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Freedom of the Press
The Most Serious Threat Is
Dill is a lawyer and the author of The Journalist's Handbook on Libel and Privacy. She conducts seminars for journalists around the country under the sponsorship of The Mutual Insurance Company of Bermuda.
In the last few years publishers and their lawyers have been playing hardball with the Supreme Court, bringing cases that should never have been brought, pushing for immunity for irresponsible reporting and questionable ethics, and hammering away on futile appeals without any apparent concern for the long-range consequences.
The Court has responded by making it riskier to speak out and easier for officials and public figures to use. Lately, highwire advocacy has not only failed to move the Court to rule in favor of publishers, but has provoked the justices to cut back the press's protections, rip holes in the libel insulation, and steadily encroach upon the province of editors, leaving all of us a little less free.
Media lawyers I know consider themselves soldiers in the cause of free speech. But I have come to fear their combativeness as a threat to the First Amendment.
On principle, pugnaciousness strikes me as the wrong response to some libel suits, because some reporting is seriously flawed and some disputes can be mediated. As a practical matter, the dismal record and the inevitability of more blows from the Court's hardliners in the future suggest that the time has come to switch to a conservative tack.
To try and hold the line on constitutional protections, the media warriors should stop going to court with cases so marginal they can be won only by a fluke. These cases ought to be settled for the greater good.
The warrior phenomenon almost certainly figured in two Ohio libel fiascos that landed in the Supreme Court recently and inflicted painful wounds on the whole news industry.
In one case (Harte-Hanks Communications, Inc. v. Connaughton), a newspaper editor published unverified accusations that a candidate for a judgeship planned to blackmail the incumbent. The editor purposefully avoided checking the story with the most logical source, evidently eager to discredit the candidate and help the incumbent, an old friend, win reelection.
The newspaper could have taken the high road and settled. But its lawyers tried to justify reliance on a sole source, a troubled former shoplifter who had told the editor she was offering information because she was mad at the candidate. When that failed, the lawyers argued that the candidate's reputation could not possibly have suffered, because he was already known as a drunk and a womanizer.
The jury responded by awarding $ 200,000 -- $ 195,000 of it punitive damages. Rather than pay up, the paper appealed. The Supreme Court, seized the opportunity to backpedal from the rule that a public figure cannot win a libel suit without proof that a publication entertained doubts about the accuracy of a story -- whether or not it checked the facts. The decision put courts squarely into second-guessing whether reporting is complete or fair.
In the second case (Milkovich v. Lorain Journal Co.), a sports columnist wrote that a high school wrestling coach had egged on a brawl that got his team banned from a state championship, and then had lied in court to get them reinstated. The coach denied the columnist's charge and vowed to disprove it. But the paper spent fifteen years and $ 500,000 in legal fees trying to get the case dismissed, its lawyers arguing that the columnist had merely voiced his opinion and was protected by the First Amendment.
The trouble was, this was the wrong case to test the opinion privilege. The columnist's language, on the ace of it, was not subjective enough to make clear he wasn't reporting facts. The Court considered the accusation the very stuff of libel -- either the coach lied or he didn't. The Court's answer was to jettison the long-assumed idea of a separate constitutional exemption for opinion. The marathon ended in a settlement, after all, but by then press lawyers were totally confused as to how to protect commentary and letters to the editor.
Compromising, rather than defending to the hilt, may strike litigators as a betrayal of their obligation to get the most for the client. Yet it is by no means clear that a dogged defense of shoddy or shaky journalism is the best course. To the contrary, the ordeals of the Ohio publishers drained their resources and squandered their prestige. Ah, hindsight! you might say, and you would have a point. But the truth is, experienced lawyers can, with some precision, pick winners, losers, and longshots and cit reasons why.
I believe most press lawyers sincerely try to counsel clients on their best interest. But the litigators' dynamic nature runs on adrenalin, piss, and vinegar. Their can-do attitude and passion for beating the odds may blind them. They may be unfazed by the high costs or even be inspired by them. Still, publishers need a sober assessment of the downside -- the fees, judgment, and precedent that can hamstring all news organizations over the long term. When the risks aren't worth the candle, lawyers should help get rid of a case.
This is no hymn to the lily-livered. It is a plea to temper the militancy and rein in the hard-chargers, for now. Daring the justices to say what they think of bad journalism has already led to too many bloody beatings. All the media hold a stake in the future, and their lawyers owe a duty to conserve the legacy.
