation than in creating it...

...the real issue tends to get lost at the expense of legal niceties...

...As David Reisman noted 40 years ago, a capitalistic society should regard reputation of no intrinsic value...

...Clearly, this is not the way things are in the America of 1983...

...for instance, after the damaging item appeared in the Palladium, the president’s allies in the Massachusetts legislature tried to revoke the editors’ printing contract...

...The critical issue in the case was whether the internal thought processes and private conversations of reporters and editors-in other words, the evidence for proof of “reckless disregard” for the truth-were privileged from disclosure under the First Amendment...

...The decision involved Time’s coverage of the divorce of Mary Alice Firestone from Russell Firestone, the scion of the wealthy tire-manufacturing family...

...and like those feudal societies, we may someday wake up to find that our obsession with such rituals has rendered us irrelevant and quaint...

...Meanwhile, the libel insurance business is booming: the Mutual Insurance Company of Washington, D.C., which insured roughly 1,000 companies between 1963 and 1966, now insures nearly 6,000...

...Like the effete aristocracy of the Old World, we have come to place a greater emphasis on defending our good name than on demonstrating our goodness...

...Zecharia Chafee, a First Amendment scholar, expanded upon this notion a few years later with the observation, “a libeled American prefers to vindicate his reputation by steadily pushing forward his career, and not by hiring a lawyer to talk in a courtroom...

...VARICOSE VANITY The Burger Court’s narrowing of the definition of a public figure and its expansion of the means for determining “actual malice” have helped keep the libel market bullish...

...But today, newspapers tend to be extremely profitable monopolies that can afford to hire from the ranks of the college-educated, upper middle class, and TV news is an even more profitable oligopoly...

...Metromedia, in which the Court held for a Philadelphia news radio station that had covered a police raid on an alleged pornography distributor, even though it was clear that he wasn’t a public official...

...FEUDAL PERFORMANCE When we think of the kind of society we aspire to be-a society that embodies the best aspect of the capitalism that David Reisman described back in 1942-it is clear that libel suits should be far less commonplace than they are today...

...Back in the days when there was greater competition among newspapers, no single editorial voice provided the last word, and we therefore regarded each news source with greater skepticism...

...Quite possibly, it would not...

...We tend to rise and fall not on the basis of performance but on the basis of credentials, connections, and various other assets that may bear little relation to our ability to perform a particular job, but nevertheless provide the intangible ingredients that make our reputations...

...By the preSullivan standard, a publication was “libelous per se” in its treatment of a public official if it tended to injure him in his public office...

...Lando, a case brought in 1979 against “60 Minutes...

...The press has accordingly come to attain a more oracular tone: our press organs are fully convinced that they dispense not merely news but Truth, and have managed to convince a few others too...

...Sullivan, in which the Supreme Court ruled for the first time that libel actions could not be permitted to impinge upon First Amendment guarantees of free speech...

...This is not to say that the press is a blameless party to all this image-mongering...

...No slight seems too minor for legal retaliation these days, and juries seem more than willing to reward libel plaintiffs handsomely: the Richmond teacher, for example, was awarded $1 million...

...Rockefeller’s position toward the press was simple: “You may kick me and abuse me, provided that you will let me have my own way...

...Politics had a lot to do with the making of the Sullivan decision, and politics has played its role in unmaking Sullivan as well...

...And in the United States these business attitudes have colored social relations...

...In the period from 1980 to 1982, however, there were nine...

...When the Court overturned the decisions of the Alabama courts, a large part of traditional libel law was rendered obsolete...

...reporters tended to be less well educated and more raffish, and could thus be regarded by prominent citizens as unworthy adversaries-who cared what a scoundrel thought...

...If executives are this worried about their physical image, it only stands to reason that they feel much deeper anxiety about their media image...

...The broader reason is that something has gone wrong with the American character: increasingly, we have become more concerned with resting on our laurels than with garnering them...

...What has gone wrong...

...But while we bemoan the apathy of the Me Generation and the greediness of special-interest groups, we may not recognize the legal implications of self-centeredness: the more concerned we become about ourselves, the more thin-skinned we become...

