Full Version - Draft - of Journalists, Public and First Amendment

Southern Connecticut State University Journalism Department

Journalists, the Public and

the First Amendment

Discussion Draft

This paper, being prepared by William K. Seymour, is only in a test form for use in the classroom. Note: Citations are not properly made and correlated, but will be corrected when the content testing phase is completed (November 2001).

Article . I

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;-of the right of he people to peaceable assembly, and to petition the government for redress of grievances". Introduced by James Madison to U.S. Congress in 1789 and effective by December 1791 on the order of President George Washington.

In the The System of Freedom of Expression Yale University Professor Thomas I. Emerson proposed a cluster of four principles for freedom of expression in a democratic society. He said it fosters self-fulfillment, knowledge and discovery of truth, decisionmaking by all members of the society and a more adaptable and more stable community by maintaining a balance between healthy debate and necessary compromise. (1)

These theories make up a compact called the U.S. Constitution, said First Amendment scholar Alexander Meiklejohn. This compact is a plan to ensure a free society.

In a self-government, citizens through elected legislative representatives decide public policy. These policies bind all citizens. Self-government is nonsense unless the "self," which governs, is effective, Meiklejohn said. (2)

As part of self-government, freedom of expression ensures that the constitutional compact works. This freedom creates a marketplace for exchanging ideas and debating, without restrictions, the policies and issues of the day.

This free discussion gives meaning to self-government. So, a society pledged to self-government and freedom of expression, may not seek to suppress beliefs or opinions of individual members. Order in society relies on counter expression without regulations or controls that crab or weaken those rights to influence others.

Free expression in the First Amendment is a guarantee for every citizen, but it also creates an undefined, yet commonly used term, called "news." In the country's early history, "news" was very different - mostly government, crime, trade and political news compared to what it is today.

The change has come from a nation that increased in population, expanded and developed its economy and fostered social trends that have shifted people's expections of what they want from "news." Traditional printer- or family-owned news publishing businesses have gradually sold out to corporations that also collect the 20th Century's developing television and radio enterprises.

"News" today includes more than the politics, policies and issues of government, standard fare in early American Journalism. A shift in the focus from government to issues of everyday living is part of Journalism's evolution in America.

The freedom of speech and of the press have been broadened and interpreted to cover the changing times in the last 200 years. But questions have arisen in the past several years about whether too much freedom through First Amendment interpretations have produced a reckless press, which disregards people's inherent value in their reputations and sacrifices thoroughness for flashy stories without substance. Has society's changes in traditions, technology, law and economics created a widening gap between journalists and the public they serve?

A look into history brings perspective to those questions today.

THEORIES

In 1644 author John Milton published Areopagitica. In this essay Milton said that unrestricted debate would lead to discovering the "truth" about a topic, but each person can only bring his or her own perceptions and ideas to a discussion.

Philosopher John Stuart Mill said 200 years later this kind of open discussion would bring expression of both true and false ideas, and allow people to find the accepted ones. (3)

For people to decide on matters of public importance and the way leaders should govern, ideas must compete with each other for acceptance.

In Abrams v. United States, U.S. Supreme Court Justice Oliver Wendell Holmes in 1919 wrote:

... the ultimate good desired is better reached by the f ree trade of ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their (citizens' ) wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment."

But unchecked forces in society can stymie this kind of debate, one voice could dominate all the others, critics say.

"A free market requires regulation, Just as a free market needs regulation against monopoly... The government can lay down the rules of the game which will promote rather than restrict free speech," said the late Professor Zechariah Cha'fee, a First Amendment scholar. (4)

Protecting a press (collective) of many units, protects the consumer, who will have access to a wide range of ideas, said Professor William Ernest Hocking, a philosopher and member of the Commission on Freedom of the Press in the 1940s.

When the numbers shrink, fewer ideas can be expressed, and the more misleading becomes the dominant voice because of citizens' general perception in quality that big is better and best.

Marxist philosopher Herbert Marcuse said government and the mass media manipulate people by fostering competition in the marketplace of ideas.

In a his essay, "Repressive Tolerance, A Critique of Pure Tolerance," Marcuse said that people must be or become knowledgeable about a subject before deliberating and debating its merits.

But getting this knowledge, however, requires the freedom to express ideas. Freedom of expression, Meiklejohn said, is divided into "private speech" about personal issues, and "public speech," which centers on matters essential to self-governing.

Meiklejohn argued that false criticisms of private aspects of a person's life could be considered libelous and punishable through the courts. (6) But citizens should never be prosecuted for true or false statements on issues regarding the public welfare, he added. (5)

Chafee, who favored balancing First Amendment rights with other constitutional rights, said that civil and criminal libel trials after the Revolutionary War proved that the Constitution's authors never wanted a blanket immunity for government critics.

Although the framers lacked a clear meaning for the First Amendment, they intended the measure to have wide protections for citizens. (7)

The original intention of the First Amendment, Meiklejohn argued, was based on reasoning that would allow citizen-critics of government to help bring about needed changes in self-government and public policies as time passed. Unrestricted debate in the marketplace brings a clearer meaning to ideas for self-government, he said.

Chafee replied that "few judges" would grant protection to certain kinds of inciting speech clearly within the realm of public discussion.

The line between public and private speech, Chafee said, is elusive.

In more recent times, views about political speech have reinforced Meiklejohn's point. (8)

Federal District Court Judge Robert Bork, in the Washington, D.C. Circuit for the U.S. Court of Appeals, has suggested that protecting political speech can help with the "discovery and spread of political truth" when the speech issue is "explicitly and specifically and directly (related to) politics and government."

But this difference "exists only with.respect to one kind of speech: explicitly and predominantly political.speech. This seems to me the only form of speech that a principled judge can prefer to other claimed freedoms." (9)

Judge Bork reiterated these views in a $6 million libel case involving news columnists Rowland Evens and Robert Novak's criticism of Marxist professor Bertell Ollman.

The suit centered on whether the columnists' attack was opinion, which is not libelous, or wrong facts, which can be libelous.

