Libel ruling could freeze news
By Paul Ertelt
Of the tmerjld
The public's access to important
information may be curtailed by a
recent court ruling making it
easier for a private party to win a
libel suit against the media, says
Jeremy Cohen, University jour
nalism professor.
In an Oct. 12 decision, the
Oregon Court of Appeals ruled
that in order to win a libel suit
against the news media, a private
figure needs only to prove that
false and defamatory statements
were a result of simple negligence
— not malice.
Cohen's concern is that the
media, afraid of a possible lawsuit
from a private citizen involved in a
public issue, will shy away from
relating information the public
needs to know.
For a private individual, the
Supreme Court has allowed the
standard to be set by the states.
Many other states use the stan
dard of "gross negligence," a sort
of middle ground which says a
reporter was "acting with a
degree of awareness of the pro
bable falsity" of the statement,
Cohen says.
"You have to prove more than a
little carelessness," he says.
The Oregon ruling stems from a
$7.4 million libel suit brought
against the Willamette Week
newspaper by a Portland banker.
The suit claimed the paper
published a defamatory story
about the bank without adequate
ly checking its sources.
But this ruling goes beyond this
as yet unsettled case and will have
a major impact on the way the
news is reported in Oregon,
Cohen says.
Making it too easy to win a libel
case "will bring the attorney into
the editorial process. Then the
question becomes 'Can we prove
this story in court?' instead of Is
this something the public needs
to know?' " Cohen says.
Law Prof, lames O'Fallon doubts
the ruling will have any real im
pact on the outcome of libel
cases. What it will do, he says, is
force journalists to establish a pro
fessional standard.
The difference between gross
negligence and simple negligence
is vague, says O'Fallon. What
needs to be established is a pro
fessional standard based on the
steps a "reasonable person"
would do in order to establish the
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veracity of a story.
"This would be the same as the
standards for doctors in medical
malpractice suits," O’Fallon says.
These standards would be based
on what is actually done by other
journalists, he says.
"One way of establishing this
would be by using other reporters
as expert witnesses to testify to
what they would have done in the
same circumstances," he says.
Although the media win 75 per
cent of libel cases against them,
defense costs can be as high as
$100,000. "When you're dealing
with a small newspaper and a big
business, you have a problem,"
Cohen says.
One small California weekly
won a Pulitzer Prize for its expose
of a drug rehabilitaton center, but
went bankrupt defending itself
against subsequent libel suits, he
says.
But most newspapers carry libel
insurance, O’Fallon says. "It’s the
insurance companies that end up
paying."
The press should not be penaliz
ed for "honest mistakes," Cohen
says. And although every precau
tion should be taken to insure a
story is correct, deadline
pressures and timeliness make
this difficult, he says.
The amount of money often
awarded in libel cases is not pro
portionate to the damage done,
Cohen says. "It's hard to believe
that anyone’s reputation is worth
millions of dollars.”
But if the damage claimed by a
party can be proved, that party
has every right to collect those
damages, O'Fallon says.
The Oregon Constitution
balances the press’s freedom with
individuals' rights to protect their
reputations, O'Fallon says. Both
Cohen and O'Fallon believe this
balance should be maintained,
but differ on how these rights
should be divided.
'I'd, rather see a few people
defamed from time to time,
without recourse to collecting full
damages, than to see the freedom
of the press violated," Cohen
says.
Yet, O'Fallon says, "There is a
general media trend to think that
the First Amendment belongs to
them, and there are no other
significant rights."
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