September/October 2000 | Contents

LAW, THE MEDIA &...

... LIBEL
Old Concerns Renewed

BY SANDRA S. BARON

Libel is a claim that sounds almost quaint these days.

The laws and lawsuits that grab big headlines and start journalists' tongues wagging are the ones about questionable newsgathering techniques -- invasion of privacy, fraud, misrepresentation. But good old-fashioned libel remains the claim of choice for the vast majority of plaintiffs who feel the press has done them wrong.

More frequently than in any other kind of case, it ends in lengthy, expensive litigation and large damage awards.

A survey by the Libel Defense Resource Center (LDRC) of 490 lawsuits against the media in 1998 showed that almost 67 percent of the complaints involved libel, while 4.9 percent (and growing) related to newsgathering. A few other benchmarks:

* 1999 saw the highest average and median compensatory damage awards in the twenty years that LDRC has been conducting the survey. That number was skewed by some extraordinarily high libel awards, especially history's highest -- $222,720,000 in MMAR Group Inc. v. Dow Jones & Co. (A new trial was ordered and the plaintiff dropped the case.)

* Libel awards were a lot higher in the 1990s than in the 1980s. The 1990s average (including MMAR) was $5,354,154, while in the 1980s it was $1,444,486. The 1990s median was $370,000; in the 1980s, $200,000.

What hasn't changed dramatically in recent years are the core, libel-related concerns that journalists need to keep before their eyes, including:

* Whether an alleged defamatory assertion in a print story or news broadcast is "protected opinion."

* Whether a journalist is committing "libel by implication," and if so, what does the plaintiff need to prove to win the claim.

* Whether the plaintiff is a public official, a public figure, or a private figure -- as those terms are used in libel law.

* Whether the plaintiff can prove that the journalist published with the requisite degree of fault, be it actual malice or negligence.

Let's take a quick look at those.

Statements that are truly opinion, and can't be proven to be either true or false, are protected in various ways under libel law. But just calling something an opinion doesn't make it so. "I think" and "I believe" may not assure protection for the words that follow. If a judge and jury -- surrogates for the reasonable and average news consumer -- decide that what a reporter has said are defamatory facts masked as opinion, or is an opinion that hints there are unreported defamatory facts, the plaintiff has a good shot at winning the case. Beware: there is lots of litigation here. Some jurisdictions are more protective of journalists on this issue than others, among them New York, Ohio, Massachusetts, and Utah.

Libel-by-implication is a devilish and common cause of legal action against news organizations. It's based on the notion that a list of assertions about a person in a news story may be perfectly true, but when strung together create a defamatory impression. Examples: a judge sued HBO in a Texas state court over a documentary about how women are treated in custody disputes. The judge claimed that the program somehow left the impression that his decision-making was irrational and arbitrary. Also in Texas -- a hotbed in recent years for implication claims -- a broadcast news report about an elected official and a young, female member of his staff showed them at an amusement park with the official's children during a work day. The staff member sued, claiming the report had subtly suggested that she and her boss were having an affair. In both cases, the claims have thus far been dismissed.

A word to the wise journalist: libel-by-implication cases cannot always be avoided. But where you aren't prepared to draw the conclusion directly, be careful. The facts are the facts. If they lead some readers or viewers to invidious conclusions, so be it. Get a tough editor and lawyer to review the piece, then be brutally honest in reporting it. Libel-by-implication cases twist reporters into knots as they try to explain to juries that they believed the implication was true but did not have enough evidence to say it outright; or they knew it was false, but did not mean to say it to begin with; or that they suspected the implication was true but only meant to lay out the facts so that readers could make up their own minds. Imagine being on the witness stand in such a case; it's warning enough about the need to look at such stories -- what is being said and whether it jibes with what was meant to be said -- with a cold, hard eye. What lawyers are slugging out is whether the plaintiff has to prove the reporter knew the story carried an implication, that it was intentional, and, in addition, that he was aware it was false and defamatory.

Ever since New York Times Co. v. Sullivan in 1964, and subsequent Supreme Court decisions, courts in libel cases must first determine whether the plaintiff is a "public official," a "public figure," or a "private figure" -- terms of art in libel law which do not necessarily mean what the common parlance would suggest. As almost every journalist knows, the law makes it much more difficult for public officials and figures to win a libel suit, at least when the story deals with matters of public concern. Despite common sense, courts are often reluctant to find that corporations, even very large ones, are "public" -- which complicates media lawyers' lives because corporations are by far the largest category of plaintiffs bringing libel suits.

That leaves the fourth of our things-to-keep-an-eye-on: the question of fault, which follows naturally from whether a plaintiff is public or private. Since public officials have to prove that a reporter published false and defamatory statements knowing they were false, or with a reckless disregard for the truth, the litigation becomes a tortuous analysis of what the journalist did, said, and knew.

Private individuals need prove only negligence -- a far easier standard for the plaintiff to meet, but one involving much the same invasive look into what the journalist did in preparing and publishing the story. The lessons learned from all this, derived from recent cases: multiple, on-the-record sources make for a piece that's easier to defend. Failure to follow up on important sources/documents/tapes that the reporter was aware of will inevitably require explanations, with sometimes unpleasant consequences in litigation. Also: journalists should always assume that all notes, outtakes, drafts, memoranda, or any newsroom conversations will be scrutinized in libel litigation. Too many journalists naively believe that those things are protected from disclosure by reporters' privileges. They may or may not be.

And always keep in mind: having an ax to grind is not the best starting point for an investigative piece that potentially might end in a libel claim. Reporters out to nail somebody, who express glee at having "gotten" the guy, may end up with one strike (or more) against them during a trial. Judges and jurors may feel that the journalist's avidity to prove his case made for lopsided logic, stacked facts, and prejudiced conclusions.

A final thought: journalists should have a working familiarity with libel law. It's an important tool of the trade. Remember that certain libel issues are treated quite differently from state to state. If you move to a news organization in another state, check out the law in the new jurisdiction.


Sandra S. Baron is executive director of the Libel Defense Resource Center, which promotes First Amendment rights in libel, privacy, and related fields. She has served as senior managing attorney at the National Broadcasting Company, Inc., and associate general counsel for public station WNET-TV in New York, and was an associate with the New York law firm of Cahill Gordon & Reindel. She is a 1974 graduate of the Columbia University School of Law.