Reporting the facts is not libel. US court decision boosts responsible investigative press

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INVESTIGATIVE journalism received an important legal boost recently when a United States federal appeals court overturned a $2 million libel judgment against the Washington Post. In a sweeping decision, with only one dissenter, the US Court of Appeals for the District of Columbia ruled that a newspaper article about former Mobil Oil Corporation president William P. Tavoulareas was ``substantially true'' and hence did not fall into the category of libel.

The Post had reported that Tavoulareas had ``set up'' his 24-year-old son as a partner in a shipping firm whose business included a multimillion-dollar contract with Mobil.

The oil company executive sued, and a trial court jury sustained his claim of libel. The judge, however, threw out the verdict, holding that there was no evidence that the article contained ``knowing lies or statements made in reckless disregard of the truth.''

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A three-judge appellate panel later reinstated the original jury finding - suggesting that the Post reporter ``knowingly adopted an adversarial stance'' toward Tavoulareas. Further, the jurors chided the newspaper for encouraging ``hard-hitting investigative journalism,'' which they concluded could lead to stories that would clearly cross the line of libel.

The newspaper community and First Amendment advocates, among others were stunned. What the panel seemed to be suggesting was that a good way to avoid libel was to refrain from investigative reporting.

Floyd Abrams, a New York lawyer who often defends news groups against libel action, called this ruling ``deeply troubling and terribly threatening,'' not only for the media but also for the public. He said it ``condemned journalistic tactics as disreputable which are in fact honorable and essential.''

The full appeals court ultimately agreed. Reversing the panel's decision, the court held that ``it would be sadly ironic for judges in our adversarial system to conclude that the mere taking of an adversarial stance is antithetical to a truthful presentation of the facts.''

``The First Amendment forbids penalizing the press for encouraging its reporters to expose wrongdoing by public corporations and public figures,'' the court added.

In what is now considered the landmark libel decision, the US Supreme Court, ruling on New York Times Co. v. Sullivan in 1964, said that public officials may win libel suits only by proving that a media defendant published a defamatory falsehood with ``actual malice.'' The justices defined this in terms of known lies or reckless disregard of the truth.

In more than two decades since the Sullivan decision, dozens of attempts have been made by plaintiffs to alter the ``actual malice'' standard. But up to now, the courts have pretty much held their ground.

Last year, for example, the Supreme Court refused to make it more difficult for media defendants to get summary judgments, pretrial dismissal of cases where there is no ``convincing clarity'' that libel can be proved.

The high court also ruled that even a private figure suing a news organization for libel must prove the falsity of damaging statements, at least in ``matters of public concern.''

What does all this add up to?

For one thing: Although trial court juries tend to want to punish the media for what they consider slanderous or irresponsible actions, judges will often turn around multimillion-dollar libel verdicts where no ``malice'' is found.

Does this mean that the judiciary is pro-media - and willing to allow newspapers and radio and television to run roughshod over the reputations of decent people in the name of freedom of the press?

There is no such evidence. The beneficiaries of free speech protections are not reporters or the organizations that employ them. They are the people. In a free society, the public has a right to know about government and to some extent private actions - including improprieties. A responsible media can effectively play the role of ombudsman.

Emphasis on responsible.

Admittedly, there are news groups and individual reporters who tread a fine line between legitimate investigative reporting and irresponsible muckraking. Some may conveniently hide behind the First Amendment.

It is largely up to the press to police itself. And it is up to the public - through the pressure of open opinion - to help it do so.

In his book, ``Press Watch,'' Los Angeles Times reporter and media critic David Shaw asks the question: Who watches the watchers? The honest answer, he says, is that no one does.

``And no one should,'' insists Shaw. ``We should watch ourselves. Carefully. Constantly. Critically. Publicly.

``I think the First Amendment is the best guarantee America has against tyranny and totalitarianism,'' he adds. ``But I also believe wholeheartedly that the press must be held morally accountable to itself and to the society it serves.''

Shaw has not been alone in calling for increased media responsibility. The American Society of Newspaper Editors, among other press organizations, has focused of late on the importance of ethical journalism.

Some abuses will almost certainly continue. But government or judicial restrictions on the media - which might curtail investigative journalism - would be a punishment that a free society cannot afford.

That is the message the federal appellate court in Washington, D.C., sent out recently. And it is a welcome one, not only for the press but for the public at large.

A Thursday column

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