Libel – Establishing a Case

Communication Science Department

Lecturer: Alfred Massaquoi-C, PhD

Diploma Level: J3

Tuesday 25^th September 2007

Lecture Time: 9:45-11:45a.m.

THE LIBEL LANDSCAPE

The law of libel is centuries old rooting directly from the British common law. Defamation, or libel, is what lawyers call a tort, or a civil wrong. It is the most common legal problem faced by persons who work in the mass media. In simple terms, libel is the publication or broadcast of a statement that injures someone’s reputation, that lowers that person’s esteem in the community. Libel is an obvious threat to people who work in the news media, but anyone who writes or speaks for any purpose can be the target of a defamation action. Libel can lurk in press releases, company newsletters, advertising copy, letters to the editor, comments made in an Internet chat room, or even statements made orally at a public gathering. The mass media face the vast majority of libel cases.

However, the public press, such as newspapers and television stations and magazines, enjoy some First Amendment protections in a libel action that don’t automatically accrue to words printed in a press release or trade publication. Libel suits have been a serious problem for the mass media since the dawn of printing. The press was hit with a number of high-profile libel cases in the 1980s and 1990s, and many of these lawsuits became big news.

Libel actions are a problem for the press for several reasons beyond the obvious costs if damages are assessed. They take a long time to be resolved and during this period the attention of editors and reporters is often diverted away from preparing the news to preparing a legal defense. Legal costs are extraordinarily high. The law is very complicated and talented lawyers cost a lot of money. It is not unusual for attorneys to bill their clients hundreds of dollars per hour for their services.

WINNING AND LOSING LIBEL SUITS

Libel law is premised on the notion that if an individual’s reputation has been damaged, it can be repaired through an award of monetary damages. That premise may not be entirely logical, bit it is the basis for the law. Hence, damages awarded to a successful libel plaintiff should in some way bear a resemblance to the harm caused by the defamatory publication. A little damage, a small award; serious damage, a larger award. But today the size of damage judgments sought by libel plaintiffs often has little to do with damage to reputation. The damages claimed are more closely tied to what the plaintiff thinks the jury will award. Sometimes plaintiffs seek extraordinary sums. In 1994 Philip Morris Co. sought $10 billion in damages in a libel action against ABC. The Church of Scientology sued Time Warner for $416 million because it described the church as a global racket. And the Nation of Islam sought $4.4 billion in damages from the New York Post for a column it published about the death of Malcolm X. Gigantic damage claims such as these are rarely awarded, but the suits nevertheless have to be defended. Cigarette maker Philip Morris ultimately settled for a televised apology and $3 million.

But multimillion dollar damage awards are not uncommon either In 1996 a Florida jury awarded BankAtlantic Financial Corp. and its chief executive officer $10 million in a lawsuit brought against ABC. In 1997 a Texas jury awarded a bond brokerage firm, MMAR Group, $222.7 million in a libel action based on a story that appeared in the Wall Street Journal. Most huge awards are reduced by the trial judge or an appellate court, but even a modest award can seriously harm a small media company. Barricade Books, a small but successful publishing house in New York, faced potential bankruptcy after it was ordered to pay $3 million in damages to a millionaire Las Vegas casino owner.

Libel suits against the press are frequently dismissed before they actually go to trial. The plaintiff carries a heavy burden of proof, and a judge can stop the lawsuit if he or she feels there is no likelihood that it will succeed. But if a case does go to trial the mass media defendant will probably lose the case. Therefore, there is considerable pressure on the3 press to settle these cases out of the court, before they get to a jury. Why does the press tend to loose at trial? Sometimes newspapers or broadcasting stations publish falsehoods that harm an individual’s or a company’s reputation. In such instances, the plaintiff should win. But there are other factors, unrelated to the nature of the alleged libelous material that often figures into a jury verdict.

The law of libel is very complicated, and the judge and members of the jury often misunderstand the protection the press has in such lawsuits.

• A lot of average people simply don’t like the press, and sometimes jurors see a libel trial as a way to shoot the messenger for the torrent of bad news that seems to fill the news columns and the airwaves.
• Some people who do understand the first amendment protects the press don’t think it should and react accordingly. A 10-year-old Gallup poll revealed that most persons interviewed strongly supported libel actions against the press. In other surveys indicate that while people theoretically believe that freedom of express is an important human right, they are less like to favor it in specific instances, like a defense in a libel case.

Plaintiff’s attorney Thomas D. Yannucci, who has brought numerous successful actions against the press, recently called the jury box the media’s Achilles’ heel. “If you take it to the jury, the ordinary citizen begins [the trial] thinking the press is unfair.”

