The game of libel has become a major spectator sport. The renowned gladiators are attended by gleaming state-of- the-art attorneys, and the stakes are immense. Indeed, if Gen. Ariel Sharon v. Time, Inc. were televised, it could crunch the ratings of "Family Feud," and had the Falwell- Flynt battle of the broadswords been available at home, "All in the Family" might well have lost much of its rerun audience that week.
Just as most watchers of the Redskins and the Cowboys know that they will never actually be up against the behemoths they see playing on screen, so do most followers of the libel wars believe that they'll never have to worry about being sued for something they have said or written in a letter to the editor. The law of libel, it is widely believed, has to do only with the famous and the infamous. And whatever happens to them, they can afford.
This erroneous notion that ordinary people are immune from being hauled into court for what they've said or written is due almost entirely to the print and broadcast press. Obviously, the big-name libel stories have to be covered. But there have been few accounts in the press of libel actions against folks who are hardly known beyond their own street. Like the $100,000 suit filed by the huge National Education Association two years ago against a woman in Bristol, Tenn., who had dared to write a letter to the editor of the paper there criticizing the NEA. She had to hire a lawyer to avoid much heavier charges for free speech.
For further example, Ira Glasser, executive director of the American Civil Liberties Union, cites a meeting of tenants in the lobby of their New York City building. They are angry at the absence of heat, the presence of ceaselessly predatory insects and a stuttering elevator. They form an association and elect a president who makes an inspirational speech, during which he calls the landlord "inhumane," "a thief" and "a beast."
An informer at the gathering tells the landlord, who announces himself defamed and sues the president of the tenants' association for a hefty amount. The president resigns his office, and the association is disbanded. The lawsuit eventually dissolves because the defendant has no money, and anyway, the landlord has accomplished his purpose.
Glasser also points to a Police Benevolent Association on Long Island that proclaimed it would henceforth sue every citizen filing a misconduct complaint that was found to be unsubstantiated by the police department's civilian review board. This is not an independent complaint board, but rather belongs entirely to the police department, and it tosses out 95 percent of citizen complaints. After the threat of mass libel actions was announced by the PBA, the number of complaints against the police dropped.
Eve Pell, in her valuable new book, "The Big Chill," has a section on unknown citizens' being punished for speaking their minds about public issues. A housewife in San Lorenzo Valley, Calif., wrote a letter to the local paper taking issue with a proposed land development, and the developer sued her for $3 million. She will not again so quickly become the lonely pamphleteer.
Pell also reports on the free speech lesson learned by the president of the League of Women Voters in Beverly Hills as well as by other citizens there who were involved in a successful ballot initiative to prevent a development company from building a condominium. The company sued for defamation on the basis of two letters to the editors of local papers and statements made on behalf of the ballot initiative. During oral arguments before the California Supreme Court, Chief Justice Rose Bird wondered whether anyone writing a letter to the editor on a controversial public issue might be well advised these days to consult a lawyer before mailing it. The court eventually decided that the defendants had engaged in expressions of opinion, and the First Amendment does protect even opinion that gets in the way of somebody's profits.
The ACLU decided two years ago to adopt a new, much stronger policy on libel: no public official or public figure should be able to sue for libel concerning anything he does in his role as public official or public figure. And -- just as crucial -- no person, public or private, should be able to sue for libel on any subject of public concern that involves him. That is, "anything having an impact on the social or political system or climate."
If, however, we go on the way we've been going, even a giant public figure will be able to collect whopping damages whether or not he can prove he has actually been libeled. He'll just have to show "severe emotional distress" or "upset" because of words or cartoons about him. Why, come to think of it, we're already there.