Of Reputations and Reporters

A conference considers better protection for journalists

When the New York Times won its landmark 1964 libel defense against a suit brought by Montgomery, Ala., City Commissioner L.B. Sullivan, journalists throughout the U.S. hailed the Supreme Court's ruling as a triumph for freedom of expression. The Justices in effect shifted the burden of proof from publishers to plaintiffs, and required that public officials must prove that the journalists either knew the disputed stories were false or acted in "reckless disregard" of the truth. For several years, it seemed all but impossible for a prominent person to bring a successful libel suit; journalists were emboldened to enterprising, at times overly aggressive, reportage. In the past few years, however, Supreme Court rulings have nibbled away at the privileges afforded by Times vs. Sullivan. At a symposium last week of top libel-law scholars--including the main attorneys in the Times case--the consensus was that journalism needs some further protection.

Conference participants disagreed about how much reporters are to blame for the growth in libel litigation in recent years. Said former Secretary of State William Rogers, who represented a group of civil rights activists associated with the Times in the 1964 case: "The press has been partly irresponsible." The keynote speaker, U.S. Appeals Court Judge Irving Kaufman, contended that the results in libel cases may be distorted by jurors' distaste for journalism. Said Kaufman: "Broadcast and print media are perceived by some as aloof, arrogant and insensitive." News organizations eventually prevail in more than 90% of libel cases, according to the Libel Defense Resource Center, but in the past three years journalists have lost 83% of initial jury trials, and in 22 cases the damage award was more than $1 million. Even when awards are reversed on appeal, cases sometimes cost more than $1 million to defend. Indeed, journalists contend that many libel cases are filed in part to harass the press, and some publishers have urged adoption of Britain's system of making the loser in a suit pay the winner's legal fees.

Many of the conferees agreed that the libel trial process can be too slow, too costly for both sides, and ultimately unsatisfactory, because reputation rather than monetary damages is usually what is at stake. Kaufman and other participants urged consideration of two major changes in libel law: elimination or sharp reduction of punitive damage awards in excess of a plaintiffs actual losses, and use of published retractions as part of a settlement.

Punitive damages, which make up the bulk of many of the biggest awards, are intended to discourage false and harmful reporting, and thus by their nature raise difficult constitutional questions about interference with editorial freedom. New York Times Columnist Anthony Lewis, who is also a lecturer at Harvard Law School, argued, "The vindication of one's good name does not require colossal verdicts. Damages awarded without effective limit in libel may violate the First Amendment." The concern is more than theoretical: a libel suit against the Alton Telegraph (circ. 137,000) in Illinois forced ? the 148-year-old newspaper into bankruptcy court in 1981 and nearly resulted in its closing. Some two dozen states prohibit publications from buying insurance against punitive damages. Explains Conference Chairman Richard Winfield, a New York City attorney: "These states take the position that it violates public policy to allow a wrongdoer to escape punishment."

One major alternative to punitive damages is retraction. In some states, if a publication concedes in print, with sufficient prominence, that a story was in error, then a plaintiff is limited to suing for actual damages; if the publication refuses to retract the story, however, it is vulnerable to suits for punitive damages. Conference participants acknowledged that negotiating a retraction could be almost as complex as a trial. Moreover, retraction rules can resemble unconstitutional coercion, warned New York City Attorney James Goodale, a former vice chairman of the New York Times Co. Said he: "Journalists perceive mandatory-retraction regulations as a threat to free speech."

But, said Kaufman, "a retraction may serve as a more realistic balm for ravaged reputations than does monetary compensation." Libel plaintiffs may agree, according to Gilbert Cranberg, Gallup Professor of Journalism at the University of Iowa. In his study of some 114 cases, he says, plaintiffs show "great interest in vindication rather than money."