Suing the Press, by Rodney A. Smolla; Talking Back to the Media, by Peter Hannaford
The Libel Explosion
Suing The Press.
by Rodney A. Smolla
Oxford University Press. 277 pp. $18.95.
Talking Back to the Media.
by Peter Hannaford.
Facts on File.184 pp. $17.95.
At one time in this country, observes the constitutional scholar Walter Berns, there were two ways of dealing with journalists who damaged a man’s reputation by publishing false and defamatory statements: pistols at dawn or a horsewhip in the public square. But both dueling and flogging have fallen into disfavor, and the only recourse remaining to a man whose name has been unfairly besmirched is the courts.
As Rodney A. Smolla, a professor of law at the University of Arkansas, makes clear in Suing the Press, during the past decade our courts have overflowed with libel suits. His book surveys the most famous of these: Carol Burnett vs. the National Enquirer, Ariel Sharon vs. Time, William Tavoulareas vs. the Washington Post, and William Westmoreland vs. CBS, among others. While few of these cases were landmark libel decisions, they are justly famous for the celebrities involved, the amount of damages demanded by the plaintiffs, and the attention they elicited from the public. The one thing that unites them all is the hatred of the plaintiffs for the press. In this respect, as Smolla correctly observes, they reflect a growing public sentiment that the freedom guaranteed by the First Amendment has been cavalierly abused by the current generation of editors and reporters.
Smolla disagrees with this view. His book, which offers useful descriptions of dozens of libel suits, both major and minor, is a repetitious and poorly written attempt to exculpate the press while turning a blind eye to its malfeasances. In this way it inadvertently provides a fine illustration of the sloppy thinking so often perpetrated by journalists, law professors, and civil libertarians in the name of defending freedom of the press.
The watershed of American libel law is the 1964 Supreme Court decision in New York Times v. Sullivan, in which the Times was protected from a suit filed by an Alabama police official who claimed he had been libeled by a civil-rights advertisement in the newspaper. That decision established the “actual malice” test for all libel suits by public officials, who from then on had to demonstrate that defamatory statements about them in the press were published with “reckless disregard for the truth.” It was an occasion, in the words of one commentator, for dancing in the streets. But while the journalists danced, some students of the Court waited apprehensively to see how far this new doctrine would be pushed.
They did not have long to wait. Within three years the Court extended the rules covering public officials to include suits by “public figures.” Soon afterward, the same constitutional privilege was extended to anything in the press about matters of “public or general concern.” By 1974, the Court had established a new standard for private citizens, who now had to demonstrate not only falsehood but also “negligence” in order to sue successfully for libel—a decision that effectively overturned 200 years of established precedent.
Rodney Smolla views these events as liberating victories for the American press—but he does not limit his gaze to the press alone. Nearly every libel suit mentioned in this book provides Smolla with an opportunity to discourse on social and political issues. His admiration for the Times v. Sullivan decision, for example, coincides with his belief that it was “a critical battleground in the fight between blacks and whites in the stormy campaign to destroy America’s deeply ingrained habits of racism.” Similarly, the chapter on the Westmoreland trial quickly metamorphoses into a lecture on Vietnam; the Sharon case offers an occasion to weigh the arguments over the 1982 war in Lebanon; Carol Burnett’s successful suit against the National Enquirer somehow lends itself to a discussion of the free market under Reagan; and so forth.
As this suggests, Smolla is interested primarily not in legal questions but rather in the social climate that has sparked the “libel explosion.” In his view, the 1960’s were wonderful years for reform, and the liberation of the laws governing the press was a natural aspect of the general upheaval. But, he writes, “the last ten years have witnessed a transformation of the national character, in which deification of one’s self and preoccupation with one’s feelings have tended to displace emphasis on political activity.” It is this “narcissistic,” “sensitive,” “thin-skinned” America of the “Ronald Reagan 1980’s” that according to Smolla has fostered the wave of anti-media litigation.
Explaining the new distrust of the press by reference to a changed cultural mood, Smolla neatly sidesteps the question of what created that mood. The fact is, of course, that the fundamental shift in First Amendment rulings beginning in the 1960’s gave rise to a “new journalism” of investigative reporting and sophisticated muckraking. As the Supreme Court extended protection to virtually every kind of falsehood, harmful inaccuracy, and defamatory statement, the press discovered that it could take brazen risks with impunity. Editors might continue to defend their paper’s delinquencies as necessary byproducts of freedom, but a misinformed and frequently maligned public began to take a different view.
That latter view is perhaps best expressed by Peter Hannaford in Talking Back to the Media. Hannaford, chairman of a large Washington public-relations firm and formerly a senior communications adviser to President Reagan, has, in his dealings with the press, done his own fair share of talking back. His book is a survival kit for the uninitiated businessman, politician, or private citizen who suddenly finds himself facing a reporter’s microphone.
Needless to say, Hannaford shares none of Smolla’s concerns about a public backlash against the media and their constitutional freedoms. On the contrary, he advises his readers to confront the media with their mistakes and, when necessary, to sue. The portrait of the press that emerges from this book is, at best, that of a nuisance, at worst, that of an arrogant, irresponsible, untrustworthy, and potentially damaging adversary.
Hannaford concludes his book with a brief chapter on media ethics, noting with approval that many journalism schools are now including a course on ethics in their curricula. The irony of this development would surely be lost on Rodney Smolla who, despite a number of high-minded invocations of public sensitivities, never seriously discusses the issue of press responsibility. Yet it is instructive that only forty years ago this topic so dominated the minds of those who cared about freedom of the press that it gave rise to a report, A Free and Responsible Press, which could fairly be said to have spoken for the entire profession. That, of course, was before Justice Brennan, writing for the majority in the Times v. Sullivan decision, spoke of the need for an “uninhibited, robust, and wide-open debate”—with consequences that Peter Hannaford is not alone in believing have served neither the public good nor the cause of a free press.
Justice White, dissenting in a recent libel suit, wrote that the Times decision countenanced two ongoing evils:
First, the stream of information about public officials and public affairs is polluted and often remains polluted by false information; and second, the reputation and professional life of the defeated plaintiff may be destroyed by falsehoods that might have been avoided with a reasonable effort to investigate the facts. In terms of the First Amendment and reputational interests at stake, these seem grossly perverse results.
An equally perverse result, it must be acknowledged, is that public-relations professionals like Peter Hannaford are now routinely advising their clients to take legal action whenever the press is careless in the exercise of its Times v. Sullivan rights. As Hannaford himself observes, the recent success rate of plaintiffs in libel suits—as high as 85 percent—is encouraging ever more victims of the press to seek vindication in the courtroom. Smolla, of course, deplores this development, insisting that frequent and expensive litigation against the press bears enormous social costs. And he is right about that—yet for the moment, libel suits against offending publications may be the most effective way to compel American journalists to return to the standards that should govern a free and responsible press.