Punitive damages in libel litigation have increasingly become a devastating instrument of attack against an often unpopular press, an attack with serious implications for our freedom of expression.
Yet, in the currently expanding political assault against litigation excesses, this significant issue is unlikely to receive attention. The penchant of some politicians to campaign against the socalled "media elite" actually compounds the problem by further eroding public tolerance for full, open, and unfettered expression.
Jury awards against the press are soaring. The Libel Defense Resource Center recently reported that six libel verdicts have surpassed the $10 million mark in just the past two years. Through the entire 1980s only four awards of such magnitude were entered against the press.
The staggering size of recent verdicts reflects the huge punitive element contained in libel judgments being awarded today. The average punitive damage award in libel cases now tops $8 million, and punitive damages are routinely awarded by libel juries. Punitive damages were awarded by juries in fully 76% of recent libel judgments, compared with about 10% in non-libel cases involving money damages.
In the past, the Supreme Court has expressed concern over such punishment of speech, although it has yet to rule on the constitutionality of punitive libel awards generally.
In a 1984 case against Consumer's Reports, the Court noted that a jury's consideration of First Amendment limits "is unlikely to be neutral with respect to the content of speech," and cautioned that libel verdicts hold a "real danger" of being used to suppress speech.
The Court had warned previously that the objectives of free speech and a free press are threatened by punitive libel awards that can be entered in "wholly unpredictable amounts" by juries seeking to "punish expressions of unpopular views."
The most recent megaverdicts reveal the true extent of the punishment meted out by juries. The recent jury judgments include a $41 million punitive damage award against a Dallas tv station arising out of a broadcast about a former district attorney's dismissal of certain drunken driving charges; a $31.5 million punitive damage award against a Philadelphia newspaper for a story about a local prosecutor's alleged involvement in a quashed 1963 murder investigation, and a $12 million punitive sanction against a Vietnamese-language newspaper in Los Angeles accused of falsely questioning the professional competence of a physician.
Such monumental sanctions obviously do not go unnoticed in the newsrooms of this country. While many jury awards in libel cases are overturned or reversed on appeal, the cost of even a successful defense can be staggering.
This was dramatically demonstrated in the noted case of the Alton (Ill.) Telegraph, a small newspaper valued at just $3 million which suffered a $9.2 million libel verdict. Unable even to post the bond required for an appeal, it was forced into bankruptcy and paid $1. …