The press tends to lose at trial is the bad news. The good news is that most of these trial judgments are overturned on appeal. Between 1980 and 2000 only a little more than one-quarter of all decisions that were appealed by the press were affirmed with no modification whatsoever, according to a report by the Libel Resource Defense Center. But the good news is tempered by the fact that appeals take time, and in the law, time usually means money. Defense costs rise rapidly when an appeal is taken. Legal fees in excess of $100,000 are common when a case is appealed and can be much higher if the matter is at all complicated. These costs are more than a financial nuisance; they can be intimidating to even a wealthy media company. In the 1980s the Washington Post ultimately defeated a libel suit brought by the president of Mobil Oil against the newspaper. The law was fairly simple in the case, but the jury was confused and two appeals were ultimately needed to properly exonerate the newspaper. But it cost the Post $1.3 million to defend itself. Editor Ben Bradlee, the man who oversaw the newspaper’s extraordinary coverage of the Watergate scandal, later commented that the experience would clearly affect the way he looked at future news stories. If a reporter comes into the office with a terrific story, but says it will cost the newspaper $1.3 million to run it, it had better be a really terrific story, Bradlee said, because the newspaper simply cannot afford the cost of defending itself for anything less.

THE LAWSUIT AS A WEAPON

A libel suit is a legitimate way for an injured party to try to repair his or her reputation. But there are illegitimate ways to use a libel suit as well. Filing a defamation action against a person or a mass medium sends a powerful message to the speaker or publisher that they will suffer for their criticism of the plaintiff. And the way the law works, there doesn’t even have to be any merit in the libel allegation to start the lawsuit. In this way a libel suit can be used as a weapon to silence a critic and warn other potential critics that they might suffer the same fate if they persist to attacking the plaintiff.

These kinds of libel suits have been dubbed SLAPP suits, or Strategic Lawsuits Against Public Participation. Initially these kinds of actions were used to block citizens or citizens groups from speaking out against corporations or other businesses. For example, Victor Monia and several citizens’ groups were sued for more than $40 million in a libel action brought by a land developer after they successfully led a fight to impose a one-year moratorium on real estate development in Saratoga, California. A school bus company used parents who complained to the state that the school buses were unsafe. A coal company sued a blueberry farmer for telling the Environmental Protection Agency about the company’s pollution of a river. And the Police Benevolent Association of Nassau County, N.Y., filed 50 lawsuits against citizens who complained of police misconduct.

But the mass media can be a target of these kinds of lawsuits as well. Plaintiffs rarely win these lawsuits; of the few cases that go to trial the defendants win more than 90 percent of the time. But the plaintiffs don’t expect to win. What they seek to do is harass the defendants by forcing them to go to court, to pay the legal fees required to mount a defense. What the plaintiffs really want is to force the speaker or publisher to stop the criticism. If they do, the lawsuit will be dropped. As some authorities have written, the actions are brought to obtain a legal advantage over the defendant, not to vindicate a legally recognized right of the plaintiff.

These lawsuits have become so persistent that legislatures and courts have tried to fashion a means to block them. There are laws in at least 20 states that bar or severely limit such lawsuits. In 1992 the state legislature adopted a law that protects a speaker or publisher if he or she can demonstrate that the lawsuit arises from comments on a public issue by the defendant in furtherance of his or her rights of petition or free speech guaranteed under the U.S Constitution or the state constitution. The lawsuit must be dismissed by the court unless the plaintiff can demonstrate a probability of prevailing on the legal claim. That is, if the anti-SLAPP statute is invoked by the defendant, the court must presume that the legal action was brought to chill the defendant’s exercise of his or her First Amendment rights.

The plaintiff must convince the court there is substantial merit in the allegations even before the trial begins. If the lawsuit is dismissed, the plaintiff must pay the defendant’s legal expenses. After several state court decisions seemed to dilute this statute, the legislature amended the law in 1997, informing judges they should construe the statute broadly; that, give the defendant any benefit of the doubt. In 2002 the California Supreme Court handed down three rulings reinforcing the notion that courts are to be aggressive in controlling these harassment actions.

In many states the press or mass media are also protected by these anti-SLAPP statutes. In California, for example, courts have applied the term “person” to mass media defendants. Recently, a federal court dismissed a libel suit brought by the maker of a weight-loss product against a television station. The TV station raised the anti-SLAPP statute in its defense and the court said that the TV broadcast that contained the allegedly defamatory material constituted a public forum, that the safety of the products were matters of public concern, and that the lawsuit was filed to primarily chill the exercise of free speech. The U.S. COURT of Appeals reversed this dismissal on the grounds that the trial court had improperly excluded evidence favorable to the plaintiff. But the court emphasized that the anti-SLAPP statute was still applicable in the case. Overall, the laws have proved to be effective, especially in protecting activists who seek to challenge government policies or the impact of private interest groups that try to influence government policy.

