Free Speech: Fair Press

GUEST: Steven Brill
AIR DATE: 2/13/1985
VTR: 1/19/1985

I’m Richard Heffner, your host on THE OPEN MIND. Now, my friends in the press may not forgive me for saying this — they aren’t, after all, a very forgiving lot — but one does too seldom find the press in America admitting real error. Small things, yes. “Our photo caption last week was wrong,” or, “it was the ambassador from Norway, not the ambassador from Sweden as we noted in yesterday’s early edition who said or did so and so.” But seldom much more than that. And perhaps these days with good reason. For the press is now so much under attack, with error now so likely to become a chilling financial burden. Free speech is so fragile in our time, though so essential to the workings of a free society, that the potential chill of libelous error might best be denied. Not so to today’s guest, Steven Brill, the editor and publisher of The American Lawyer, who some months ago wrote that, “current libel law often punishes good reporting, and vindicates far sloppier work.” Now, he makes a modest proposal for the press, and for libel law, which we want to discuss today, totally aside from the heat and the angers generated by the Westmoreland and Sharon cases and the many other instances in which honest men have clashed over, what is truth, what is fair, what is libel, and what is freedom. Thanks so much for joining me today, once again, Mr. Brill. Last time we were here we talked about the magazine, we talked about your approach to the law., and today I do want to go to that modest proposal that you made some months ago about what I would like to think of as more the right of reply than reference to libel law. Is that a fair way of putting it?

BRILL: Well, it’s not, it’s even less of a right of anything. I think one of the traps we have fallen into is that we assume that the only way to right wrongs in our society is through a very strict legal process. And that’s often a very good thing. We want to have the courts open and ready to serve people with a grievance. But that doesn’t mean that the process always has to be resorted to. And I think that what we’ve seen with libel 1aw and with libel litigation is a kind of.. It’s almost like the nuclear arms race. Both sides have increased their firepower. The press refuses to admit mistakes and digs into the barricades, hires expensive lawyers to litigate, to litigate .. and people on the other side who feel wronged sue for multi-multi-millions of dollars worth of damages so that every clash over a mistake in a paragraph becomes a major issue of principle …

HEFFNER: So that it is …

BRILL: … and one that can’t be compromised.

HEFFNER: So that it is the American lawyer if, that are not really purring that benefits from all of this litigiousness?

BRILL: Probably, yeah. I don’t think lawyers benefit from it to a degree that they benefit from something like the tragedy at the Union Carbide plant, but it’s becoming a kind of mini-industry. And I think that the victims of that are both the people who are aggrieved by the press and the press themselves. And what I’ve proposed in my article, thinking, I must admit, although I know you’re not anxious to discuss the details of those cases, thinking about the Sharon and Westmoreland cases, I proposed a possible solution that would attempt to solve the problems that .. that these cases raise. And that is, when the press is wrong, they ought to eagerly admit its mistakes. On the other hand, when the press is right .. when simply expressing an opinion, when it’s stating something that is factual but that hurts someone who is a public figure .. the press ought not to have to go through the expense and the agony of prolonged libel litigation.

HEFFNER: What’s the alternative?

BRILL: Well, a couple very specific alternatives: The first is that in a libel suit, because libel, the expense of defending a libel suit for someone such as me who runs a small, modestly profitable publication, the expense of defending a libel suit is now so high that I have proposed that, that the winner in a libel suit would have his costs paid by the loser, so that if someone sues me just to harass me, just to scare me off, and I fight it out and I win, I get my legal costs reimbursed. On the other hand, if I fight it out and fight It out and fight it out and lose, I not only have to pay him his damages, but I have to pay his legal costs. Now, they do that in England with most kinds of litigation, and there’s mixed feeling over whether it works there. But I think it’s clear that here, where we are saying that libel litigation is something special, because it can .. the expense can chill the press, I think it makes sense. My biggest problem with libel suits as a member of the press is not with being punished for something that’s inaccurate; my biggest problem is being punished for something that’s controversial and something that’s accurate. And the way I get punished is someone sues me because he has bragged to his friend, ”I’m going to sue that SOB because he wrote that about me.” So he brings a suit, and then he drops it a year later. Well, in the meantime I’m paying lawyers. That’s happened with our magazine several times. We’ve been sued five times. We won each and every case before it ever came close to going to trial. We’ve won each case on motions to dismiss or something prior to that. And it’s cost us an awful lot of money. And I don’t think that ought to be a cost that we pay.

