Libel Law … Protecting the Individual

THE OPEN MIND
Host: Richard D. Heffner
Guest: FloydAbrams
Title: “Libel Law”
VTR 10/5/85

I’m Richard Heffner, your host on THE OPEN MIND. Because it impacts so strongly upon the very foundation of American life, the question of, “Where do we draw the line between the good society’s concern decently to protect the integrity and privacy and reputation of its citizens, and its concern always to nurture free, even critical, speech?” That question needs to be raised over and over again. Warrants that we return to it here today with Floyd Abrams, the distinguished First Amendment attorney, as my guest once again.

Presumably, libel law is intended to preserve our reputations, our honor, the good name that rich man and poor man alike can have and cherish. Presumably, too, we want private persons and the press to be as forthright and unlimited in speech as a free society demands. Now, Mr. Abrams says that as libel law works today, however, it does little to protect reputations, and much to deter free speech. And in a recent New York Times Sunday Magazine article, he says we should change the libel law. My question, “In whose favor, Mr. Abrams? In whose favor?”

ABRAMS: I think everybody’s favor. I think the sort of changes we need are ones which will make it more likely that people who have been unjustly and unfairly attacked in the press will regain their lost, unfairly lost, reputations. And so, one of the things I think we should do is to encourage newspapers to publish corrections. Now, how do we do that? One way to do that is to change the law in various states so it is the same as in some states. That is to say, to change the law so that we say that if you publish a correction, and you really put it out front, you really say in a forthright and frank and candid manner, “This is what we said, and we were wrong. And we’re sorry.” We shouldn’t have a libel suit about that at all. We just shouldn’t have it. And it seems to me that, if we do things like that, which are reputation-preserving, reputation-restoring, as it were, we will help people with their reputation without punishing the press.

HEFFNER: Do you really believe that you can restore a reputation that has been damaged by the press in this country in our time?

ABRAMS: Yes and no. I think that you can restore it if you get a real correction. To the extent that you can’t restore it, money won’t restore it either. I mean, I think we have to bear in mind why we have libel law. The underlying notion of it is that reputation matters and that we care enough about it so that we want to try to do what we can to help people who have lost their reputation unjustly to restore their reputation. Can we do it? Well, we do the best we can. Corrections help. Other sorts of things help. I know of a lot of situations in which people who were public officials or former public officials who believe that they have been unjustly accused in the press have quite literally persuaded journalists, newspapers, broadcasters of that, and have been treated differently because of it.

HEFFNER: Yes, but, you know, I had written for myself a question based upon your article, and it goes this way: (You’re going to say, “No,” but I’ll take that into consideration as I ask it.) I wondered, may I not be justly suspicious of you concern for individuals’ reputations when your suggestions, all of the suggestions which we’ll go into in this article, for change in the libel law are predicated upon the view that libel law is designed, just as you’ve said, to permit people to restore their unjustly diminished reputations. Isn’t fear, and therefore the avoidance of the stories that we do in that way blemish the reputations, isn’t fear the key to what we must do here? And isn’t that why the libel law, the punitive aspect of it, exists?

ABRAMS: You mean fear of the press, say, of losing a big libel case?

HEFFNER: Fear by the press.

ABRAMS: Yes. Yes.

HEFFNER …of losing or of being, shall we say, harassed?

ABRAMS: Well, you can make an argument to that effect. And I suppose that it is true that the more fearful the press is, the less likely they are to write things which are critical of people. I don’t think we really want that as a society. I think the problem is it’s very hard to draw these lines. And we need rather blunt lines to be drawn. Blunt in the sense of foreseeable, knowable, understandable in advance, so people know what they can say and what they can’t say. The general way we draw our lines is to say – and I think that’s right – is to say, “We live in the freest society in the history of the world, and we should keep it that way.” And people will suffer for that. People will suffer from our freedom, because some people will say things about them that aren’t true, or that are harsh, even if they are true. And nothing much the libel law can do, ever, is really going to undo that. And, in general, I think it’s a good tradeoff. I mean, I would rather trade off some loss of individual reputation for a lot of freedom. My point in the article is that we seem to have the worst of both worlds. I believe that individuals, more and more, are being chilled in their speech, and that the press is, in its speech, on the one hand; and that individuals who are falsely attacked are not getting retractions, corrections, aren’t getting their reputation back the way we would like them to get them back. And so that’s why I think we need to do some structural things about the libel law so as to encourage more accuracy without discouraging hard-hitting journalism or hard-hitting commentary.

