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National | MEDIA: Forty years after a landmark libel case, has free speech &quotrun amok"?

Issue: "Spain waves white flag," March 27, 2004

IN 1999 WEST PALM BEACH RADIO shock jock Dick Farrel said on air that a retired teacher with whom he had a heated public dispute, &quotLarry from Tequesta," was fired in 1986 because he was a homosexual pedophile and a &quotscumbag lowlife teacher." Incensed at the groundless accusation, Larry Ferrara sued Mr. Farrel in 2002 for defamation and lost.

The only unusual aspect of this case is that it went to trial; it was one of five libel-related cases to get a verdict in 2002. Suing for libel is extraordinarily difficult because of a landmark Supreme Court decision that marks its 40th anniversary this month. Supporters of New York Times Co. vs. Sullivan assert that it struck an appropriate balance between press freedom and protection from defamation. Critics, such as Mr. Ferrara's lawyer, Barry Silver, say Sullivan's legacy is that &quotfree speech has run amok in this country."

Here's the background: The New York Times ran an error-filled advertisement from civil-rights leaders in its March 29, 1960, issue charging that Alabama authorities used violence and illegal tactics to suppress peaceful demonstrations. Montgomery police commissioner L.B. Sullivan sued for defamation and won $500,000, but in 1964 the Supreme Court unanimously overturned the decision.

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Justice William Brennan wrote that &quotpublic officials" must prove that the defendant published a defamatory statement either knowing it was false or with &quotreckless disregard" for the truth, a standard called &quotactual malice." The court wanted to prevent government officials from intimidating journalists with civil lawsuits. Later decisions extended the actual-malice protection to speech about &quotpublic figures"-nearly anyone involved in a public controversy.

The ruling overturned centuries of common law. State law varied before 1964, but generally journalists were liable for defamatory falsehoods unless the statement was a basically accurate account of a public proceeding or an opinion based on facts truly stated. Since 1964, unless actual malice can be proved, defamation of public figures has had constitutional protection.

Most journalists stand firmly behind Sullivan. Sandra Baron is executive director of the New York-based Media Law Resource Center (MLRC), whose members include major broadcast and print media and media insurance companies. She argues that before Sullivan an innocent mistake could bankrupt a newspaper. &quotThe court felt that the scale was too heavily weighted in favor of plaintiffs' reputations and did not give enough weight to the needs of democracy," she says.

Public officials sometimes have the power to prevent proof of their misdeeds from surfacing; without Sullivan, those stories might stay hidden. &quotI would send critics of Sullivan to look at England," Ms. Baron says, where journalists complain true stories are often spiked because they can't prove what they know.

But other observers say actual malice is so hard to prove that sloppy and lazy journalists get away with character assassination. &quotDefamation goes on in a rampant way," observes First Amendment scholar Rod Smith of the University of Memphis law school. This has produced a serious public backlash and polluted the stream of information about public affairs. &quotWe get more information but we don't know what is true and what isn't," he says.

Libel suits did not immediately dry up after Sullivan, as some had expected. Victims locked journalists into expensive and time-consuming litigation involving creative new torts to get around the actual-malice standard, like &quotlibel by implication" and &quotfalse light." Defendants win more than half of libel-related trials but some juries, reflecting public frustration, began handing out multimillion-dollar awards in the 1990s. Such verdicts are routinely overturned or drastically reduced on appeal. This helps explain why the number of trials per year shrank from about 26 in the 1980s to 11 since 2000, according to the MLRC.

Still, the cost of litigation and the unstable legal environment worries journalists and their lawyers. Last December a Florida jury ruled in favor of a businessman in a &quotfalse light" suit because a 1998 profile in the Pensacola News Journal said that he &quotshot and killed" his wife, with whom he had marital problems, on a hunting trip. Two sentences later the story noted that investigators concluded it was an accident. The story was factually correct, but the jury agreed it implied the plaintiff murdered his wife. The jury awarded $18.28 million in damages. The News Journal is seeking a new trial.

Les Sillars
Les Sillars

Les directs the journalism program at Patrick Henry College in Purcellville, Va., and is the editor of WORLD's Mailbag section.

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