SUING THE PRESS
Libel, the Media, & Power
Rodney A. Smolla
New York: Oxford University Press
277 pp., $18.95
RECKLESS DISREGARD
Westmoreland v. CBS et al; Sharon v. Time
Renata Adler
243 pp., $16.95
Litigation, like war, is not an activity for the faint of heart. Nor is it something to be entered into lightly. The violence done to a person by an ill-chosen word or phrase in public can be redoubled in the relatively innocent act of self-defense. No doubt there are those who will manage to win cases that are not appealed to the highest court, but the precedents already set for the volatile combination of high awards and endless appeals is chilling the prospect of both the press and the public.
Smolla, an associate professor of law at the University of Arkansas School of Law, has followed libel law through the tortured recent past, from New York Times v. Sullivan through Westmoreland v. CBS et al. What he finds as key to the high awards is the willingness of juries to compensate for "injuries to the psyche" and of judges to support such compensation.
Even, so the issues are not clear-cut when the suing party is a public official. In the now-celebrated case of The New York Times v. Sullivan, Justice William Brennan wrote that the court must protect equally the rights of free speech and of privacy. What created the landmark status of the case was Brenman's overturning of two lower courts' findings that L.B. Sullivan, a Montgomery, Alabama, city commissioner, had rightly claimed libel due to a March 29, 1960, New York Times ad. The ad, a plea for funds for civil rights advocates, noted that 400 students had been harassed, tear-gassed, and eventually arrested in South Carolina, and that others were arrested for demonstrating on the Alabama state capitol steps. "Southern violators" had repeatedly brought violence to demonstrations led by Dr. Martin Luther King, Jr., the ad said, and in fact King himself was in danger. Sullivan's duties included overseeing the operations of the Montgomery Police Department, and so he claimed that he had been libeled in the performance of his duties. But in overturning the lower courts' decisions, Justice Brennan determined that while there was possible libel, the possible libel was via a political statement, and even though the individual as a public official had the right to defense against such libel, the private right of a public servant need not overcome the public's right to open political discussion. The point of the ad was not to render actual malice to Sullivan, and so the lower courts' decisions could not stand.
This is the difficult of libel litigation, for while misstatement of fact is libelous, an opinion is permitted. And when the allegedly libeled person is a public official, there must be (the now famous) actual malice or reckless disregard for the truth of falsity of the claim.
Another of the cases Smolla describes leaves unresolved the problematic relationship between fact and opinion. It began with yet another salvo in a long-standing feud
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