Iowa Libel Research Project

Text Box: Media Law and Ethics
Wartburg College/CA 340
Dr. Jeff Stein

Iowa Libel Research Project

October, 1985

71 Iowa L. Rev. 217

ESSAY: The Study and the Libel Plaintiff: Who Sues for Libel?

by John Soloski

SUMMARY:

The threat of libel suits and the size of some damage awards have been a major concern of the mass media. ... What is the subject matter of stories that produce libel litigation? When a plaintiff is a public official or public figure, the alleged libelous story understandably tends to focus on his or her public or political activities.

But individuals in the public eye -- specifically, elected officials -- are the most likely to contact the media before contacting an attorney. ... The last finding -- that roughly half of libel plaintiffs tend to contact the media before the attorney -- suggests that within the media themselves we may find ways to avoid libel litigation.

TEXT:

[*217] The threat of libel suits and the size of some damage awards have been a major concern of the mass media. Costs involved in libel litigation have reached astronomical amounts, with some defendants paying hundreds of thousands, even millions of dollars to defend themselves. A growing fear among the media is that large damage awards and expensive litigation costs will have a chilling effect on the media's willingness to report controversial news stories. A consequence may be undesirable limits on the public's ability to receive the news.

Likewise, the person who seeks recourse for libel through the courts has reason for concern. The libel plaintiff faces overwhelming odds and inordinate delays.

Moreover, additional hurdles must be cleared if the aggrieved party is a public official or public figure. The heavy odds against a plaintiff ultimately prevailing surely discourage meritorious suits.

A system that disserves plaintiffs, defendants, and the public can be expected to be the subject of a fair amount of commentary and analysis. Proposed remedies have emphasized ways to tinker with the legal machinery to produce a "better" result. Reform of the system is seen as reform of such matters as the plaintiff's burden of proof, the award of damages, resort to summary judgment, and the use of retraction. Our study, however, has a different focus: its goal is to determine the feasibility of developing nonlegal alternatives to libel litigation.

Before we can begin to think about alternative ways to deal with libel, we need to determine why people sue for libel. The first stage of our study involved a detailed analysis of libel cases, libel plaintiffs, and media defendants. We were interested in the libel litigation process as a whole, from the appearance of the alleged libelous story, through discussions between plaintiffs and attorneys, to the outcome of the case. We were particularly interested in examining why plaintiffs sued and what, if anything, the media could have done to prevent the filing of the libel suit. We also wanted to know how plaintiffs felt about the alleged libelous story, the media, and their libel case.

These essays focus on the preliminary results of this part of the study. The essays divide our presentation into three sections. The first essay outlines the study and reports key findings about libel plaintiffs. The second [*218] concentrates on the media's role in libel litigation and identifies ways in which the media may be encouraging the filing of libel suits. The third essay deals with libel law and litigation.

It is surprising how little is known about libel plaintiffs and the reasons they sue. To obtain information on these and related subjects, we collected data through four methods: an in-depth study of reported defamation cases decided between 1974 and 1984, a detailed survey of libel plaintiffs, a study of media defendants, and a series of in-depth interviews conducted at selected media organizations. We also interviewed selected attorneys who represented media organizations and attorneys who represent libel plaintiffs. In these essays we will concentrate on our study of defamation cases decided between 1974 and 1984 and on the plaintiff and media surveys.

The first data set is composed of defamation cases decided between the 1974 case Gertz v. Robert Welch, Inc. n1 and mid-1984. Our universe consisted of cases with reported judicial orders or opinions and included libel claims against both media and nonmedia defendants. In all, over 700 cases were identified, coded, and entered into a computerized data base. Some of the key findings from these data are: (1) about seven of every ten libel cases involve members of the news media; (2) over one-half of the cases involving the media are the result of stories that deal with the plaintiffs' business or professional activities; (3) less than one-fifth of the cases involving the media are the result of stories that focus on the plaintiffs' moral conduct; (4) public figures or public officials are the plaintiffs in about sixty percent of the libel cases brought against the media; (5) the constitutional privilege of negligence or malice is the central legal issue in nearly ninety percent of the libel cases brought against the media; and (6) plaintiffs win only ten percent of the cases pressed to judicial resolution, while the media win ninety percent.

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n1 418 U.S. 323 (1974).

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We completed interviews with 164 plaintiffs who had sued the media for libel. Among the key findings are: (1) unlike other civil torts, individuals, not organizations, account for most of the libel suits brought against the media; (2) most plaintiffs in libel suits brought against the media are male; (3) most libel plaintiffs are between the ages of thirty-six and sixty-four; (4) most are well-educated, with about one-third holding graduate or professional degrees; (5) most are well off financially; (6) most are well-established members of their communities; more than one-half have lived in their communities more than twenty years; (7) most are highly visible members of their communities; (8) libel plaintiffs tend to be employed in law enforcement, as other nonelected public officials, as elected public officials, or as professionals; and (9) for most, their libel suit represents the only time that they have ever filed suit. Only a small percentage of [*219] libel plaintiffs reported that they had been involved in other suits against the media.

