Freedom Of The Press: How Far Can They Go?

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From his office in downtown Washington, “General” Arthur Hanson, counsel emeritus to the American Newspaper Publishers Association, surveys the entire battlefield of modern libel law. As a founder and chief officer of the Mutual Insurance Company, one of the major underwriters of libel insurance in the country, he has been directly or indirectly involved in more than four thousand libel cases over the past twenty years. As author of Libel and Related Torts, one of the leading legal works on the subject, he has an encyclopedic knowledge of the terrain. And as counsel to the publishers’ association, he has participated in many of the significant press skirmishes of the past two decades.

Eighteen years ago Hanson’s was one of the few voices in the media to sound a discordant note about Times v. Sullivan. At an ANPA convention in April 1964, a month after the Court’s ruling came down, he warned that the decision was likely to open a floodgate of libel litigation. “Everyone was running around saying, ‘Hell, we don’t have to worry about libel anymore,’ ” the crusty, sixty-five-year-old ex-Marine major general recalled one afternoon last spring, sitting at his desk, fielding phone calls on a voice box. “Well, no one had bothered to read the decision. It may have closed the door on actions by public officials, but it didn’t say a damned thing about anyone else.”

Indeed, the Times case left a number of important issues unresolved, not the least of which was the scope of its intended protection. If a police commissioner could no longer recover damages without proving actual malice, what about the president of a corporation, or a movie star, or an airplane pilot—people whose names may be in the news but who are clearly not public officials? Could they now sue with impunity? Hanson’s fears, as it turned out, were premature. Throughout the 1960s the Warren Court continued to expand its First Amendment guarantees. In two related 1967 decisions the Court ruled that the actual-malice standard applied to public figures as well as to public officials. In 1971 the Court went even further, extending the standard to individuals who are neither public officials nor public figures but who happen to be caught up in events of public interest. For a time, it seemed, the Supreme Court was on the verge of putting Hanson’s libel insurance company out of business.

But beginning in the early 1970s, with the rise of the Burger Court, the tide began to change. In a series of decisions over the course of the next decade, the justices chipped away at the definition of a public figure. They found, for example, that a prominent Chicago attorney, who did not voluntarily thrust himself into a controversy, was, for the purposes of a libel suit, not a public figure; that a Palm Beach socialite involved in a widely covered divorce proceeding was a private figure, even though she had held frequent press conferences; and that a man who, twenty years earlier, had been convicted of contempt of court in a highly publicized espionage case had never been a public figure and therefore did not have to establish malice in order to win his case. By the end of the decade the distinction between private and public figures had completely broken down. As Bruce Sanford, a First Amendment lawyer for the Scripps-Howard newspaper chain, put it: “The public figure doctrine is a failed doctrine of law. It’s a mess. In one state a wrestling coach is a public figure, and in the next state he’s not.”

 

The other issue left unresolved by the Times case was the actual malice standard itself. In order to decide whether a reporter had acted with reckless disregard for the truth, or with knowledge that a statement was false, a jury must have access to some state-of-mind evidence. What was the reporter thinking at the time he wrote the story? Why did he decide to interview one person rather than another? Who was the source of a particular piece of information? In the hands of a skillful lawyer, the pre-trial discovery process could be used as a crowbar to pry into areas the press had traditionally considered privileged—which is exactly what happened in a forty-four-million-dollar libel suit brought against CBS in 1974 by Lt. Col. Anthony Herbert. Herbert, a much decorated soldier who claimed he was defamed by a 60 Minutes broadcast, sought to delve into the network’s editorial decision-making process in order to establish actual malice. CBS refused to answer his questions, and the pre-trial dispute went all the way to the Supreme Court. Many observers saw the justices’ refusal to uphold CBS’s claimed editorial privilege as further evidence of the Court’s hostility to the press; in fact, it was an inevitable consequence of Brennan’s actual-malice standard. Even Brennan himself, who dissented from the ruling, was forced to concede that his position was “paradoxical.”