Errors, Lies, and Libel 0809317192, 0809317206

Citation preview

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Peter E. Kane With a Foreword by Elmer Gertz

The complexity of libel law in the United States stems from the conflict between freedom of expression and the right to protect one's good name. This legal confrontation has produced errors in court judgments, appeals by plaintiffs and defendants, and the loss of time and money for everyone involved in libel suits. Peter E. Kane takes a critical look at the development of the present law through a discussion of 17 landmark libel cases. He explains the cases in human terms, telling the personal stories of the people involved and enabling the reader to understand the opposing points of view as well as the difficulty of making decisions in libel cases. One of the many f>Oints he clarifies is the important distinction between an error and a lie when judging whether someone is guilty of libel. For example, in Goldwater v. Ginzburg, Ralph Ginzburg, publisher of fact magazine, compiled and printed in fact a montage of quotes he had collected from psychiatrists about Barry Goldwater. His purpose was to create a biography of Goldwater that portrayed him as mentally unstable and unfit for public office. Ginzburg not only took favorable comments out of context to make them appear unfavorable, but he sometimes pieced together more than one statement to convey an un(Continued on back fiap)

(Continued from front fiap)

favorable impression. It took five years of legal sparring for the courts to conclude that Ginzburg had delib- erately published a malicious and irresponsible document and to rule in favor of Goldwater. Kane concludes that our current, complex libel laws are often unable to resolve the cases to anyone's satisfaction, and he closes his book with a discussion of current thinking on possible libel reform. For example, Franklyn S. Haiman contends that while the best way to deal with bad communication is through more communication, the right to reply, present litigation does not always grant what the plaintiff really wants - restoration of reputation . Therefore, nonlitigation alternatives are being explored, in which the goal is to examine the published matter, come to a conclusion regarding its truthfulness, and restore the reputation of the defamed person. Peter E. Kane is professor of communication and coordinator of graduate study in communication at the State University of New York at Brockport. He received the Eastern Communication Association's Everett Lee Hunt Scholarship Award 1986-1987 for his earlier book Murder, Courts, and the Press. Printed in the United States of America

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Errors, Lies, and Libel is essential reading for media professionals, journalism students, and students of First Amendment law. "Kane's book does an excellent job of reducing complex law and often convoluted decisions to a very readable and understandable restatement. Certainly the cases themselves, the stories of the jury deliberations, and public perceptions of the press thqt he µescribes demonstrate the need for such a book." -Stephen A. Smith, University of Arkansas Also by Peter E. Kane:

Murder, Courts, and the Press: Issues in Free Press/Fair Trial Foreword by Franklyn S. Haiman Kane discusses five famous murder cases and the dilemma of the First Amendment/Sixth Amendment rights (freedom of speech/fair trial) conflict. Coverage of a court case by the press can make it difficult, if not impossible, for a defendant to receive a fair trial. "Murder, Courts, and the Press intriguingly illuminates-if it cannot ultimately resolve - the continuing war£ are between the judiciary and the p ress over how to protect defendants from insatiable reporters, editors, readers, and viewers." -Nat Hentoff, 11illage Voice

Southern Illinois University Press PO. Box 3697 Carbondale, IL 62902-3697

ISBN 0-8093-1719-2

Errors, Lies, and Libel Peter E. Kane With a Forev1ord by Elmer Gertz

Southern Illinois University Press Carbondale and Edwardsville

Copyright© 1992 by the Board of Trustees, Southern Illinois University All rights reserved Printed in the United States of America Edited and design~d by Mary A. Rohrer Production supervised by Natalia Nadraga 95

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Library of Congress Cataloging-in-Publication Data Kane, Peter E., 1932Errors, lies, and libel/Peter E. Kane. p. cm. Includes bibliographical references (p. ). 1. Trials (Libel)-United States. 2. Libel and slanderUnited States. I. Title. KF221. L5K36 1992 345. 73'0256-dc20 90-25032 [347.305256] CIP ISBN 0-8093-1719-2. - ISBN 0-8093-1720-6 (pbk.)

