First Amendment advocates often warn of the subtle intimidation of libel suits — the “chilling effect.” For small newspapers, there is nothing subtle about it. As the Alton Telegraph discovered last year, a costly court fight can frighten editors, discourage reporters, and saddle a business with an incredible debt.
Libel cases are on the rise as are the sums being awarded to the plaintiffs. According to a new analysis by the Libel Defense Resource Center (LDRC), damages awarded by juries against the media in libel and privacy cases now exceed jury awards in medical malpractice and product liability actions. The average award in recent libel actions was above $2 million compared with $700,000 against doctors and $750,000 against manufacturers of defective products. The LDRC also reported that libel defendants have substantially less favorable success rates in court. Libel defendants lost 83% of recent jury trials while the loss rate has been 33% in malpractice suits and 38% in product liability actions.
While most major newspapers, television networks, and other media organizations still deny that big libel awards frighten them away from important stories, the denial seems hollow. The increased threat of libel suits and the enormous financial settlements (the Alton Telegraph settled out of tour for $1.4. million, one of the largest libel settlements in history) are changing the way newspapers handle the news. Anonymous sources are banned from stories; reporters consult with editors before writing letters to persons outside the paper; reporters’ notes are often destroyed within a day of publication; and, in some cases, papers shy away from controversial stories completely — an economic safeguard which negates the traditional watch-dog role of the press.
Even more ominous, the Supreme Court appears to have abandoned its pro-media stance of the 1960’s. On March 20, 1984, in two unanimous rulings, it made national publications and the people who work for them easier targets for libel suits. The court said people who sue any nationally distributed publication for libel may sue in the state offering the most favorable laws and filing deadlines and reporters and editors may be sued along with their employers. The justices said the news media may not rely on free-press rights to fend off libel suits that are filed in distant state courts.
“The court has provided a terrific club and allowed an enormously intimidating power,” said Jack Landau, director of the Reporters Committee for Freedom of the Press.
The chilling effect of libel suits and the Supreme Court reversal on the First Amendment deserve far more national attention than they have received. They are not “in-house” press issues.
WALL STREET JOURNAL, 9/29/83, “Chilling Effect,” by John Curtsy; COLUMBIA JOURNALISM REVIEW January, 1983; AP, San Francisco Chronicle, 3/21/84, p.10; EDITOR & PUBLISHER, “Socking it to the press,” p.1.