As a federal jury in New York deliberates on the case of former Israeli Defense Minister Ariel Sharon, who is suing Time magazine for $50 million, news-media observers have mixed feelings about the libel trial. Some, in fact, say they do not want Mr. Sharon to prevail. Jurors decided Wednesday that Time defamed Sharon. No decisions on the issues of falsity and malice had been made as of this writing. If the jury finds for Sharon on all three issues, the trial will reconvene to consider the awarding of damages.
Journalists say an increase in libel suits will chill reporting.
``It has to hurt,'' says Katherine Winton Evans, editor of the Washington Journalism Review. She notes that whenever there are highly publicized lawsuits resulting in losses to the media, other cases are bound to increase. The high cost begins to make news organizations more cautious.
And even when losses are overturned in appeals -- which happens in the majority of cases, according to the New York-based Libel Defense Research Center (LDRC) -- the public tends to forget the reversal and remember the large headlines of the initial loss, Ms. Evans says. ``The press is not very popular now.''
First Amendment supporters say that they don't want to see the current standard for libel cases involving public figures -- set by the landmark Times v. Sullivan case in 1964 -- changed. In that case, which was brought by a Southern sheriff in objection to an advertisement that ran during the civil rights era, the court said public officials must prove ``actual malice'' in order to recover damages. In other words, not only must a plaintiff prove that he or she was defamed and that the published material was false, but that the defendant acted with ``reckless disregard for the truth'' -- either knowing the information was false or seriously doubting its truth.
Journalists say these standards are necessary in order to freely report on news involving public figures. Some observers say that as cases are appealed, the now more-conservative US Supreme Court could change that standard. Some media critics are to make journalists subject to tougher libel standards.
Martin Garbus, a trial lawyer who represents libel defendants, says cases like Sharon's and Gen. William C. Westmoreland v. CBS should not even come to trial.
``I am no friend of Time,'' he says, adding that he feels its reporting is sometimes sloppy and biased. But public figures such as Sharon have access to the media and ways to resolve statements they feel are unfair.
Henry Kaufman of LDRC agrees. He says Judge Abraham Sofaer's instructions to the jury were ``incredibly intrusive'' into the journalistic process of analysis of political and historical facts.
What seems to have emerged in both cases (Sharon and Westmoreland) is that principles of good journalism were violated, says George Kennedy, associate dean of the University of Missouri journalism school in Columbia, Mo. ``You check facts, you don't write what you don't know, you don't distort facts,'' says Dean Kennedy. If a news organization does not follow the principles, they deserve some hard knocks, he says.
The quality of journalism today as compared with when he entered the field 20 years ago is ``substantially higher,'' Kennedy says. But, he adds, there is a lot of evidence that ``we are not as fair as we ought to be.''
Indeed, many journalists have criticized Time in the case, including Michael E. Kinsley, senior editor of The New Republic. In a recent column in the magazine, he berated the system of editing and fact-checking at Time that makes it easier for mistakes to occur, for facts to be stretched too far. Each story goes through many hands before publication. In a telephone interview, Mr. Kinsley said it is far better for a story to come out under one byline. At The New Republic, he says, ``we have to rely on people to get things right.''
What do such cases as the Sharon and Westmoreland libel suits bode for journalism? Few media observers are willing to predict how much these cases will cause journalists to forgo investigative or critical reporting, although many report that they've seen more caution.
And others say there probably is more thorough checking of facts. Kennedy notes that at the University of Missouri, where journalism students produce a daily newspaper, the school has an accuracy policy under which reporters check information with sources, sometimes includes reading or showing the story to a source.
Kennedy says he opposed the idea at first, but has since been convinced that it works. He would like to see a major news organization try it.
Kinsley disapproves of the idea. ``If you read a quote [to a source], they can have second thoughts,'' he says. Kennedy admits that sources might try to edit or argue, but ``editors get paid to resist pressure.'' He maintains that checking makes the paper more accurate, not less willing to do investigative pieces.