NEW YORK — In nearby courtrooms at the other end of Manhattan, two of the most celebrated libel trials in recent memory were grinding into their final hours.
But it was not entirely the Westmoreland/CBS and Sharon/Time lawsuits that prompted a meeting of the 700-member American Society of Journalists and Authors to examine "How the Risk of Libel Suits Is Changing Our Lives" here late last week.
After all, even without the two generals arguing their cases in the same U.S. District Court building here, ASJA moderator and magazine writer Katharine Davis Fishman reported, "libel is in the air."
Over the past five years, she said, about 20 major libel decisions have brought verdicts of more than $1 million each. And for those on the media end of the trial, the news tends toward consistently bad. "Media defendants," Fishman told a roomful of fellow writers and editors, "lose more than half of those cases that come before a jury."
Generous Juries One more possibly surprising piece of information: Damages awarded in jury libel trials on the average exceed those given out for medical malpractice and product liability.
In short, Davis said, "There is a sense among many lawyers and publishers that the option of suing for libel is more viable in the 1980s." As a consequence, "getting sued is also more likely."
And so, as Fishman observed, what might merely have been a "lively" panel discussion in 1975 is a "bread-and-butter panel discussion" in 1985.
As Rhoda Gamson, director of contracts, copyright and permissions at Viking Penguin, pointed out, "it all began with an ad": the now-famous full-page call for support for the Rev. Martin Luther King Jr. and other civil rights leaders that became the springboard for the landmark 1964 Supreme Court libel decision, New York Times vs. Sullivan. That same decision enlarged the First Amendment protection provided the press by stating that public officials and public figures could recover damages from libelous statements made by the news media only if they could prove the statements were published with "actual malice." Actual malice, in turn, was defined as published with knowledge that the defamatory statement was false, or with reckless disregard of whether it was false.
Although the ad in question, published in the New York Times March 29, 1960, accused no one by name, L. B. Sullivan, then an elected commissioner of Montgomery, Ala., joined with the governor of Alabama, among others, to sue the New York Times and four black ministers for alleged injuries to their characters. When, in 1964, the U.S. Supreme Court overturned the $3-million verdict in favor of the plaintiffs--"and that," Gamson said, "was 3 million 1960 dollars" . . . "libel law was turned upside down."
But, Gamson observed, "Within the last few years, a rising tide of libel actions has been battling against the decision of 1964." The libel-happy trend seems compounded, Gamson said, by "an increase in negative feeings about the press in general."
People, she said, "are angry about what they call the power of the press." In turn, "anti-media feeings have come to dominate the thinking of most juries."
Indeed, it seems increasingly that "a jury doesn't care if reporters or publishers had any way of knowing if the facts were wrong." The same juries, Gamson said, "find it hard to believe that the freedom of the press is endangered" because one reporter is declared guilty in one libel suit.
In the end, Gamson said, "what they have done is put a heavy price on free speech."
Pt. Reyes Weekly Given the high cost of legal advice, Gamson went on, that price is as much financial as it is moral, legal or ethical. "The most vulnerable are the small publications," Gamson said, "the local TV and radio. They can be easily driven into bankruptcy if forced to defend a major lawsuit."
There was, for example, the legendary case of the tiny Pt. Reyes, Calif., Light, the weekly newspaper that won a Pulitzer Prize for its investigation of Synanon. In the process the Light also "won" four libel suits, totaling more than $1 billion, that, for a time, threatened the paper's very existence.
Such examples mean, Gamson said, that "we must find a way not to shrink from tackling hard and controversial issues, but at the same time find a way to avoid these costly libel suits."
Gamson's firm, Viking Penguin, was the first publisher to buy libel insurance for its authors, a step that she suggested showed a certain solidarity between writer and publisher.