Libel is not having to say you're sorry!

WHENEVER the question of libel law reform comes up, plaintiffs become enthusiastic, defendants tend to get edgy, and academics wax philosophical. Since the landmark ruling in New York Times v. Sullivan almost 25 years ago, critics have claimed this decision unleashed an avalanche of libel lawsuits that have often failed to vindicate either side but only burdened parties with millions of dollars in court costs, which have often far exceeded damage awards.

The ``actual malice'' standard, articulated by Associate Justice William Brennan in 1964, holds that a public official (now also a public figure) may not recover damages for alleged libel of his conduct without showing that the news media critic knew that his statement was false or that he had acted in ``reckless disregard of whether it was false or not.''

Sullivan has been heralded by the press and other First Amendment advocates as an upholding of the flaming sword of free speech. Libel plaintiffs have generally considered it an unfair hurdle to legal vindication for what they allege are smears and outright lies about them in the media.

An onslaught of well-publicized libel suits hit the courts in the mid-1980s - all testing Sullivan, but with clouded results.

For instance, US Gen. William Westmoreland's case against CBS, centering on the validity of casualty figures in the Vietnam war, came to an abrupt end before it was sent to a jury. A joint statement by the general and the network terminated the litigation, but only after millions had been spent by both sides.

Israeli Gen. Ariel Sharon's suit against Time magazine for what he said was an erroneous report about his part in massacres at Palestinian camps brought a technical victory for the publication - and claims by both sides that the jury had vindicated their reputations.

Mobil Oil president William Tavoulareas won a $2 million libel judgment against the Washington Post, which had reported that the oil magnate had illegally set up his son in business. A series of appeals eventually reversed this judgment, but here again both sides declared victory.

These cases and others are chronicled in a highly regarded report of the Libel Reform Project of the Annenberg Washington Program.

This study group - made up of a mix of high-level business and media interests - reached a consensus that most defamation cases are unduly costly. And it determined that verdicts are often inconclusive or unclear.

Among major options for reform, the report suggests that:

News media defendants be given the opportunity to publish a timely retraction or reply to avoid legal action by an aggrieved plaintiff.

A ``declaratory judgment'' be made in the court to decide without lengthy argument whether the media's story was defamatory - whether it was true or false. If the plaintiff prevailed, there would be no money damages but vindication on the public record. The press, in return, could avoid a costly trial through this streamlined adjudication. But it would lose the constitutional protection of the ``actual malice'' standard. The winning side would recover lawyers' fees from the loser.

If either of the above resolutions could not be agreed upon, a suit for damages could still be brought in court. Financial awards, however, would be limited to actual injury to the plaintiff, with ``presumed'' (those given without proof of actual injury) and ``punitive'' (those designed to punish and deter the defendant) damages removed.

Newton Minow, former head of the Federal Communications Commission and director of the Annenberg program, explains the declaratory judgment option, which seems to be at the core of these reform recommendations. ``This would be a no-fault trial, in which the only issue would be the truth or falsity of the defamatory statement, and not the fault-finding issues of negligence and malice that often obscure whether the plaintiff were libeled or not.''

Minow says that the present law, based on the Sullivan standards, ``is not adequately protecting the reputations of people who have been defamed ... and it's not protecting journalists' freedom to report - vigorously and fairly - the truth as they can best determine it.''

The Annenberg proposals will be offered for further debate at a follow-up national forum in February. Meanwhile, they are available to states as an aid in shaping future libel guidelines. And federal legislation is possible, but not now in the works.

Media protectors generally give the project two cheers. Henry Kaufman, general counsel of the Libel Defense Resource Center, calls it ``the best of the reform efforts.'' And he agrees with many proposed reforms, including abolition of punitive damages. He criticizes, however, those that would deprive the media of ``actual malice'' protections.

Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, stresses that ``news organizations should not be put in the position of having to respond [to a libel plaintiff to avoid trial]. Retraction or reply should be voluntary.''

As to any compromise of Sullivan standards, such as those proposed by declaratory judgment, Kirtley says: ``This is not a time for the news media to negotiate or to voluntarily waive constitutional protections that have been afforded by the court.''

Jay Wright, a journalism professor at Syracuse University's School of Public Communication, says that any type of mandatory retraction raises ``serious constitutional questions.'' But he lauds the efforts to avert costly litigation.

Everette Dennis, who heads the Gannett Center for Media Studies, praises Annenberg for ``the courage of putting this on the table.''

Professor Dennis says Sullivan is basically working.

``There is not the urging for reform and change now that there was at the time of Westmoreland and other celebrated cases a few years back,'' he points out. ``Since the passion of that era has passed, the debate now can be more rational.''

A Thursday column

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