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' '- --‘ \-A a V ," " s ‘i'. ’ J‘ho ) This is to certify that the thesis entitled THE BALANCING PROCESS: CONSTITUTIONAL AND REPUTATIONAL INTERESTS IN DEFAMATION LAW . presented by Robert Thomas Rini has been accepted towards fulfillment of the requirements for M oA o degree in JOURNALISM Major professor 2 Date May 21, 1981 0-7639 ___.._. _..‘___ . ‘ c ' In ' V" \EO‘I'I” L “a n” yr l V OVERDUE FINES: 25¢ per day per item RETURNIIB LIBRARY MATERIALS: Place in book return to remove charge from circulation records Copyright by ROBERT THOMAS RINI 1981 THE BALANCING PROCESS: CONSTITUTIONAL AND REPUTATIONAL INTERESTS IN DEFAMATION LAW By Robert Thomas Rini A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of MASTER OF ARTS School of Journalism 1981 in Far Of Art Accepted by the faculty of the School of Journalism, College of Communication Arts, Michigan State University, in partial fulfillment of the requirements for the Master of Arts degree. 744.91% Director of Thesis ABSTRACT THE BALANCING PROCESS: CONSTITUTIONAL AND REPUTATIONAL INTERESTS IN DEFAMATION LAN By Robert Thomas Rini The guarantees of free expression and the protections of individual reputation are competing human interests. Whenever the weight of the law broadens one interest, it inevitably constricts the other. It has become the task of the judiciary to find an adequate balance of the law that neither forces the individual to surrender too much individual reputational protection, nor forces the media to retreat to a position of self-censorship. In l964, the Supreme Court introduced the concept of constitutional privilege into the balancing process. While this concept revolutionized the application of defamation law, it has led to an almost continual state of transition and turbulence within the law. This thesis will examine the judicial techniques and philosophies the courts have employed inatte: find an analyze Process M Pronoun tbase d gWati Robert Thomas Rini in attempting to define the constitutional privilege and find an equitable accommodation of protections. It will analyze the developments in the constitutional balancing process beginning with the watershed case of New York Times Co. v. Sullivan through the Supreme Court's most recent pronouncements. It will also examine the practical effects these decisions ultimately have upon the functions and operations of the media. ACKNOWLEDGMENTS Gratitude is extended to a number of people, without whose help this thesis would have been a far less enjoyable undertaking. I would like to thank my thesis adviser, Professor John Murray, for directing the development of this paper and for providing key insights into this complicated area of the law. I also wish to acknowledge: Dr. Robert Hudson and Dr. Stanley Soffin for their assistence in editing. Dr. Maurice R. Cullen, for helping in the selection of this topic and preparation of the Proposal. Dr. George A. Hough III, my academic adviser, for his sound advice. Special thanks, also, to my brother, James Rini, whose confidence and moral support always make it easier when the going gets rough. And my acknowledgments would not be complete without recognition of my father, Nicholas Rini, whose memory is a driving force to do my best. TABLE OF CONTENTS INTRODUCTION: THE LAW IN CONFLICT Chapter I. II. III. HISTORICAL PROSEPCTIVES OF THE BALANCING PROCESS A. The Traditional Balance B. The Supreme Court C. The Minority View THE SULLIVAN T0 ROSENBLOOM ERA: TIPPING THE BALANCE TO THE MEDIA A. The Beginnings of the Constitutional Process . . . . . . . B. New York Times Co. v. Sullivan C. The New Judicial Attitude . D. Expanding Upon the Sullivan Balance E. The Actual Malice Test . . F. Rosenbloom v. Metromedia, Inc. G. The Sullivan to Rosenbloom Balance In Prospective H. Faultering Application of the Public Interest Concept GERTZ AND ITS PROGENY: STRIKING A NEW BALANCE A. The Shifting Height of Judicial Opinion . . . . . . . . . . B. Gertz v. Robert Nelch, Inc. C. The Doctrine of Reputational Protection . . . . D. Time, Inc. v. Firestone E. Nolston and Proxmire F. Herbert v. Lando iv 10 14 16 I6 20 24 26 29 32 37 39 43 43 45 52 53 62 69 IV. VI. VII. VIII. IX. STATE COURT BALANCING OF INTERESTS: ESTABLISHING STANDARDS OF FAULT Reaction to the Gertz Balance . The Actual Malice- Rosenbloom Standard The Gross Negligence Standard The Negligence Standard DOW) IMPLEMENTATION OF THE NEGLIGENCE STANDARD BALANCE THE PUBLIC/PRIVATE INDIVIDUAL STATUS DEFINITION . . . . . . . . A. Uncertainty In the Law B. The New Gertz Public/Private Balance C. Plundering the New Balance D. "Public Controversy" As Part of the Public/Private Definition E. "Access" As An Element of Public Status REPORTING OF