Protecting the Best Men: An Interpretive History of the Law of Libel

By Norman L. Rosenberg | Go to book overview

Chapter Nine ∣
Libel Law from World War I to the Cold-War Era

Twentieth-Century Libel Law: Framing the Issues

Analyzing political libel law during the twentieth century presents a variety of problems. First, one confronts a tremendous bulk of legal materials. Although criminal prosecutions for libel have declined over the course of the twentieth century, and though civil defamation suits have never become a significant percentage of the caseload of any single state or federal jurisdiction, demographic and journalistic trends have expanded the absolute number of cases. Put most simply, more journalists have produced more column inches about more events of "public interest" which involved more "newsworthy" people than ever before. Inevitably, this has meant--as some late nineteenthcentury jurists had already come to recognize--that the potential for libelous statements and comments has been immense. The number of civil libel cases collected in West Publishing Company's Decennial Digests became sizable.

But even a detailed analysis of these reported cases--a time-consuming though possibly manageable task--would only begin to explore the legal environment of twentieth-century libel law. Reported libel suits, as is the case with all types of reported litigation, represent only the tip of the legal iceberg. Cases collected in published reports, with some exceptions, capture only those lawsuits and prosecutions heard by appellate courts; cases adjudicated, but never appealed, would be underrepresented. Moreover, research in published legal materials cannot reveal the instances when important people threatened to file libel suits or to initiate actions that were later dropped. Editor & Publisher, the weekly trade publication for the American newspaper industry, for instance, has regularly reported numerous examples of libel actions that were never filed or never reached the trial stage. And even trade publications would not reveal the times when prominent political figures privately used the threat of libel actions in hopes of influencing future journalistic treatment of their activities.1

Similarly, the historian of twentieth-century libel law must deal with changes in both the quantity and quality of legal commentary. As already noted, the legal-science movement of the late nineteenth and early twentieth centuries brought new forms of legal literature, such as casebooks and law review articles, to the fore. While this literature was expanding in volume, it

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