Libel

Libel The law of libel has a long, often bewildering, history. In almost any era, the legal literature contains numerous complaints about the irrationality, complexity, and venality of libel law. The Supreme Court's direct involvement with the law of libel, which began only in 1964 with New York Times Co. v. Sullivan, extended this legacy of confusion.

From the outset, the ambitious scope of libel law encouraged problems. According to an often‐cited definition, common law libel covers all written communications that “tend to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or to induce an evil opinion of one in the minds of right‐thinking persons, and to deprive one of their confidence and friendly intercourse in society” (Kimmerle v. New York, N.Y., 1933). Including both civil suits for damages and criminal prosecutions, libel law also has a close (though little‐used) relative, slander, which covers spoken defamation.

In theory, the law gave plaintiffs a favorable legal arena in which to confront detractors. Common‐law procedures allowed persons claiming injuries to reputation to take the offensive. Once it was established that a publication had been communicated and fell within the broad definition of libel, common law presumed damage to reputation. At this point, courts also required, in effect, that defendants “prove their innocence” by offering some type of legal justification for their libels. Evidence of truth became the most common defense, especially in civil suits, but courts gradually came to recognize a variety of “privileges,” even for libelous falsehoods.

These common‐law privileges acknowledged that libel laws, if strictly enforced, could seriously curtail public discussion. The most general privilege, “fair comment,” permitted defendants to publish libelous opinions about matters of general interest, such as the quality of artistic works or the qualifications of political figures. It did not extend to false statements of libelous facts, and plaintiffs could defeat fair comment, and other “conditional” defenses, by showing that defendants had exceeded their privilege by publishing with “malice.”

During the nineteenth century, some state courts also recognized a broader, though still conditional, privilege in political libel cases. Under what came to be called the “minority rule,” defendants could escape strict liability for libelous falsehoods when making nonmalicious criticisms of the “public” conduct of political officials and candidates for office. The citizenry's need to learn about corruption and its general interest in free speech, proponents of this rule argued, outweighed the reputational concerns of individual politicians.

Until 1964, however, most states confined the scope of these conditional privileges. During the early nineteenth century, some even limited the defense of truth by requiring that plaintiffs demonstrate they had published even libelous truths “with good motives and for justifiable ends.” More typically, courts required defendants, including members of the press, to prove the truth of libelous political statements. And, as with fair comment for opinions, the conditional privilege for libelous political falsehoods could be defeated by evidence of “malice,” generally defined as ill will or hostility toward the persons defamed. Any wider privilege, it was argued, would threaten not only individual reputations but could discourage good people from entering or remaining in public life. Strict protection for the reputations of the “best” people, in short, was said to safeguard the public's interest as well.

Although doctrinal discussions invariably involved consideration of such general constitutional and public values, the actual impact of libel laws, over the course of American history, remains difficult to assess. Because of the time and expense that litigation required, wealthier citizens and political figures comprised the vast majority of plaintiffs. In spite of the pro‐plaintiff tilt in libel law, even these people complained that the popular political culture encouraged more vituperation than black‐letter law technically allowed. Except at specific times and in certain places, jurors generally seemed more sympathetic to defendants, especially newspaper publishers, than to plaintiffs. Still, publishing interests constantly complained about overly strict libel laws, arguing that even the occasional lawsuit (and rare criminal prosecution) dampened the critical tone of public discussion.

Despite numerous complaints, efforts to make dramatic changes gained little headway. Legal elites did tighten libel doctrines during the late nineteenth and early twentieth centuries, while simultaneously fighting back, in most states, efforts to adopt the minority rule on libelous political falsehoods. But stricter doctrines generally failed to make libel a commonly invoked restraint. In 1947, after studying the everyday operation of libel laws, the renowned libertarian Zechariah Chafee, Jr. reported that, despite looking “bad on paper,” libel laws worked fairly well in practice. For more than 150 years, the Supreme Court took a similar position. The law of libel, according to decisions such as Chaplinsky v. New Hampshire (1942) raised few, if any, First Amendment concerns.