Despite being outnumbered nearly six to one by broadcasting stations, daily newspapers are the medium most often sued for libel. We found that suits against newspapers constituted over two-thirds of the cases, while suits against broadcasters constituted about twenty percent. Libel suits do not result from hard-hitting, investigative news stories that run on front pages under banner headlines. Only about forty-five percent of the libel suits we studied resulted from stories that appeared on the front page of a newspaper. One editor that we interviewed provided an explanation: "Investigative stories are done with great care and are not nearly as troubling as stories that appear on the inside of the paper. It's the routine stories that rise up and bite you in the ass." We found that elected public officials, nonelected public officials, or professionals tend to bring the libel suits that involve front page stories. Business owners and managers or white collar employees usually bring the libel suits concerning stories on the inside pages.

What is the subject matter of stories that produce libel litigation? When a plaintiff is a public official or public figure, the alleged libelous story understandably tends to focus on his or her public or political activities. Interestingly, when the aggrieved party is a private individual, the alleged libelous story also tends to focus on his or her criminal or public activities.

We found a strong correlation between a plaintiff's community visibility and the content of the alleged libelous story. The higher an individual's visibility, the greater the likelihood that the alleged libel will deal with his or her public or political activities. The lower an individual's visibility, the greater the likelihood that the alleged libelous story will deal with his or her business or professional activities.

Which aspects of the alleged libelous story most upset plaintiffs, and how were they harmed? The vast majority of the plaintiffs we interviewed were upset by the alleged falsity of the story, and most said that the alleged libel caused them emotional, rather than financial, harm. Specifically, libel plaintiffs who are elected officials are likely to say that they suffered emotional harm or damage to their political status. Plaintiffs who work in law enforcement or who hold other nonelected public office are likely to say that they suffered emotional harm. Even plaintiffs who work as professionals tend to claim that they suffered emotional harm. The only plaintiffs who are likely to say that they suffered financial loss because of the alleged libel are business owners and managers, who represent a distinct minority of all plaintiffs.

What do libel plaintiffs do after the alleged libelous story is published? They do not rush to an attorney in order to bring suit. Rather, about half of the plaintiffs go to the media and only after dealing directly with the media do they contact an attorney. But individuals in the public eye -- specifically, elected officials -- are the most likely to contact the media before [*220] contacting an attorney. Plaintiffs who work in business are more likely to contact an attorney instead of the media.

Almost all plaintiffs who first contact the media ask for retraction, correction, or apology. As would be expected, the media reject most of these requests. It is then that the parties contact an attorney.

About one-half of the libel plaintiffs contact an attorney to obtain advice on what to do next, while the other half contact an attorney with the specific purpose of suing the media. The individuals most likely to contact an attorney having already resolved to sue are those who contacted the media first. Plaintiffs in the public eye are the most committed to suing for libel. These are the same persons who contact the media about the alleged libelous story before contacting an attorney. These plaintiffs are the most likely to say that they were angry and upset by their contact with the media.

Why do people sue for libel? Do they see their libel suit as an opportunity to profit by winning large damage awards? According to the plaintiffs, the answer is no.

Only about one-fifth of the plaintiffs said that they sued to win money damages, and private individuals or business people were more likely to state this as their objective. Most plaintiffs said that their chief objective was restoring reputation or punishing the media.

To summarize, libel plaintiffs for the most part: (1) are important members of their communities, holding jobs of great responsibility; (2) are employed in positions that place them in the public eye, and the ability of plaintiffs to successfully perform their jobs is related to their reputation in the community; (3) perceive the alleged libel as a direct threat to their positions within the community; (4) defend themselves by claiming that the story was false; (5) do not claim financial loss because of the alleged libel; rather, they claim that the libel causes them emotional suffering; (6) hence, do not sue in order to win money damages; instead, they sue to restore their reputations or to punish the media; (7) are not litigious; for most libel plaintiffs, this is the first and only time they have filed suit; and (8) tend to contact the media about the alleged libel before they contact an attorney.

The last finding -- that roughly half of libel plaintiffs tend to contact the media before the attorney -- suggests that within the media themselves we may find ways to avoid libel litigation. The second essay addresses this possibility.

October, 1985

71 Iowa L. Rev. 221

ESSAY: Fanning the Fire: The Media's Role in Libel Litigation

by Gilbert Cranberg

George H. Gallup Professor of Journalism and Mass Communication, University of Iowa. A.B. 1949, Syracuse University; M.A. 1957, Drake University. Formerly Editorial Page Editor, Des Moines Register and Tribune Company. © 1985, Gilbert Cranberg.

SUMMARY:

When you think of a libel suit you are likely to think of something that happens in stages: stage one, publication; stage two, a visit to a lawyer; stage three, the filing of a lawsuit. ... After the media contact, they are angry, and many are determined to sue. ... The contact with the media transforms the golden opportunity for the press into a golden opportunity for the lawyer -- especially, if he or she is hired on an hourly fee basis. ... The resistance-to-pressure syndrome may be particularly acute in the case of public officials who, as libel plaintiffs, are most apt to contact the media before contacting a lawyer. ... Dan Foley, managing editor, Quad City Times: ... It's been my experience that when reporters and junior editors do make a mistake, and then are reluctant to acknowledge that and reluctant to apologize and never let that complaint get high enough in the organization to get the proper response and attention to it, what results is a lawsuit that ultimately brings about a damage claim against the newspaper. . . . I do not make the people who made the error write a retraction and deal with the response. ... Donald Jones, assistant to editor and ombudsman, Kansas City Star & Times, told us, "Reporters and editors are not sensitive to readers, and I'm talking about papers of all kinds. ...

