Gene Roberts, executive editor of the Philadelphia Inquirer, is rare among journalists. When he gave the Ralph McGill Lecture at the University of Georgia a while ago, he talked about libel suits, but much of his focus was on private citizens -- not reporters and editors -- as defendants. Most journalists act as if libel suits, like the First Amendment, are their exclusive concern.
Roberts told about Raymond Henderson, president of a chapter of the National Association for the Advancement of Colored People in a suburb of Pittsburgh. Henderson appeared before the Town Council and protested the firing of a black secretary as being racially motivated. Five members of the council have sued him for defamation.
A Colorado rancher, Roy Craig, took issue with the way county funds were being allocated for a land-use plan. He wrote a letter to the local paper claiming that the private firm hired by the county in connection with that plan was going over budget. The planning firm sued him for libel. The case has been inching its way through the courts for six years.
Roberts provided other examples of the increasing cost of citizen participation in local affairs. And at the University of Denver, law professor George Pring -- along with another professor, sociologist Penelope Canan -- has been collecting such cases as part of their Intimidation Lawsuit Project. These are defamation actions against private individuals and civic groups by government officials and agencies, real-estate developers, landlords and alleged polluters, among others.
Most of the suits, Pring says, are not brought with the intent of winning damages, although the figures asked for are grand. The intent is to frighten and thereby deter the defendants from getting uppity again and also to send a message to potential citizen activists that they had better watch their language.
Pring's research indicates that "private people sued for libel do get chilled and drop out of being political citizens. Some of them say, 'I will never go to a public hearing or sign a petition again.' "
Bringing a libel action against amateur Ralph Naders who do not have Nader's resources is a clever strategy. "Aside from the intimidation," Pring points out, "the issue is then no longer being fought in, let's say, the city council but has been sidetracked into a libel suit in the courts. Furthermore, the citizens involved now have to use their resources to defend themselves rather than to keep after the city official or the developer."
At the end of June, the Supreme Court, in a libel ruling, Anderson v. Liberty Lobby, made it easier for judges to grant summary judgment in a defamation action before trial. That decision applies only when public officials and public figures are suing, and even then, is not likely to be of much help to nonmedia defendants with little money. The costs of getting far enough along to try to win a summary judgment remain high, even under this new Supreme Court decision that public officials and figures have to show with "convincing clarity" before trial that the defendants knowingly or recklessly circulated falsehoods about them. If the plaintiffs can't show that, they've lost.
But as an illustration of what's going on down below, in Suffolk County, N.Y., a real-estate developer is suing nine civic associations and 16 individuals for libel. The defendants ran an ad in a local newspaper objecting to the developer's plans for a parcel of land in their town. They also published a statement of their concerns in the same issue of that newspaper. And they circulated a leaflet and a notice telling the residents of the community about a hearing at the Town Meeting on the issue.
When the Town Board unanimously rejected the developer's plan, the real-estate company brought suit against its critics.
A law firm specializing in libel has taken the defendants' case at three-quarters of its normal fee. After more than a year in the courts, arguing a motion to dismiss it has yet to be decided, no trial has taken place. At cut rates, the legal expenses of the defendants are now around $10,000. Should they lose the motion to dismiss and go for summary judgment, they will first have to take depositions from the other side to try to show that the developers' case is too weak to prevail a trial. This will add a sizable amount to their bill.
Whatever happens, should that developer move into the same town with another plan, local citizens may think hard and long before they add their names to a statement in the newspaper or before they get up to speak at their own town meeting.