The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences - Permanence of Paper for Printed Library Materials, ANSI 239.48-1984. §

Contents Foreword

Vll

Preface

Xlll

1

The Problem

1

2

Commissioner Sullivan and The New York Times

9

3

Barry Gold water and fact Magazine

33

4

Police Defame George Rosenbloom 60

5

The Definitive Definition of a Public Person: Gertz v. Welch

6

The Rules of Libel-Beyond Comprehension

V

78

100

Contents

7

8

Defamation Suits as Political Tools: Generals Westmoreland and Sharon

122

What to Do about Defamation

139

Annotated Case List

155

Selected Annotated Bibliography

167

VI

ForevVord As the protagonist in one of the two leading libel cases, f feel a sort of parental pride and responsibility for the development of a law with respect to defamation. This book, therefore, has a special interest for me. It will hold the interest of others as well, including those who have not personally been involved in litigation. I like its emphasis on actual trials, rather ~

than exclusively on the reports of appellate reviews. Judge Jerome Frank, one of the most profound students of the law, used to say ~~-~t~.-~b9gJ§ that purp()!t~sl.!O. teach only thro.ugh repq.r!ed cases shortchanged students. He claimed that students would absorb much more of the reality of their intended profession if they poured over tran-

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As you read these pages, they will stir up images of people who battle, bleed, and breed. What

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imp~l!~g t~e111._t() rise up and protest despite expenditures of time, energy, and funds they often could not afford? c..,., .. , .......... ,'.

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My inslghtful friend Peter Irons has written a book, The Courage of Their Convictions, that gives at least part of the answer. It tells of sixteen persons, myself included, who carried their sometimes desperate fights for their rights to the highest court. Sometimes they won, sometimes they lost, but, always they were able to hold their heads high because they did not give up, whatever the cost. We see here the same kind of persons and

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Westmoreland, faces greater odds in the courts than in the battlefields. Always to them there is one enemy-the media. To others the press is the great conglomerate of heroes, battling for causes and the people. In each of these cases the press figures in some way- as defendant, as forum, as fortress. The press claims greater rights than the ordinary person. Should this be so? As you read about the cases in this volume, your answer may di£ fer from case to case. In any event, you will be ~-.._,,..__.-~

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interested, entertained, and enlightened.

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Foreword

And you will find that there are related fields

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One exam.pie is what we sum. up as the ~~--.....--------.. . --....r--,. . . . law of privacy. In some respects privacy arouses a ~.~

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i~l?.9-E!.~P!~"t,~_~,1.: !h~ J?,f!§.Q!11, Jh.~J11.~~E being. It was Walt Whitman who said, "I sing myself." That is what the persons in this array of cases sing. -Elm.er Gertz

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1-)reface Almost every nation has laws or constitutional provisions that pledge support for freedom of expression. However, in every one of these nations, including the United States of America, freedom of expression is not absolute. Laws and legal interpretations limit the extent of the freedom and provide penalties for violations. Often these limits arise when the principle of freedom of expression appears to conflict with some other social value. For example, the social distress caused by sexually explicit communication leads to laws that restrict what is defined as obscene communication. Unrestrained reporting about a gruesome murder case can be seen as harming a criminal defendant's right to a fair trial. Another area where these conflicts are marked is that of defamation, the laws and court rulings dealing with the problems of libel and slander. We live in a society that places a high value on an individual's good name and reputation.

Xlll

Preface

Nowhere is that idea more clearly stated than in Proverbs 22:1: ''A good name is more to be desired than great riches." Examples of this ancient aphorism in practic·e abound, but perhaps no current one is more obvious than the lengths to whi~h former President Richard Nixon and members of his administration have gone to prevent public disclosure of documents and tapes of that administration. The issue is not national security; it is rather an effort to salvage as much reputation as possible by concealing as much evidence of malfeasance as possible for as long as possible. The former president is very much concerned about the public's opinion of him and his place in the history books. In some cases individuals seek to secure both good reputation and great riches by filing def amation suits against those who communicate information considered damaging to a reputation. News stories of multi-million-dollar suits for marginal or doubtful injuries to reputation are not unusual. Massive jury awards in these cases are also not uncommon, expressing a basic concern for the protection of reputation by the general public who make up juries. These awards may also reflect current public hostility toward the news media, hos-

XIV

Preface

tility which is a result of political attacks on the news media by public figures whose reputations are harmed by the truth. The arrogance too often displayed by people in the news media has also contributed to this hostility. The goal of this volume is to stimulate critical and creative thinking about the problems of defamation. While it is good to understand the "rules of the game" in this area of media law, effective problem solving requires more. Both the public and media practitioners need greater understanding of these problems to help achieve a proper balance between freedom of expression and

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but even this was inadequate. How will a financial award make things any different? On the one hand it can be argued that such an award will really make no difference, leading to the conclusion that a libel suit should not be pursued. On the other hand a public trial, particularly one that

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