TEXT:

[*221] When you think of a libel suit you are likely to think of something that happens in stages: stage one, publication; stage two, a visit to a lawyer; stage three, the filing of a lawsuit. Instead of three steps, however, we often found a four-step process: publication, contact with the media, then a visit to the lawyer, and finally, the litigation. The significance of the contact with the media is hard to overstate. It means the press has an opportunity to resolve the dispute before a lawyer enters the picture and before the complainant may even have given serious thought to litigation -- a golden opportunity, you might call it.

So what happens when individuals contact the media? Typically, these people are agitated by the news coverage concerning them. When they go to the publishing entity to complain, they are at least hurt and upset. After the media contact, they are angry, and many are determined to sue. For these plaintiffs, then, the visit to the lawyer is not to decide whether to sue, but to engage the lawyer to sue.

The contact with the media transforms the golden opportunity for the press into a golden opportunity for the lawyer -- especially, if he or she is hired on an hourly fee basis. Instead of diverting complainants from court, the media contact propels them to court. An overwhelming number of plaintiffs told us that their postpublication experiences with the press influenced their decisions to bring suit.

Of course, there are some people the press could not satisfy short of bowing and scraping and giving them everything they want -- money, an apology, retraction, correction, or whatever -- regardless of the merits of the request. Such people seem to be a minority of those who sue, however. For the rest, it is more than failing to get what they were after immediately following publication that seems to be involved. In a significant proportion of the cases, the way people were treated when they contacted the media was a factor in, if it did not fully account for, their anger and the decision to sue.

What is there about the way the press deals with complainants that so angers them? In our examination of how the press deals with libel-type [*222] complaints, we found:

First, organizations by and large are geared to producing the next day's paper instead of coping with the fallout from the previous day's publication. Fielding a complaint represents interference with the organization's prime mission. Few papers systematize the handling of complaints the way they systematize newspaper production.

Absent in most cases are clearly articulated policies and procedures for dealing with complaints, and very little about this is in writing. Often, the way complaints are handled does not conform to the way editors think it is done. The consequences of this disorganization are haphazard handling of complaints by newsroom personnel, who usually have not been instructed on how to cope with them unless the complainant is a lawyer or legal action is threatened, and failure by editors even to know the volume and character of complaints.

James Gannon, editor, Des Moines Register:

The complaint can come to so many different people at so many different levels at a newspaper. We have a lot of cases where individual reporters get called by somebody complaining. Some of [those complaints] might end up in a libel situation. And I sometimes worry that there are some of those I don't even know about.

It's hard to say how many complaints there really are. . . .

Somebody calls and gets bounced from one person to another -- you know, four or five different people in the newsroom -- and finally ends up with someone who's on deadline and irritated and saying, "Well, that's just the way we do it, buddy! That's our policy," and, you know, bang, or something like that. And I've had these horror stories told to me -- people who have gone through this, and they feel they just don't get a hearing, a real hearing, and they don't get a courteous response. . . . I think in general newspapers do a pretty bad job of responding to complaints from the public.

Second, the complaint is received by an organization conditioned to resist pressure. Newspaper people regard themselves as continually under pressure -- economic pressures, political pressures, pressures to keep things out of the paper, and pressures to put things into it. A siege mentality develops in which demands for retraction or other vindication can be regarded as forms of pressure, signals to circle the wagons.

Arnold Garson, managing editor, Des Moines Register:

Editors and reporters are pretty hardened people. They have to build up a way to deal with people every day who want something from them. They have to say no every day -- to the lady who calls who wants her daughter's graduation announcement in the newspaper, the guy who sends in the picture of his daughter who's a finalist in the Crawford County mid-teen beauty contest. All those people want something from us every day, and we build up a kind of hardened way of saying no to people, and it occurs to me that it's possible that that same attitude, that same mindset that we build [*223] up in being tough and doing our job carries over to a place where it shouldn't -- dealing with people after the fact, in connection with news stories in which they've been harmed or think they've been harmed or wronged . . . a place where we ought to have a good deal more compassion and understanding and take a good deal more time in hearing people out. You say no to somebody and you snap your fingers like that and you throw the news release away, or maybe you get in an argument and slam down the telephone because they call at such a pace out here. You shouldn't treat the complainer the same way in an after-the-fact situation.

The resistance-to-pressure syndrome may be particularly acute in the case of public officials who, as libel plaintiffs, are most apt to contact the media before contacting a lawyer.

Donald Jones, assistant to the editor and ombudsman, Kansas City Star and Times:

The prejudice I find in the news business in the kinds of complaints [made by public officials] is just incredible. Someone calls in and says I'm a councilman or I'm a representative from this, and I want to complain about this story. The general reaction, at least in my experience is, "That's self-serving. He's a politician, or he's an elected official. He has no justification to complain."

