The First Amendment Under Fire

Two of the potentially biggest news stories of the year are currently playing themselves out in the same Federal court house in New York. Two well-known generals, William Westmoreland and Ariel Sharon, are suing two of the United States' biggest news organizations for libel. Westmoreland, former commander of the American forces in Vietnam, is suing CBS for $120 million ever a documentary it broadcast in 1982 charging that Westmoreland had taken part in a "conspiracy" during the war "to suppress and alter critical intelligence on the enemy." Sharon, mastermind of Israel's invasion of Lebanon, is suing Time magazine for $50 million for a report on his role in the Shabra and Shatila massacres.

Both cases have attracted widespread media attention, but both are also part of a larger trend: an increased number of libel cases, many involving enormous some of money, being brought against the media by high officials in government. Sen. Paul Laxalt (R-Nev.) has sued the McClatchy Newspaper California for an article linking him to a scandal involving a Nevada casino, white South Dakota Gov. William Janklow has sued Viking Press and one of its authors over recent references to him in a book.

This "outbreak" of libel cases has raised a host of interesting questions concerning the role of a free press in the United States. What is the reason for this trend, and what are its implications for the way the press goes about doing its business? Has the press become arrogant? How can a public official redress what he or she sees as an unjustified attack on his or her reputation?

To address these and other questions. The Crimson last week assembled a panel of three campus figures who have encountered, on a practical or academic level, issues of libel. Anthony Lewis '48, a columnist for The New York Times, is a lecturer at the Law School and has written extensively on First Amendment subjects. Howard Simons, who stepped down this year as the managing editor of The Washington Post, is now curator of Harvard's Nieman Foundation for journalism. Charles R. Nesson '60, professor of Law, has moderated a number of television programs examining the media.

Crimson President Michael J. Abramowitz '85 moderated the discussion and edited a transcript of it, portions of which follow:

Crimson: What's the reason for [the upsurge in libel suits being brought by high government officials]?

Lewis: ...I don't know the roots of the reasons, but it is clear to me that people are trying to use libel suits as a political weapon. In other words, they are trying again to do again what Commissioner Sullivan and his colleagues in Alabama invented in 1962 when they used the libel suit. I think for the first time in American history, in such a crude way as a device to bar the press from a controversial area of reporting. That attempt was thwarted by the Supreme Court in 1964 in New York Times against Sullivan, but its back again.

Simons: I think there're two good reasons One is there is a perception on the part of public of facials and public figures that the press is a wounded animal these days, that the public doesn't like the press, that the press is arrogant. The press is under great pressure from its critics, and that's the time to go after it. And the second thing is that the jury trials in the last five years, last 10 years, in which a libel suit has gone to trial has gone predominantly against the press.

Crimson: Why are these decisions going against newspapers?

Nesson: ... I lay it at the door of enterprises like "60 Minutes," which the public loves to watch, but which they at the same time feel involves very aggressive forms of journalism. And when you get a jury returning a big award, to me that's nothing more than a reflection of the broader sense that journalism needs to be taught a lesson, and that getting it wrong is an opportunity to do it.

Crimson: But there is also a principle that has been expressed by Westmoreland's lawyers that public officials should have the right to protection of their reputations simply against falsehoods. Would you address this issue?

Lewis: Its not the law at the moment. But I have a view that at least as to high officials, policy-making officials like Ariel Sharon or William Westmoreland or Paul Laxalt or the judges of the Pennsylvania Supreme Court or any of these other people who are suing... that as to them there should be no libel actions whatever, that they are in the field of politics, and when they go into that field, they accept the risk, they undertake the risk, and answer back...

Nesson: Well I think the problem is not so much that if you are a public official you can somehow vindicate yourself by going to court. I think the problem is given the way the litigation system now works, the stakes are so extraordinarily high that you have the power not only to vindicate yourself but also wipe out the opposition in some cases or seriously cripple the opposition in some cases. I am not quite ready to go to a system that says. "We'll trust the press as far as any public official is concerned." ... If I were to take a cut at it, I would be attempting to address the amount of damage that somebody can do in a libel suit and yet still leave it possible for someone to vindicate himself or herself when he feels or she feels that victimized by the press.

