Burnett v. National Enquirer: latest in growing trend to sue press for libel

Libel lawsuits are on the rise. As a result, the news media may be on the run in some quarters. It was big news when Carol Burnett took the National Enquirer to court recently -- and even bigger news when the jury awarded her $1.6 million in damages, a settlement that the gossip publication has said it will appeal.

But what the headlines and news stories did not mention is a growing trend that worries media experts across the country: a boom in the number of people bringing libel suits against newspapers, magazines, and broadcasters and asking for more money in damages than ever before -- and an apparent swing in the courts toward paring away some of the substantial libel protection accorded the news media.

Although the trend is reflective of a growing public frustration with the media that even many journalists agree is justifiable in the Enquirer case, anxious observers say its "chilling effect" may be to cause the press and broadcasters to become so concerned with the possibility of being slapped with multimillion-dollar libel suits that they no longer tackel controversial stories. And, in the case of some small publications, they say, it may mean shutting down altogether.

Says Floyd Abrams, a leading attorney who specializes in the First Amendment rights of the news media and who has represented the National Broadcasting Company and the New York Times: "It all adds up to less being published. It's a move in the direction where the risk becomes one of printing and broadcasting what John Chancellor has called nonfiction, or non-news."

"Or, in other words," Mr. Abrams continues, "of printing and broadcasting truthful material of no great importance."

Already, substantial publicity has been given to the lineup of celebrities reportedly waiting to sue the Enquirer in the wake of Miss Burnett's success. But these numbers apparently are only the tip of the iceberg.

According to a spokesman for Employers Reinsurance Corporation, one of the few firms in the country that offers libel insurance, libel claims are flooding in at the rate of 45 to 60 a month, with a backlog of 1,500 cases.

Of the more than 1,800 court decisions involving the news media that have been printed since 1977 in the Media Law Reporter, 60 percent have been libel cases, says managing editor Cynthia Bolbach.

Nor is this just a matter of the public suing the press. In a few recent cases, newspapers have begun to sue each other for libel -- as in a still-pending $10 million-plus case brought by the daily Arizona Republic against a weekly Phoenix paper.

Already there are indications that the scenario drawn by First Amendment advocates may be coming true. In 1979, the publisher of a Grand Junction, Colo. , paper sold out to a large newspaper chain -- in part, he said, because he could no longer face up to the legal expenses of operating "the type of newspaper I want to operate."

In Illinois, the Alton Telegraph, a daily with a circulation of about 43,000, was hit with a $9.2 million libel judgment last year -- a settlement that, if not negotiated or appealed, could force the paper to shut down.

And, according to the Freedom of Information Center at the University of Missouri, one West Coast regional news service has reported that 25 percent of its clients refuse to run stories on Synanon, the controversial drug abuse treatment center, because they fear the possibility of libel suits. (Synanon has sued the American Broadcasting Company for $43 million, claiming it was libeled in one of that network's programs.)

"Again and again, you've got people in the press asking themselves, 'It's a good story, but is it worth it?'" says Paul Fisher, director of the Freedom of Information Center. "We'll never know the extent of that loss. You don't ever hear about what hasn't been published. "[This] has been especially the case since the late '60s, with all this talk of rights from so many people. Blacks, minorities, women, and lately the over-65s -- they're all watching the press. And the professions are far more militant."

Libel law in the United States is based on what is known as "the New York Times doctrine" -- after a 1964 case involving that newspaper and an Alabama police commissioner.In that suit, the US Supreme Court held that for a public official to collect libel damages, he must prove "actual malice" on the part of the news organization, which means proving that the statement was made with "knowledge that it was false or with reckless disregard of whether it was false or not." This ruling, which was later expanded to include public figures in general, was at the heart of the Burnett-Enquirer trial.

Although American libel protection remains the most liberal in the world, legal experts say court decisions in recent years have reflected a narrowing of the definition of the New York Times doctrine as well as a growing inclination not to make presumptions in favor of the news media, as has traditionally been the case.

Also, say First Amendment experts, plaintiffs are increasingly likely to pursue a case all the way through the courts -- a years-long process -- instead of settling out of court or letting a case drop, which has been the trend.

What is more, notes attorney Abrams, these plaintiffs are asking for unprecedentedly large settlements -- "a brand new thing, which . . . is an extremely threatening development," that could force some papers out of business.

Miss Burnett's $1.6 million award (scaled down from the $10 million she originally sought) is a relatively small settlement, compared with the $26 million awarded last month (later amended to $14 million) to a young beauty contest winner who sued Penthouse magazine, or to the $60 million lawsuit that Jerry Plotkin, one of the 52 former American hostages in Iran, has filed against the Van Nuys (Calif.) Daily News.

Although the establishment press generally has expressed nothing but contempt for the Enquirer's brand of journalism -- and even the opinion that the publication is "getting what it deserves" in court -- the recent trial has nonetheless raised some issues that alarm ardent First Amendment advocates.

One such issue relates solely to California law. In ruling the Enquirer was a magazine and not a newspaper -- and thereby ineligible for protection under the liberal California retraction law (a retraction had been printed in the case of the original Burnett story) -- the presiding judge decided the Enquirer contained little "hard" or timely news.

Such a distinction as to what constitutes a newspaper is not made by the retraction law. The judge's decision, say experts, opens the door in California to the possibility that courts may rule that serious publications such as biweekly or monthly opinion journals are magazines, and therefore liable for substantially higher damages than are newspapers under the state's 50-year-old retraction law.

A second issue involves the question of "harassing" or suing a publication out of existence, just as Confidential, a lurid Hollywood gossip sheet, was sued out of business as the result of a string of libel suits brought by angry celebrities in the late 1950s.

Although First Amendment experts agree that celebrities have a right to collect damages from the National Enquirer if they have been libeled, they also warn that "ganging up" on the publication to put it out of business is an abuse of libel laws, which are designed to provide legal remedi es for libeled individuals but not to destroy a publication.

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