Libel reform: can it survive? Proposal that might prevent lawsuits faces strong opposition

Folio: The Magazine for Magazine Management, May, 1989 by Liza Frenette

Libel reform: Can it survive?

Washington, D.C.--A new libel reform proposal that presses for retractions rather than lawsuits has drawn praise from media lawyers as a boon for eliminating costly court fights. But the act is also drawing opposition from many First Amendment attorneys, judges and professors who claim libeled plaintiffs won't get their just due.

At a recent Annenberg Washington Program forum, held here to discuss the proposal, many medial lawyers praised the act, believing it could swing the focus of libel litigation away from the courtroom and into the publishing world, where the problem originates.

But opponents argued that the act fails to protect financially injured plaintiffs, who might not have monetary recourse under the proposal.

The proposal, put together by a communications study group at Northwestern University in Illinois, calls for plaintiffs to first seek a retraction or right to reply to allegedly libelous statements. If that fails to solve the problem, the parties could seek a declaratory judgement, with the loser paying attorneys' fees. Filing suit for damages would be a last resort, but punitive or presumed damages would be eliminated.

This proposal, however, could change if introduced for consideration as a Federal law. Many panelists believe it could come out of Congress in unrecognizable tatters after being reworked by lawmakers.

But at least one state--Connecticut--has proposed a state law that parallels the proposal, and New Jersey is studying similar action.

Proponents say the act aims to rectify many of the problems caused by libelous material, because retractions could quickly correct problems and prevent ruin. But Bruce Sanford, counsel to the Society of Professional Journalists, argues that most plaintiffs file libel suits to make money, influence news coverage or win public opinion.

Panelist John Walsh, however, who served as lead trial counsel for the plaintiff in Tavoulareas v. The Washington Post, disagrees. "Most people who come through my door really want to get their reputation back."

Many plaintiffs start out wanting to clear their reputations, agrees Richard Schmidt Jr., counsel for the American Society of Newspapers Editors and Washington counsel for the Association of American Publishers, Inc. But, he says, as litigation drags on, "they get bitter, and then they want money."

Schmidt also charges that some opposition to the libel reform act is purely "pocketbook protection."

One judge experienced in media trials, however, called the proposal "a bagful of pitfalls for an unwary plaintiff." U.S. District Court Judge Pierre Leval, who presided in Westmoreland v. CBS, prodded the weak points of the libel proposal until it was black and blue. Plaintiffs, he says, may be unaware that they cannot file a suit later if they fail to request a retraction.

Furthermore, he says, if the defendant prints the response, this also negates any chance for a later suit. Those defendants who have lost revenue are also precluded from compensation if they opt for a retraction.

"Don't get yourself libeled," Leval summarizes. "If you try to go to court to vindicate yourself, you're sunk."

Chilling effect?

On another tack, media lawyers argued that the act would lessel libel's chilling effect on the press. Modern libel cases, argues attorney Roslyn Mazer, a member of the libel reform committee, often invite a "serious intrusion" on the news-gathering process. Similarly, Congressman Charles Schumer (D-NY), who sponsored a "no damages/no fault" libel bill in 1985, believes that plaintiffs "brandish lawsuits as a way of chilling the press."

But Steven Brill, founder of The American Lawyer Magazine, says the more prominent members of the media "don't have to admit mistakes even when they make mistakes. They need to be better at being accountable."

Differences aside, the libel act deserves to be tested, notes Floyd Abrams, a well-known First Amendment lawyer. The proposal, he says, "strikes an exquisitely toned balance."

Similar discussions will be held through August as Rodney Smolla, director of the Annenberg Washington Program, hosts forums for legal and journalistic groups.

PHOTO : "A bagful of pitfalls for an unwary plaintiff" is how the proposal is described by U.S. District Court Judge Pierre Leval.