Third, we found that while to err is human, to admit it is too often divine. Defensiveness in the face of criticism is part of the human condition. Newspeople are no more immune to it than anyone else, and they may be more prone to it because of the public character of their work.

Dan Foley, managing editor, Quad City Times:

Newspapers are reluctant to acknowledge complaints. We're defensive about it. Nobody likes to be criticized. . . . There's anger that somebody would question us. My immediate reaction is to be defensive about it. Something I have to be careful of when I'm talking to people is that I hear them out, that I try to explain to people what the reason is for what we're doing. I find that very difficult. It's one of my own quirks, something I have to work on, not to respond in a defensive way.

Foley said that he could not think of anything his paper had done to prevent defensiveness by reporters.

The horror stories we encountered include accounts of reporters telling complainants, "Fuck you, you're full of shit," and reporters sitting on complaints by not informing supervising editors that the subjects of stories disputed them. The first time the editors learned about these complaints was when libel suits were filed.

Defensiveness is most likely to be a problem when the person who wrote the story or had responsibility for it deals directly with an agitated or abusive complainant. Yet it is common for reporters to be allowed to field complaints about their work. While reporters usually are expected to notify the desk of complaints about their stories, "passing on" does not necessarily assure that a disinterested party will hear the complaint. [*224] The desk people who learn of, or deal with, a complaint may have been deeply involved in the story and may have made the decision to retain or delete the disputed portions.

James Squires, editor, Chicago Tribune:

It's been my experience that when reporters and junior editors do make a mistake, and then are reluctant to acknowledge that and reluctant to apologize and never let that complaint get high enough in the organization to get the proper response and attention to it, what results is a lawsuit that ultimately brings about a damage claim against the newspaper. . . . I do not make the people who made the error write a retraction and deal with the response. That's where I got into trouble years ago. I learned that they cannot bring themselves far enough along to admit the error with enough flourish to appease the aggrieved party. And by this time they're usually mad, everybody's mad. . . . I am comfortable once we identify the call as a complaint because once we do that, then I feel sure it's going to get to some editor who is not just going to brush it off and throw it away. It's the lost call, the call that just goes to the reporter and never makes it anywhere else -- or the call that gets shunted around to four or five phones that never answer -- that is where you get into trouble. . . . Every time I got in trouble it was because some guy was trying to cover his ass and wouldn't deal with the problem.

The newspeople we interviewed were not surprised that the complainants were turned off by their contacts with the press. Many were as critical of the press on this score as were the plaintiffs. According to Jack Davis, metro editor, Chicago Tribune, "The rudeness in this business is legendary." James Squires, editor, Chicago Tribune, said, "The people who sue us either are jerks looking for a deep pocket and never getting anywhere . . . or people who are forced to sue us because we ignore them and kick them and refuse to deal with them." Donald Jones, assistant to editor and ombudsman, Kansas City Star & Times, told us, "Reporters and editors are not sensitive to readers, and I'm talking about papers of all kinds. They immediately think that the complainant is a nut or a kook or self-serving."

Plaintiffs overwhelmingly cited the alleged falsity of the story as the reason for bringing libel actions. Newspeople agree just as overwhelmingly that inaccuracy is a major press problem. Richard Capen, publisher, Miami Herald, stated, "We put up with far too many errors that shouldn't be in the newspaper in the first place. If I appear testy on this subject, it's because I am." Attend a meeting of editors and chances are you will hear complaints, accompanied by nods of approval from colleagues who had similar experiences, about how they were misquoted in their own papers. Studies of press credibility by journalism groups invariably conclude that inaccuracy and unfairness are major parts of the credibility problem.

Given the accuracy shortcomings that newspeople themselves experience and acknowledge, you would expect them to place greater emphasis on assuring that complaints about accuracy are handled properly. [*225] After all, when the object of a news story arrives at a newspaper's doorstep with a complaint that the paper got something wrong, he or she is voicing a complaint newspeople acknowledge as too often true. And yet, the media do not deal as effectively with accuracy complaints as they should.

Our findings lead us to conclude that a major alternative to litigation already exists -- in the nation's newsrooms. More editors need to recognize that how they deal with complaints has an important bearing on whether they ultimately are sued for libel. The same attention now given to prepublication safeguards to prevent libel should extend to postpublication practices.

James Squires, editor, Chicago Tribune:

I have over the years become a firm believer that even a serious postpublication complaint could best be handled by the newspaper, through its policy, before it gets to the lawyers and the libel people. I think, in other words, that the best defense against libel in newspapers is the newspaper's response after it's done something wrong.

Our findings argue strongly for editors to: (1) impress on media employees the great power the press has to hurt people. Editors should insist that courtesy in dealing with complaints have high newsroom priority. A journalist's in-house training should include instruction in human relations; (2) center responsibility for dealing with complaints in a person with good human relations skills, who is not responsible for news coverage. Editors must be informed and consulted and make final decisions, but, except on smaller papers, they cannot adequately "bird-dog" complaints. Nor do the qualities that make for good editors necessarily equip them to sensitively deal with people; (3) develop policies and procedures for addressing complaints, put them in writing, and emphasize their importance; (4) make sitting on other than a frivolous complaint a firing offense.