In New York Times Co. v. Sullivan, however, the Supreme Court constitutionalized libel law. Arising out of the civil rights struggle and involving a $500,000 judgment under Alabama's common‐law rules, Sullivan clearly showed how a group, southern segregationists, could use libel laws to stifle political expression. In addition, by the early 1960s, a tide of large libel judgments, much higher than any handed down by juries in the past, seemed at hand. According to critics of libel law, the threat of costly litigation and expensive judgments might encourage journalists to avoid controversial issues, self‐censor their publications, and thereby “chill” public discourse. Some libertarians, including Justices Hugo L. Black and William O. Douglas, consequently urged an end to actions by political figures and, eventually, to all libel suits involving subjects of general public interest.

The majority of the Supreme Court, led by Justice William Brennan, mounted a less drastic, though still sweeping, revision of libel law. Sullivan and subsequent decisions brought a number of major changes. First, the Court held that First Amendment requirements overrode the majority rule of strict liability for libelous political false hoods. When sued by politicians, libel defendants enjoyed a new constitutional privilege that could be overcome only by evidence of actual malice. Second, this new malice standard differed from the old common law one of ill will. Malice now meant publication with knowledge of falsehood or in “reckless disregard” of a statement's veracity. Third, Sullivan not only placed the burden of proving constitutional malice on plaintiffs but required them to offer “clear and convincing” evidence on the issue. Moreover, in order to assure adherence to Sullivan's standards, the Supreme Court claimed power to review all aspects of any political libel case, including its factual basis, on the theory that judges, rather than jurors, could best safeguard free‐speech values.

Post‐Sullivan decisions—though handed down by a Court staffed with new, presumably “conservative” justices—introduced other innovations. After briefly applying the actual malice standard to any libel suit involving a subject of general public interest (Rosenbloom v. Metromedia, 1971), the Court took the more complex step of linking levels of constitutional protection to the status of different kinds of libel plaintiffs. Thus, after *Gertz v. Welch (1974), public officials and “public figures,” at least in libel suits against the media, had to meet Sullivan's standards. But if individual states thought appropriate, purely private plaintiffs could recover under less stringent doctrines, as long as they showed some degree of fault, such as negligence, by libel defendants. In addition, the Court held that statements of pure “opinion,” as opposed to libelous misstatements of “fact,” were now absolutely privileged.

The resultant complexity pleased few people. Still confronting what they considered a flood of libel suits—especially by prominent figures from politics and mass culture—media executives helped to create the Libel Defense Resource Center as a clearinghouse for monitoring lawsuits and legislative changes. Although they lacked such organization, critics of the media countered with claims that libel law reforms were leaving public officials and ordinary citizens at the mercy of irresponsible journalism.

Meanwhile, commentary on the new doctrines, and proposals for further simplifying them, became a cottage industry. According to one tally, between 1973 and 1983 there were 718 reported lawsuits and nearly 450 law review articles about libel law. For their part, several academic studies suggested that the post‐Sullivan years had not seen any dramatic reduction—and, perhaps, a slight increase—in libel suits; that defendants ultimately prevailed in the vast majority of suits; but that litigation costs and the amount of damages awarded in successful suits were both continuing to soar. Although this vast literature generally concluded that constitutionalization had helped protect First Amendment values, neither legal scholars nor directly interested parties could agree on how best to clarify the libel law muddle.

See also Speech and the Press.

Bibliography

Randall Bezanson,, Gilbert Cranberg,, and and John Soloski , Libel Law and the Press: Myth and Reality (1987).
Norman L. Rosenberg , Protecting the Best Men: An Interpretive History of the Law of Libel (1986).
Rodney Smolla , Suing the Press for Libel: The Media & Power (1986).

Norman L. Rosenberg