Decision Could Curb Media’s Libel Protection : Seen as Further Narrowing Constitutional Safeguards on Free Speech

THOMAS B. ROSENSTIEL —  Lawyers who specialize in First Amendment cases said Wednesday that the Supreme Court’s decision in the libel case of credit-rating firm Dun & Bradstreet further narrowed the constitutional protections of free speech that the court earlier had granted and laid open a whole new section of libel law for reconsideration.

In the 5-4 ruling, the court said Wednesday that plaintiffs in libel suits need not meet the difficult test of “actual malice” to win punitive damages, if the libelous statements concern matters of strictly private interest.

Attorneys said that, although the immediate impact of this case might be limited, it is significant because it again gives courts the task of deciding which kinds of speech are matters of private concern and which are public. In future cases, they said, judges may refine the definition of public versus private speech in important and possibly far-reaching ways.

‘A Turning Point’

“I think this case is going to be a turning point,” said Michael D. McDonald, general counsel to the American Legal Foundation, a group supporting plaintiffs in libel suits. “There seems to be a realization that the court has allowed too much protection to flow to the media. We are getting back to the original, traditional view that the First Amendment is not designed to protect all kinds of speech.”

“I find the ruling deeply troubling,” said Floyd Abrams, an attorney who often represents the New York Times. “It places the courts in the role of determining which speech is a public concern and appears to relegate all other speech to the netherlands of having no constitutional protection at all.”

Although the court left unclear how it defined private versus public statements, American Civil Liberties Union legal director Burt Neuborne said, “I think it is highly remote that anything that would find its way into a newspaper or television broadcast would be considered a private matter. The harder question is something involving journals of very limited readership, such as a trade journal.”

However, other attorneys said they believe that lawyers bringing libel suits will now use the Dun & Bradstreet case to argue that stories even in general media are matters really of private concern and thus their clients should be entitled to punitive damages without proving malice.

Is Gossip Private?

“What is a matter of public concern?” New York Times attorney Abrams asked. “Gossip? Is reporting about the private acts of public figures a private concern? When two people have an argument in a bar about matters of great concern to them, is that a private or a public matter?”

“Any media case that in any way flirts with invasion of privacy will carry with it the enormous danger that the judge will find there was no public concern and thus no constitutional protection of free speech,” said Robert Sack, a New York attorney and general counsel for Dow Jones & Co., publisher of the Wall Street Journal.

If that were the case, Sack said, “the sky would be the limit with regard to damages,” a fact that could encourage more libel suits by attorneys taking cases on a contingency basis and hoping for big judgments.

Effect Seen as Positive

Some attorneys agree that the decision will have that impact but consider such change to be positive. “The case limits how far federal protection extends and shows that the rest is for the states and state legislators to decide. And they are entitled to set their own agendas,” McDonald of the American Legal Foundation said.

However, Washington Post attorney Kevin Baine was less concerned that the decision will lead to more libel suits, bigger damage awards or changes in libel rulings. “A plaintiff is going to have a hard time arguing that a newspaper story is analogous to a credit report,” which is what was involved in Dun & Bradstreet.

Second, Baine said, even when statements are deemed private, and thus free of First Amendment protection, most state laws involve some concept that a libelous act must involve some “outrageous conduct” by the defendant before one may win punitive damages.