Bork put that distinction aside. He looked at the public figure aspect. Someone who goes into the political arena, such as Ollman did, should expect the debate will or could become "rough and personal," he said. (10)

The late Alexander-Bickel of the Yale Law School, who presented the Pentagon Papers case on behalf of The New York Times to the U.S. Supreme Court, saw the free press and speech clauses as having a primary political role.

"The individual interest that Chafee mentioned has its truth-seeking aspect. Yet, the First Amendment does not operate solely or even chiefly to foster the quest f or truth, unless we take the view that truth is entirely a product of the marketplace and is definable as the perceptions of the majority of men, and not otherwise.

"The social interest that the First Amendment indicates is, rather, as Alexander Meiklejohn and Robert Bork have emphasized, the interest in the successful operation of the political process, so that the country may be better able to

adopt a course of action that conforms to the wishes of the greatest number, whether or not it is wise or is founded in truth.#'

According to Bickel, the open exchange in the marketplace of ideas is "crucial to our politics (and) it would follow then, that the First Amendment should protect, indeed encourage, speech, so long as it serves to make the political process work, seeking to achieve objections through the political process by persuading a majority of voters; but not when it amounts to an effort to supplant, disrupt or coerce the process, as by overthrowing the government by rioting or other forms of violence, and also not when it constitutes a breech of an otherwise valid law, a violation of the majority decisions embodied in law." (11)

But this difference "exists only with-respect to one kind of speech: explicitly and predominantly political.speech. This seems to me the only form of speech that a principled judge can prefer to other claimed freedoms." (9)

Judge Bork reiterated these views in a $6 million libel case involving news columnists Rowland Evens and Robert Novak's criticism of Marxist professor Bertell Ollman.

The suit centered on whether the columnists' attack was opinion, which is not libelous, or wrong facts, which can be libelous.

11 The individual interest that Chafee mentioned has its truth-seeking aspect. Yet, the First Amendment does not operate solely or even chiefly to foster the quest f or truth, unless we take the view that truth is entirely a product of the marketplace and is definable as the perceptions of the majority of men, and not otherwise.

adopt a course of action that conforms to the wishes of the greatest number, whether or not it is wise or is founded in truth.of

According to Bickel, the open exchange in the marketplace of ideas is "crucial to our politics (and) it would follow then, that the First Amendment should protect, indeed encourage, speech, so long as it serves to make the political process work, seeking to achieve objections through the political process by persuading a majority of voters; but not when it amounts to an effort to supplant, disrupt or coerce the process, as by overthrowing the government by rioting or other forms of violence, and also not when it constitutes a breech of an otherwise valid law, a violation of the majority decisions embodied in law." (11)

PRESS HISTORY

In England and in the American colonies before the Revolutionary War, the King of England controlled the press through government licenses, taxes and restrictions. Through generations the kings sought to suppress opinions on issues that would disrupt their established order.

Violations of these standards were called libels. By 1725, massive censorship had been eliminated in the colonies. But the colonial and English governments continued rigorous and repeated prosecutions for seditious libel - any kind of criticism of the King of England, government and their policies.

They wanted to silence political discussion, a move that fostered liberal definitions of "freedom of the press." The U.S. Congress, when considering the First Amendment, followed the liberal views because of the repressive English laws officials despised.

At first lawmakers refused to give total freedom for unrestricted debate in this new country. The Sedition act of 1798 declared that a person committed a crime when criticizing the president, Congress or federal government as a whole: to bring them "into contempt or disrepute." (12)

Thomas Jefferson, among other freedom fighters of that era, found the act a violation of the First Amendment. The Supreme Court, however, never reviewed the law before 1800 when it expired. President Jefferson pardoned everyone found guilty of seditious libel and Congress later repaid their fines.

This became the first clear case that the First Amendment's press and speech clauses had an underlying purpose to help foster debate in society about government and its policies.

A partisan press flourished after the expiration of the Sedition Act.

The American press had little respect from the people. Newspapers soon became sources of power and political weapons for publishers, and forums for political persuasion.

Benjamin Franklin, who owned a newspaper, once said liberty of the press ought to go hand-in-hand with "liberty of the cudgel." (13) Jefferson, although he much preferred a free to a restricted or censored press, found newspapers in practice "a polluted vehicle." (14)

Jefferson also compared newspaper editors to clergymen because they "lived by the zeal they can kindle and the schisms they can create." (15)

Although newspapers reported rapes, seductions, murders, accidents, robberies, prize fights, local gossip and national scandal, their ledgers showed more debts than income.

Authors, printers, publishers and publisher-politicos raised

additional revenue from blackmail. This included "suppression" fees from victims whose reputations were about to be besmirched and payments for contradictions or corrections of previous stories and advertisements. (16)

Essentially, newspapers relied on subsidies from the political group influencing their editorial content.

The economy, the evolving political nature of a new government, diplomatic and economic relationships with other countries, the French Revolution and the U.S. Industrial Revolution spurred new ways of thinking and working in America.

These reforms starting in the late 1800s produced a change in the partisan Penny Press. The emerging national economy, in particular, made the advertising of personal and household goods a new area of profit for the- press.

Although papers didn't abandon political ties, the new market gave the press a new audience to cultivate. New social responsibilities also accompanied this change.

"The anonymous citizen" became an object the newspapers respected and sought to attract with news, which would be surrounded by advertisements.

From the change grew the concept of so-called "objective" style reporting. That is re-telling of events or facts based on the third-person narrative voice and balancing the story with different points of view.

During the next 35 years, muckraking - early investigative reporting that was documented with facts - and crusading for various social and political issues became more frequent as the number of newspapers grew. The increases stemmed from a growing economy, which made more goods available for citizens to buy.

The so-called "power of the press" - its influence - became more pervasive. Newspapers were the dominant medium until the 1920s and 1930s, when the depression stifled economic growth and radio competition brought instant news and information.

This new objective-style or neutral reporting found acceptance in newsrooms and among publishers looking for respect for their product.