...The New York Times had carried an advertisement by civil rights leaders in Alabama claiming that “Southern Violators” had harassed Dr...

...Rod Smolla is teaching at the law school of the University of Arkansas in Fayetteville...

...A great part of the problem with our reputation-obsessed society is that we place the press in excessively high regard, with the result that the press has grown arrogant and, in some instances, sloppy...

...Take William Tavoulareas...

...But a very different attitude seemed to prevail when William Tavoulareas, president of Mobil Oil, sued The Washington Post for having written that he “set up” his son in the oil tanker business...

...In a healthy society, we would all rise and fall with much greater regularity...

...The New York Commercial Advertiser, for example, accused Jefferson of being “a spendthrift, a libertine...

...One can’t, of course, say for certain that a John D. Rockefeller would have sat idly by while the press made a similar accusation about him, but the fact that Rockefeller owned his own company did allow him to assume an indifference that a William Tavoulareas, who works for a corporation, could ill afford...

...nowadays, we are inclined to take ourselves and that which is said about us very seriously...

...Ours is clearly not this kind of society...

...Sullivan as a watershed case that sought to restrict libel litigation on the part of public figures to those instances where the press had been genuinely reckless...

...After all, in a truly productive society, men are supposed to be judged not by reputation but by action, and where entrepreneurial risks are the norm no one can rest on his laurels for long...

...the highwater mark in granting latitude to the press had come in a 1971 case, Rosenbloom vs...

...and an Atheist:’ while the New England Palladium called Jefferson “a coward, a calumniator, a plagiarist:’ and “a tame, spiritless animal!’ Yet in his second inaugural address, the president took it all with poise...

...Sullivan...

...This is a crucial problem with libel litigation...

...In the course of his libel suit, it came out that he had asked Ben Bradlee after the damaging article appeared in the Post, “Haven’t you ever done anything for your son...

...In Europe, where precapitalist concepts of honor, family, and privacy survive, reputation is a weighty matter not only for the remnants of nobility who still fight duels to protect it, but for all the middle groups who flood the courts with petty slander litigations...

...Then came the 1976 case of Time Inc...

...Even more significant is the size of the awards that juries are making...

...A similar situation arose when Ralph Nader sued columnist Ralph deToledano after deToledano wrote that Senator Abraham Ribicoff had demonstrated ‘‘conclusively that Nader falsified and distorted evidence” to make his case against the Corvair...

...Gould, according to one biographer, believed that men of business should “keep a stiff upper lip when their critics yowled...

...Take Jay Gould, one of the great stock speculators and manipulators of the 19th century...

...clearly, the fact that Peter Tavoulareas was getting business from Mobil was no coincidence, and clearly William Tavoulareas would not have kept completely out of any decision that had so great an impact on both his family and his company...

...The more immediate reason is that the Court has over the years chipped away at the principle of The New York Times vs...

...Perhaps the best illustration of this is the rise of the image consultant...

...Sullivan the Court had never looked at libel in the light of the First Amendment, and the libel laws of many states were stacked heavily against the press...

...An answer might be found in the muchobserved narcissism of the present era...

...that the public or private status of the person defamed, rather than the degree of public interest in the story itself, should determine whether the Sullivan protection would apply...

...With the rise of the corporation in the fifties, slavishly loyal “organization men” evolved...

...After Sullivan, however, a public official could prevail in a libel action only by showing “actual malic<’ which the law defines as a knowledge of falsity or a reckless disregard for the truth...

...But at least the sage of Monticello had the right idea about lawsuits: they really weren’t the best use of his time...

...In this fast-moving world, image counts for more than it ever has before...

...Before 1962, there had never been a million-dollar libel verdict...

...The Supreme Court ruled that Mrs...

...Here, the question turned not on whether Nader was right but on whether Ribicoff thought Nader was right in his criticism of the Corvair...

...Needless to say, this idyllic world where actions spoke louder than words bears little resemblance to the world we live in today...