Libel and the Law

In 1982, an Illinois newspaper, sued for libel over a memorandum that was never published, declared bankruptcy over an estimated $1.4 million libel settlement. In 1983, Mobil Oil President William Tavoulareas was awarded $2 million in a libel suit against the Washington Post. A year later Senator Paul Laxalt filed a $250 million libel suit against the Sacramento Bee. In 1985, former Israeli Defense Minister Ariel Sharon charged CBS with libel and sued for $50 million.

Frustrated government officials, corporate executives, actors, writers-it seems that almost everyone with an axe to grind against the press is going to court to complain. At stake is one of this country's most cherished traditions: First Amendment protection of speech and press.

In Suing the Press, University of Arkansas Law Professor Rodney Smolla looks at what he dubs "the newest American status symbol"-the million dollar libel suit. By examining numerous cases ranging from the landmark decision of The New York Times v. Sullivan, to suits brought by such celebrities as Carol Burnett, Jackie Onassis and Mohammed Ali, to complaints by corporate and government officials, Smolla attempts to answer the puzzling questions of why libel suits have become so common and why they have become so successful.

Case by case, Smolla gives the reader insight into the complexities of libel litigation. He provides a synopsis of the evolution of tort law in the United States. He explores the difficulty of balancing freedom of speech with protection of individual rights.

Smolla's analysis begins in November 1960 with the historic The New York Times v. Sullivan case. This case from Montgomery, Alabama, later appealed to the Supreme Court, radically changed the laws governing libel litigation. Prior to the Sullivan decision, libel standards were set by state law. But in 1964, the Supreme Court, "in one sudden burst of federal judicial power, [made] state libel laws subject to the structures of the First Amendment, and... hundreds of years of evolving state libel laws were rendered obsolete," writes Smolla.

The author uses the Times case to illustrate the impact of American culture, historical events, and changing political and moral values on judicial decisions.

Smolla examines the changing ideals of the American public in the nearly three decades since the 1964 decision. The last major evolution of U.S. libel laws, Smolla believes, has occurred only recently. In only six years, U.S. libel laws have become a powerful weapon against the media. In the past, resorting to libel litigation was viewed as almost "un-American," a sign that one's reputation was not strong enough to stand up to criticism in the press.

Today, Smolla writes, "As Americans spend more and more of the gross national product on narcissistic self improvement... one might expect greater umbrage to be taken when that self is damaged. One does not pay thousands of dollars to an analyst to resurrect a self image, and then sit idly by as that work is publicly undone by 60 Minutes or the National Enquirer."

At the same time, the courtroom has become one of the few places where individuals are able to take on media goliaths like Gannett, Murdoch, Hearst, and Knight-Ridder.

"Back in the heyday of yellow journalism reporting was surely much worse than it is today, but it was also less harmful, because there was no presumption, or pretension," the author maintains. More recently, he says, the press has "come to attain a more oracular tone: the media... seems to dispense not merely news but Truth, and juries may be reflecting a general public backlash against that oracular role."

Smolla urges reform of the current libel laws, in order to protect individuals without hampering the important mission of the press. First, he suggests, the losing side in a libel suit should be responsible for all attorney costs. Second, retraction and equal time rather than monetary awards should be used to punish the press. Third, greater attention should be given to the context in which a statement is made or concept presented, as well as the nature of the defendant.

In addition, says Smolla, clear guidelines should be established to distinguish fact from opinion; and laws governing libel litigation should be simplified.

Smolla fails, however, to address the disturbing failure of present libel law to include corporate executives in the definition of "public figure." When corporations such as Mobil Oil and General Motors have assets larger than many countries, the distinction between their top executives and government officials becomes imperceptible. At the same time, as the stature of these companies grows, the need for different standards for corporate representatives and private citizens becomes all the more significant.

Despite such problems, Smolla's book remains an informative introduction to libel litigation. Through a diverse and colorful assortment of characters on both sides of the suits, the reader gains a thorough lesson in the history, ethical implications, and motives behind the current libel explosion. Smolla concludes that "if we take the libel suit too seriously, we are in danger of raising our collective cultural sensitivity to reputation to unhealthy levels.... [I]n the United States, the balance that must be struck between reputation and expression should never be tilted too far against ex pression, for the right to defiantly, robustly, and ir reverently speak one's mind just because it is one's mind is quintessentially what it means to be an American."