This new Journalism- is..,bound-j. - - I!--t-

hink I

to become -less Napoleonic- - at, the- top and

less bohemian at the bottom, and to take

on the character of a liberal profession,

journalist Walter Lippmann wrote in The

Yale Review in 1931. It has never been a

profession. It has at times been- a

dignified calling, at others a romantic

adventure, and then again a servile trade.

But a profession it could not begin to be until modern objective journalism was successfully created, and with it the need of men who would consider themselves devoted, as all professions ideally are, to the service of truth alone, he wrote. (17)

In the 1950s, television entered the competition and in the 1960s was aided by President John F. Kennedy's televised press conferences. They helped give the medium legitimacy.

Scenes of civil rights marches and later bloody Vietnam war battles with tanks and guns and bodies appeared in "real life" in Americans livingrooms. This was a marked change from the traditional recounting of battles in the grey print of newspapers and periodicals or from a radio voice.

Expanded nightly newscasts in the 1960s and 1970s put television networks into heated competition with newspapers for becoming America's dominant information source.

Changes in the country's economy, psychology and technology with a greater emphasis on sensory and emotional needs - has given television today an edge over print and radio.

But the networks that soared in popularity during the past 20 years are descending now in profits and audience share. Technology has enabled local television stations to invade the monopolistic domain -like covering bombings in Lebanon or the marriage of Prince Edward in Great Britain - once belonging to the networks. Videocasette recorders and cable television have also taken a share of the network audience.

The number of people watching network news has declined 15 percent in the past ten years. Production and operation costs, however, continue to rise. Advertising rates have stabilized.

This all means losses in profit - an estimated $70 million in 1986 for ABC and possibly $20 million in 1987 for CBS. And NBC, although profitable, has taken notice of the trend and cost-cutting moves have started.

"Producers, anchorpeople and reporters are increasingly concerned that what they are doing now may be unrecognizable in Just a few years," according to The Washington Post in a February 1987 story

This means a change in the approach for networks.

"Some things we are doing are an, attempt to find a definition of an-area of servicethat a local service cannot do, " said ABC News President Roone Arledge in a March 1987 USA TODAY story.

: _- 7' -

These changes have caused an evolution of defining what is "news" and what is "newsworthy." Competing to define and deliver "news" has made the news business both profitable and risky, but influential in directing people's opinions on a variety of issues.

What the network or local television station chooses as the lead story may be different from what The New York Times or The Washington Post editors select. The way they report the same news story shapes what a listener, reader or both understand as "news."

For instance, at one time any article appearing in a newspaper would have been deemed "newsworthy" because an editor chose to use it. More recently, however, courts have shifted to develop normative guidelines for determining when the information sought might be of "legitimate concern to the public" - a legal view of the news. In privacy and libel lawsuits this distinction becomes important. (18)

The First Amendment, which doesn't define news, gives "the press" the right to choose subjects and the ways to present them.

But this decision-making process is affected by many concerns, yet libel laws - which pave the way for reporting on people without fearing prosecution - have the strongest influence.

Citizens today, especially public officials and public figures, challenge news reporting through the use of libel suits. These numbers are unprecedented in our history.

Some press supporters charge that public officials or public figures use libel suits as political weapons to diminish the media's influence on history's re-telling and the characters of those who shaped public events.

Those laws, therefore, have some affect on what is called "news." If the court decides against a news organization, the perception might be that "news" was not reported.

Readers tend to find a definition of "news" in the content and context of a story in print, on television or radio. Personal values are also important to readers discerning whether something is "news" or "newsworthy." These values often conflict with the personal and professional Judgments of news editors and reporters who decide what is news.

Perception becomes reality, however, for the reader or listener. These people are the jurors who decide cases that can influence the laws that affect the definitions of "news."

III

MODERN LIBEL LAW

These personal values, which have social roots, influence the evolution of law. It was a legal suit in 1960 that had a profound effect on determining some distinguishable boundaries for what is "news" and "newsworthy."

This suit asked the U.S. Supreme Court to look back at what the founders intended for the press.

The suit attempted to diminish the growing influence of television, radio and newspapers in a tradition-steeped society beginning to see a challenge to those traditions. The plan backfired, though, causing an opposite effect.

L.B. Sullivan, a Montgomery, Ala., police commissioner sued The New York Times in 1960 for an allegedly libelous full-page advertisement. He claimed the ad had some errors. Although the ad didn't mention his name, he claimed that it libeled him by inference and criticism of the Montgomery Police Department.

He also had another motive. It becomes clear when looking at the pre-1960s mood of the country, society's changing values and the political opportunities from winning this kind of suit.

The growing movement of peaceful mass

demonstrations by Negroes is something new

in the South, something

understandable ... Let Congress heed their

rising voices, for they will be heard.

From a New York Times editorial, March

19, 1960.(19)

"HEED THEIR RISING VOICES," said the banner headline across the full-page ad on March 29, 1960. It sought support for the civil rights movement in the South, and for the Rev. Dr. Martin Luther King, Jr., a black minister from Montgomery. He was the movement's most recognized leader. The ad, accusing no one by name, said that "Southern violators" had arrested King seven times and prosecuted black students who sang "My Country 'Tis of Thee" on the steps of the State Capitol Building in Montgomery.

It also said that the students had been locked out of a dining hall "in an attempt to starve them into submission." At the bottom of the ad, as endorsers, appeared the names of 20 southern civil rights movement leaders, including four black clergymen from Alabama. They were Ralph D. Abernathy, Fred L. Shuttlesworth, S.S. Seay and J.E. Lowery. (20)

In the emerging.civil rights atruggle,.-the-,national press began to peel off layers of false images protecting the Southern power-brokers' muscle. Brutality, segregation and the physical and emotional torture of black people had yet to become real for Americans outside the South or to those who never lived there.

Front-page stories in newspapers, magazine cover stories and television newscasts beamed into livingrooms of Americans across the country told of the savagery against blacks.

But many Americans had a romantic feeling about the South and "Gone With The Wind" symbolized it for most people. (21).

The post-Depression era brought a new awareness of civility that was spreading slowly through the country.