RESOLVING THE PROBLEM

Going to court in a libel action is rarely a happy experience for any of the participants. Plaintiffs are rarely gratified. Lawyers’ fees can take as much as 50 percent of their winnings. The typical case takes four years to litigate, four years during which their lives are disrupted. Two-thirds of the plaintiffs questioned by researchers in the massive Iowa libel Research Project said they were dissatisfied with their litigation experience.

The press isn’t happy either. Defense costs and damage awards cut into revenues. Reporters and editors are immobilized for long periods of time. Publicity about the lawsuit only reinforces the negative attitudes many persons have about the news media. Even the public suffers in the end. Tax dollars subsidize the cost of litigation. Lawsuits often result in a more cautious press that may, to avoid the threat of lawsuits, deny readers and viewers important information.

Does every dispute between a mass medium and an injured party have to result in a lawsuit? Are there other means to solve these problems? Relatively simply solutions have been proposed, but ultimately rejected. Three-fourths of all plaintiffs interviewed in the Iowa Libel Research Project said they would never have filled a lawsuit if the news medium would have published or broadcast a correction, retraction or apology. That solution sounds simple enough. But many editors and broadcasters are reluctant to adopt a policy of routinely publishing corrections or retractions. Sometimes journalists disagree with a plaintiff that there is an error in the story. Sometimes the reluctance to admit mistakes is founded on the proposition that the publication or broadcast of corrections or retractions will damage the already fragile credibility that the news media enjoy. And without credibility, what can the press offer the public? But many observers questioned the validity of this argument. Only a fool, they say believes that the press never makes and error. Admitting a mistake when one is made will only enhance the press’ credibility. In any case, while many publications do in fact routinely publish corrections, many more do not.

Other schemes have been suggested as well. Many proposals to take the issue out of the judicial system have emerged. Arbitration of some sort as opposed to court action would ameliorate the problem. But no large-scale arbitration program has been successfully initiated, despite the success of some small or experimental programs. Schemes that push plaintiffs to be more aggressive in seeking corrections and retraction and that reward the press for publishing such corrections or retractions have also been proposed. In fact, about 30 states in the United States already have what are called retraction statutes, which are designed to keep libel disputes out of the courthouse and make it easier and cheaper for both sides to resolve the issues. But the existing statutes have problems, and the new proposals seem to go too far, or not far enough, and rarely satisfy attorneys for both plaintiffs and defendants. The press has tried to reduce frivolous lawsuits by suing plaintiffs who bring these legal actions for abuse of process or malicious prosecution or other causes of action. But courts tend to resist such efforts, expressing worry that by routinely permitting such counter lawsuits they might deter a deserving plaintiff who has been truly damaged and is entitled to a day in court to seek a remedy. For the time being, at least, libel actions will continue to find their way into the judicial arena.

LAW OF DEFAMATION

The law of defamation is ancient; its roots can be traced back several centuries. Initially, the law was an attempt by government to establish a form for persons involved in a dispute brought about by an insult or by what we today call a defamatory remark. One man called another a robber and a villain. The injured party sought to avenge his damaged reputation. A fight or duel of some kind was the only means of gaining vengeance before the development of libel law. It was obvious that fights and duels were not satisfactory ways to settle such disputes, so government offered to help solve these problems. Slowly the law of defamation evolved. Today the process of going to court to avenge one’s honor is highly institutionalized.

In other parts of the world, different schemes are used to accomplish similar ends. In continental Europe libel suits are less common. When a newspaper defames a person, that person has the right – under law – to strike back, using the columns of the same newspaper to tell his or her side of the story. This right is called the right of reply, and it exists in the United States in a far less advanced form. Many people favor this notion of letting the parties fight it out in print or by broadcast. They say it is far better to set out after the truth in this fashion than to rattle the chains on the courthouse door every time an insult is flung in the public press.

Parts of the law of libel do not concern those who work in mass communications. For example, elements of libel deal with allegations contained in private communications, a letter from one person to another, a job recommendation from a former employer to a prospective employer. The material is this study focuses on public communications – material that is published or broadcast via the mass media, using that term in its broadest sense to include advertising, company magazines, trade association newsletters, press releases, the Internet and so on. Similarly, because newspapers, broadcasting stations, magazines and the like tend to focus on material considered to be of public concern, courts often treat them differently from non media defendants. Unless otherwise stated, it can be presumed the discussion in the study handout focuses on the rights and responsibilities of media defendants.

Additionally, it must be remembered that libel law is essentially state law. It is possible to describe the dimensions of the law in broad terms that transcend state boundaries, and that is what this study attempts to do. But important variations exist in the law from state to state, as will be demonstrated in the next chapter in the discussion of fault requirements.