Crimson: Do you think there's a problem just for the everyday person or the public person who may not be so high, the mayor of a city who feels he's been libeled? There's a great cost to bringing libel suits. Westmoreland's spent some 2 million dollars to sue CBS. What can be done to give these people the chance to redress injury?

Lewis: I think you have two questions there, both very important. I make a distinction...between William Westmoreland or Harry Truman or Arik Sharon on one side of the line and the ordinary person. People on that first side of the line have an easy time getting a platform to answer. General Westmoreland's reputation is a lot better today than it was before this whole matter started...I think it's very different with the private figure or even with the limited purpose public figure, someone who isn't a man or woman of general fame. I think they do have greater need for reputation. But even as to Westmoreland and company, I accept Professor Nesson's view...that there should be a ways short of the destructive power of the damages and costs as they exist now of redeeming your reputation. And in fact, as your question implies, the present system is lousy for the plaintiff as well as for the defendant. Where do you get these millions? When you sue CBS they drag you through the courts and they make you go to depositions seven days a week and you're bankrupt.

Crimson: Is there a cheaper was of providing this service'

Lewis: I have my own pet theory, which is the approach used in France and Germany. And that is that you should have a declaratory action too the plaintiff says that such and such a statement about him or her is untrue The action is only designed to clear the name. No damages The only thing you get if you win is. A, a court order to the offending publication to carry a retraction, and B. the cost of your lawyer...

Simons: I don't think public officials, elected public official ought to hve the right to sue for libel.

Nesson: Even Tony's version--

Simons: Yes even the French version. I just think that if you become an elected official, you give up the rights of being a private person.

Nesson: How about a general?

Simons: I think maybe I would include generals too.

Nesson: Like Westmoreland?

Simons: I agree with Tony. These people all have a platform any time they want it.

Nesson: How about a university president?

Simons: Oh that's a private person.

Nesson: Oh anytime I need to know I just need to call you and ask you.

Simons: That's right. I'll tell you. (laughter)

Lewis: Can I just interrupt to chime in with an apt quotation on the point Howard was making. This is a wonderful libel opinion. Its an opinion of Judge Bork's in a case decided in the U.S. Court of Appeals for the D.C. circuit last week. "In deciding a case like this therefore, one of the most important considerations is whether the person alleging defamation has in some real sense placed himself in an arena where he should expect to be jostled and bumped in a way that a private person need not expect. Where politics and ideas about politics contend, there is a First Amendment arena. The individual who deliberately enters that arena must expect that the debate will sometimes be rough and personal." That's what I think.

Nesson: Except "jostled and bumped" sounds very benign. It's what happens when we walk out into the street. And the libel plaintiffs view is, "I didn't get jostled. I didn't get bumped. I got decked. I got malevolently knocked out. (laughter) And I want to prove it."

Crimson: It has been written of the "emling" effect that the rise of libel suits is having on the aggressiveness of the press.

Simons: I think that's absolutely true. I think small newspapers in particular. I know what of I speak because I own one... You can be a small newspaper and wipe out your entire margin of profit in one year, especially if you're a very small newspaper, just trying to defend yourself in the legal process. So you do hesitate, or hang back...

Crimson: On the other hand, as Mr. Lewis raised recently, what effect does it have on the press to have a rule that limits its responibility for printing falsehoods? In Great Britain, for instance, there are much more stringent libel laws on the theory. I guess, that accuracy is what counts.

Lewis: It's the theory that Howard's friend Harry Evens, former ed for of the Sunday Times of London has said. "I don't want to have an easier libel law. Its a necessary discipline for us to have this tough law."

Simons: Which very few Americans would agree with.

Crimson: Do you agree with it?

Simons: No, absolutely not I like the system we have now and wish we could improve it. One way would be to get rid of law professors (laughter)

Crimson: What about that rule don't you like?