These press reports threatened to destroy the South's romantic image, which enabled a white-ruling class to maintain power and a cheap economy.

Southern leaders didn't like or respect the freedom of the press - regardless of whether the U.S. Constitution allowed it.

If mistakes in an advertisement or news report about racial conflict in the South could bring expensive damage awards to the press, it could forewarn editors to either avoid covering racism or force reporters to tame their coverage. (22)

Sullivan and the Alabama courts relied on the common law of libel, which was used throughout the country. The Jury decided the case after instructions from Judge Walter Burgwyn Jones. The ad would be "libelous per se," which implied legal wrongdoing from the "bare facts of publication." The Jury, when deciding a verdict, needed only to be convinced that the ad's statement's were "of and concerning" Sullivan.

The "general damages need not be alleged or proven, but are presumed." Punitive damages - which are based on a desire to punish rather than recover for some loss - could be awarded.

After testimony from several witnesses who said they believed the ad referred to Sullivan, and Judicial decisions favoring Sullivan's case, the Jury awarded $500,000 to Sullivan.

In 1960 this was the largest libel award in the state's history. The Alabama Supreme Court later upheld the verdict and award.

The New York Times questioned whether to challenge the case in the U.S. Supreme Court. In those days newspapers usually paid damage awards against them rather than risk losing more money in a failed appeal. (23)

Professor Herbert Wechsler of the Columbia Law School had been hired by The Times to review the case. He persuaded the paper's editors and publisher that the court seemed to be expanding the scope of First Amendment rights during the past 15 years. The Times had a case that could lead to a new libel doctrine for the country, if the paper would risk a court challenge.

The Times decided to pursue the case and Wechsler defended the company before the U.S. Supreme Court. It is the threshold libel case in U.S. history and known as New York Times Co. v. Sullivan.

In his argument to the justices, Wechsler focused on the U.S. Constitution's free press and free speech provisions for citizens to speak their minds and influence their neighbors about political and public policy issues. He analogized the Sullivan case to seditious libel.

He used Meiklejohn's concept of the "citizen-critic of government," protected political speech is necessary to selfgoverning.

In effect, Wechsler asked the court to re-examine the Sedition Act, which it or Congress had never ruled on and now was expired. It said a citizen could be punished criticizing government. Associate Justice William J. Brennan, writing for the court, followed this approach.

He said that citizens deserve protection from punishment if they criticize public officials. He rejected Justice Oliver Wendell Holmes' earlier argument that speech may be punished if it presents a "clear and present danger" of bringing about substantive evil or calamity like yelling fire, when there is none, in a crowded theater.

But Brennan's decision came with a qualification. He said that rather than give the press blanket immunity from libel suits brought by public officials, he would put the burden of proof on the public official.

The of f icial would have to prove that the accused person or organization knew the offending statement was false and used it anyway in reckless disregard knowing that It was false.

All nine Justices agreed with the crux of Brennan's opinion and that "speech concerning public affairs ... is more than selfexpression. It is the essence of self-government." (24)

The First Amendment gives every citizen the right to "uninhibited, robust and wide-open" discussion of public affairs and government, the decision declared.

This was the first step in broadening the libel laws, which also would also govern decisions about "what is news."

The court next considered an invasion of privacy suit brought by James Hill. He and his family were held hostage in 1952 in their Pennsylvania house by escaped convicts and later were released.

In 1955 they were the subjects of a Broadway play called "The Desperate Hours." Life magazine, in reviewing the play, recalled-the Hill's saga. Some facts, however, were intentionally 11fictionalized.11

The Hills said the convicts treated-them with courtesy-and did not abuse them. The kL& story, however, said the-"play ... is a heart-stopping account of how a family rose to heroism in a crisis." It also used photos showing the play's cast enacting scenes from the play, with captions that indicating the family fought off rough, tough and hostile convicts.

Hill won $30,000 from Time, Inc., which owned Life.

Time, Inc. appealed the case to the U.S. Supreme Court. Brennan again wrote the court's majority decision in favor of Life in Time, Inc. v. Hill. The opinion said that the First Amendment protections covered the magazine errors because "the risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of the press."

The Hills, in other words, had been

innocent victims in an incident within the

realm of public affairs or public

interest. The Sullivan rule would apply

even though the case did not concern a

government decision. (25)

Justice John Marshall Harlan, however, dissented in part of the opinion. He emphasized that the press with libel protection could pursue private individuals in an undefined "public interest" situation, which could be defined as anything the public is interested in.

Public officials, whose status often gives them automatic media attention, have a forum usually to offer contrasting opinions. Private citizens, he said, usually don't have such a forum.

Following the Hill case, the court extended the Sullivan standard - known as actual malice - to "public figures-"

"Increasingly in this country, the distinctions between governmental and private sectors are blurred ... Many who do not hold public office at the moment are nonetheless intimately involved with the resolution of important public questions," said Chief Justice Earl Warren of the U.S. Supreme Court.

"Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their environment in public issues and events is as crucial as it is in the case of public officials," he said. (26)

But who is a public figure and how is that conclusion reached? This question that remained yet for the court to resolve. Meanwhile, news editors still lacked guidance - beyond common sense for making that determination in their news Judgment.

. f, -

In a following case,, Rosenbloom v. Metromedla.Inc., the court agreed that anyone Involved-in any public issue, like a crime was thrust into "the vortex" of public controversy, and would involuntarily become a public figure because the Incident happened.

The court later, however, decided this rule failed to give enough protection to private citizens. The Rosenbloom and HIll decisions allowed too much room for the press to Infringe upon the rights of private people.

Do these and others once in "the vortex" become forever a public figure? It was a question the court didn't answer.

In a subsequent case, the Justices - with the exception of Brennan who wrote Rosenbloom - overruled the Rosenbloom decision.

Returning to this troubling issue, in 1973 the court decided the case Gertz v. Robert Welch Inc.

Elmer Gertz, a lawyer for the family of a youth killed by a Chicago police officer, alleged libel in a story in American Opinion a publication of the conservative John Birch Society. The society operates under the name of Robert Welch Inc.

