The confrontations between the famous generals and the big media have been entertaining reading lately. I'm talking, of course, about the libel trails against CBS and Time magazine brought by William C. Westmoreland and Ariel Sharon, respectively.
But while it may be fun to read about rich and powerful institutions and famous people squirming in the courtrooms, is it possible that the decisions will adversely affect newspaper readers?
Both plaintiff and defendant in these two particular cases have developed imposing cases. In the discovery process they have called many witnesses, foraged internal memorandums, screened television out-takes and read through reporters' notes.
Multi-million-dollar libel suits against the media do not always prevail, but many are at least initially successful. One thing is certain, though: they are costly. A study by the Libel Defense Resources Center of 80 such libel jury awards between 1980 and 1983 showed the average was $2,174,633. Surprising to most readers, this was more than three times as much as the average award in medical malpractice cases in the same period. Readers have heard about heavy medical awards and soaring insurance costs, but million-dollar awards against the media are less well known, and the effect on libel insurance rates even less so.
Many awards, such as the $2.05 million judgment against The Post in a libel suit, are later overturned by the courts. (In The Post case, the plaintiff is now appealing.) In some other cases the damage awards are reduced on appeal.
But even the costly awards tend to obscure the heavy cost of defending publications in libel suits, whether won or lost, as well as the cost of negotiated settlements.
The heavy toll of long-term legal fees was emphasized by Anthony Lewis, Harvard law professor and columnist, in his article on the last 20 years of media libel law in the Nov. 5 New Yorker magazine. He said that CBS spent an average of $100,000 a month in 1983 in preparing for the Westmoreland case and is budgeting $250,000 a month for legal costs during the trial. (A CBS official would "not confirm or deny" the accuracy of the figures to me.)
Negotiated settlements are not cheap either. The Alton, Ill., Telegraph, a daily of 37,645 circulation, was hit with a $9.2 million. Unable to pay even the bond for appeal, the paper entered bankruptcy proceedings and then negotiated a $1.4 million libel settlement -- a million paid by libel insurance and the remaining $400,000 borrowed from banks.
Do such libel expenses and awards exercise a chilling effect on reporting?
Last year The Wall Street Journal, reporting on the Alton Telegraph, said "When someone called recently with a tip about misconduct in the sheriff's office, Stephen Cousley [the editor] decided against investigating. "Let someone else stick their neck out this time," a reporter heard him tell an editor." When John Curley, The Wall Street Journal writer, asked Mr. Cousley about the remark, Mr. Cousley said, "I probably said that." (Mr. Cousley was unavailable when I tried to check the report.)
If some newspapers, scared about the kinds of awards that could put them out of business or about legal fees even larger than their monthly news service charges, turn overly cautious, what happens to the watchdog for the public? Will there be orders that reporters stick to happy news or sterile coverage and not go near the muddy waters? And if reporters should chance into a controversial thicket, will a libel threat send them scampering? It is important to increase journalistic care and caution, but must it be at the cost of initiative and responsibility to readers?
This is not to argue that individuals who have been mistreated by the media should not have protection, but it is time to reexamine the 20-year-old experience with the use of libel litigation by those holding the status of public officials or public figures. There should be better ways to protect both individual rights and freedoms of speech and press than by court contests heavily laden with politics and personalities.
In my next column I will discuss some suggestions that have been made.