HEFFNER: Have you ever been in a position, or have you known friends who have been in positions in which the blemish, the change, the charge upon their reputation, simply cannot be made up for by a retraction? A retraction generally appears on page 32. The first story appears on page one. Have you had that experience?

ABRAMS: I have had acquaintances, I would say, yes, who have been very harshly treated in the press on a continuing basis, and about whom no one correction certainly, wherever it were put, could undo the damage that they believe, and sometimes I believed, had been done to them.

HEFFNER: Wouldn’t the only weapon in their arsenal then be fear? Fear on the part of the press? Fear on the part of the individual who makes statements as he might?

ABRAMS: Yes, if people were fearful enough of libel suits they wouldn’t write about certain things. But that’s wrong. I mean, that’s harmful to society; it’s not helpful. Because when you say fear, it’s fear of what and for doing what. If you say people should be fearful of printing falsehoods, sure. But it’s very hard to say that, if people are afraid of printing falsehoods, therefore they won’t also be afraid of printing truths which are hard to prove in court. And that’s why we have so much legal protection.

HEFFNER: But, you know, when I read the piece in the Times, I thought, “My goodness, Floyd Abrams in this nice teeter-totter, and this nice balancing between the concern for free speech and the concern for reputation is really going to come down on the middle, is going to find a way for us to protect both.” I had the uneasy feeling, when I was through with this story, through with the article, that, excellent though it was, it still weighed on one side and you were still that wonderful First-Amendment voluptuary who was honestly looking for a way out, but perhaps hadn’t quite found it.

ABRAMS: I don’t think you can really find a way out which will satisfy, in a real way without making some major policy choices, the needs of people who are attacked and the needs of writers, speakers, all of us who want to live in a free society. It’s very hard to do that. There will always be people who are attacked who will believe it’s not fair: “You shouldn’t say those things about me.” In fact, there are many people who believe that even when they are entirely justly attacked; that they ought to be left alone, that these people shouldn’t say those things about them. There’s no way to cut that baby in a way which will really satisfy both sides. I do have some biases, if you will. I have some views which I bring to my own analysis. One of them, to put it on the table, let me phrase it legally first: We don’t have to have libel law at all. We have to have a free society. It’s up to our states and our people to decide if we want to have libel law. No one can take away, though, First Amendment rights. So we choose to have libel law. And I think we make a correct choice. We say we care enough about personal reputation that we’re going to take some cuts into what would otherwise be the areas of protected speech. Then the question is, “How much?” It’s very hard to answer that question. My starting point is that we have to be very careful not to become like most of the countries in the rest of the world, including most of the democratic countries in the rest of the world, which simply do not have the sort of free and rather uninhibited press, to the extent that we have it at all, that we do. So I start from there.

HEFFNER: You don’t really then see a balancing, a teeter-totter, and a 50 percent here and a 50 percent there in the mix of these concerns?

ABRAMS: Well, I think of it as a hard question. And I think one has to accommodate both interests. But I resist the notion of saying that there is an equality here where you have, on the one hand, personal reputation, and on the other hand, the interest in free expression, and therefore, we must or can do something to satisfy everybody. I know we can’t. I know we can’t do it. So what I was looking for were some structural ways to try to accommodate most of the interests, or a lot of the interests, at least, of people that think that they’ve been unjustly attacked in the press, on the one hand, while still keeping us as free and open and free-swinging a society as we are.

