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American Journalism Review
A Plea to Ban "Stars" From Suing For Libel  | American Journalism Review
 AJR  Columns :    THE PRESS & THE LAW    
From AJR,   July/August 1992

A Plea to Ban "Stars" From Suing For Libel   

Study finds celebrities rarely win their cases.

By Lyle Denniston
     


It seldom pays for high-profile public officials and celebrities to sue the press for libel, so why let them? A new study puts the issue just that simply. But it is a long way from scholarly logic to legal reality, so there is as yet no end in sight to libel claims filed by what the study calls the "power and glitter" of American society.

Influential people in federal, state and local government and those in the "star" category of cultural trend-setter have been filing a fair proportion of libel cases against the print and broadcast media in recent years, according to the study. But the more influential they were, the less often they won. Those with the most visible public personalities won just 29 of the 131 suits they took to court.

The implications of that record are obvious to the study's authors, University of Minnesota journalism professor Donald M. Gillmor and San Francisco lawyer Melanie C. Grant. They want to close the courthouse door to libel lawsuits by those who achieve public prominence as policymakers or stars.

Gillmor and Grant propose that "public officials at policymaking levels and celebrities," dependent upon the media for their fame and fortune, "shall have no remedy in libel law." The authors do want the media to give something in return: They should stand ready to open their news columns or air time for replies by influential people whom they wrong as a voluntary rather than a legally compelled remedy.

While their proposed solution is hardly likely to become law, the Gillmor-Grant study is worth a second look. For some years now, similar proposals have been bandied about by legal scholars and judges, with little behind the discussion but raw theory. Now, with a wealth of statistics from 614 libel cases against the media between 1982 and 1988, Gillmor and Grant have provided a firm scholarly basis for what seems a compelling conclusion: Since the high-profile libel suit is demonstrably a failure, it can no longer claim to have social value or purpose.

The Gillmor-Grant study is, at its core, a tough reminder that the American press did not get what it thought it was getting in 1964, when the U. S. Supreme Court decided the case of New York Times v. Sullivan . The ruling, which put libel law under the restraints of the First Amendment for the first time, supposedly built a constitutional bulwark against libel lawsuits by public officials and celebrities.

It has been easy enough to make the argument, in theory, that the Sullivan decision was very good for the press, because it opened the way for more rigorous, even aggressive, coverage of public affairs. It is alien to American political theory to permit those with power to try to silence the press when it gets too tough or too close in monitoring the powerful.

And, one could easily extend the theory to suggest that libel as a legal option ought to be reserved for those who have no influence in society. They often are unable to generate publicity to counter harmful stories and, besides, they rarely become targets of aggressive press attention.

The press has been relying on the Sullivan theory, and thus has been able to tell itself, over and over again, that its constitutional shield was sturdy indeed. But high-profile individuals apparently did not get it: They kept suing and suing and suing. The fact that they didn't win much (and everybody believed that as a matter of faith, even before the Gillmor-Grant data became available) provided little comfort. The press may have walked away from many of those legal bouts without paying megabuck verdicts, but its wallet was a lot thinner after paying the legal bills to gain those victories.

It fell on deaf ears among many members of the press when a critic of Sullivan noted that the decision did not keep the powerful from suing; it simply set down the rules that, with increasing complexity, made libel lawsuits costlier.

Now come Gillmor and Grant to deflate the myth of Sullivan 's promise of deliverance from the devil of libel. A form of litigation with such a low success rate, they show, is a futile exercise.

But what can the press do about that? It has just two options; neither is at all promising. It can go to the Supreme Court in the next libel case and try to persuade the justices to extend Sullivan to implement the ban suggested by Gillmor and Grant. Or it can troop to every state legislature (and perhaps Congress as well) and ask lawmakers to eliminate their right to sue the press for libel.

The first option is as foolhardy as the second. The current Supreme Court appears to be bent on retreating from Sullivan , not expanding its scope. The press doesn't know what it would get if the court began to tinker with Sullivan .

It hardly needs saying that the second option is a dream world proposition. Every harried politician in the country knows that a libel lawsuit is a good publicity gimmick, even when it fails.

The Gillmor-Grant study might yet be put to use, however: Press lawyers could cite it as they try to get celebrities to settle out of court. l

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