HEFFNER: Let’s go …

BRILL: It’s not just us, it’s any publication.

HEFFNER: Let’s go on with this question of chilling effect. Do you feel as you look around — now I’m not talking about you as the, the impresario of the American lawyer — but as an editor, as a publisher, do you think that the recent number of libel suits have indeed in fact had a chilling impact upon the American press?

BRILL: Well, I don’t know what that means. I mean, I think that some chill is good. I ought to be chilled from publishing stuff that is not accurate and it’s careless. Someone ought to chill me for that. And I don’t mind taking my risk about that. I ought not to be chilled in publishing something that is simply so controversial, so talked about that someone decides they have to sue to save face. Let me give you an example. I wrote a book a few years back about the Teamsters Union. Someone sued me, a convicted murderer sued me from prison, got out a yellow pad, and he wrote up a lawsuit, sued me, for libel, because I complimented him and said that he was involved in the disappearance of Jimmy Hoffa. I actually elevated him from a common criminal to a rather uncommon criminal. He sued me. Cost my publisher and I some money. We won. The judge dismissed it. He missed the initiary incidence, missed the statute of limitations. And he also did many damages. The story was accurate. But before he even got to that the case was thrown out because he missed the statute of limitations. Well, I shouldn’t be subject to that because the book is controversial and it worked; it made a point and it generated the kind of discussion that a free press is all about. If someone sued just for harassment, I ought to be reimbursed for that. And I think that’s chilling. If I know as the editor and publisher of The American Lawyer that if we write a story about Melvin Bellai that is neqative and Bellai could sue us. Or if we write a story about Joe Smith and Joe Smith can sue us. Not that he’ll win but that it may cost us fifty or a hundred thousand dollars for us to win well then that’s chilling. Then I know I’m making a decision that is very costly and it’s not based on the accuracy of what I read.

HEFFNER: Yes, I understand that. But the question I ask you as one who gets around …

BRILL: Or is the press now chilled?

HEFFNER: .. who knows a good deal… Yeah. Right.

BRILL: I think that, well I think probably not. I think that some of the cases that are up there right now and that have been up there in recent weeks such as the Time case will probably chill the people who ought to be chilled. People who shouldn’t make up stories, as Time magazine did. That’s the kind of chilling effect I think is pretty good. And maybe there is some of that. Maybe editors are reexamining how they check things. Maybe editors are reexamining what they ask reporters before they print. Reporters of reporting. I don’t, I don’t mind that. But I, I think it’s individual. I think it depends on who’s leading particular publication. I don’t think we’re chilled. On the other hand, I don’t think we ever were chilled, and I don’t think we would be chilled, but…

HEFFNER: Yeah, but…

BRILL: … but I think a lot of people get scared when they shouldn’t be scared.

HEFFNER: Because I remember the last time you were here when at some point a thought occurred to me and I said to you, “Why do you insist upon being Peck’s bad boy?” And I remember watching the show and seeing the smile come over your face…

BRILL: I’m smiling again.

HEFFNER: Okay. So I’m not talking about Steve Brill here. And you make a point about whether Time was right or wrong. Someone else, Time would make an opposite point. I’m talking about those who are concerned…

BRILL: You weren’t just chilled into saying that were you?

HEFFNER: Chilled?

BRILL: (laughter)

HEFFNER: Chilled by what?

BRILL: Chilled by the eagerness to be fair, maybe?

HEFFNER: Well, now, wait a minute …

BRILL: I know. I think what you did was very appropriate and very good.

HEFFNER: Now, what do you mean by “chilled by the eagerness to be fair?”
BRILL: I’m trying, I’m trying to pin down the inexplicitness of your word “chilled.” I mean, one man’s chill is another man’s warning is another man’s checklist to be careful. What I’m saying is “chill” carries such a bad connotation. What I was trying to say before is that, that you’re chilled into looking both ways before you cross the street…

HEFFNER: Right. Okay.

BRILL: That’s a pretty good thing.

HEFFNER: Okay. But you know perfectly well that that isn’t…

BRILL: If you don’t cross the street because you’re afraid of getting hit by a car, and you stand on the curb all day, that’s not such a good thing.

HEFFNER: Okay. But you know perfectly well that that isn’t what’s usually meant by the phrase “chilling impact upon the press.”

BRILL: You’re asking do people now not print stories that they might have printed two, three, four years ago because of the recent onslaught of libel cases?

HEFFNER: In your estimation.

BRILL: I don’t think so. I don’t think so at all.

HEFFNER: Then what are we worried about?

