''IF they had given me $1 plus carfare, I'd have been happy, because it was the principle,'' insisted entertainer Carol Burnett after she won a .6 million libel verdict from the National Enquirer in l98l. ''They didn't give a darn about my rights as a human being,'' she added. ''I didn't do a thing to the National Enquirer; they did it to themselves.''
Miss Burnett's trial made for good drama. It was also the stuff legal textbooks are made of. In fact, the Practicing Law Institute made a videotape of the proceedings. Lawyers, newspaper staffs, and students of libel use the tape to dissect the case and decide for themselves whether the comedy star was actually libeled - or merely embarrassed, perhaps even humiliated - by the gossip column which wrongfully depicted her conduct in a restaurant as less than ladylike.
A jury of her peers had no doubts. They saw it clearly as libel and awarded Burnett compensatory as well as punitive damages. The former reimburses her for actual loss - financial, emotional, and impairment of reputation. The latter is a penalty assessed to punish ''reprehensible conduct'' and to deter it in the future.
The Burnett award has since been halved by a trial judge who decided it was excessive. It came during a period - which is likely still with us - when trial court juries have been doling out megabuck verdicts to libel plaintiffs in suits against the media. Among them: $2 million to William Tavoulareas, president of Mobil Oil, assessed against the Washington Post for printing a story that he had ''set up'' his son in a firm that did business with Mobil; $26.5 million to a former Miss Wyoming against Penthouse magazine; $2.5 million to a plaintiff suing a newspaper in Alton, Ill., not for printing a story but for passing along information it gathered on organized crime to authorities.
As in the Burnett case, most of these large awards have either been sharply trimmed by a judge or the verdicts overturned by an appellate court.
However, media lawyers still see reason for alarm. First Amendment freedom of the press rights are continually under attack. A ''chilling effect'' is present, they say, which is causing many newspapers and broadcast operations - particularly the smaller and less affluent ones - to reassess what they do. Some are engaging in inordinate self-censorship rather than run the risk of being slapped with libel verdicts that could put them out of business.
Ironically, what many see as an assault on the press has come as constitutionalists, lawyers, and the media alike are observing the 20th anniversary of a landmark US Supreme Court decision in the libel area.
During recent weeks, New York Times v. Sullivan has been hailed and rehashed at banquets, symposia, panels, and convocations sponsored by the American Bar Association and other legal groups and societies of newspaper editors and publishers. Some proclaim that the Sullivan decision is to freedom of the press what Brown v. Board of Education, the famous school desegregation decision of l 954, was to the civil rights cause in America.
Civil liberties lawyer Floyd Abrams calls Sullivan ''not only the most important libel case in our era - but the most important First Amendment case.''
Just what did Sullivan do? And why is it considered so vital to the press? In essence, it put strict limits on what legally constitutes media libel of public officials. It also paved the way for future decisions that set guidelines for how other plaintiffs may recover damages for libel.
The standard for libeling public officials: ''actual malice,'' a concept that has been depicted, often controversially, by Hollywood and television.
One reason for the present debate over libel is confusion concerning this standard. It's not what it appears to be. In everyday terms, malice is generally defined as ill-will or hatred. But this not what the constitutional standard of ''malice'' means.
In his now-famous majority opinion in Sullivan, Associate Justice William Brennan wrote: ''The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not.'' Thus, the constitutional standard focuses on the media's regard for the truth, rather than it's regard (or lack of regard) for the plaintiff.
The Sullivan case came to trial against the backdrop and tension of the US civil rights movement of the l960s. The plaintiff's action stemmed from a full-page advertisement in the New York Times on March 29, l960, signed and paid for by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South.
Headlined: ''Heed Their Rising Voices,'' it described harassment and terror allegedly perpetrated on Dr. King and his student nonviolent movement by police and local officials in Montgomery, Ala. City Commissioner L. B. Sullivan, who supervised the police among his other duties, demanded a retraction from the Times - pointing to several inaccuracies in the ad. Sullivan, whose name was never mentioned in the ad, then sued the newspaper (as did other commissioners) and won an award of $500,000 in the trial court. By the time the case reached the United States Supreme Court, 11 libel suits, claiming a total of $5.6 million in damages, had been amassed in Alabama.
Katherine Darrow, now general counsel for the New York Times Company, points out that if these judgments had been sustained, the costs - even to the relatively prosperous New York Times - would have been ''life-threatening.''
However, the Times didn't lose. And its Supreme Court victory was embraced by most of the journalistic world as a triumph for all the media and for the First Amendment. ''For years,'' points out legal scholar and award-winning columnist Anthony Lewis, ''there were virtually no recoveries by public officials in libel actions.'' Through the later 1960s, when the Supreme Court had a civil-rights bent under Chief Justice Earl Warren, the so-called Sullivan rule was extended to public figures (private individuals who have assumed prominence on public issues) as well as to public officials. Some courts extended the rule even further to embrace private individuals who were not in the public eye. But a decade after Sullivan, the tide started to turn. Why?
