Essay

By WILLIAM A. HENRY III

Reputation, of all human possessions, is perhaps the least tangible yet the most zealously guarded. To be known for integrity and honor, most people willingly labor a lifetime. Even a rogue may cherish the mistaken notion that he enjoys the respect of his community. As Shakespeare's foulest villain, Iago, puts it in Othello, "Good name in man and woman is the immediate jewel of their souls." That is why the concepts of slander and libel, and of the right of the aggrieved to seek redress for defamation, were introduced into English common law during the Middle Ages and why those ideas survive in U.S. law today.

But ever since the founding of this nation, lawmakers and courts have also recognized a vital competing right: for society to have free and open discussion of public issues and the performance of public officials, so that an informed people can govern themselves. To further that goal, the First Amendment guarantee of freedom was written on behalf of a press that was far more noisy, brawling and partisan than the much maligned journalism of today. As a California judge noted in his opinion in a 1979 libel case, George Washington was called a murderer, Thomas Jefferson a blackguard and a knave, Henry Clay a pimp, Andrew Johnson and Ulysses Grant drunkards. Abraham Lincoln was termed a half-witted usurper, a baboon, a gorilla and a ghoul. Yet none of the nation's early leaders even attempted to sue, although some may have shared Benjamin Franklin's professed desire to balance "the liberty of the press" with "the liberty of the cudgel."

These statesmen forbore going to court in part because they doubted the courts would, or should, be open to them. The Federalists, the party of Alexander Hamilton and John Adams, enacted in 1798 a Sedition Act that imposed criminal penalties for "false, scandalous and malicious writing" about the Government, Congress or the President. The law proved so unpopular that it contributed to the Federalists' defeat in 1800 and later disappearance; the statute expired in 1801, and has been regarded as unconstitutional.

The electorate did not mean to make some perverse endorsement of malice or falsehoods. Rather, voters realized that the motive of legislation like the Sedition Act was to silence the critics of those in power, and trusted that in time truth would conquer error. Occasionally, Government tested the principle anew. When the New York World and Indianapolis News alleged corruption in the development of the Panama Canal in 1908, President Theodore Roosevelt ordered his Attorney General to sue. The courts quashed both cases before they could come to trial.

While such cases determined that the Government could not sue for libel, the question remained whether public officials who claimed injury as individuals were entitled to seek redress. That issue was at the heart of the defining case for modern American libel law, New York Times vs. Sullivan. The dispute involved a political advertisement, critical of Alabama law enforcement and containing inconsequential errors of fact, that appeared in the Times during the black struggle for civil rights. Several officials, who were mentioned in the ad by function although not by name, sued, ostensibly to recoup their reputations. In fact, the Times' daily circulation in Alabama was then some 400 copies, out of a total circulation of 650,000, and the suits were clearly intended to discourage the national news media from covering the turmoil in the South. In a unanimous 1964 ruling, the Supreme Court wrote of the paramount importance of "uninhibited, robust, and wide-open" discussion, praised the unique role of the press in fostering free debate, and threw out an earlier state court verdict won by an Alabama plaintiff.

Three of the nine Justices wanted to ban outright all libel suits by public officials against critics of their performance. The full court went almost as far: it held that journalists should not be liable for the results of honest error about public matters, regardless of how false or injurious the report. Said Justice William Brennan in the majority opinion: "Raising as it does the possibility that a good-faith critic of government will be penalized for his criticism, the proposition relied on by the Alabama courts (that an attack on government performance is a personal attack on government officials) strikes at the very center of the constitutionally protected area of free expression." The court believed that without such protection, the press would feel a "chilling effect." Said Justice Brennan: "A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions--and to do so on pain of libel judgments virtually unlimited in amount--leads to a comparable 'self-censorship.'

Thus the court adopted a new, higher standard of proof that public officials would have to meet as plaintiffs: they would have to prove "actual malice" on the part of the journalist. That meant something far more sweeping than political opposition or personal ill will; malice was defined as, at minimum, publishing a story despite having substantial doubt beforehand that it was true. At the time, this distinction was considered effective immunity for any responsible news organization. The actual malice standard, it appeared, simply left the door open a crack for suits by public officials against scandal sheets or the willful lies of opponents. Even so, Justices Hugo Black and William O. Douglas thought that the malice standard could let in undesirable suits. Wrote Black, in a concurring opinion to the majority: "The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment."

Not everyone hailed the Sullivan decision. Many targets of press inquiry thought it amounted to giving journalists a gun and a license to kill. In retrospect, some editors think they responded to their new legal protection by relaxing their standards of research and caution. Says Chicago Tribune Editor James Squires: "Sullivan helped make us less conscientious and considered. It also made us overconfident and cocky." Nevertheless, the Supreme Court during the next few years continued to broaden press protection to include coverage of "public figures"--people who did not hold an official position but who had voluntarily made themselves newsworthy by involvement in public matters.

Then, in the wake of Watergate, at about the time the press was riding highest, the pendulum started to swing back. Courts began to narrow the definition of public figures. Chief Justice Warren Burger told trial judges, in a footnote to a 1979 opinion, that too many libel cases were being summarily dismissed--that is, rejected before going to trial. For journalists, the most nettlesome result of the court's shift in mood came in a ruling during the pretrial discovery phase of a suit brought by retired Army Lieut. Colonel Anthony Herbert, a former field officer in Viet Nam, against the producers of a report about him on the CBS News show 60 Minutes. The Supreme Court ruled in 1979 that Herbert was entitled to rummage through the journalists' research notes, paper work and the unused outtakes of raw film footage from which they assembled the broadcast, to gauge their "state of mind" while preparing the story.