HEFFNER: You revert back so frequently, as a voluptuary of the First Amendment, to that primary document. If you were to look back historically though, not at the document itself, but at the people who conjured it up, the people who embraced it, who adopted it, do you think you might find there in that period among the Jeffersons and the Madisons and the others, perhaps a somewhat more full-bodied concern for reputation, somewhat more full-bodied concern for privacy, etcetera, than a devotion to the words of the First Amendment would indicate?

ABRAMS: I think what you’d find is this: I think you’d find people who felt very strongly that they had been and their colleagues and friends had been vilely abused by the press. “Nothing can now be believed,” Jefferson once wrote, which was written in a newspaper. And all of them came to view that in time. And Jefferson, as president, felt, as other presidents did before and after. But, I think you would find that Jefferson, and Washington, and Franklin, and Madison would’ve been appalled at the use of libel laws by public officials in an effort to cut back on criticism of them. I think they would have been outraged at the Westmoreland lawsuit, not because they might not have been pleased or displeased with CBS, but because they took worse in their day. They were more criticized, more harshly, more vigorously, more unfairly criticized. And it never occurred to them, I think, to bring a libel suit.

HEFFNER: Of course, it’s always dangerous to say, “What if.” But I guess the question I’m pressing is whether, no matter what it is they took at the hands of those infamous scribblers, are you not concerned that the power of the press and the power of libel might not be so much greater today in our situation?

ABRAMS: I think we have a situation which has changed in at least two major respects. The power of the press is much greater now and much more concentrated now than it was at the time of our framers. So is the power of government. So is the power of government, here, and so is the power of government as we see it, unhappily, abroad. And so, even if we were redoing it… Suppose we had no First Amendment, and you and I were just sitting writing a Constitution…

HEFFNER: Terrific idea.

ABRAMS: Right? What would we do? Well, I think that what we would do is to have a lot of coffee, maybe have a drink or two, say, “My God, this is hard. This is really difficult to do.” And we would finally throw up our hands and come back to basically the system that we have today, and to say, “We can’t write it. We can’t write it in a way which takes away from the press irresponsibility without taking away freedom. We can’t do it.”

HEFFNER: Frequently, when I call you, I find that you’re in England giving one speech or another at the Guild Hall address or something the equivalent. Do you find our British friends without the rigorous constitutional protection to be in such a bad way?

ABRAMS: I find them to have significantly less freedom, as a matter of law, than we do, yes. And I see them reacting to it on occasion.

HEFFNER: A less civilized society?

ABRAMS: No, no. I think it’s probably a more civilized society. A less free society. A less open society. It’s a much more civilized society. It’s a much more class-conscious society. One of the interesting things that I learned on my last trip to England was that, for all the fact that libel law there does not protect the press at all as much as it does here, that poor people there just can’t go to court. I mean, a person who’s been falsely attacked in a newspaper, who doesn’t have money, simply can’t get to court in England because the doors of the court tend to be shut.

HEFFNER: I’m glad you raise that point, because when in this piece you come to develop the rules that you would have prevail, it seemed to me that perhaps poor people would have less of an opportunity to have recourse to the courts, particularly if the court costs are apportioned as you suggest.

ABRAMS: Yes. That’s a major problem. I suggest in my article that, as a generality at least, the loser ought to pay the costs in libel cases. The risk of that is just what you say. The risk is poorer people won’t be able to go to court, as they can’t in England now as a general matter, because costs are awarded to the winner and hence it’s a major risk to bring any lawsuit, a suit against a doctor, a suit against anyone, unless you’re very sure that you’re going to win. I think that, in the area of libel law, where what you are balancing – and it is a balance – is freedom of expression against individual reputation, that we would do better as a society to say that we want both sides to be a little bit more cautious than they have generally been. That is to say, the people that bring libel suits which are genuinely frivolous or brought for the purpose of chilling the people who are critical of them, should be on notice that they are presumptively at risk to pay the costs of the other side. And vice versa.