Simons: I think the press has to be as free as possible.

Nesson: Is it your sense that the English press is much less aggressive than the American press

Simons: Oh absolutely No question in my mind

Lewis: I agree Much less aggressive

Crimson: And that aggresion is worth the freedom given the press?

Nesson: ...It is certainly worth a lot It is our First Amendment tradition and it is in large part what the United States is all about. If the question is should it play itself out in just the way it has played itself out in American libel law, I have tremendous questions about it. At this stage, there are two features of the American libel law which play together to produce a corrupt litigation situation...On the one side, one side has the ability to inquire into virtually the state of mind with which the article was written. The concept of actual malice has been played out this way, which means that a party in our litigation system has the ability to depocket the other side by exhaustively inquiring and putting the other side to the expense of depositions and so forth. It works just the other way around as well, because the way the defense of truth works, the other side has the reciprocal ability to inquire into the plaintiff in depth to try and establish whatever they said was true. It becomes a game of who can depocket the other side rather than a process of truly trying to vindicate some legitimate interest.

Simons: Who's at fault in this process?

Nesson: Its hard to pin it in any given place. Times and Sullivan was an opinion written with the best of intentions and great ambition by a great justice who I think didn't see the pitfalls of opening up the subject in the particular ways that he was opening it up...Once you set a kind of an open-ended agenda in an adversary system where there are high stakes, its inevitable.

Simons: How would you change it?

Nesson: I think the actual malice concept has got to be changed... To me the question in libel is not whether the statement was true as much as whether it was justified when it was printed...

Lewis: Just say a word more about you mean by justified."

Nesson: There is, to me, a question of whether a reporter, a newspaper was acting within the norms of journalism in printing what they printed. Something like a gross negligence standard.

Lewis: ...I began to be with you until you said that.

Nesson: So help me out.

Lewis: ... When you get into the norms of journalism, you are trying to impose a straight-jacket on a profession which isn't a profession and which for the best of reasons in American history, that you have stated--the kind of country we are--should not be stamped out with something to be judicially delineated. We don't want to do that. Sometime's it's the outsider, it's the Tom Paine, it's the, quote, reckless, irresponsible character who does great things. We don't want to be judged by the standards of The New York Times.

Simons: And we don't want norms. There's no such thing as norms. Crimson: Well now that Professor Nesson has opened himself up for attack on his flanks, maybe I'll let Mr. Simons and Mr. Lewis take a whack at giving some directions in which they would like to see the courts move in this area.

Lewis: I am uneasy about the actual malice standard for the reason Professor Nesson indicates...I would like to see several things happen... One is a realistic view of damages, which we've already talked about. If the purpose if the clearance of good name, the restoration of reputation, the making whole of actual injury, let's limit it to that and not turn it into a sort of a grab bag Two, I would like to focus on something more limited than we have now. Profesor Nesson has drawn you the picture of this bottomless subject of investigation What did the publisher know? How many other things did the publisher know? ... I suggested returning to the simple standard of whether it was true or not, because you would eliminate all of that search ..Lastly, I think we have to get at the judge jury question. The Supreme Court has been reluctant to do that I think quite wrongly. Judge Bork, who is regarded as a Reaganite conservative, says in this opinion that it is the duty of a trial judge not to let any speech or writing go to a jury in a libel case if the speech or writing is in what he calls the "public, political arena." I agree with that.

Crimson: Lawyers are demanding to go farther and farther into the actual process of gathering news and I was curious whether you thought that that was another aspect to this libel business that could potentially damage newspapers?

Simons: Oh absolutely, I think that's even more horrible than everything else, because it's notebooks and it's mentality and it's the news process, and for years growing up in the business, that was a no-no...I think that does have a chilling effect...

Lewis: Let me show you that there's occasionally some disagreement in the press--we're not totally monolithic--by putting a question to Mr. Simons if I may. Howard, isn't some of the responsibility for the thing the press's in the excessive and increasing use of anonymous material in newspapers, unattributed material?

