I’M GOING TO SUE YOU FOR LIBEL!

For the past several weeks, I have been writing about the press: The power of the press or the lack thereof, and freedom of the press and challenges to that freedom. Some journalists feel that libel laws represent a challenge to freedom of the press. I do not agree with that. The purpose of the libel laws on the books is to try to protect the reputations of those who journalists write about. But there are also laws on the books that protect journalists from prosecution for alleged libel– including the First Amendment of the US Constitution that states that “Congress shall make no law abridging the freedom of speech or of the press . . .” In addition, there have been several Supreme Court decisions that protect journalists from libel lawsuits.

When I taught journalism at the college level, I told my students that only careless reporters get successfully sued for libel. Journalists who know and understand the libel laws almost never get sued. The fact is that the vast majority of libel lawsuits is the result of factual errors or inexact language. Another fact that may surprise you is that, during the 18 years (1994- 2012) that I published and edited Key West The Newspaper (The Blue Paper), we were never sued– and, as you may recall, we were not wimpy when it came to aggressively covering and opining on the news and the newsmakers. We didn’t call it “journalism as a contact sport” for nothing. Oh yes, some of those we wrote about did threaten to sue. But in the end, they never did. One angry former government official reportedly told friends, “Those guys at the Blue Paper are clever. They know the law.” Duh! The new publishers, Arnaud and Naja Giraud, are carrying on the same tradition.

One of the laws that is easy to understand is that OPINION is almost completely protected from libel prosecution. It’s called freedom of speech. And that protection applies whether you are the editor writing a page-one commentary, or if you are a reader writing a letter to the editor. Also, journalists writing about judicial, legislative or other official proceedings (like city commission meetings) are protected when accurately quoting participants in these proceedings. This is one of the most interesting facets of libel law– because, as you may have noticed, many of the participants in these proceedings (like lawyers and commissioners) frequently utter untruths as well as slanderous allegations when speaking of others. They are PROTECTED from slander laws when speaking in an official proceeding and, when we quote them, we are also protected from libel lawsuits. Part of our job here, however, is not just to parrot the falsehoods that may be uttered by public officials, but to point out those falsehoods when we can document that they are false. For example, the Washington Post awards “Pinocchios” to public figures caught fibbing. (By the way, slander is alleged defamation that is spoken; libel is alleged defamation that is published.)

But while public officials might be protected while speaking during official proceeding, they are almost completely UNPROTECTED when they are attacked in the press, even when published allegations might be false. In 1964, in New York Times vs Sullivan, the Supreme Court ruled: “The First and Fourteenth Amendments require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’– that is, with reckless disregard of whether it was false or not.” Almost makes you feel sorry for public officials, doesn’t it? In 1967, the Supreme Court extended that ruling to include public figures– like celebrities and other prominent people who have voluntarily thrust themselves into the limelight (or who may have even been thrust into the limelight involuntarily).

For example, a movie star cannot successfully sue a theater critic for publishing an abusive review of the actor’s performance in a movie. That same actor might also open himself up to negative (and protected) public criticism if he were to act as an official or unofficial spokesman for one side or the other in  a controversial issue. Activists who become well known when they become involved in controversial issues can become “public people,” as far as the libel laws are concerned. The same can apply to just about anybody who who becomes “famous” through involvement in public issues. Even the famous evangelist Jerry Falwell found that he was unable to successfully sue Hustler Magazine, even after the magazine published an obscene cartoon featuring Falwell. In 1988, the Supreme Court threw Falwell’s lawsuit out of court, ruling that he was a public person and, therefore, criticism (including ridicule) represented fair comment. (You may have seen the 1996 movie, “The People vs Larry Flynt.) More recently, a MSNBC commentator was fired after Sarah Palin complained that his on-air comments about her were obscene. But that was the network’s decision. She could have never won a libel lawsuit because she is a public person.

I also told my students that, while these Supreme Court rulings are landmark decisions for freedom of the press and speech, they do not confer license for reckless disregard for the truth. The best defense against a libel lawsuit is the truth. But nobody’s perfect. When I was editor of the Blue Paper and we were notified that one of our reports had included incorrect information, we would check it out and, if we had indeed published an error, we did not hesitate to run a correction or retraction in our next issue– often on page on page one. We did this, not because we feared a lawsuit, but because it was the right thing to do. This is still the policy at the Blue Paper. On the other hand, when I repeatedly called one of our former city managers a near-criminal in my page-one commentaries, I never had to run a retraction or correction.

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Dennis Reeves Cooper has a doctorate in mass communication. He has taught at the University of Tennessee, Florida Atlantic University and the American College in London.