Stanford expert pushes balance in libel laws

Absolute media immunity or greater press liability? The debate flares on in the wake of megabucks libel awards to Mobil Oil, Carol Burnett, and others at the expense of news organizations -- and in the more recent libel cases raised by Gen. William Westmoreland v. CBS and former Israeli Defense Minister Ariel Sharon v. Time magazine. Widespread discontent continues over resolution of most libel cases. News-media defendants insist that the threat of lawsuits tends to ``chill'' their ardor in pursuing certain investigative stories. Hence, they argue, the public and the First Amendment guarantee of free speech are the losers.

Libel plaintiffs see it much differently. They claim that the tough standard of ``actual malice'' -- adopted for libel as a result of a Supreme Court decision in New York Times v. Sullivan in 1964 -- makes it almost impossible for any person in the ``public'' limelight to collect damages or even gain redress in the courts. Hence, they argue, the media are free to act vindictively and recklessly at least up to a point -- and severely damage reputations.

What's the answer?

Libel experts offer solutions ranging from absolute protection of the press from damage suits to an overhaul of the Sullivan guidelines to make it easier to punish the media for defamation.

A few are seeking compromises. Among them, Marc Franklin, a Stanford University law professor, who has studied libel cases for more than two decades.

Professor Franklin -- once a law clerk to the late Earl Warren, chief justice of the United States -- is a constitutional lawyer and a staunch defender of the First Amendment. But in an interview in his law school office here, he also allowed that ``plaintiffs about whom falsehoods are made are not getting desirable protection from the legal system.''

The legal authority offers a possible set of solutions:

Require strict adherence to a standard, sometimes overlooked by some jurors, that a person must prove that any error or false statement published about him was made with ``actual malice.'' This would include both intentional use of a falsehood and the use of a falsehood with reckless disregard for its accuracy. In many recent cases jurors have voted for libel without all the above elements present.

Abolish verdicts for punitive damages -- only assessing cash for actual harm (such as loss of income, prestige, or reputation) to the aggrieved.

Allow plaintiffs, however -- without proving fault -- to obtain court judgments that their reputations have been falsely damaged. This could entail a requirement that the offending medium print retractions or allow time or space for correcting statements or right of reply.

Require losing parties in damage and restoration actions to pay the other's lawyer fees.

Mr. Franklin would accomplish these changes through state and federal legislation. He says the courts move too slowly to address such a pressing problem.

The libel authority believes it is not in the long-range interest of the press to have outright immunity. ``And many of them [the media] may not actually believe in absolute privilege,'' he points out. Franklin also says that most plaintiffs merely want to ``clear their names'' -- and would welcome a vehicle to do so without the risk of a win-all or lose-all libel action that is time-consuming and expensive.

He would oppose any weakening of the Sullivan standards by the courts. Some efforts are afoot to place less of a burden of proof than ``actual malice'' on public officials and public persons seeking libel judgments.

Franklin, however, calls for more openness by the media in admitting mistakes; a greater willingness to print corrections and retractions; better education of reporters to what constitutes libel; and sensitivity of publishers to their social responsibilities to readers.

``The [media] people on the firing line must realize that words can hurt,'' Franklin stresses. ``Words can be dangerous. They must be used with care.''

Curtis J. Sitomer writes the Monitor's weekly ``Justice'' column.