The most perceptive handling of complaints will not deter some litigious persons from suing. And, as will become clear in the third essay, for some persons the act of suing serves a purpose in itself. But the press ought at least to avoid having complainants who contact newspaper offices leave more aggravated than when they arrived.

Simply put, the press must pay the same attention to the postpublication consequences of its stories as it does to getting those stories into the hands of readers.

October, 1985

71 Iowa L. Rev. 226

ESSAY: Libel Law and the Realities of Litigation: Setting the Record Straight

by Randall P. Bezanson

SUMMARY:

Most discussion of libel law has been policy oriented and theoretical, based on an underlying model of the libel dispute that is conventionally legal. ... In other words, libel law assumes that people sue because their reputation has been injured, and that they sue to obtain a formal judicial remedy for their reputational injury. ... An astounding eighty-three percent of media libel cases involve a formal judicial proceeding on the merits of the libel claim before trial, most involve additional pretrial discovery and privilege issues, and an equally astonishing sixty percent of these cases involve at least one level of pretrial appeal. ... The tort, in short, has been transformed from a tort of libel to a tort for abuse of constitutional privilege, regardless of truth or falsity and irrespective of reputational harm. ... The constitutional requirement that fault be found in libel cases, therefore, not only serves the plaintiffs' interest in using the libel suit as a means of self-help without the risk of loss on the issue of truth, and certainly without the risk of prompt loss on any score; the fault requirement also leaves invitingly open the possibility of winning even when the publication was true or not probably false. ...

TEXT:

[*226] Most discussion of libel law has been policy oriented and theoretical, based on an underlying model of the libel dispute that is conventionally legal. Amidst the rapid development and continuing refinement of a constitutional theory governing libel law, virtually no attention has been paid to the practical realities of the libel dispute. Who sues for libel? Why do they sue, and why does the press allow the disputes to reach litigation? What are libel suits really about? What happens in a libel suit before its filing and during its adjudication? How can we account for the remarkable resilience of the libel action in the face of overwhelming, if not insurmountable, odds against the plaintiffs? In exploring some of these issues, we will see a picture taking shape. It is a picture of legal doctrine and constitutional theory that bears only the most tenuous relationship to the actual conduct and motives of the parties to the suit.

The model of libel law upon which we have crafted the prevailing legal rules rests on four basic assumptions. First, it assumes that people's reputations can be seriously injured by published statements, as indeed they can, and that the law can and does through the libel suit afford a means of protecting reputation when wrongfully impugned. In other words, libel law assumes that people sue because their reputation has been injured, and that they sue to obtain a formal judicial remedy for their reputational injury. Second, it assumes that a material part of the harm flowing from injury to reputation is economic, and that plaintiffs seek money as a desired and effective remedy for their injury. Third, libel law assumes that the ultimate decision in a libel case reflects a fair adjudication of the underlying claim of falsity and reputational harm. Fourth, it assumes that limiting the incidence of recovery for libel by constitutional privileges protects freedom of the press and benefits the press by discouraging certain types of libel suits. These assumptions form the operative basis for current libel law.

None of them, however, adequately reflect the real world of libel litigation. Having spent two years collecting and analyzing information on libel litigation against the press, we have concluded that the failure of libel law to reflect the realities that exist in libel litigation accounts in large part for the problems that are misperceived about libel suits today. The realities [*227] present a wholly different view of the libel suit and suggest a need to alter the assumptions upon which our approach to libel law is shaped.

Our study has led us to four basic conclusions about libel litigation. First, libel plaintiffs do not sue for the sole purpose of obtaining a formal judicial remedy for reputational harm. They mainly sue to restore their reputation by setting the factual record straight, and this objective is accomplished in significant degree independent of the judicial result in the case. Second, money damages do not compensate libel plaintiffs. Indeed, money seems rarely to be the reason for suing. Most plaintiffs sue to correct the record and to get even. Third, the judicial decision in a libel suit does not reflect a fair and full determination of reputational harm or of the truth, falsity, or uncertainty of the published statement. These issues are rarely addressed and even more rarely decisive in litigation. Finally, the constitutional privileges n1 -- which require a showing of fault as a precondition to recovery -- do not protect the press from unwarranted liability nor safeguard interests in freedom of expression. The privileges do not limit recovery only to cases in which liability can be found consistent with freedom of the press. Instead, the privileges have required that courts become the primary, if not exclusive, judges of press responsibility. The privileges have fostered a legal action for enforcement of press responsibility, not libel. Nor do the privileges discourage unwarranted litigation by plaintiffs. Rather, they may encourage plaintiffs to sue for libel and provide an ironic sanctuary even for frivolous claims.

