An Unfettered Press

Libel Law in the United States

By Steven Pressman

In 1637, an English writer named William Prynn made the unfortunate mistake of writing a book that criticized the queen. Brought before a panel of judges, the hapless Prynn was found guilty of libel and ordered to spend the rest of his life in prison. As an added punishment, he had his ears lopped off before he was hauled off to jail.

Had Prynn been living in modern-day America rather than 17th-century England, he undoubtedly would have been free to write his book -- whether about the queen or a U.S. president -- without worrying about losing his ears or ending up in prison.

Libel is a legal term that describes a written form of defamation, which the dictionary defines as a "false or unjustified injury to someone's good reputation." Sometimes the word slander is used in the same breath as libel. The two terms mean the same thing, except that slander usually refers to defamatory statements about someone that are spoken to others rather than written in a newspaper, magazine article, or book. Today the legal differences between libel and slander have all but disappeared due largely to the dawning of the electronic age. American television networks, for example, are sometimes sued for libel even though news reporters and correspondents "speak" their words to a viewing and listening audience rather than to a reading audience.

For the United States, the laws that control libel and slander first began to take shape even before the colonies gained their independence from Britain. One of the most famous American cases involved New York publisher John Peter Zenger, who was imprisoned in 1734 for printing political attacks against the colonial governor of New York. Zenger's lawyer established a legal precedent by arguing successfully that truth is an absolute defense in libel cases. Up until then, it had never mattered much whether the allegedly libelous statements about someone were true or false. Since the Zenger case, however, someone can sue successfully for libel only if the defamatory information is proven to be false.

The Zenger case established another precedent that remains in place today. Libel cases, which are part of civil (rather than criminal) courtroom proceedings, may be heard by juries, and it is up to the jury to decide whether a publication has printed libelous information about someone. If so, it is also up to the jury to decide how much the libeled individual has suffered and what kind of monetary damages he or she is entitled to receive as compensation. In the United States today, about 90 percent of all libel trials are heard before juries.

The 18th-century framers of the U.S. Constitution guaranteed freedom of the press by writing that protection into the First Amendment of the Bill of Rights. Even so, the Supreme Court of the United States -- the highest court in America -- for years refused to protect the media from libel lawsuits by relying on the First Amendment. Instead, libel laws varied from state to state without a single coherent rule in the nation.

That all changed in 1964 when the Supreme Court issued a ruling that revolutionized libel law in the United States. The famous decision in New York Times Co. v. Sullivan once and for all created a national rule that squared more fully with the free press guarantees of the First Amendment. In its ruling, the Court decided that public officials no longer could sue successfully for libel unless reporters or editors were guilty of "actual malice" when publishing false statements about them.

And just what is malice when it comes to proving libel? Retired Justice William J. Brennan, Jr., who wrote the Sullivan decision, defined it as "knowledge that the [published information] was false" or that it was published "with reckless disregard of whether it was false or not." In other words, public officials no longer could sue for libel simply by proving that something that had been broadcast or printed about them was false. Now they would have to prove that a journalist had knowingly printed false information while making little, if any, attempt to distinguish truth from lies.

The Supreme Court later extended its so-called Sullivan rule to cover "public figures," meaning individuals who are not in public office but who are still newsworthy because of their prominence in the public eye. Over the years, American courts have ruled that this category includes celebrities in the entertainment field, well-known writers, athletes, and others who often attract attention in the media.

For purely private individuals, the test for proving libel is not as difficult. Although Supreme Court rulings such as the Sullivan decision apply everywhere in the United States, most states continue to have their own libel laws that cover private individuals. Usually those laws require that public figures who believe they have been libeled prove that a journalist has been negligent when publishing false information about them. Negligence, like malice, is a legal term that generally means carelessness on the part of a reporter or editor. Because private individuals have more reason than public officials to be left alone in the media, American libel laws recognize that they are entitled to more legal protection against false statements made about them.

Every year hundreds of libel lawsuits are filed against newspapers, magazines, and radio and television stations in the United States. Typically, these cases are brought by current or former public officials, by entertainers, or by business executives who feel they have been damaged by critical media publicity -- usually accusing or suggesting that the person has engaged in unlawful, improper, or questionable activities.

In December 1990, for example, a judge on the Pennsylvania Supreme Court won a $6 million libel verdict against the Philadelphia Inquirer newspaper because of a series of articles it carried in 1983 that suggested he was guilty of influence peddling. And in one of the largest libel verdicts ever reached against the media, a former district attorney from Texas named Victor Feazell was awarded $58 million in April 1991 after a Dallas television station accused him of accepting bribes to fix drunken driving cases. "This verdict sends a message to the rest of the media to get your facts straight," Feazell said after the jury announced its verdict.

Two months later, a state district court judge not only upheld the judgment but included a provision adding a 10 percent annual interest charge to the award if the station appealed the case and lost. A settlement was reached shortly afterwards.

A jury in Chicago, Illinois, awarded businessman Robert Crinkley $2.25 million in May 1991 because a Wall Street Journal article falsely linked him to bribery payments made to foreign officials. Crinkley said the newspaper story prevented him from being hired after he left his former employer. The jury agreed that he was a victim of libel even though the newspaper published a correction to its original story. The award was thrown out in September 1991 by circuit court judge Howard Miller. Miller ordered a new trial on damages after ruling that the evidence in the case was insufficient to support such a large award. Crinkley's lawyer began planning his appeal.

