Press freedom jeopardized as trial courts rule 'guilty' in libel suits
Alittle-heralded libel case recently argued in the US Supreme Court could have profound effect on the media and the public. But, regardless of its outcome, there are two lessons to be learned: 1) The media must be protected from unwarrented attacks, or free and fair reporting may be curtailed, and the public will be the poorer; 2) The press must shore up its credibility by recommitting itself to responsible probing of the news by scrupulously accurate data-gathering, writing, and editing.
The case in point: Consumer Reports published an article evaluating the quality of loudspeakers manufactured by different firms. In it the magazine panned a product made by Bose Corporation, a Massachusetts-based builder of stereo systems. Bose filed suit and won a $200,000 libel judgment, evidently having proved to the satisfaction of the trial court jury that the publication had knowingly published false and disparaging statements.
An appeals court, however, disagreed that Bose had demonstrated ''actual malice'' on the part of the magazine, as legal precedent requires. And the higher court reversed the trial court's finding. Bose then took the case to the US Supreme Court.
In deciding the issue, the high court will have to review its landmark 1964 libel decision, New York Times v. Sullivan, which requires proof of deliberate malicious conduct on the part of media defendants in order for verdicts to go against them.
At first, the Sullivan standard tended to discourage frivolous libel suits - or those which appear to have little basis for a claim based on current law. However, in the past few years this type of litigation has increased. And news organizations are taking it on the chin in the first round of court bouts. Studies by the New York-based Libel Defense Research Center (LDRC) show that trial court juries tend to award damages, often to the tune of millions of dollars, against news groups in nearly 90 percent of all such cases before them.
According to LDRC, appellate courts, however, throw out about 70 percent of these verdicts, on the basis that the Sullivan precedent was never applied or was applied incorrectly. Few libel cases reach the US Supreme Court. Uncharacteristically the high court is considering two other such suits this term in addition to the Bose claim.
The issue before the justices in the Bose case is, not the Sullivan standard, but whether an appellate court has any business overturning a trial judge's finding in a libel case.
If it is true, as some aver, that lower courts tend to ''punish'' the media, the question of appellate review now becomes as crucial to news groups as the decade-old Sullivan guidelines.
Appellate review is important, because it tends to insure the decision of juries that lower the boom whimsically, without adequate evidence, will not be allowed to stand.
The public, along with the media, has a stake in the Bose case. Retreat from the review process could sharply curtail investigative reporting. The threat of huge libel suits - together with the prospect of punishment from juries which base their decisions on a general suspicion of media motives rather than the Sullivan standards - could inhibit news organizations from doing their jobs. Small media companies might be forced to throw in the towel in the face of big-bucks judgments against them and might intimidate even medium-sized media corporations.
Of course, the public has a right to hold the media responsible, when they induldge in real libel. But the press also has a right to fight unwarrented libel cases. It is beginning to do so with countersuits.
Steve Weinberg, executive director of Investigative Reporters and Editors, based in Missouri, reports in the November-December issue of Columbia Journalism Review on moves by the media to take tougher stands against unwarrented libel claims.
But Mr. Weinberg also suggests that the press itself must run a tighter ship and become less vulnerable to libel suits and claims of unprofessional and unethical conduct.
Weinberg and others suggest reporters, broadcasters, and editors need to: use greater precautions with confidential sources (perhaps obtaining contracts for affidivits attesting the accuracy of their information); remain tight-lipped prior to publication about the data they have gathered scrupulously avoiding possible libelous statements in casual discussion; verify all previously published materials before using them as background data for a story; publish complete corrections in prominent locations, when mistakes are made.
Some journalists believe that much libel litigation could be avoided, if Congress would adopt a national libel law to replace conflicting state statutes. Some also propose eliminating awards of cash damages, which might dampen the incentive for the suits, and requiring plaintiffs who are unsuccessful in their legal claims to pay the court costs incurred by media defendants.
All of these are sound ideas. But none can substitute for be a constant quest on the part of the press for more responsible researching, reporting, and editing.