Libel Becomes a Bread-and-Butter Issue for Journalists

NEW YORK —  In nearby courtrooms at the other end of Manhattan, two of the most celebrated libel trials in recent memory were grinding into their final hours.

But it was not entirely the Westmoreland/CBS and Sharon/Time lawsuits that prompted a meeting of the 700-member American Society of Journalists and Authors to examine “How the Risk of Libel Suits Is Changing Our Lives” here late last week.

After all, even without the two generals arguing their cases in the same U.S. District Court building here, ASJA moderator and magazine writer Katharine Davis Fishman reported, “libel is in the air.”

Over the past five years, she said, about 20 major libel decisions have brought verdicts of more than $1 million each. And for those on the media end of the trial, the news tends toward consistently bad. “Media defendants,” Fishman told a roomful of fellow writers and editors, “lose more than half of those cases that come before a jury.”

Generous Juries One more possibly surprising piece of information: Damages awarded in jury libel trials on the average exceed those given out for medical malpractice and product liability.

In short, Davis said, “There is a sense among many lawyers and publishers that the option of suing for libel is more viable in the 1980s.” As a consequence, “getting sued is also more likely.”

And so, as Fishman observed, what might merely have been a “lively” panel discussion in 1975 is a “bread-and-butter panel discussion” in 1985.

As Rhoda Gamson, director of contracts, copyright and permissions at Viking Penguin, pointed out, “it all began with an ad”: the now-famous full-page call for support for the Rev. Martin Luther King Jr. and other civil rights leaders that became the springboard for the landmark 1964 Supreme Court libel decision, New York Times vs. Sullivan. That same decision enlarged the First Amendment protection provided the press by stating that public officials and public figures could recover damages from libelous statements made by the news media only if they could prove the statements were published with “actual malice.” Actual malice, in turn, was defined as published with knowledge that the defamatory statement was false, or with reckless disregard of whether it was false.

Although the ad in question, published in the New York Times March 29, 1960, accused no one by name, L. B. Sullivan, then an elected commissioner of Montgomery, Ala., joined with the governor of Alabama, among others, to sue the New York Times and four black ministers for alleged injuries to their characters. When, in 1964, the U.S. Supreme Court overturned the $3-million verdict in favor of the plaintiffs--”and that,” Gamson said, “was 3 million 1960 dollars” . . . “libel law was turned upside down.”

But, Gamson observed, “Within the last few years, a rising tide of libel actions has been battling against the decision of 1964.” The libel-happy trend seems compounded, Gamson said, by “an increase in negative feeings about the press in general.”

People, she said, “are angry about what they call the power of the press.” In turn, “anti-media feeings have come to dominate the thinking of most juries.”

Indeed, it seems increasingly that “a jury doesn’t care if reporters or publishers had any way of knowing if the facts were wrong.” The same juries, Gamson said, “find it hard to believe that the freedom of the press is endangered” because one reporter is declared guilty in one libel suit.

In the end, Gamson said, “what they have done is put a heavy price on free speech.”

Pt. Reyes Weekly Given the high cost of legal advice, Gamson went on, that price is as much financial as it is moral, legal or ethical. “The most vulnerable are the small publications,” Gamson said, “the local TV and radio. They can be easily driven into bankruptcy if forced to defend a major lawsuit.”

There was, for example, the legendary case of the tiny Pt. Reyes, Calif., Light, the weekly newspaper that won a Pulitzer Prize for its investigation of Synanon. In the process the Light also “won” four libel suits, totaling more than $1 billion, that, for a time, threatened the paper’s very existence.

Such examples mean, Gamson said, that “we must find a way not to shrink from tackling hard and controversial issues, but at the same time find a way to avoid these costly libel suits.”

Gamson’s firm, Viking Penguin, was the first publisher to buy libel insurance for its authors, a step that she suggested showed a certain solidarity between writer and publisher.

For legal writer Murray Teigh Bloom, the matter of libel resides even closer than the neighborhood courthouse. Writing a piece on the abuses of lawyers’ contingency fees for the Reader’s Digest nearly 25 years ago, Bloom found himself slapped with a libel suit that baffled even the high-priced legal talent retained by the Digest. A plaintiff, himself an attorney with only the most tangential of roles in the story, slapped a libel suit on Bloom et al., alleging malice on the part of the writer. Lawyers representing Bloom labored fruitlessly to identify any possible malice toward the plaintiff, whose case was eventually dismissed by an equally astonished judge.

As Bloom remembered, “the conventional opening for someone who has been through a libel trial is something like, ‘Oh, my, it must have been a nightmare.’ But actually it was not, it was more like a kind of rambling dream. You wondered why these things were happening.”

In Britain, Loser Pays His experience, Bloom said, left him convinced that “this makes a very strong case for the adoption by U.S. courts of the British rule”--that is, that the loser pays court costs and attorneys’ fees.

Certainly, said lawyer Arthur Abelman, counsel to at least eight publishing houses over the years and clients that have included writers Ken Follett, Kathleen Winsor and Flora Rhetta Schreiber, “anyone can sue, any fool can draw up a complaint.”

And in such cases, Abelman advised, “The defense is to say, ‘I think your case is foolish and I am going to fight it.’ ”

For without vigilant opposition to frivolous libel and invasion of privacy suits, Abelman warned, “The only things you will see published are very dull subjects, the kind of things you see in the Soviet Union and other places with a government-controlled press.”

Under the present system, Abelman said, “There are always going to be lawsuits. That should not stop you from writing good material.”

As a specialist in the areas of libel and publishing, Abelman said, “My experience is that the overwhelming number of writers who get published do a very good job. They are seldom careless or malicious, and they do not usually make things up.”

On the contrary, “I have seen boxes, trunks, index card files filled to the point where the storage facilities in this area must be bulging.”

Trust and Responsibility At her publishing house, Rhoda Gamson said, “we rely on the critical process of trust and responsibility exercised in the publishing process itself.” Because most libel actions, she has found, “stem from careless research or reporting or writing on the part of the author,” her corporate approach is “to try to help our authors before the manuscript is even written.” Accurate sourcing is demanded, Gamson said, along with releases where necessary and careful scrutiny at every step.

“In short,” Gamson said, “we seek a collaborative process of author-publisher-attorneys to protect the author as well as ourselves.”

Still, Gamson was asked, does this creeping shadow of libel suits reflect in the products published? Are writers and publishers so cautious now that fewer books on possibly controversial topics are being undertaken?

Hardly, Gamson said: “As a matter of fact, we have had more because we have successfully published without (libel) lawsuits.”