In these and other cases, the person bringing the libel suit has the burden of proving that he or she has been libeled. In other words, a public figure must prove that a reporter not only published false information but also did so recklessly and maliciously without attempting to determine whether it was true. Libel cases are not limited to disputes between the media and the people they cover. In July 1989, the American Express Company admitted to spreading false information about an international banker who controlled New York's Republic National Bank. When the banker's attorney threatened to sue for libel, American Express confessed to its role and agreed to donate $8 million to charities as a settlement in the case.

Besides making distinctions between public and private figures, American courts also have ruled that various kinds of published information are generally immune from libel charges. For example, it is almost impossible for a writer to be found guilty of libel if the writing deals with opinions rather than facts. "Under the First Amendment, there is no such thing as a false idea," the Supreme Court said in a 1974 libel ruling.

Not long ago, the owner of a restaurant in New Orleans sued a food critic for writing unflattering things about his eating establishment. Too bad, the Louisiana Supreme Court told the restaurant owner, before sending him back to his kitchen empty-handed.

More recently, Jerry Falwell, an American religious leader, sued a magazine after it published a biting satire of Falwell that mocked his piety. Indeed, a state of Virginia jury awarded Falwell $200,000 after concluding that the magazine had inflicted "emotional distress" on the well-known clergyman. But the U.S. Supreme Court later threw out the award by explaining that satire, no matter how scathing and upsetting to its target, was protected by the First Amendment.

Floyd Abrams, a New York lawyer who specializes in representing media organizations, estimates that individuals who sue for libel win about 75 percent of the cases that end up before a jury. But the media succeed in reversing jury verdicts most of the time after they appeal to higher courts. Abrams says the reason is that jurors often do not fully understand or apply the proper legal standards that cover libel cases. As a result, it is common for media organizations to carry libel cases to intermediate appellate courts if they lose at the first stage of a trial.

In recent years, a number of American courtrooms have turned into stormy legal battlegrounds because of widely publicized libel cases that have made headlines the world over. One such case started in 1976 when the tabloid National Enquirer printed a small item about Carol Burnett, a popular television actress. The newspaper falsely reported that Burnett had gotten into a nasty argument with former U.S. Secretary of State Henry Kissinger in a restaurant in Washington.

A jury in Los Angeles eventually awarded Burnett $1.6 million, concluding that the National Enquirer had never bothered to find out whether the item was true. An appellate court later reduced Burnett's libel award to $200,000, agreeing that she had been libeled but ruling that the Enquirer should not be so harshly punished for its errant behavior. Still, the actress was satisfied with the result. "If they had given me only one dollar plus carfare, I'd have been happy because it was the principle," Burnett said after the case was over.

In other cases, principles have all but disappeared under an avalanche of legal tactics that sometimes turn libel trials into expensive battles that leave no clear winners.

That happened after former U.S. Army General William Westmoreland sued the CBS television network for $120 million. Westmoreland was angry about a 1982 CBS news program that had accused him of exaggerating American military progress during the Vietnam war. After an 18-week jury trial in New York City, Westmoreland and CBS reached a private settlement that amounted to a surrender on both sides.

"In the end, the trial came to a termination as cloudy and unresolved as the Vietnam war itself," wrote Rodney Smolla, a libel expert and law professor at the College of William and Mary.

In the wake of Westmoreland's case, several legal experts have criticized the way libel matters are handled in the American legal system. Some of them blame media organizations for relying so strongly on the First Amendment's free press guarantees. Daniel Popeo, a lawyer in Washington, says that the First Amendment unfairly protects the media but not the "victims" of unfair media coverage.

Journalists respond with their own set of complaints about libel lawsuits. Yes, they say, the courts have made it difficult for most people to win libel cases. But the threat of being sued also causes many news organizations to shy away from publishing controversial stories. Large media outlets like CBS or the New York Times have the financial resources to battle expensive libel lawsuits. But smaller newspapers and television stations find it more difficult to afford such a costly burden.

The ongoing debate over libel has prompted at least one proposal for a new set of libel laws that would make it easier for public officials and others to prove their cases. The proposal -- drafted by a private committee of lawyers, law professors, and media representatives -- also would eliminate large financial awards that can be assessed against media groups found guilty of libel.

Over the past quarter of a century, the courts have favored the media in libel matters, "but such victories have been hard fought and costly, absorbing millions of dollars in attorney fees and thousands of hours in lawyers' offices and courtrooms," according to Roslyn Mazer, a media lawyer in Washington.

Bruce Fein, former general counsel for the Federal Communications Commission, a U.S. government regulatory agency, is one of the lawyers who helped to draft the proposed set of libel laws. Fein says the ultimate goal is to ensure more accurate reporting by journalists so that members of the public are better informed about important public events. But he also thinks it is important that the media still have wide latitude in deciding what to publish. "In a democratic society," says Fein, "everyone has to take some lumps in the media."

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Steven Pressman is a legal writer and editor in San Francisco, California.

ZT from http://usinfo.state.gov/products/pubs/press/press08.htm