THE $1.6 MILLION libel verdict won by Carol Burnett from The National Enquirer is causing quite a stir in the publishing business. It should. The jury's verdict is a shot across the bow of an industry that has aroused the anger of celebrities and, it seems, a portion of the general public by its zest for publishing titillating details about what the great and famous do and say.
So far as we can tell, no great principle suffered in this case. Freedom of the press is not threatened; whatever chilling effect this verdict has on writers and editors should fall only on those who skate perilously close to the line between fact and fiction. One publication has lost a libel case, just as other publications do from time to time, and it has lost it under a set of judicially created rules to give writers and editors protection against all but the most egregious errors.
Given the evidence in this case, the jury's decision that Miss Burnett was libeled was hardly surprising. The Enquirer did not contest her claim that it had published as fact something that did not happen. Its principal defense -- that its editors had believed the item was true -- was substantially undermined by the testimony of its former employees. That, plus the rest of the evidence, made it reasonable for the jury to conclude that The Enquirer's editors had published the item either knowing it was false or with reckless disregard for the truth.
The size of the jury's award, however, is not reasonable, and that is what should be of concern to all publications, including this one. The "news" item in question did no great professional harm to Miss Burnett, although it did embarrass her, and what harm it did must have been partially redressed by a retraction and apology published two weeks later. The jury's award of $300,000 in general damages presumably reflects its judgment of The Enquirer's true liability. But the jury added another $1.3 million to that amount to punish The Enquirer for its error. This is so excessive a verdict that the reviewing courts ought to set it aside or reduce it substantially.
It is one thing for a publication to be assessed huge damages, even if they happen to bankrupt it, to make whole in individual whose career or reputation has been falsely and malicisouly ruined. It is something else for a jury to impose massive punitive damages that are almost always aimed at destroying or muffling a publication. We hold no brief for the kind of journalism The Enquirer practices, but the danger is that the weapon used against it in this case can be used against serious publications as well as frivolous ones and against careful editors who, inevitably, makes mistakes, just as reckless ones do.
The magnitude of the jury's award can be interpreted as a demonstration that a well-liked celebrity is better off in court than is a publication many people read but few admit to liking. It can also be interpreted as a warning that at least part of the public is prepared to slap down hard those publications that are caught being careless or reckless. Either way, the message is about the same: the private lives of celebrities are still fair game for jounralist, but only if the game is played evenly and factually.