The officer was convicted of shooting the 18-year-old youth, whose family retained Gertz to pursue civil damages.

American Opinion alleged Gertz was part of an effort to frame the police officer and worked in a Communist conspiracy to bring about a Communist dictatorship. The monthly magazine called Gertz a "Communist-fronter," a "Leninist," and a "Marxist." (27)

The court's majority ruled that Gertz was not a public figure because he was providing a required service. He was not a participant In the action that brought about the controversy. Justice Lewis Powell wrote for a majority of five Justices. (28)

They defined a public figure as someone who is generally prominent or has thrust himself into a particular controversy that has drawn public attention. There can be public figures in a limited purpose and general purpose., depending on the circumstances involved.

Powell also clarified some limits regarding freedom of expression and a rule for establishing liability in cases other than those involving public officials or public figures.

"Under the First Amendment," Powell wrote, "there is no such thing as a false idea. However pernicious an opinion may seem, we depend on Its correction, not on the conscience of Judges and Juries, but on the competition of other ideas.

"But there is no constitutional value in false statements of fact," he wrote. "Neither the Intentional lie nor the careless error materially advances society's interest in *uninhibited, robust and wide-open' debate on public issues." (29)

Anyone not a public 'figure or a public official must only prove that the offending material was published with negligence, that is a failure to simply check whether the statements were true as facts.

The Gertz rule shifted the focus of liability from the issue of fact to fame. This ruling helped the Supreme Court finish the creation of a federal constitutional test. (30)

In Sullivan, the court said that it must be "clear and convincing" that the disputed facts were "of and concerning" the person charging that they were false, and that the facts were intentionally published with reckless disregard - knowing that they were false - of the truth.

Gertz extended this same rule to public figures, but narrowed the room for defining a public figure.

Yet, these laws only concerned judgments of fact - the truth or falsity of the bare statements. People winning the suits also wanted to be compensated.

One way to get both compensation and a change in press habits and news judgment is through the pocketbook.

DAMAGES

The question the court may have to face soon is the aspect of damage awards, pre-trial costs, trial costs and their "chilling effect," a term used to describe self-censorship.

The worry among First Amendment scholars and those in the

press is that routine awards today of I'megabuck" verdicts -

costing

millions of dollars could force small news organizations out of

business and curtail "chill" - the reporting at larger news

organizations.

The other side of the question - civil wrongs called the law of torts - concerns how much should be awarded when a Jury or Judge decides someone has been libeled. This involves compensatory damages, a payment for something lost, and accompanying punitive damages - a punishment - for the act Itself.

Tort law is evolving in favor of paying people who are judged to be victims of some kind of injustice. If the press issues inaccurate reports found in court to have harmed someone, it should pay like anyone else Judged guilty of libel, so say critics of today's press freedoms.

Considering the public-interest seeking aspect of news reporting balanced with a person's right to inherent honor, how should these calculations be made?

What is a reputation worth?

How much of a fine is too much?

In libel cases, the average-initial Jury award of slightly over $2 million essentially remained unchanged from 1980 to 1984, according to the Libel Defense Resource Center's 1984 study. (31)

This included an increase in the number cases in which a jury awarded million-dollar verdicts and in the amount of average punitive damages.

In appeals the media did better: with 68 percent of the decisions were reversed. This compared to 69 percent found in the 1980-82 study, and if reduced damages are considered as a kind of reversal, the 68 percent Jumps to 78 percent. (32)

Most recently a $2 million libel verdict was overturned in William P. Tavoulareas v. The Washington Post Co., a suit arising from The Post's 1979 story that Mobil Oil President William P. Tavoulareas set up his son in a London-based shipping firm that exclusively earned millions of dollars from Mobil Oil Co. through nobid contracts. (33)

The United States Court of Appeals for the District of Columbia in March 1987 overturned the jury verdict against The Post.

The LDRC study, a review of 63 trials between mid-1982 and mid-1984, showed an average affirmed award of $60,000, which is down almost 50 percent from the $120,000 in an earlier study. (34)

Another expensive part of the libel suit is the pre-trial preparations. CBS news reporter Mike Wallace in Herbert v. Lando estimated, at one point, that CBS spent in pre-trial activity about $3 million or more in legal fees to defend its actions. (35)

And while corporate media defendants may afford litigation's costs, the expenses can kill or pose life-threatening consequences for small newspapers, radio and television stations. This also includes the so-called "lonely pamphleteer," special interest groups that seek to influence opinion, and cottage-industry publications turned out at home with small staffs and near break-even budgets.

For instance, The Milkweed of Madison. Wis., in 1981 confronted this problem. It reported on milk marketing news and had a circulation of 1,300 subscribers.

Peter Harden, editor and publisher, a one-person operation, found himself against a giant milk cooperative, with headquarters in Syracuse, N.Y. The cooperative sued The Milkweed for $20 million. The cooperative alleged that Harden's story, based on information he obtained through the federal Freedom of Information Act, libeled it.

To prepare a defense against the corporation, Harden said he spent $20,000 - mostly in lawyers fees - countless hours of his own time flying to a court in Syracuse and many other hours studying the case.

A Judge in Syracuse - a year after the filing -dismissed the case. Harden said he later had tb fight attempts to have the Judge's ruling overturned.

Harden said that he feels "better" for the experience. It has "probably made me worse. Other than The Milkweed, there is no other publication doing the investigative reporting in the dairy industry," he said in December 1984.

The consequences, however, were different for another publication.

Trouble started with a 1969 memo from Alton Telegraph reporters attempting to verify Information with the U.S. Justice Department. The Illinois-based newspaper sent a memo to the federal authorities to check if a local builder, James C. Green, had links to organized crime.

The memo did not receive immediate attention, though. In 1976 the Justice Department sent a copy of the memo to the Federal Home Loan Bank Board, which had underwritten a loan to the builder. The board forwarded a copy to the Alton Savings and Loan Association, which lent the builder money for his projects.

The bank then cut off his credit.