BRILL: I think what we ought to be worried about is that libel law as it now stands rewards, can reward sloppy reporting and does nothing to check sloppy reporting .. and does nothing to protect very careful reporting.

HEFFNER: I wondered about that, that, that quotation that I, that I offered about, yours, about protecting sloppy reporting …

BRILL: Also, also we will, if two or three highly publicized cases result in large verdicts that stick, you will see everyone and their uncle calling up a lawyer and saying, “I want to sue so-and-so because they misreported my wedding announcement,” or something. So that you can have that kind of steamroller effect of everybody getting on the plaintiff’s bandwagon, which would chill people.

HEFFNER: Well then what about the, the notion that as long as you can reply you’re okay? That what’s most important is the capacity, the ability to reply in the same field in which you have been attacked?

BRILL: I think that helps: I think you or I would, if we were in the position of having been libeled, would say, “Well that’s not good enough, because on Thursday night the press reported that, that I was indicted for embezzlement and I didn’t get my reply until Monday, and between Thursday and Monday all my friends thought I was a crook, and the agony of that, and the shame of that is just awful. And besides, even when I replied on Monday, it doesn•t really erase in my friends’ minds that possibility, you know, ‘He must have been doing something wrong or why would they write it’ ” I don’t think that’s thoroughly satisfactory. I’ve proposed a, a way out of, of that and some of the other problems that might make a little more sense, but let me just say that there are a lot of wrongs in this world that never get fully righted. If I walk out of the studio today and a flowerpot comes crashing down from the thirtieth floor and severs my spinal cord and I’m paralyzed, I may sue and get a few million dollars. I don’t think that really puts me back to where I was before the flowerpot came down.

HEFFNER: But you know, l… True. That’s why I was thinking before .. just a moment ago You used the phrase “thoroughly satisfying.” That’s not thoroughly satisfying. You’re talking about the dilemma we would face if we were attacked…

BRILL: Yes

HEFFNER: … and then offered the opportunity …

BRILL: Sure.

HEFFNER: … at a later point. Life isn’t thoroughly satisfactory.

BRILL: Things go wrong.

HEFFNER: Okay.

BRILL: Things happen.

HEFFNER: You know, I couldn’t help but think, you know, as we were planning this program, of a piece that Gilbert Selves wrote in The Saturday Review years and years and years ago, shortly after Ed Murrow delivered his television documentary revelation of Joe McCarthy. And Gilbert was a dear friend of Ed Murrow’s, and certainly no friend of Senator McCarthy. But he was terrified at the thought that such a powerful medium as television — and I think he would have thought the same thing about aspects of the press —

BRILL: Sure.

HEFFNER: — could attack persons that way without really the opportunity ever of having an equitable reply.

BRILL: Oh, I think that’s … I don’t have a problem with that. I’ll tell you something. Recently here in New York, last two three months, I remember a situation where the district attorney in the Bronx held a press conference and talked about how someone was about to be arrested for child abuse at a daycare center. And they had pictures of this woman and everything else, and then the grand jury never even indicted her, let alone did we see any conviction. She never even got indicted. The district attorney goes in front of the cameras and says, “Well, the reason she didn’t get indicted was the grand jury wanted to go home that night, but she’s still a terrible child abuser.” Now, that’s a lot worse than anything the press could do. Now, you say that on television and radio, and in the newspapers, and you might say, “well, that’s the press attacking someone.” That’s government •attacking someone. And I think that, those abuses can be a lot worse. I think that it is not, you know, most of the people the press attacks by definition ore very public people. And they hove a forum to respond. And it, it’s, it’s not quite as awful as the people who attack the press make it out to be. Where I come from on this is that as a, as a journalist with great pride in my profession, I just hate to see this kind of sloppy reporting go unpunished if you will. I think that the journalists really ought to figure out a way to, to clean up their own. And when you see sloppy reporting — that’s why I kind of don’t worry as much as maybe I should about chilling — because I really think that a lot of people in my profession need to be chilled. And I guess I’m especially sensitive to it because I write about lawyers all the time. And lawyers are always worrying about what’s good for the Bar. And they stop worrying often about the public interests, and they’re worrying about what’s good for lawyers. Classic example is no-fault auto insurance. Terrific reform. The only people it hurts are the lawyers who sue people in car accidents. And I think when the press starts acting like a trade and saying that, “All libel suits are bad. We should hate anyone who sues anyone for libel, and we should defend any reporter who gets sued for libel because he’s a hero in this First Amendment cause that we’re all involved in,” well, I kind of agree with that. And I, I think the First Amendment’s the single greatest thing about this country. But I am a little uncomfortable about the lazy, often sleazy people who sort of get carried by the First Amendment and become heroes of the First Amendment. Most of the really terrific libel cases, the cases whose names you learn if you’re in law school studying libel, are cases about very bad reporting.