This ruling, which was soon extended to other libel cases, left journalists nearly as vulnerable for what they did not say as for what they did. It opened to question their judgments and private opinions as much as their public assertions of fact. It also created a bizarre situation in which the more careful a journalist is, the more vulnerable he becomes to charges of malice: a reporter whose extensive research leads him to conclude that one side is right in a dispute can be accused of malice for discounting the evidence on the other side, while a writer who prints a tip without checking it can argue that he is immune from malice charges because he had no doubt about the item's veracity. The provision for examining the journalist's state of mind ensured that libel suits would grow longer and costlier; the Herbert case, brought in 1974, has yet to go before a jury.

In effect, the Sullivan decision has resulted in the very thing it was written to avoid. What it produced has been aptly called Malice in Wonderland. One survey by the Libel Defense Resource Center of cases that resulted in large jury awards for damages shows that four of the ten biggest were brought by public officials, and dozens of suits are pending, at least 18 in Philadelphia alone. These plaintiffs may be responding to a perceived shift in public opinion against the news media, or to a general litigious impulse in our society, or to the publicity given to strikingly high jury damage awards. In part, the press has itself to blame: the multimillion-dollar awards in recent cases have commanded headlines, but the reversals or drastic reductions in damages typically have rated a paragraph back among the want ads.

In fact, when news organizations have the money, stamina and self- confidence to wait out suits by public officials, they usually prevail. According to the Libel Defense Resource Center, of 25 libel suits brought by officials during the past five years, 18 were won by the plaintiff in jury trials, but, at most, four monetary awards have been affirmed on appeal. Yet any libel suit can be costly to defend. There are subtler penalties as well. News organizations will understandably grow gun-shy about controversy. Although Dan Rather was found by a jury not to have slandered a California doctor during a 60 Minutes segment, the CBS anchorman wondered if any network would remain willing to undertake investigative stories. A federal trial judge in 1983 overturned a jury's finding that the Washington Post had libeled William Tavoulareas, president of Mobil Corp. "That case cost us $1,085,000 in legal fees," says Executive Editor Ben Bradlee. "The next reporter who tells me he's got a hell of a story that's going to cost me that much money had better have something more than a guy helping his son in business."

Less well-heeled publications may drop investigative reporting, as the Alton (Ill.) Telegraph (circ. 38,000) did after settling a suit out of court for $1.4 million. Libel insurers may on occasion stipulate the nature of the editorial content they are willing to underwrite. The advice of attorneys that the subject of a story may sue has prompted editors to drop or radically alter an article, even though it could have been proved true in court. Says Philadelphia Inquirer Editor Gene Roberts: "A reporter has come in with an investigative project and I have caught myself asking whether he will make a good witness."

The time has come for the Supreme Court to recognize that the reasoning in Sullivan was right, but that subsequent decisions have reversed its intended effect. The most sweeping remedy would be to ban libel suits by public officials. A strong case can be made for that idea, but the public is skeptical enough about the press these days to make less extreme correctives seem more salable. New York Times Columnist Anthony Lewis, a Harvard Law School lecturer and Pulitzer prizewinner for his coverage of the law, urges other changes. He would limit compensatory damages to proven financial loss plus some modest, symbolic sum for mental anguish. He would entirely eliminate punitive damages, which are sums awarded by juries to punish bad conduct and thereby theoretically discourage any repetition; punitive damages often are vastly disproportionate to the actual injury.

Other scholars would encourage judges to strengthen their efforts at negotiating pretrial settlements. Some even propose diverting libel cases out of the court system to arbitration, where the emphasis would be on retractions or other statements to correct the record. Some reformers suggest adopting the rule employed in Britain, where the loser in a libel case can be ordered to pay the winner's legal fees, to discourage the filing of suits that are essentially harassing. But perhaps the greatest need is for the court to speak forcefully on the inevitable imperfections of journalism, and to redefine the malice standard in a way that would sharply restrict the plausibility of any suits brought by public officials.

Aggrieved targets of journalism should reflect on the observations of New York City Mayor Edward Koch, who boasts that he has "never resorted to libel suits. I hope I never will." Says Koch: "When I think I have been wronged, I speak out. In other words, I give as good as I get. If a reporter or editorial writer makes a factual error--or gets the facts right but then draws what I believe to be an erroneous conclusion--I reach for my pen." Indeed, the mayor writes regular columns himself for three daily newspapers.

Not every libel plaintiff wants to write a column or call a press conference. But as the Supreme Court noted in Sullivan, most public officials at every level enjoy a legal privilege in replying to critics: they are immune from libel or slander suits for comments made in the conduct of their duties, and thus have ample opportunity to protect their reputations. Moreover, said the court, officials enter into public service voluntarily, and they know that scrutiny and criticism are a healthy part of the process.

Many libel plaintiffs concede that they are not simply trying to get their side told. As New York Attorney Martin Garbus points out in the Feb. 16 issue of the Nation, "(Former Israeli Defense Minister Ariel) Sharon's suit (against Time), that of General William Westmoreland against CBS and all the other actions brought by public officials are not attempts by individuals to win restitution for personal wrongs. They are attempts to vindicate their political positions and their conduct in office--to rewrite history." Some libel plaintiffs have admitted they hope to have a "chilling effect" on what they see as bad journalism. Westmoreland's attorney Dan Burt predicted at one stage that the internal uproar at CBS over its documentary on General Westmoreland would bring about "the dismantling of a major news network." That image expressed the real danger of libel suits brought by public officials: the disheartening of all opposition. Journalists have a responsibility to be as accurate as possible. The proper response to wrong or misleading reportage, however, is more debate, not less. Reasonable as the anguished claims of a public figure may sound, when it comes to discussion of vital public issues, a timid silence by the press is a price that no free society can afford to pay.