Freedom Of The Press: How Far Can They Go?

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What troubles Arthur Hanson most right now, though, is the hostility of juries toward the press, hostility he thinks not altogether unjustified- “We’ve got some pretty arrogant people in the press"—but hostility that nevertheless is pushing the cost of libel insurance sky high. In recent years this enmity has manifested itself in a number of dramatic judgments against the media. In March 1981 the actress Carol Burnett won a $1.6 million libel suit against the National Enquirer, which had published an item, later retracted, suggesting she had been drunk in a Washington restaurant. A few weeks earlier a jury in Wyoming awarded Kimberli Pring, a former Miss Wyoming, $26.5 million in damages resulting from the publication of a short story in Penthouse magazine in which a fictional Miss Wyoming was described as having the power to levitate men by performing fellatio. And in perhaps the most alarming libel case in recent years, a jury in Alton, Illinois—the town that martyred Elijah Lovejoy—awarded $9.2 million to a local contractor who claimed his business was ruined as a result of a memorandum written by two Alton Telegraph reporters that was never even published in the paper. The Telegraph, forced into bankruptcy proceedings by the judgment, recently settled out of court for a reported $1.4 million. Although each of these cases is atypical in some respects, taken together they signal a clear trend. Not since the days of the Alabama libel wars have juries held the press in such contempt. “These cases don’t just have a chilling effect,” Hanson observed. “They may have a killing effect.”

Still, for all the retrenchments in the field of libel over the past ten years, the Supreme Court decision in Times v. Sullivan stands as a bulwark against government intimidation of the media. Rod Nachman, the lawyer who lost the case eighteen years ago, can testify to that.

In 1979 two Alabama building inspectors who had been dismissed from their jobs after an investigation of corruption in their department sued both the state official who fired them and the Montgomery Advertiser, which reported the news. The two inspectors asked for $3.5 million in damages from the paper. Nachman, who was chief counsel to the Advertiser in 1979, as he was in the early 1960s, found himself in an unusual position. The case he had argued and lost before the Supreme Court was now, of course, the cornerstone of his defense: since the two building inspectors were obviously public officials, they would have to prove actual malice on the part of the paper. Sure enough, when the case came to trial in September 1981, the jury found in his favor. “My client,” Nachman said with a laugh, “thought the greatest thing I ever did was lose the Sullivan case.”

Although he thinks the Supreme Court gave the press “more license than they ought to have to criticize public officials,” he is not altogether unhappy with the way things turned out. If anything, he seems a bit worried that the pendulum may be swinging too far back in the other direction: “I once made the statement that the only way the Supreme Court could have decided against me was to change the law of libel, and that’s just what they did. I also said they may change it back some day. Right now, I live in constant fear of losing the Times case twice.”

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