Libel Relief

By Richard Lacayo

The press has learned from experience that there are two kinds of expensive libel suits: the ones it loses and the ones it wins. Even meritless complaints can lead to costly court battles, a threat that can inhibit even the wealthiest news organizations. Last week the U.S. Supreme Court gave the news media important relief with a ruling that encourages judges to dismiss unworthy suits before they go to trial.

The court's decision stemmed from a libel suit against the Investigator, a magazine published by muckraking Columnist Jack Anderson. In three articles published in 1981, the Investigator charged that the ultraconservative Liberty Lobby and its founder, Willis Carto, were neo-Nazi, anti-Semitic and racist. Carto and his organization sued Anderson and the magazine, claiming that they had used patently unreliable sources.

In 1984 the U.S. Court of Appeals for the District of Columbia ruled that a trial judge had erred in throwing out the case before it went to trial. Significantly, the appeals-court decision was written by Antonin Scalia, President Reagan's Supreme Court nominee, who is widely regarded as no friend of the press. Judge Scalia's view was supported by a now famous footnote in a 1979 Supreme Court ruling written by Chief Justice Warren Burger. In that case, Burger noted that in order to prove "actual malice"--the stiff standard public figures must meet to win a libel case--plaintiffs have the right to inquire into a reporter's "state of mind." Such a complex undertaking, stated the Chief Justice, "does not readily lend itself to summary disposition." Burger's aside sent a message to lower-court judges that led to a surge of libel trials.

By its 6 to 3 decision overturning Scalia's opinion, the court seemed to say, "Ignore previous message." Writing for the majority, Justice Byron White held that when examining a motion for summary judgment, judges must determine "whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity." Specifically, said White, judges must assess such evidence in light of the stringent "clear and convincing" standard of the landmark 1964 libel case, New York Times Co. vs. Sullivan. The effect would be to make libel complaints more difficult to justify at the pretrial stage.

The court's decision was heralded in newsrooms. "It's the high cost of litigation that has been stifling investigative reporting," said Anderson. "I think this decision will reverse all of that." Some First Amendment experts were afraid that the court had not given explicit enough criteria to lower courts, but the decision may have an impact beyond the strict letter of its language. "In some cases the melody is more important than the words," said Libel Attorney Bruce Sanford of Washington. Whether lower-court judges will face the music remains to be seen.

In another decision last week, the court ruled 6 to 3 that most airlines are exempt from a 1973 law that bars recipients of federal aid from discriminating against the handicapped. The case was brought by three organizations, including the Paralyzed Veterans of America, which noted that some airlines subject the handicapped to humiliations like requiring them to sit on blankets for fear they will not be able to make it to the bathroom. The court found that airports, not airlines, are the recipients of current federal aid programs. Thus airlines are not bound by the strings attached.

The court also added a grim refinement to its ten-year effort to chart new ground rules for capital punishment. Just two days after Georgia executed a retarded man convicted of murder, the Justices ruled 5 to 4 that the Constitution's Eighth Amendment ban on "cruel and unusual punishments" bars states from executing insane prisoners. The decision came in a Florida case involving convicted Killer Alvin B. Ford. The court found that Florida's procedures for determining his sanity before execution were inadequate and ordered new proceedings. Yet even if Ford is found insane, Justice Lewis Powell noted in a separate concurring opinion, he could be executed once he is deemed to be cured.

With reporting by Anne Constable/Washington