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n1 The constitutional privilege, or standard of liability, required by the first amendment in these cases depends upon the plaintiff's status and the defendant's identity. In cases brought by public figures, the standard is knowledge of or reckless disregard for the falsity of the alleged libelous matter, regardless of the defendant's identity. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). In cases brought by private persons against the media, or involving a matter of public concern that is published more broadly than to a very limited, special purpose, audience, the standard is negligence. See Dunn & Bradstreet, Inc. v. Greenmoss Builders, Inc., 105 S. Ct. 2939, 2946 (1985); Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). Other cases brought by private persons, however, are apparently still governed by the common law and its predominant standard of strict liability. See, e.g., Baker v. Burlington Northern, 99 Idaho 688, 691, 587 P.2d 829, 832 (1978); Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).

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In short, libel law today no longer reflects a set of assumptions that may have been sound in an earlier time. The libel suit has been ironically transformed, without our seeing it happen. In the end, the responsibility for this transformation lies not with the press, nor with the plaintiffs who sue, but with the courts and the very constitutional privileges designed to protect the press.

It is time to set the record straight on the libel tort itself. The conclusions I have outlined carry profound implications. They are based upon a large amount of data and labored analysis. I do not intend to recount the detail of these conclusions here. I do, however, want to outline briefly the major findings upon which these conclusions have been drawn.

[*228] Why do libel plaintiffs sue? I have said that the law assumes that they sue to vindicate reputation, to obtain money as compensation for that injury and, of course, that they sue to win. We all know that few libel plaintiffs win. Less than ten percent of media libel cases are won in court, although another fifteen or so percent are settled, usually without money changing hands. In the face of these odds, why do the plaintiffs sue?

The first reason is that it is cheap for libel plaintiffs to sue. Roughly eighty percent engage lawyers on a contingency fee arrangement. Virtually all of the "public official" plaintiffs sue on contingency, and few of them pay any costs or fees unless they win in court -- which they hardly ever do. As a general proposition, a libel suit costs little if anything for plaintiffs classified as public officials or public figures under the Sullivan n2 and Gertz n3 cases. The private plaintiffs are a different matter, but even here many have contingency arrangements, costs on an hourly fee basis tend to be low, and in any event the private plaintiffs tend more often to have experienced real financial losses because of the alleged libel and, therefore, have little choice but to pay the modest costs of litigation.

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n2 New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

n3 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

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The second reason plaintiffs sue is that they win, although they do so by their standards, not the judicial system's. Except for a discrete group of largely private individuals, plaintiffs do not sue to vindicate their reputations through the formal judicial resolution of their case, nor do most plaintiffs sue to obtain money as compensation for their harm. The correction of falsehood and its reputational consquences are what chiefly motivate plaintiffs to sue, but ultimate judicial victory, while desired, is not a necessary precondition to their accomplishment. The plaintiffs do not appear to see the result of their lawsuit, alone, as providing relief to their reputation. They know that victory is unlikely, and that the final decision is likely in any event to be ambiguous and distant. Instead, plaintiffs see the act of initiating suit, independent of its result, as an effective and public form of reply or response. By invoking the formal judicial system, the plaintiffs legitimize their claim of falsity. Reputational repair follows without the assistance of -- indeed in spite of -- the judicial system.

The conclusion that the libel suit, itself, represents effective vindication of the plaintiff's claim is particularly true of the public plaintiffs, although it applies to most private plaintiffs as well. For public plaintiffs, the decision to sue is generally made in advance of consulting with a lawyer. The lawyer has little influence on the ultimate decision to sue, other than to facilitate it. The plaintiff's contact with the media confirms the plaintiff's view that suit is the only available alternative. By their sometimes arrogant or inept response, the media propel plaintiffs to court. Plaintiffs do not have to sue to win; they can win by suing. Ultimate judicial victory would be desirable, but not necessary. The suit is a symbolic means of vindicating [*229] the claim of falsehood, and it is the act of suit that largely accomplishes this. While very few plaintiffs win, and the incidence of judicial victory is smallest with public officials, the vast majority of plaintiffs who lost indicate that they would sue again, knowing what happened; indeed, virtually every public official we spoke with would sue again.

Given that on average only ten percent of the plaintiffs win their suits (although a similar proportion settle, often without money) and a higher proportion of the public plaintiffs lose, how can we account for their decisions to sue and, especially, for their determination to sue again if faced with the same situation? The answer is more complex than the fact that suing is inexpensive, although the low cost to plaintiffs certainly removes the economic elements from the calculus of risk and reward that most plaintiffs face in civil litigation. The manner with which the media deal with complaints surely provides a powerful driving force in the plaintiffs' actions, but this factor, while apparently forceful in the vast proportion of the cases, does not provide the full explanation. Emotions play a role in most litigation, although perhaps a greater or clearer one in libel suits than in other settings. The media's interaction with plaintiffs reinforces and sharpens the emotions of plaintiffs. Better management of disputes by the media surely could avoid some litigation. Bad management clearly induces some litigation, but it does not, even in combination with low cost and lawyer willingness, fully account for plaintiffs' decisions to sue in the face of insurmountable odds.

