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Suing the Press by Rodney A. Smolla (Oxford University: $19.95; 288 pp.)

May 18, 1986| Marshall Goldberg | Goldberg is a former counsel for the Senate judiciary subcommittee on constitutional rights and presently writes for television

Is there anything as heartwarming as a million-dollar libel verdict? It's like watching a terrorist headquarters bombed to smithereens: The bad boys are getting exactly what they deserve. But as with the U.S. raids in Libya, one ends up asking if this is really what we want.

In this insightful and thoroughly readable book, Prof. Rodney A. Smolla takes us through the quagmire of libel cases since New York Times vs. Sullivan, the 1964 decision that requires "actual malice" or "reckless disregard of the truth" before a plaintiff can recover for libel. While much of the book is devoted to the legal issues of libel over the last 20 years--What is a "public figure"? What is a matter of "public interest"?--Smolla's real contribution comes when he examines how a force as powerful as the American press could find itself so beleaguered.

Since World War II, the political power of the press has grown to eclipse even that of the White House. At the same time, New York Times vs. Sullivan and its progeny have given it enormous legal power as well, coming close to a virtual immunity against libel actions. And yet, poll after poll shows that people do not trust the press, that reporters are held in low esteem (one poll even ranked them below lawyers). Juries routinely render punishing verdicts against not just the National Enquirer, but also the Washington Post and Time magazine. And these are not Southern juries who have it in for Northern meddlers; these are Washington juries, New York juries, picked on the press' home turf.

How do we explain the paradox? Essentially, asserts Smolla, cultural forces correct for legal and political imbalances. Americans have a strong sense of fairness. Forget "burden of proof" and legal doctrine, jurors say: When you assert something, have the facts to back it up.

Moreover, Americans don't like arrogance. When Time magazine uses shoddy journalism and prints an obvious untruth, people get irritated. But when the managing editor refuses to print a meaningful retraction and claims he still believes the story "absolutely," they get downright livid. Smolla gives example after example where executives of the Post or Time or CBS come traipsing into courtrooms, almost drunk with power, and refuse to admit even the possibility of error. Jurors seem only too glad to get the drunks off the road.

But what about the First Amendment? Does this mean that juries have no regard for freedom of the press? Not at all. Juries like the First Amendment; it's the media they can't stand. American juries and jurists show time and time again their reverence for speech, even speech they disagree with. But juries sometimes focus on the speaker, not the speech. And if the speaker is a corporation with millions of dollars in assets who claims to be infallible, the lesson is clear: Settle out of court.

In many ways, the history since Sullivan is the oldest political story of all: Power corrupts. Like many a fallen dictator, the media achieved enormous political power, then enormous legal power. When they used the power abusively, the "people" began to rise up and take the power away. Those in power became bewildered that it could happen, righteously claiming that an attack on them was an attack on society itself. Judge Abe Sofaer, who presided over the Ariel Sharon vs. Time magazine case, uttered for many the appropriate response: "It would be pure fantasy to treat Time in this case like some struggling champion of free expression, defending at great risk to itself the right to publish its view of the truth."

But how do we explain the dramatic increase in libel litigation? Is it just that the media are easier targets and the verdicts are more lucrative? Smolla cites another factor, what he calls "the thinning American skin." Time was, a man who insulted a John Wayne or a Gary Cooper would get laughed at or punched in the nose. Now he gets sued. Smolla regrets this development, but to the reader, it seems inevitable. After all, it's an age of image, where advertisers run political campaigns and talk-show hosts solicit the philosophical views of actors. Success is so tied to image that naturally image counts for more.

One may cheer when the bully boys are put in their place, but is this trend toward more libel suits and bigger awards a good thing? Smolla argues quite convincingly that it is not. In the end, we need a free press, unshackled by the threat of expensive litigation and whopping verdicts. No right-thinking person wants editors watering down stories or reporters pulling punches or lawyers deciding what gets into print and what doesn't--which is exactly where we are headed. And yet, some restraints are needed; only Ben Bradlee and Time magazine could deny that New York Times vs. Sullivan and its offspring have been abused.

In his final chapter, Smolla offers some thoughtful proposals for achieving a more sensible balance between press freedoms and remedies for offending subjects. Judges and media executives alike should read them closely before the situation gets even more out of hand.

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