So Nu? So Sue Me

Article excerpt

Ten years ago a proliferation of multimillion-dollar libel judgments and highly publicized suits brought by political figures raised fears that the media would be intimidated into abandoning its adversarial posture toward government. This fear became more acute in the mid-1980s, when Reagan and Bush stacked the federal courts with conservative, statist judges unsympathetic to the press, and juries returned astronomical judgments against publishers.

Today the big libel cases that threatened to dismantle New York Times v. Sullivan, in which the Supreme Court held that libel law must conform to First Amendment standards, are largely behind us. The use of political libel suits to intimidate the press may be at an end, and the retirement of Supreme Court Justice Byron White, the Justice most hostile to the media, may well be the final nail in the coffin.

Less visible than publishers' victories and losses in such high-profile Supreme Court cases as Sharon v. Time, Janklow v. Viking, and Westmoreland v. CBS, but just as important, were a series of procedural rulings that have made it more difficult for plaintiffs to win. Despite this favorable trend, libel suits continue to threaten freedom of the press in four areas:

[sections] American publishers who distribute publications abroad are increasingly threatened by suits--and whopping damage awards--in countries with far stricter libel laws, particularly Britain. Although one New York trial judge, Shirley Fingerhood, has refused to enforce these damage awards, courts in other states will doubtless execute them.

[sections] U.S. courts have not put a cap on excessive punitive damages in the libel area, and seem unlikely to do so. In one New York case the jury awarded $10 million in punitive damages, on top of $4 million for pain and suffering. This judgment was recently upheld on appeal.

[sections] Many plaintiffs, faced with procedural obstacles in libel cases, have recast their suits as invasion of privacy or as "false light" actions. …