News-media libel law buffeted in courtrooms across US. Supreme Court decision may be needed to sort out confused libel guidelines

By , Staff writer of The Christian Science Monitor

More than two decades of libel law in the United States may be on shaky ground. The tremors are coming from courtrooms across the nation -- and even the US Supreme Court -- which seem to be rewriting (or at least redefining) the landmark New York Times v. Sullivan decision of 1964 which established the ``actual malice'' standard for news media libel.

Under these guidelines, public figures can only recover punitive damages in a libel suit if there is proof of ``knowing falsity'' or ``reckless disregard for the truth'' on the part of the media.

In recent years, trial juries have doled out whopping multimillion-dollar awards to libel plaintiffs, such as Mobil Oil and entertainer Carol Burnett, only to have appellate courts sharply shave down these damage amounts and even reverse the decisions.

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Constitutional experts, such as Floyd Abrams, a highly respected lawyer specializing in First Amendment cases, point out that many juries are confused about what does or does not constitute libel. Surveys show that juries sometimes set aside judges' instructions in regard to libel standards.

Further, the courts themselves often seem unclear about which yardsticks to apply.

Consequently, libel trials end with both sides claiming victory.

For example, this week's verdict in the case against the Boston Globe by former Massachusetts gubernatorial candidate, John R. Lakian, would appear to leave libel law in limbo. A jury found that the businessman-politician had been libeled in five paragraphs in a Globe article. But it determined that the news piece itself was not libelous, and no damages were awarded. Mr. Lakian had sought $50 million in damages from the newspaper.

Other recent verdicts have done little to clarify the situation.

For instance, in a highly publicized 1982 libel suit against the Washington Post, former Mobil Oil president William Tavoulareas was awarded $2 million in damages by a trial court. A district court judge overturned the verdict only to have a panel of the US Court of Appeals reinstate it. The entire federal appellate court will rehear the case in the fall.

Aside from the apparent differences in opinion among jurists as to what constituted libel in this case, and what damages might be appropriate, the appellate panel raised a new issue which is sending chills down the spines of the media. What the court said was that newspapers who have earned a reputation for pursuing investigative reporting may be particularly vunerable to libel suits.

This case seems headed for final resolution in the US Supreme Court, which has already added new ramifications to the libel issue through a decision handed down last spring.

In a ruling upholding a decision against financial analysts Dun & Bradstreet, the justices seemed to establish a new libel yardstick, one of ``public concern.'' They said that, in matters that are not of public concern, a plantiff does not have to prove ``actual malice'' on the part of a publication to establish a claim of libel. Thus, the court has set up a whole new category of speech which may not be protected against defamation claims under the First Amendment.

Their ruling also failed to resolve the issue of whether or not publications such as financial newsletters should be governed by the more liberal Sullivan standards or the more restrictive ``public concern'' guidelines.

The close 5 to 4 ruling in this case indicated sharp division among the justices, some of whom indicated that the time may be right to carefully review the 1964 decision.

In the coming 1985-86 term, the Supreme Court is due to decide where the ``burden of proof'' lies in libel suits brought by private individuals. If the court rules that the onus is on the media to show that what it said or broadcast is true -- rather than on plaintiffs to prove falsity -- Sullivan standards will be all but shattered, say many First Amendment defenders. 30{et

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