HEFFNER: You mean they should be chilled in their enthusiasm, perhaps, to protect their reputation?

ABRAMS: Well, you see, when you say, “enthusiasm to protect their reputation,” that’s one way to think of it. If it is the enthusiasm to keep from being criticized anymore, yes. They shouldn’t use the courts. We talk here not only of ethics, as we are talking in part about journalistic ethics; but we’re talking about law. When should we bring in the cops? When should we bring in the courts? What should law do? I think, when someone goes to court, when someone brings into play the force, the power, authority of law itself, that in this sort of area you ought to have a pretty good case. And vice versa. I think that when the journalists, newspapers, defend themselves, if they do so on grounds which are frivolous or all but frivolous, the courts ought to have greater power to impose costs on them for doing that. One of the advantages, to be sure, that the press sometimes has, is that when little people sue the press, the press has more money.

HEFFNER: Uh hum.

ABRAMS: In that respect, the press is no different from anyone else who has more money…

HEFFNER: Aren’t you exacerbating that situation?

ABRAMS: I don’t think so. Because what I would say is to empower the courts to make the press, in that case, if they’re acting wrongly or improperly or frivolously, pay the costs of the other side. I just want to give the judiciary more power in this area vis-à-vis costs. But there are also cases that we point out in which wealthy or powerful people can sue, not only smaller newspapers and broadcasters, but individuals. And one of the things my article tries to demonstrate is that the problem of libel law today is no longer – if it ever was – just a press problem. It’s that more and more of us, private people, are getting sued, are being accused by people that we spoke maybe too harshly to, maybe not, but strongly to. And we’re being hauled into court and being subjected to the same sort of libel cases that the press is. And we have no insurance. We have no ability to defend ourselves. I mean, I’m a lawyer, I can go to my law firm. But you have no one that you can go to…

HEFFNER: I go to you!

ABRAMS …and someone watching you even less, really. Has, what, a lawyer to go to? An insurance company to turn to? Somebody sued for libel today because he attacked a public figure or attacked a public official is really in bad shape. And that’s what’s been happening more and more in our society. And that’s why, it seems to me, we have had a situation developing, I think, where people are becoming less free, less willing to speak out, because they are seeing more and more that individuals are being sued because they are free spoken. And that’s a terrible and quite new development.

HEFFNER: You know, I see where what you have suggested would protect freedom of speech more. I don’t quite see how it would protect those of us who are likely to be libeled.

ABRAMS: Well, why wouldn’t it protect you, for example…

HEFFNER: Because you’re going to remove the fear on the part of those who would attack, who would libel me.

ABRAMS: Well, I don’t know. I mean, I’m not sure what sort of category of people you’re thinking of who would be especially fearful. There are people, newspapers, broadcasters, who would be concerned if they thought you would sue them; that’s true.

HEFFNER: You’ve pointed that out a number of times.

ABRAMS: Yes. And I’m afraid they would be concerned whether they spoke truthfully or falsely about you. The fear comes because they think that you’re litigious. If they once come to the conclusion that Richard Heffner is the sort of guy that sues, they will think twice. Now, do you want them to think twice? Do you really think, as a societal matter, that it would benefit us as a people if people really had to think that even if we’re telling the truth about it, even if we’re expressing our opinion about his performance as a broadcaster, about his writings, about his contributions to our society, why should libel law be in the front of their considerations as against telling it the way they see it?

HEFFNER: Floyd, you know perfectly well that if I thought they would keep their cotton-picking hands off of me if they were afraid, and I were concerned with my reputation and I looked around me and I saw the numbers of people who are poorly treated at the hands of the press, I think I would not be quite so fast as to be quite so devoted as you would like me to be to those fundamental liberties – my own reputation, my family’s wellbeing – when all of these things are at stake. I can’t answer the question you ask quite as positively as you do. That’s why I’m glad you’re there to answer that way, because I too am afraid of what will happen when fear is the spur.