HEFFNER: You know, if our audio is still on, and I’m still being heard, I’d like the audience to make sure that it’s heard very carefully and very clearly what you as a defender of the press and a defender of the First Amendment do have to say about the, about the press. But the old question comes up, Where do you draw the line? Let’s get back to your suggestion.

BRILL: Okay. I suggested a, a series of specifics. The first is that the way the law now stands, if you’re talking about public figures, the plaintiff, such as a General Westmoreland or a General Sharon, must show what’s called actual malice, which involves either such utter reckless disregard for whether the story was true or not that it, it borders on being deliberately false., or deliberate falsity, lying. If you can’t, if I write something about you, you’re a public figure because you’re on television. If I can’t, if you can’t prove that I knew it was false or was so reckless that I kind of assumed that it was false, had doubts about whether it was true, you don’t win. And•I think that doesn’t work. I understand why the Supreme Court did it. They did it to protect media defendants from, from harassment and from getting sued for everything they write, and for getting sued for every small mistake that they commit. But the fact is that today that lets off some really bad reporting. Because it can be sloppy, it can be stupid, as long as it’s not a deliberate lie, basically, you can’t win a libel suit if you’re a public figure.

HEFFNER: But doesn’t bad reporting go down the drain in the marketplace?

BRILL: It does, but, only if it’s consistent and only if everybody knows about Time magazine’s reporting in the Sharon case was just incredibly bad reporting. I don’t think Time magazine’s going to go down the drain in the marketplace. The fact is that there can be bad reporting, sloppy reporting, that the legal process today can’t reach and doesn’t reach. Now, on the other hand, what you have with libel suits are these 20, 40, 50, $80 million verdicts. So what I proposed was get rid of this need for reckless disregard or deliberate falsity. “Actual malice” as the court said. Substitute for that a simple, factual investigation. Was it true or was it not true? So that’s the … The first thing is get rid of that standard. The second is look at the facts. Was the reporting true or was it false? Third, and hand in hand with number two, is get away from any lawsuits that have anything to do with statements of opinion. And that means if I write a restaurant review and I saw this restaurant is awful, just, it’s the worst place on earth, I can’t be sued for it. It’s a statement of opinion. You really now can’t be sued for that, but there are a lot of things that are confusing about what’s a fact and what’s an opinion. Example: I go into a restaurant and say, “It’s a lousy restaurant, and the hot shrimp dish was ice cold.” Well, that’s kind of a statement of fact. Cold versus hot. A reasonable person can ascertain whether that’s true or not. What I suggest in this proposal is that we err on the side of assuming if it can’t be visibly proven en false, it is not a fact.

HEFFNER: And it is opinion and it is protected?

BRILL: It is protected. You can say anything you want. So now we’re focusing on simply bad reporting. Richard Heffner was convicted of murder yesterday. If you weren’t convicted of murder, it’s bad reporting. It’s not a statement of opinion; it’s a statement of fact. If I write that and I’m wrong, I’m in trouble. I don’t have to, I don’t have to inquire into my state of mind: did I lie deliberately? It’s a factual mistake. It’s wrong

HEFFNER: How much can I collect from you in that case?

BRILL: Then I write that in let’s say Newsweek. Let’s leave Time magazine alone. Okay? I write that in Newsweek. My proposal says that your damages would be limited to four times — I’m sorry — to three times the cost of taking a full-page ad in Newsweek. And the, I think the cleverness in that is that your damages should have some relation to the scope and to the reach of the publication. I’ll come to television in a minute. Well, Newsweek, much bigger reach, much bigger scope than The American Lawyer. How do you know that? Newsweek can charge a lot more for its advertising than The American Lawyer. Newsweek’s own people have judged the market value of its page by what it charges for a full-page ad on that page. Same as The American Lawyer. We charge as much as we can in the marketplace. They charge as much as they can. That’s some relative measure of its reach. And therefore some measure of the damage that has been done to you by that libel appearing on its page versus let’s say The American Lawyer’s page. So you would get four times the cost of an ad in Newsweek. If Newsweek wasn’t willing to let you take an ad in a full page saying that they made a mistake, they screwed up, you were never arrested for murder, that it was terrible, then you would get four times the cost of reaching everyone of Newsweek’s readers with the equivalent impact of an ad in Newsweek. So you’re not forcing them to print your ad, but you’re saying, “Listen, you know what it’s going to cost me to reach all three million of your readers exactly? You’ve got to give me your mailing list, I’ve got to send each of them a 1etter. I can take billboards on highways. Everything else, so you better let me have an ad.”

