First Amendment and the press: rethinking libel laws

Are libel laws too weak or too strong? In recent judgments against the news media, have First Amendment freedoms been jolted? Or do whopping awards of damages against newspaper and magazine defendants tend to prod the press toward more responsible reporting?

The debate rages on - in courtrooms, in newsrooms, in public forums. It will almost certainly get a fresh airing in the US Supreme Court. If the media and civil liberties groups have their way, libel litigation will virtually disappear from court dockets. At the very least, big dollar penalties will give way to public platforms for the aggrieved and open retractions from the offending media.

On the other hand, faced with a spate of libel cases against the media and under mounting public pressure to place restraints on what many view as an errant press, courts and/or Congress could broaden grounds for this type of suit. Those who see the media as a runaway cannon - hurling reckless accusations and ruining careers of decent people in the name of investigative journalism and under the cloak of the First Amendment - would modify present law. So-called Sullivan standards now shield the media from libel suits by people in the public eye - unless ''actual malice'' can be proved.

A hallmark case, New York Times v. Sullivan (1964), set guidelines that, in effect, made the press virtually immune from libel actions by public officials. The court said that only if actual malice was found by juries could constitutionally guaranteed press freedoms be superseded.

A trickle of libel cases in the late 1960s and '70s, however, now has changed to a steady stream. And the news media has had to pay millions in damages in such publicized cases as: Carol Burnett vs. the National Enquirer ($1.6 million reduced to $800,000); a former Miss Wyoming vs. Penthouse magazine ($14 million); and Mobil Oil's president vs. the Washington Post ($2.05 million).

Other cases and appeals are pending. Meanwhile, news groups are increasingly settling libel cases rather than face trials that could result in huge financial penalties.

Media defendants did see some turning of the tide when a US judge in Philadelphia late last year dismissed a $3 million libel suit brought by three policemen against the Washington Post. The law officers had accused the paper of malice in printing an article about police brutality. The court found no malice. And the judge ruled that, in the absence of malice, press freedoms take precedence over individual protections.

As might be expected, the media read recent decisions, and particularly huge money awards, against the press as leading to a muzzling of free speech. Floyd Abrams, a longtime civil-liberties lawyer who has represented news groups in libel suits, warns that this trend could ''chill investigative reporting.''

But plaintiffs have hailed these antimedia judgments as a victory for ''responsible'' journalism. Mobil Oil's president, William P. Tavoulareas, said as much in the wake of his victory over the Washington Post. Others insist that the First Amendment is well served when juries discipline the irresponsible.

For a long time, the American Civil Liberties Union (ACLU) kept a low profile on press libel cases - torn between its commitment to individual rights and its verve for a free press. In recent months, however, the ACLU jumped off the fence squarely in favor of the First Amendment, announcing it now will oppose the right to sue for libel in cases involving issues of public concern.

What is the solution? How can a free society protect individuals from wrongful accusations while preserving media responsibility to inform the public?

The current issue of the Columbia Journalism Review, focusing on libel, leans toward a proposal of Anthony Lewis of the New York Times that would have the court distinguish between media attacks on ''policy'' and ''ideas'' and ''particularized charges of wrongdoing.'' He would subject only the latter to libel action. And he would set aside damage awards in favor of printed or public corrections or other types of retribution.

Others, reportedly even members of the Supreme Court, are concerned that excessive cash awards in libel cases do not always serve the cause of justice. Some judges favor limiting the discretion of juries in deciding dollar amounts - and making the fiscal penalty relate more directly to the harm suffered by the aggrieved party.

Legal experts say that present implementation of the libel law could tend to encourage unequal protection under the law. Major publishers and the networks may conceivably survive multimillion-dollar assessments against them. But smaller media could end up closing their doors.