A more conservative Supreme Court, led by Chief Justice Warren Burger, began to write variations on Sullivan and the decisions that grew from it. This court was obviously not deaf to public clamoring about an irresponsible press which, in the view of many, sometimes trampled on individual rights and even on people's lives to get a story.
Most important, according to legal scholars, was the l974 high court ruling in Gertz v. Robert Welch Inc., which significantly lowered the barriers of libel protection for the media.
Lower courts, the Supreme Court ruled in Gertz, no longer had to follow a rule that required private individuals - who were not either public officials or public figures - to show ''actual malice'' in order to prove libel.
The court has also made a distinction between ''all-purpose'' public figures, which might include the Ralph Naders, Jane Fondas, or candidates for public office, and ''limited purpose'' individuals who find themselves temporarily in the public eye. The latter is defined as those who ''have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.'' ''All-purpose'' figures have to prove ''actual malice'' in libel cases; ''limited-purpose'' individuals have to prove such a standard only with respect to those public issues they're temporarily involved in. Legal scholar John A. Jenkins explains further: ''An individual must voluntarily step into the spotlight to be considered a public figure; if he is dragged into it, he is a private figure.''
Libel action, a decade after Sullivan, began to mount again as courts promptly exempted many from the ''public figure'' category. Those seeking libel judgments also took heart with another high court finding in Herbert v. Lando. That ruling allows plaintiffs to probe into the ''thoughts, opinions, and conclusions'' of those responsible for preparing an article or broadcast in order to determine intent.
Legal experts say libel cases today tend to stretch out, with extensive pretrial motions and discovery into the facts resulting in mounting costs for all parties. And despite instructions from trial court judges as to the Sullivan standards, juries tend to ignore such guidelines and award huge amounts of damages, whether or not ''actual malice'' is proved.
The New York-based Libel Defense Research Center, in a recently released report, reveals that during the past three years the media lost 83 percent of libel cases heard by juries. Awards of million or more were made in 22 of these cases. However, appellate judges have scaled down these judgments or later vacated decisions in 75 percent of the cases they reviewed.
The LDRC report also points out that in 80 libel verdicts studied, the average compensation for damages was triple that allowed in product liability and medical malpractice suits.
Media interests feel they suffered another legal setback this spring when the US Supreme Court ruled that journalists can be sued for libel in any state, not just the state in which they are based. Jack Landau, director of the Reporters Committee for the Freedom of the Press, called this decision ''very intimidating ,'' indicating it will encourage more libel cases, hamper reporters in their jobs, and escalate costs to media who now will have to defend suits in faraway places.
On the other side of the scale, the press recently won a significant victory in the high court in a case involving a libel suit against Consumers Union by Bose Corporation, a manufacturer of stereo loudspeakers. A key question raised was the extent to which an appellate court can independently review the evidence in a libel case. In a 6-to-3 decision issued April 30, Justice John Paul Stevens , writing for the majority, said that ''the requirement of independent appellate review (in libel cases) . . . reflects a deeply held conviction that judges - and particularly members of this court - must exercise such review in order to preserve the precious liberties established and ordained by the Constitution.''
Media lawyers said that if appellate review had been ruled out and big judgments awarded by trial courts allowed to stand, the blow to the press could have been devastating.
Another case drawing broad attention, even though still in its discovery stage, is that of the former US commander in Vietnam, William Westmoreland, against the Columbia Broadcasting System. General Westmoreland is asking for $ 120 million in compensatory and punitive damages, claiming he was smeared by a CBS documentary which charged him and others with ''a conspiracy, at the highest levels of American military intelligence, to suppress and alter critical intelligence on the enemy'' in the year before the Tet offensive of l968.
Here the libel question undoubtedly will be entangled with issues regarding national security and the public's right to know.
Recent trends in libel judgments have increased the number of cases settled out of court, with many media groups opting to resolve matters quickly rather than face lengthy and costly trials.
Recent events, say newspaper officials, have also forced newsroom personnel to be more aware of the implications of libel. Some papers carefully instruct reporters and editors to keep detailed memoranda indicating how they try to be fair and objective and scrupulously avoid defamation. Some editors regularly consult in-house lawyers about risks that publication of certain articles might lead to libel action.
Observances of New York Times v. Sullivan have evoked strong statements of rededication to the First Amendment, but they've also generated calls for the press to clean up its own house. Some constitutional purists would give the media absolute immunity against liability for libelous statements, similar to that afforded the President and members of the judiciary. Others would lobby to change libel laws so that reporters and editors would be held responsible only for what they do, not what they think. Many would limit, or eliminate, punitive damages - especially when a defendant publicly admits error and prints a retraction.