Current libel laws serve no one very well. Plaintiffs have to mount expensive and often long legal battles. Defendants, too, sustain years of dollar- consuming legal action as well as possible damage awards that could put a chill on future news gathering or even force plant shutdowns. Readers may not learn the facts in the dispute for years.
As Judge Robert H. Bork of the U.S. Court of Appeals for the District of Columbia, a well-known conservative, observed, "In the past few years a remarkable upsurge in libel actions, accompanied by a startling inflation of damage awards, has threatened to impose a self-censorship on the press."
What are some alternatives that might preserve the public's ability to engage in "uninhibited, robust and wide- open debate," as the Supreme Co put it two decades ago? Recent publicity has focused on media libel suits, but everyone's freedom of expression is at stake.
The obvious option would involve a dramatic change in the attitude of the media toward aggrieved parties. If a public official or public figure -- or anyone for that matter -- could count on a prompt and clear correction or clarification, a lot of cases would die aborning. This requires reporters with high standards and editors determined to overcome obstacles.
Many corrections are quickly achieved, but here's what sometimes happens: On a large newspaper, the first to answer a caller is a news aide, but he or she doesn't have the authority to correct; reporters, almost by definition, are often out reporting; their editors are busy working on the day's paper and returning calls can be problematic. The public figure, already angered, understandably now feels aggrieved.
Then there is defensiveness -- the reluctance to admit error. Few papers have written procedures for dealing with requests for corrections, and few readers understand that there are ways to appeal. (Of course, a competent reporter would have given the public figure a chance to be heard properly in the news story, but perfection in newsrooms, as elsewhere, is in short supply.)
A second possibility is to give the aggrieved public person a right of reply. CBS offered Gen. William Westmoreland 15 minutes of unedited comment on a followup program, after he complained. He wanted 45 minutes and the negotiation foundered. The $120 million libel suit followed. Time magazine last week said it might print a correction if a secret Israeli report bore out Gen. Ariel Sharon's protests. His counsel hinted this might lead to dropping Mr. Sharon's $50 million libel suit.
A Washington libel researcher, Gary A. Weinstein, has advocated that newspapers offer a substantial right of reply "in exchange for a waiver of a right to sue for libel." He suggests that if a newspaper is not initially willing to correct or retract, the question be turned over to an ombudsman or arbitrator who would hold a hearing with the potential plaintiff and reporter. If convinced, the hearing official would grant a right of reply and "save both parties the headaches, expense and threats that go with litigation."
Then there are more drastic suggestions. One would put a ceiling on awards so they could not exceed a set percentage of the paper's net worth. Should one mistake kill a paper, perhaps the only one in a community? Another idea would give the judge the power to determine punitive damages once a jury had determined there was actual libel. The judge, it is assumed, would be less subject to emotional attitudes.
Another approach would be to bar punitive damages altogether as contrary to the spirit of the freedom of speech and press amendments to the Constitution. After all, the basic purpose of libel law is to compensate for harm to reputations, not to punish as in criminal law.
Another change was suggested by Supreme Court justices Black, Goldberg and Douglas in the 1964 New York Times v. Sullivan libel decision. They would have barred libel cases by public officials against the media. Justice Goldberg argued, "If liability can attach to political criticism because it damages the reputation of a public official as a public official, then no critical citizen can safely utter anything but faint praise about the government or its officials."