The explanation, instead, lies in the strange and ironic confluence of the plaintiffs' objective of vindicating their claim to falsehood through the act of suit, with the constitutional privileges designed to protect the press and discourage libel suits. In the Sullivan case the Supreme Court held that in public libel cases a publisher could not be held liable unless it were at fault. n4 This has come to mean that plaintiffs must show that the publisher acted recklessly or negligently in light of actual, subjective doubts about truth or falsity at the time of publication. n5 The requirement that fault be found -- actual malice or negligence -- has become more than a preliminary inquiry in the adjudication of the tort. Instead, it has pervasively transformed the entire process of adjudicating libel disputes, requiring intrusion into the subjective aspects of the reporting and editorial [*230] processes, committing vast judicial resources in advance of trial, and permeating the factfinding process throughout litigation. An astounding eighty-three percent of media libel cases involve a formal judicial proceeding on the merits of the libel claim before trial, most involve additional pretrial discovery and privilege issues, and an equally astonishing sixty percent of these cases involve at least one level of pretrial appeal. n6 Questions of constitutional privilege are raised in virtually every case and are determinative in eighty-eight percent of the cases.

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n4 See Sullivan, 376 U.S. at 279-80.

n5 Hence, the two constitutional standards of fault are negligence and actual malice. Both concern not actual falsity, but falsity that was or should have been cognizable at the time of publication. See, e.g., St. Amant v. Thompson, 390 U.S. 719, 731 (1968) ("There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication."); Rosenblatt v. Baer, 383 U.S. 75, 84 (1965) ("[A] public official might be allowed the civil remedy only if he establishes that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true."); Sullivan, 376 U.S. at 279-80 ("[The libelous statement must be] made with 'actual malice' -- that is with knowledge that it was false or with reckless disregard of whether it was false or not.").

n6 Interestingly, it appears that the incidence of formal pretrial decisions in media cases that are actually tried is lower, at 31%, and the incidence of pretrial appeal in such cases is also lower, at 17%.

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As a practical matter, the truth or falsity of the challenged statement is no longer pertinent to the libel action. Liability, when found, is as often rested on a finding of abuse of privilege -- another way of stating the fault-based constitutional privileges -- as on a finding of falsity of the publication and of reputational injury. What is important in libel cases today is only what was known about truth or falsity at the time of publication in the mind of the reporter and editor. The actual truth or falsity of that which was published is rarely addressed; the presence of reputational harm is even more rarely explored. The tort, in short, has been transformed from a tort of libel to a tort for abuse of constitutional privilege, regardless of truth or falsity and irrespective of reputational harm.

What does this explanation of the current libel tort have to do with plaintiffs suing against insurmountable odds? It has three things to do with it. First, because the truth or falsity of the challenged statement is infrequently put in issue and made a part of the judicial resolution, plaintiffs are freed from the risk that the truth (or uncertainty) of the challenged statement will ever be confirmed. While most plaintiffs lose, they do so on a technicality of privilege. This affords some plaintiffs the virtual certainty of a face-saving explanation: what the press said was false, but they got off on a technicality because they were not negligent or reckless. It is noteworthy in this connection that by our standards roughly three-quarters of the libel suits were "petty" when judged by the common law standards of a factually strong claim of reputational harm and material injury resulting therefrom. Unfortunately, the common law issues of truth or falsity, disparagement of reputation, and resulting harm were hardly ever addressed in these cases, for they all went off on fault.

Perhaps the greatest deterrent to an unwarranted libel claim is the prospect that the alleged falsity of the challenged statement cannot be established -- that the truth of what was published will be promptly confirmed. This deterrent does not exist today, largely because of the constitutional privileges. In the calculus of risk for plaintiffs, this fact, combined with the ease and inexpensiveness of suit, encourages suit. There is reason [*231] to believe, moreover, that it is the "public" libel suits that are most encouraged by the absence of risk that the truth of the publication will be confirmed. For public plaintiffs, money is rarely the reason for suit. For them, the lawsuit itself represents a form of reply and vindication. While public plaintiffs lose the suit more often than any other group, a substantial majority believe that the lawsuit achieved reputation-related objectives, even though they lost. Public plaintiffs, moreover, are virtually unanimous in their determination to sue again if faced with the same situation. Ironically, it is the private plaintiffs who are most discouraged, yet they are most favored under the privilege rules. In short, the privilege rules may serve to discourage plaintiffs who are genuinely interested in setting the record straight and encourage those who want to keep it muddied.

The second respect in which the privileges foster rather than foreclose unwarranted litigation concerns the time involved in litigation. Largely, although not exclusively, because of constitutional privilege issues, plaintiffs need not fear a prompt adjudication on any issue relating to the substance of the dispute, much less on the issue of the truth or falsity of that which was published. Privilege issues ranging from discovery, access to information, legal status of the plaintiff, and negligence and actual malice, exist and must be addressed in every libel case brought against the press. Pretrial motions on privilege issues are made in virtually every case. In roughly one-half of the cases the district court decision on these issues is appealed in advance of trial. Fewer than twenty percent of the cases ever reach trial. In only about one-half of the trials are issues other than privileges ever addressed. Virtually all cases tried are thereafter appealed.

