Freedom of Speech or Something else?(BOOKS)

Article excerpt

Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

Like Don Quixote's platonic infatuation with Dulcinea, federal judges romanticize about freedom of expression

in largely shielding the media and sister industries from civil liability under the First Amendment. Decisions coo with sonnet-like praises for the virtues of undomesticated speech, for example, checking government abuses, promoting human dignity, advancing the search for truth, and, deflating social tensions that might otherwise erupt into violence. While such First Amendment poetry may be magnificent, it certainly is not serious law.

Now comes Robert M. O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia, with a predictably uncritical contemporary survey of free speech and theories of civil liability, "The First Amendment and Civil Liability." Its glance at pioneering issues raised by the Internet and the digitizing of music, television and movies is informative for the academic, practitioner or media entrepreneur. In the bulk of the book, however, Mr. O'Neill scrutinizes First Amendment law with ancient roots: defamation, invasion of privacy, the right of publicity, incitement, commercial speech, and news-gathering. Mr. O-Neil's performance is workmanlike, but it resists examining the mythological mountain from which he pontificates.

That neglect is worrisome because First Amendment law is unusually intellectually flabby. It craves a sparing partner to melt away the counterproductive excess. The fortress-like constitutional protection of the media from defamation suits is emblematic.

The landmark Supreme Court ruling in New York Times vs. Sullivan (1964) and its extended family progeny prohibit defamation, invasion of privacy, or first cousin tort suits for injurious falsehoods unless the victim proves the publisher knew of the falsity or acted in reckless disregard of the truth, i.e., acted with actual malice. The proof must be clear and convincing; and, reckless disregard requires showing the publisher subjectively entertained serious doubts about the truthfulness of his defamatory bite, which obtusely places a premium on lazy and unsubstantiated reporting.

The actual malice shield is technically confined to media assaults on public officials or public figures. Private anonymities are not barred by the New York Times from recovering compensatory (as opposed to punitive) damages for media negligence in publishing falsehoods. But such would-be plaintiffs are deterred by the daunting financial demands in fighting a media giant and the personal pain and aggravation to reputation by the filing of the lawsuit, simpliciter.

According the Supreme Court and its First Amendment cheerleaders, the actual malice rule promotes an enlightened public scrutiny and understanding of serious public matters in a republic that cherishes self-government. Without that liability shield, the High Court insists, the media would shy from aggressive criticism and exposure of abuses by those who strut in the corridors of power charting the nation's destiny. (Tort law ordinarily creates liability for unreasonably risking harm to persons or property.)

Falsehoods, it is said, are inevitable in fast-moving commentary and news reporting - the first drafts of history. …