Green, a few years later in Green v. The Alton Telegraph Co., sued the paper for libel. He pointed to the question of alleged organized crime links - that he said were false - mentioned in the unpublished memo.

A Jury awarded him $9 million. This meant the paper, if it appealed, would need a $10 million bond to cover the award should it lose.

The judgment also meant the paper would have to pay $9 million if it didn't appeal.

The Telegraph could not raise the money for either the bond or libel Judgment.

It sought, instead, protection in 1982 through bankruptcy, a move that blocked any further appeals of the case. The final settlement amounted to about $1.4 million, which came from a $1 million libel insurance policy and a $400,000 loan.

About a year later when someone told The Telegraph about misconduct in the sheriff's office, the paper's editor decided against investigating the incident. The paper has since been sold. (36)

It is in America's heartland, not its centers of government or business, where

the threat can be most severe and damage so ruinous.

THE FUTURE

Anthony Lewis, The New York Times columnist who once covered the U.S. Supreme Court, said in a Dec. 28, 1984 column that "...some angry citizens evidently believe that the press obJects to the present wave of libel suits because it wants to print lies. So the angry letters say.

"But the opposite is the case. We want to print the truth. But we know how hard it is to find, and fear of massive libel suits could make many give up the search.

"Reputation is an important value in a civilized society," he said. "When the press or anyone else goes wrong and prints falsehoods about a person, there must be a way of correction. But intimidating libel suits of a political character are not the American way: not the constitutional way."

only an irresponsible press should fear libel suits, said Lester Bernstein, former editor of Newsweek magazine. The "chilling effect" is a threat that leads to accurate reporting, he added.

Although they may fear the process of libel litigation, news organizations cannot consider themselves above the law to escape it. This includes allowing access to memos, notes, television takeouts and "straight answers" from reporters and editors, he said.

"Such access to the inner workings of the sanctum, argue some of its high priests, has a chilling effect. But if (a news organization) has done its job conscientiously ... why should it fear the light of day?" he asked.

"Can the institution that probes everybody else's business really take the position that its own business is nobody else's?" (37)

The so-called power of the press - the ability to influence and shape the way people think about an issue - has the public and public officials looking to libel suits to bring the liberal press in line with conservative public attitudes, say press supporters.

They say the press is doing the Job the way the framers intended. It is an autonomous force that encourages public debate. Its rascality and arrogance, and sometimes downright slanderous attitudes, must be condoned.

Critics and a few press supporters say that reporting should be more accurate and news organizations need more self-criticism. This would ensure the quality of their product and help avoid government regulation through redefined libel lawsr which would govern news decisions in the newsrooms, they add.

Both New York Governor Mario* M. Cuomo and Connecticut Attorney General Joseph I. Lieberman, in separate speeches to reporters, editors and publishers in their states, have called for more media self-criticism.

"Any government regulation of the press endangers free speech - which is why there must be strong First Amendment protections. Yet, the press itself is a formidable institution that wields considerable power of its own. What keeps it accountable?" Lieberman asked.

He said each news organization should be more critical of itself and others. The press must also invite public criticism and scrutiny of its operations, he added.

"So let those of us who cherish freedom of information in government apply the same values of openness and accessibility to the press," Lieberman said.

What is at issue - the collision point for crusaders and critics - is the public's understanding of the First Amendment's meaning.

Even the framers could not envision the changes and pressures that the evolution of technology and society has put on the First Amendment.

It has made the press in these times a pervasive a force that reaches directly or indirectly into nearly every aspect of everyone's life. It is a silent intrusion, but penetrates deep.

The law and news judgment, therefore become partners in influencing decisions on what is called "news" or "newsworthy.01

But the average citizen - the juror in our court system does not know the fundamental cases and the reasoning behind the press freedoms in the United States today. Yet, these intrinsic meanings are essential to know when Judging a right and wrong, a good and bad, a friendly and hostile press.

And so this points to questions about knowing the "truth. In Justice Brennan's words, the reason for giving the press "breathing room" for mistakes or errors is an attempt to find and define a glimpse of reality.

When comparing the development of First Amendment cases to jurors' attitudes as reflected by their verdicts and public opinion about the press as news organizations' surveys have gauged it: the public and the press have different views of "freedom of the press.

This may be rooted in our culture and changes during the 20th Century.

In earlier times when newspapers competed only in cities or

metropolitan areas - before the inventions of radio and

television - most people were not informed by competing sources of

news that contrasted the differences in reporting.

Since we define our innate world by our mobility outside it and influences on it, those bygone days would seem to be a world much smaller because people didn't travel far or pursue educational degrees one after the other.

"Truth" in reporting would be evident if common knowledge didn't contradict it or moral reasoning didn't make the story susceptible to skepticism.

But news reporting today involves increased numbers of people and their views via satellite, more details about their lives and more opinions because they have broader experiences in their backgrounds. There are competing voices offering various "truthful" explanations on one issue.

The quest to be truth-tellers has also become more influenced by economics today than in yesteryear. It is a judgment today often based on subjective business reasons and personal attitudes or bias often developed from a broad background.

Each news organization through its reporters, editors and producers collect information for each story, sift through it and throw some of it away, as they define the ultimate version of the "news" in it for their readers or viewers.

With the multiple mediums offering various versions of "news," and a transient workforce and technology that makes the world a global marketplace for ideas and products, the decisions of P'what is news" are not standard from newsroom to newsroom.

Yet, people depend on "news" and its inherent "truth" for making decisions ranging from million-dollar stock investments to judging whether a community's school system would adequately educate their children.

So, the media's evolution in the past 30 years has put an expensive premium on the definition of "truth" in an issue.

In addition, society's narcissism has made a press establishment with priorities for vapid features that tell in 15 paragraphs something that can be said in three sentences, hyped-up news stories - complete with color photos - that run perilously close to sensationalism, and pseudo-investigative stories that make special what should be routine work.

Concerns with substance of public policies in routine stories and thorough research of perspectives, issues and laws seem lost as standard fare, but masquerade today as "projects staff" work and serial stories to catch-up on trends missed while editors and reporters slept.