HEFFNER: Well, isn’t the basis of this again …

BRILL: So maybe you have a $100,000 claim against Newsweek. I don’t know what their ad pages are, 25,000, 50,000, whatever it is. Hundred thousand, $200.,000 claim. Not a $50 million claim. With The American Lawyer you’d have about, you’d have about a $16,000 claim. And that makes sense.
HEFFNER: But 1sn’t the basis for this the right of reply? Forget the ri ght of reply, the capacity to reply.

BRILL: It’s the right to get… The basis of tort law, which is what we’re talking about. is in some, the theory of it is the right to be made whole. To be as well off as you were before the flowerpot hit you on the head. And in, if someone says something to you, one of the ways to be made whole is to, yes, to have a right of reply …

HEFFNER: So that in a sense …

BRILL: … but the Supreme Court has said that you can’t force a newspaper to print your rep1y. That wou1d be unconstitutional. And you’re forcing someone to say something. You’re, that’s a real impingement on free speech.

HEFFNER: This is the essence of fairness, in your estimation, I’m sure.

BRILL: Right. And also what it does is, if you go to Newsweek, Richard Heffner, who they just said was convicted of murder, and you go to them and say, “Hey, you got the wrong guy. It’s not me. I’ve never been indicted for murder, never been convicted, never murdered anybody. You’re just wrong.” If you go to them with the facts and they correct it quickly, as prominently as before, as they printed it, end of case.

HEFFNER: So that if you were to say something about someone on this program for instance …

BRILL: Yes.

HEFFNER: … and that person took severe exception to what you said …

BRILL: Right.

HEFFNER: … what I should do is offer time to that person to reply, right?

BRILL: That’s right. That’s right. And in, with, with the same prominence in terms of time slot and amount of time and everything else. Now, the next part of the proposal: You, Richard Heffner, go to Newsweek, you say, “Hey, you got the wrong guy, never convicted of murder.” Newsweek says, “We stand behind our story.” You sue. If you win, and you are going to win, you get that same four times the amount of the cost of an ad there that we just talked about, plus you get your legal fees back. So what you’re saying, so there you have an incentive, you, you, it’s not going to cost you anything to be, to make that wrong right, because you’re going to sue and you’re going to get… But if you, if you’ve lied to them, if you really were convicted of murder and they should’ve stood behind their story, you’re going to pay their legal fees ’cause they’re going to win. And it is a factual investigation that we’re talking about, because we’re only talking about facts. Now, look at the Sharon case for a minute. It was a matter of fact there.

HEFFNER: It’s not because I really want to shut you up on that — I do — but it’s not just, because I’m getting a signal about time and I do want to ask you another question before we end — it’ll be in just a moment. Are you talking about something the equivalent of a fairness doctrine?

BRILL: I’m talking about scaling, I’m talking about disarmament. I’m saying, “Let’s limit this, in the case of this Newsweek thing, $100,000. Have a process by which you come to them first and say to them, “Right my wrong.” It’s no longer this major constitutional principle. It’s no longer the barricades drawn up, $25 million in litigation and everybody fighting. And it is. It’s fairness. It is simple fairness. But it’s also telling the press, “Get it right. What we’re focusing on is whether you got it right or wrong, not these broad constitutional principles.”

HEFFNER: We have about 20 seconds. Would you embrace the concept of a fairness doctrine for the printed press?

BRILL: Oh, no. I think the fairness doctrine doesn’t work for the broadcast media as it is now, and it certainly wouldn’t work any better for the printed press. I think it would just drive everybody crazy.

HEFFNER: So the fairness you’re looking for has to come from something else?

BRILL: The kind of specific proposal that I, whether it’s mine or someone else’s, but the fairness doctrine is just a lot of mush.

HEFFNER: Steve Brill, someday come back. We’ll talk about the fairness doctrine itself. Thanks so much in the meantime for joining me today.

BRILL: Happy to be here.

HEFFNER: And thanks, too, to you in the audience. I hope that you too will join us here again next time on The Open Mind. Meanwhile, as an old friend used to say, “Good night, and good luck.”

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