The point of this is not that the libel litigation process is inefficient and untidy, although it surely is. Rather, the point is that these steps consume, on average, more than four years, and the cost is largely borne by the media defendants, not the plaintiffs. Even were a court ultimately to get to the heart of the dispute -- truth or falsity -- so much time would have passed that it would no longer matter, and few would remember. Little wonder, therefore, that plaintiffs whose chief motive may be to legitimate an unwarranted claim of falsity see litigation as an effective way to do so, and need not fear that their claim will ever be compromised by a finding that what was said about them was true. Little wonder that public plaintiffs whose interest is largely nonfinancial see a libel suit as an effective remedy, while the private plaintiffs who tend to suffer economic harm find the present system extremely frustrating. Little wonder, finally, that a substantial portion of the libel actions are concluded through dormancy. Having accomplished their objectives, many plaintiffs simply refrain from prosecuting the action after a certain point.

The fault-based privileges have encouraged plaintiffs to sue in a third and final way by making it possible to succeed even in a case where the [*232] published statement about the plaintiff is true (or at least cannot be disproved), or where reputational harm is legally inconsequential. This is a most ironic -- and thankfully rare -- consequence of the combination of constitutional fault privileges and the absence of risk that the truth of the statement will be confirmed. n7 Constitutional privileges are decisive in a remarkable eighty-eight percent of the media libel cases. Privilege issues are the first and, because constitutionally required, the most important factual issues in adjudication of the claims. As a practical matter, the issue of subjective knowledge of falsity at the time of publication has become the chief focus of litigation. Fault, or abuse of the privilege of negligence or malice, has therefore become the practical gravaman of the cause of action.

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n7 This possibility has given rise to increasing litigation focusing on the distinction between "fact" and "opinion." Because the source of this distinction is the reduced emphasis on falsity and reputation, the opinions often make labored and false distinctions to reach a result that is hard to explain in terms of fact versus opinion. E.g., Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984).

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As a consequence, it is more than theoretically possible for a plaintiff to win a libel action on the basis of a true statement by showing that at the time of publication serious doubts were entertained on that score, and that the statement was recklessly or negligently published notwithstanding those doubts. The general rule -- even today -- that truth is a defense, and that the plaintiff need not prove falsity other than, at most, by alleging it in the complaint, contributes to this result, for the rules of evidence and pleading permit an action to proceed without any substantial assessment of the actual truth or falsity of the challenged statement. Even with a requirement that falsity be proven by the plaintiff, however, it seems likely that the constitutional requirement that fault be assessed at the time of publication would subordinate, if not suffocate, the issue of actual truth or falsity in the adjudication of the tort. A jury finding of reckless publication in light of doubts seriously entertained at the time of publication is so condemning of the publication process -- and rightly so, I might add -- that the probability of liability will be overwhelming.

The constitutional requirement that fault be found in libel cases, therefore, not only serves the plaintiffs' interest in using the libel suit as a means of self-help without the risk of loss on the issue of truth, and certainly without the risk of prompt loss on any score; the fault requirement also leaves invitingly open the possibility of winning even when the publication was true or not probably false. In these respects, the constitutional privileges not only fail to deter or discourage unwarranted suits, they may encourage them.

What, in light of these findings, should we conclude about libel law and libel litigation, and which direction should we take in seeking solutions? The conclusion suggested is that the law of libel seems to have disturbingly little relationship to the real actions and objectives of the parties, [*233] that what is decided in litigation may be substantially irrelevant to the actual dispute, and that the legal rules are encouraging the very conduct sought to be discouraged, and discouraging the conduct sought to be encouraged. In seeking solutions, our approach should be shaped by the insights that emerge from the actual process of libel litigation. For present purposes there are four:

(1) The dominant interest of most libel plaintiffs is correction of falsity, or setting the record straight. If it is to reflect the plaintiffs' interest and their actual conduct, therefore, libel law must focus directly on the question of falsity.

(2) The manner in which the press deals with plaintiffs following publication unnecessarily fosters litigation. The press, therefore, has some self-examination to do.

(3) The libel tort is now one for enforcement of press responsibility, not for injury to private reputation. This turning of the constitutional privilege tables encourages litigation. If the common law action were reformulated to inquire, first, into falsity and reputational harm, with the plaintiff having a heavy burden of proof, most privilege issues could be greatly simplified or even eliminated, and the risk to plaintiffs that falsity could not be proved would provide a powerful and needed disincentive to suit.

(4) Most plaintiffs win by suing; they do not necessarily sue to win in court. The very act of suit, itself, represents the only non-self-serving form of response through which plaintiffs' claims of falsity can be legitimized and vindicated through the invocation of formalized judicial scrutiny. Because the legal system only rarely addresses the underlying dispute about falsity, and even more rarely responds promptly, plaintiffs face little, if any, risk that the truth of a statement will be confirmed. The system most disadvantages those whose interest is in truth and most advantages those to whom truth is a threat.

Whether viewed singly or as a whole, these conclusions demand a fundamental and searching reexamination of the law of libel. They also demand a clear-minded assessment of the effectiveness with which the constitutional privileges respect legitimate private interests in reputation, serve the ends of freedom of the press, and foster full and robust public discussion concerning issues of public moment. It is time, in short, to set the record straight on the law of libel itself.