Tantalized with freedom to seek out and expose, reporters and editors seem to be yelling fire, when there is none, in an empty theater.

The press establishment seems to be-catching-up late to the legal implications-of narcissism and'how they relate to news Judgment and "what is news" to both the news consumer and the journalist. (38)

On the other side, though, increased narcissism has led public officials and public figures to use the nation's libel laws for political, social, economic and artistic battles, rather than for its original intention to compensate private people for unwarranted damage to their reputations in the community. (39)

For instance, in Westmoreland v. CBS, Inc. Gen. William Westmoreland wanted to make sure history books saw him and his role in the controversial Vietnam War in a favorable way. This fear came after the floodlights of t.v. star Mike Wallace's ambush Interview for 1160 Minutes," which purported Westmoreland created a conspiracy to "cover up" details of the United States fighting a losing battle. The story aimed to entertain and captivate audiences with selective quotes and int4~~iews that supported the focus point of Wall~Ee, who acted as lawyer, Judge, jury and private eye.

Westmoreland v. CBS became a battle f or the symbols and lessons of Vietnam. As the trial wore interminably on, and as Americans learned more of Vietnam, and more of the media's coverage of it, the symbols and lessons seemed to become increasingly complex and ambiguous. (40)

At the trial, Federal District Court Judge Pierre N. Leval said that some issues are better left to history.

In Westmoreland, the case was settled before it went to a jury. Trial testimony shows that a delicate deliberative process, which would have been taunted by failures on both sides of the issue to ensure credibility of their stories, faced the jurors.

Another case, William P. Tavoulareas v. The Washington Post Co., eventually showed that hard-hitting investigative reporting which is well-documented, may be legally acceptable; but the story's inference to a Jury is another matter.

The Post's headline read "Mobil Chief Sets Up Son In Venture," and was followed by a more balanced and less conclusive tenor in the text. (41) Tavoulareas was a limited public figure and he had to prove The Post knowingly and intentionally, with reckless disregard of disputing facts, published the story.

The Jury found in Tavoulareas' favor, but in March 1987 the decision was reversed by the Federal District Court of Appeals.

But jurors failed to follow the legal rules for determining this Judgment. Yet, they "captured the prevailing American psychology about fair play in the press. According to internal ethical systems of most Americans, he (The Post) who makes the charge does have the burden of backing it up. If you don't have the facts, shut up - you don't go around knifing people's reputations on suspicions alone," said Rodney A. Smolla in his recent analysis of the suit in "Suing the Press - Libel, The Media & Power."

in a different twist in Sharon v. Time, Inc., while the jury knew the law, it criticized the prestigious magazine for sloppy Journalism.

The story involved General Ariel Sharon, former Minister of Defense of Israel, and a Time story stemming from the 1982 Israeli invasion of Lebanon, the Sept. 14, 1982 assassination of Lebanese President-elect Bashir Gemayel and Gemayel's Christian Phalangist followers' subsequent murder of hundreds of Palestinian men, women and children in a refugee camp.

A special Israeli commission investigated the massacre and Time based its cover story on the commission's findings released in 1983.

Sharon, the commission and other Israelis found, had indirect responsibility for the massacre, but Time also reported that a secret appendixinot-released to the publicsaid Sharon discussed with the Gemayel family the need for Phalangists to take revenge. Sharon denied that this occurred.

A Jury hearing the case eventually returned verdicts that Time defamed Sharon with inaccurate reporting and wrongly reported that he had discussed revenge.

The jury found Time innocent, however, of knowing the statements were false and published them anyway.

It delivered a written observation with the verdict: certain Time employees, especially the correspondent who reported the facts, were careless in verifying the information and negligent in publishing it. (42)

But was it sloppy Journalism or an attempt to get at the "truth" in an important international event that horrified the world? Was the courtroom a place to settle the matter or a podium for political battles in another country?

The search for meaning, the attempts to unravel mysteries, the path to understanding the world: these are thoughts that make up the mission of the First Amendment.

Jurors have substituted a common feeling of morality - a hostility toward the press - for laws that give leeway to the press for its mistakes.

People seem to feel that the press has gone too far, and in some cases, it has. But how is that judgment to be made?

Competing ideas, the quest for truth and varying standards by which "news" is born may be unlikely partners in a business to accurately inform a public that knows little of the First Amendment meaning in today's world and a press dependent on marketing instead of mission, and superficial quick-fix, super-slick news stories that entertain more than inform.

People - the press and public - seem to want clear, swift and easy answers to complex, tangled and pithy problems.

What is America to do?

In a 1974 speech at Yale Law School, the late U.S. Supreme Court Justice Potter Stewart said that the Constitution sets up the contest, not a path to resolution, for the press. (43)

It is working as it should. The paradox keeps the system in balance - even when appears to be unbalanced.

Turning back to the late Professor Bickel's argument, he said the First Amendment does not operate only to foster a quest for truth unless truth Is defined entirely as a product of the marketplace of ideas and the perceptions of the majority of people and not otherwise.

The First Amendment is for enabling citizens to decide on a plan of action or policies, regardless of whether they or good or bad, but only that the majority has agreement, he said.

The press, through its many voices, offers the alternative information for making these kind of decisions.

It is, in short, a consumer's choice. A choice to decide, not a demand for service.

The demand, however, is a creation of the historically fickle press purporting to offer "truth."

Americans need to think more critically about the issues put before them. They need to differentiate between facts, conjecture, set-ups, put-downs and sloppy reporting. (44)

They need to focus on manageable issues with which they can become involved. They need to independently seek out a version of "truth" acceptable to their own sense of values. This requires work, effort, a sense of social responsibility. It would bring more voices to the marketplace of ideas.

They also need to become activists in the operation of the ostensible public enterprise called the "news business." They need to phone editors, write letters, send telegrams to corporate boardrooms when they don't like what they read, what they see, what they hear.

If necessary, they should buy stock in the corporate parent of a news organization and complain at board meetings.