Simons: Oh sure.

Lewis: If a newspaper runs a story saying, "An informed source tells us that Mr. Jones, who has been a hostage in Iran, was actually a runner for the heroin ring," is that right? Should you do that? And if he sues, shouldn't he be entitled to probe to get that name? He's a private citizen. He's not General Westmoreland.

Simons: You're the lawyers, and I'm not. Let me ask you a question in return. If the newspaper says I won't give you that information, the courts, it seems to me, would have a perfectly adequate way of punishing the newspaper for refusing to reveal their sources on an anonymous story.

Lewis: And that is?

Simons: Well can't the courts then find against the newspaper? Hasn't that been happening in libel?

Lewis: And you accept that?

Simons: I accept that.

Nesson: I'm surprised to see that Howard accepts that so blithely, because he's just been talking about owning a small newspaper--

Simons: It would wipe it out.

Nesson: --I take it that that must mean that you never publish anything in your newspaper attributed to an anonymous source.

Simons: No I'm sure that the newspaper does.

Nesson: And when somebody sues your newspaper and says you got it wrong (laughter), let's have your source. You'd be happy to admit the libel judgement and pay a huge amount of money?

Simons: No, no, no. Then what I'm saying is I have a choice. Every choice involves a sacrifice, and I'm going to have to either say, yes, you can come after me or, no, I'm not going to play. And that's the end of the ballgame for the newspaper...

Crimson: The point that we started off with is the public perception that the press has become arrogant. How can the press successfully counter that image.

Lewis: I think it is very difficult. There're some things that newspapers can do, perhaps even broadcasters--a little more conciousness of the capacity to inflict injury, a little more concern about that... I think a recognition of the kind that Howard Simons just gave us if you do that to some private individual you may have to pay, instead of always having a knee-jerk reaction...

Crimson: Professor Nesson?

Nesson: I'm a great fan of the American press. I think that, yes, there's an impression of arrogance, but I don't really think that it comes from things that I would want to see the press change doing. The place where I see that some progress in possible is in a funny little corner of this, which is in the press' relationship with the judiciary. We're talking libel cases. They're court cases. They are cases that are supervised by judges, and so the judges become a peculiarly important audience. And if the judges have the impression of the press being arrogant, that will show up in the way libel cases are administered. I don't have any doubt that the judges have gotten that impression. I don't think they've gotten if from reading the newspapers. I think they've gotten it from the way the newspapers have gone about litigating news issues. They have litigated them in the highest toned rhetoric of the First Amendment, which when you ask them what do they mean by it, a lot of journalists have a lot of trouble saying what they mean. They have asserted some God-given right not to turn over outtakes, which still evades me... They've asserted a reporter's source privilege in terms that I think could be--I think you can legitimately defend a reporter's source privilege--but in fact the press advanced it in the most incredibly high-toned terms... They've built up a backlog of incredulity amongst judges, where the judge says. "Oh, here comes the newspaper with the hot-air argument again...

Crimson: Mr. Simons?

Simons: I'm going to stay neutral. I think that judges have their own arrogance. I think that law professors have their own arrogance. And I think that what you see more often than not is a clash of two groups who have their own views of themselves which may be at odds from time to time...

Crimson: Let me turn towards the Westmoreland and Sharon cases which have been alluded to in the discussion thus far. What do you see as the importance or the implications of the decisions, one way or the other?

Nesson: Of course it depends on how the decision comes down. I personally will be truly dissapointed if the media organizations lose either one of those cases. I think either one of them has the potential for real mischief if the case is lost And when I say lose, I mean lose big I'm not talking about a one-dollar award to either one of those plaintiffs I'm talking about an award that's measured in the millions of dollars. That would turn on a green light for more litigants and more lawyers to jump into a public forum against major media defendants that would be truly mischievous.

Simons: I can't add more.

Lewis: Nor can I.

Simons: He's our lawyer.(laughter