ABRAMS: It seems to me that the worst thing that could happen is if you, on a program like this, felt less free to speak out and to have guests on who could speak out in as forthright a fashion as they can – not just about issues, because issues, of course, don’t lead to libel suites – but about people in power. There is nothing more important – and I believe this – in our society in terms of aligning rights than that on a program such as this that someone like me, say, should be able to attack a public official, the mayor, the president, a governor, people like that. That’s where we start. We start with the proposition that citizen criticism of government is at the core of the First Amendment and of our free society. We move from there. From government to government officials. From government officials to other powerful, important people. We, as a society, generally treat them all the same in terms of libel law because we say, as a general matter, it’s a good thing for people to be uninhibited, subject to libel law if they’re false and if they do it on purpose, say. Libel law doesn’t protect them in that type situation. But as a general proposition, uninhibited, free-spoken, when they criticize people in power. We’re almost the only country which does that. I think it’s one of the great and unique things about this country that we are quite so free to do it.

HEFFNER: You set up not a straw man, because what you’re saying is true. But you make it sound as though my concern was for the powerful, those in government. And I am talking about those who are not protected by power, by the power of government, the power of their position. So let’s not work it out that way.

ABRAMS: Well, if you’re talking about people who are neither public officials nor prominent public figures, the law now says already that if you say something about them, if a newspaper does, and it’s false and it’s done without reasonable care under the circumstances, that there can be liability. I didn’t ask for any change in that body of law.

HEFFNER: No, but I understood that what you would like to see is that they cannot frivolously, you would indicate, do that without being assessed court costs. Is that correct?

ABRAMS: That if they frivolously commence a lawsuit, that they should be assessed court costs, yes.

HEFFNER: All right. Now you’re chilling me.

ABRAMS: Only if you’re being frivolous.

HEFFNER: Uh, uh, uh. You’re chilling me because you and I both know that when you go into court, the question of how you will come out of court is a question. As an attorney who has come out one way, successfully, so many times, you’ve also come out…

ABRAMS: I have, indeed. I have, indeed. But I have seen situations, and these are the situations I have in mind in which people, mostly prominent people or more powerful people, have used the libel laws to deter criticism of themselves or used the threat of libel law. We just saw an example very recently, not much reported on. One of the baseball players who was involved in the cocaine scandal recently, had, when he was first accused of having taken cocaine, demanded an apology, at risk of libel suit, from a prominent person in the union representing the baseball players. And he had issued a rather abject apology. Well, it’s too bad, isn’t it? Because now we know, from testimony of the player himself, and we know from testimony of others, that he had indeed been taking cocaine. That the charges against him were true. That the person who apologized to him apologized out of fear of a libel litigation. Fear, perhaps, that he couldn’t prove what he thought or perhaps knew to be true. And so here we have a little mini-case of fear being used, but fear of litigation being used.

HEFFNER: Okay. All right. Take that and turn it around. That would be my position. We have about 45 seconds left, Floyd. What are the dimensions of that apology, of that withdrawal, in the newspaper, that would satisfy you? You mentioned it at the beginning.

ABRAMS: Well, I think to avoid a libel suit at all, a newspaper ought to publish a retraction which is really in kind with the charge it made. I think if it publishes a correction on page 32 or 38, that that ought to have a bearing, and a real bearing, on the amount of damages or the like. But it seems to me that if the tradeoff is, “Look, if you really print a correction, no libel suits,” then the correction ought to be exactly in the same place, so to speak, as the charge.

HEFFNER: Making bets, will we get to that point?

ABRAMS: Oh, I think it will take a while more. I think we’ll need more problems first.

HEFFNER: We always have plenty of problems.

ABRAMS: (Laughter)

HEFFNER: Thank you, Floyd Abrams, for joining me today.

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