Libel's cold, dark shadow

Folio: The Magazine for Magazine Management, Nov 1, 1992 by Slade Metcalf

For small magazines, the consequences of a libel suit can be especially ominous.

How often have you heard the expression that libel suits have "a chilling effect" on the ability of a magazine to cover the news? Libel suits come in all shapes and sizes. They can be serious, extraordinarily time-consuming--and very costly. At other times, they can be handled relatively quickly and inexpensively. But while a libel suit may be an irritating cost of doing business to a wealthy, large media conglomerate, it can be life threatening to the small, independently owned magazine.

Some smaller publishers have insurance that covers at least their legal fees for the duration of the suit. However, it is unusual for a small, independent publisher to have coverage in excess of $1,000,000. And that amount has to take care of both the costs of defending the case and any settlement or judgment. Under most insurance policies, as the attorneys' fees build up, the money left to cover settlements or judgments decreases. Publishers who have been through the unpleasantness of a libel suit know only too well that expenses for pretrial discovery, trial preparation, actual trial work and any appeals continue to mount and mount.

One libel suit involving a newsletter provides some insight into the lengthy--and costly--procedures sometimes needed before a case can finally be resolved. It involves a scientist who worked at the Frederick Cancer Research Center, which was performing experiments for the National Cancer Institute (NCI). The scientist, Melvin Reuber, had conducted experimental work during the 1970s on the carcinogenicity of certain chemicals, including pesticides. He apparently emphasized his ability to determine accurately the carcinogenicity of certain chemicals. In particular, he studied an insecticide known as malathion, and found it to be carcinogenic. This finding was in contrast to the official position of the National Cancer Institute, which had determined that malathion was not, in fact, carcinogenic.

Reuber prepared an unpublished manuscript that he apparently began to distribute to certain people at about the time (1980-81) of an infestation of the Mediterranean fruit fly in California. Reuber's manuscript, which was prepared independently of his regular work for the National Cancer Institute, was sent out with an address of "NCI, Frederick Cancer Research Center, Frederick, Maryland" below his name.

A letter of rebuke

On learning of the distribution of this manuscript, Reuber's supervisor at the research center sent Reuber a letter reprimanding him for supposed professional misconduct. The letter stated, "You have operated under the guise of the endorsement of both NCI and the . . . Frederick Cancer Research Center. These obstreperous actions have had a multimillion dollar implication, giving the impression that the NCI may be administering programs of questionable competency."

Copies of the letter were somehow leaked to people outside the research center and NCI, and one copy ultimately reached the editor of "Pesticide and Toxic Chemical News" (PTCN), a Washington, D.C.-based newsletter with approximately 1,300 subscribers seeking information on pesticides and toxic chemicals, owned by Food Chemical News, Inc.

PTCN subsequently published an article about the letter (April 1981) and reprinted most of the letter's contents. Nine days later, Reuber resigned his job on the advice of his physician. He then sued the publisher of PTCN for libel, based on the newsletter's contents. The jury awarded him $625,000 in compensatory damages and $250,000 in punitive damages.

Thereafter the publisher appealed, but the award was upheld by the appellate court in 1990. However, there is a procedure in federal courts by which a party who loses the appeal before a three-judge panel can obtain a rehearing on a federal appellate court sitting in what is called en banc.

In October 1990, the publisher of PTCN argued the case before 11 judges in the federal appellate court in Richmond, Virginia, and in February 1991, the court, by a 7 to 4 vote, reversed the decision and dismissed the case.

The en banc court found that Mr. Reuber was a public figure under the libel law, since he had injected himself into the public controversy involving the carcinogenic nature of insecticides, and that the editorial staff at the newsletter did not have serious doubts about the truth of the allegations about Reuber contained in the letter from his supervisor.

Although the publisher of "Pesticide and Toxic Chemical News" was ultimately vindicated in performing his publication's First Amendment task of airing controversial issues, the costs must have been enormous, based on the fact that the case went to trial and through two separate appeals. (I would speculate that the legal fees alone probably were more than a half-million dollars.) Publishers with less capital or no insurance coverage would have been hard pressed to survive.

A unique protection

Smaller publishers who publish and are sued in New York are entitled to protection not available to publishers in most other states. New York has adopted a standard called "gross irresponsibility" that requires a libel plaintiff to show that a publisher acted in a "grossly irresponsible manner without due consideration for the standards of information gathering ordinarily followed by reasonable parties."