If enough voices are heard and community businesses use their advertising dollar as leverage, the economic forces could come to affect news coverage. This hits in the pocketbook - not through judge or jury - but natural marketplace rules.

It could help eliminate sloppy editing and reporting, stop arrogance when it goes too far, replace void features and pseudoinvestigative stories with substantive reporting and analysis on community issues.

This is not a hidden punitive or compensatory scheme, it's part of self-government's principles of free-market enterprise. That is the American way.

And even if a medium is put out of business for telling people things they don't want to know, but prove correct later, it is the way that the First Amendment was envisioned to operate.

People and their resourceful talents at discovering what is best and inherently good for themselves will keep a check on First Amendment abuses.

And Justice Brennan saw the same paradoxical nature that the keeps the Constitution and its amendments relevant in a society always "in the vortex" of change.

Through the guidance of the Sullivan case start judgments to search for "truth," to guide in making news decisions, to speak in the public forum for resolving history's political and social battles and to become an informed news consumer.

The First Amendment's press and speech provisions guarantee the "uninhibited, robust and wide-open" discussion of public affairs created by the evolving circumstances that make the so.

12 13 14

15 16

18 19

Notes

Marc A. Franklin, Case and Materials on Mass Media Law (ed

Mineola, N.Y.: The Foundation Press, 1982), p. 11 and 13

Alexander-Meiklejohn,-Political-Freedom, "The ConstitutionalPowers of the People," (New York, N.Y.: Harper and Brothers, Publishers, 1960), p. 14.

Franklin, Ibid., p. 19.

Ibid., p. 16.

Franklin, Ibid., p. 34; Meiklejohn, Political Freedomf Ibid., p. 14.

Meiklejohn, "The First Amendment is an-Absolute," (1961) Sup. Ct. Rev. 245.

Zecheriah Chafee, Jr., "Book Review," 62. Harv. L. Rev. 891, pp. 897-98, (1949).

Franklin., Ibid., p. 25.

Robert Bork, "Neutral Principles and Some First Amendment Problems," 47 Indiana L. J. pp. 23-24, (1971).

Anthony Lewis, Freedom, Not Comfort," The New York Times (Dec. 10, 1984), Sec. A; p. 23.

Alexander Bickel, The Morality of Consent (1976) pp. 62-63.

Anthony Lewis, speech at the Columbia Law School, October 1982.

F.L. Mott, American Journalism, (ed. New York 1947), p. 146.

S.K. Padover ed., Democracy By Thomas Jefferson, (1949), p. 149.

Mott, Ibid., p. 146.

Piers Brendon, The Life and Death of the Press Barrons, (New York, N.Y.: Atheneum, 1983), p. 9.

Richard Kluger, The Paper - The Life and Death of The New York Herald Tribune, (New York, N.Y.: Alfred A. Knopf, 1986), p. 169.

Franklin, Ibid., p. 196.

Anthony Lewis, "Annals of Law - The Sullivan Case,," The New Yorker, (Nov. 5 1984), p. 53.

20 21 22 23

24 25

28 29

30 31

34 35 36

Lewis, "Annals of Law - The Sullivan Case," p.

Ibid., p. 61.

Ibid., p. 56.

Ibid., p. 64.

Ibid., pp. 70 and 72.

Ibid., p.

Rodney A. Smolla, Suing The Press - Libel, The Media & Power, (New York, N.Y.: Oxford University Press), p. 58.

Lewis, "Annals of Law - The Sullivan Case," Ibid., p. 73.

Gertz v. Robert Welch Inc... 418 U.S. 323, 340, (1973).

Lewis, Ibid., p. 73.

Libel Defense Resource Center, "Bulletin #5 - Defamation Trials, Damage Awards and Appeals: Two Year Update," summary of findings.

Ibid.

Patrick Tyler, "Mobil Chief Sets Up Son In Venture," The Washington Post, (Nov. 30, 1979), pg. A-1.

Libel Defense Resource Center Bulletin, #5, Ibid.

Lewis, "Annals of Law - The Sullivan Case," Ibid., p. 85.

Lyle Denniston, "Press Watch," Washington Journalism Review, (March 1982), p. 52.

Lester Bernstein, "Those Important Laws of Libel That Keep The Press Honest," The ProvideLace Sunday Journal (Dec. 26, 1984), sec. A, p. 15.

Rodney Smolia, "Self-Love and Libel," The Washington Monthly, (November 1983), p. 48.

Martin Linsky, "Gavel at CBS' Libel Trial Will Crash on the Public," San Jose Mercury News, (Nov. 25, 1984), p. 8-P.

Smolla, Suing the Press - Libel, The Media & Power, Ibid., pg. 200.

Smolla, Suing the Press - Libel, The Media & Power, Ibid., pp.182-197; Brill, Steven, "Inside the Jury Room at the Washington Post Libel Trial," The American Lawyer, (November 1982).

Smolla, Suing the Press - Libel-, The Media & Power, Ibid., pp.80-81; 91-92.

Stewart, Potter, Associate Justice, United States Supreme Court, "Or Of The Press," an address to the Yale Law School, Nov. 2, 1974.

Interview with Alfred W. Oppenheimer, former executive director, Division of-Special Revenue, State of Connecticut.

Periodicals:

Lapham, Lewis, H. "Can the Press Tell the Truth?" Harper's, January, 1985.

Lewis, Anthony, "A Preferred Position for Journalism," Hofstra Law Review, 595, 1979.

Washington Journalism Review, all editions for 1980-84.

Columbia Journalism Review, all editions for 1980-84.

Other sources:

Memorandums, orders and various other court records in William P. Tavoulareas v. The Washington Post Co.

Inside Story, April 21, 1983 PBS program on Westmoreland v. CBS Inc.

Memorandums, briefs and order denying summary judgment in Westmoreland V. CBS Inc.

[media/jrnpglnks.htm]

� Copyright 2001 SCSU Journalism Department All rights reserved. Pages Designed by Bill Seymour

� Copyright 2001 SCSU Journalism Department
All rights reserved.
Pages Designed by Bill Seymour