JUDICIAL PROCEEDINGS AND OFFICIAL RECORDS THE MEDIA AT TRIAL" THE CHILLING EFFECTS OF THE INEQUITABLE BALANCE A. The Media In Retreat . B. Inherent Prejudicies In the Trial System . C. The Deterring Effects of Litigation HERBERT: ASSULT ON THE EDITORIAL PROCESS A. Reputational Interests Versus Editorial Autonomy B. The Perils of Editorial Probe The Effects of Editorial Inquiry D. The Questionable Need For Editorial Inquiry . . E. Potential Expansion of Editorial Inquiry C) 80 80 85 93 96 110 120 120 122 127 143 151 159 169 169 170 174 182 182 183 187 192 196 X. CONCLUSION A. Prospective B. Proposed Balance BIBLIOGRAPHY vi 199 199 217 236 INTRODUCTION: THE LAN IN CONFLICT The true boundary line of the First Amendment can be fixed only when...the courts realize that the principle on which speech is classified as lawful or unlawful involves the balancing against each other of two very important social interes s, in public safety and in the search for truth. For all of its intricacies, the constitutional balancing process can be characterized as the ultimate conflict of free expression versus individual reputation. The dilemma could easily be resolved if this was simply a conflict of right versus wrong, but a much broader conflict is involved. Free expression and the protection of individual reputation are basic human rights guaranteed in the Constitution of the United States. By the very conflicting nature of these two interests, whatever weight is given to one is withdrawn from the other. Thus, it is left to the courts to resolve the constitutional dilemma of how much individual sanctity must be sacrificed to attain a societal goal. To make this determination the courts must utilize a balancing process. The law of defamation is one of the most complex and 1Zechariah Chafee, Freedom of Speech, (Chicago: University of Chicago Press, l920), p. 38 2 2 No matter what frequently irrational areas of the law. position the law assumes, there are legitimate and compelling arguments for the opposing position. The inescapable fact remains, however, that the protections of individual reputa- tion constrict those very parameters which first amendment guarantees seek to expand, and vice versa. It is the function of this judicial balancing process to weigh the relative values and detriments to society and to the individual in order to reach the most equitable accommodation. The balancing process is an attempt to insure that neither value sacrifices too greatly at the expense of the other. Neither side of the balance, nor democracy itself, would be served by excessive adherence to one at the expense of the other. It must be remembered that when a balance is struck, one interest may prove stronger, but there are no winners or losers. When the Supreme Court rules to increase the protections of reputational interests, for example, it could be said that the private individual is safer because his interests against potential defamation are better protected. In doing so, however, the potential for media self-censorship increases. Thus, that same private individual's right to receive information, potentially vital to an informed citizenry, is decreased, 2Nilliam Prosser, Handbook of the Law of Torts, (St. Paul: west Publishing Co., 1971), §111, p. 737. lesser. trover two ir IECBII the 15 3 lessening the quality of his life. The basic area of con- troversy in defamation law concerns the point at which the two interests should be equitably balanced. Theoretically, that point is where the individual is in the position to receive the greatest amount of information while sacrificing the least amount of individual protections. In a free society, it is essential that the broadest range of information, comment and opinion on vital issues of the day reach the public. A free flow of ideas promotes informed decision-making by the electorate, thus promoting political truth. Occasionally, in the course of disseminating such information, factual falsehoods or defamatory comments could inadvertently be published as truth. The Supreme Court has recognized on several occasions that erroneous 3 The nature statements that injure reputation are inevitable. of the news gathering process makes good-faith errors unavoid- able. Defamatory speech, by its very nature, is untrue and holds very limited intrinsic value to the common good or to the decision-making process. As such, there would seem to be little excuse to protect it. But when the defamation is a good-faith defamation, as opposed to a knowing misstatement or a statement made with malicious designs, there is a value 3New York Times Co. v. Sullivan, 376 U.S. 254, 271-72 (1964); Time, Inc. v. Hill, 385 U.S. 374, 388 (l967); and Gertz v. Robert Nelch, Inc., 418 U.S. 323, 340 (l974), to name a few. to be 1‘ The val in the pe4 0' 6 constitutional status where defamatory comments were involved. It forced a total rethinking of the bounds and limitations involved in the reach of the First Amendment. The Court extended a constitutional privilege to defamatory communications and bound the American judicial system to a "profound national commitment to the principle that debate on public issues be uninhibited."6 In a single blow, the Court struck down the traditional interpretation of defamation that had evolved through centuries of case law and provided a new balance of values for judging public criticism. The basis of the struggle in defamation law since 1964 has involved a balancing process of basic rights. The element within Sullivan that made it a landmark decision was its extension of constitutional protections to defamatory communications. The Court recognized that the government's obligation to protect the individual's reputation was constitutionally interrelated with its obligation to protect and enhance the guarantees of free expression. In every important decision in defamation law since Sullivan, the Court has been called upon to constitutionally re-examine and redefine this balance of basic human rights. When an excessive amount of judicial favor is placed upon free expression interests, the individual is at the mercy of the competence 61bid. at 279.. and et uerar effect talent positix During and ethics of the media. When judicial favor tends toward overprotection of the individual, an undesirable chilling effect results. In the course of its struggles with the balancing process, the Court has settled upon both of these positions without finding an equitable and workable balance. During this period, defamation law has been in a continual state of transition and turbulence. Almost two decades after it first introduced the constitutional privilege into defamation law, the Court is still attempting to define its parameters. How the courts interpret this balance is one of the most important questions in journalistic juris- prudence. This thesis will compare the attempts by the Court to balance the measure of caution necessary to allow the media to perform their function without losing sight of the needs of the individual. It will analyze the judicial developments in the constitutional balancing process from its beginings, through the Supreme Court's most recent determinations. It will also examine the effects this unsettled situation has had upon the practical operation of the media. CHAPTER I HISTORICAL PROSPECTIVES OF THE BALANCING PROCESS A. The Traditional Balance The laws involving defamation developed through the English Common Law and are among the earliest recorded statutes. The laws were first enacted in an era in history before news- papers, mass circulation media, even before the invention of the printing press. Even in these early times the legal bodies expressed considerable concern over the potential damaging effects of defamatory communications. The Common Law placed a heavy responsibility upon the government to protect an individual's reputation. These centuries-old defamation statutes that evolved and expanded through the Common Law became ingrained in the American legal system. For most of the legal history of the United States, the issue of defamation was constitutionally beyond the reach of the Supreme Court. Article III of the Constitution excludes the judicial power of the federal judiciary from issues dealing exclusively in state law. Further, under the time-honored dictum S Feieral iid not nomatte cauld no‘ legislat little 0] baIance ( For 9 dictum set forth by the Court in 1833,7 the guarantees of the Federal Bill of Rights, including those of the First Amendment, did not apply to state law.8 Thus, state defamation decisions, no matter how much they might impede the flow of information, could not be appealed to the federal courts. Defamation legislation was left almost entirely to the states, providing little opportunity for the Supreme Court to consider a balance of interests. For the most part, state law adhered closely to the Common Law interpretation of defamation law. The attitude of the state courts toward accidental, non-malicious defamation changed little through the nineteenth and first half of the twentieth centuries. Throughout this era, the pUblisher's only defenses in cases involving comment on public officials were truth, fair comment, and official privilege to report public proceedings. A publisher who ascribed corrupt motives or suggested inept or negligent performance of duty to a public official did so at his own peril.9 Failure to prove the truth or that 7Barron v. Baltimore, 7 Peters 243 (1833). 8A. Kelly, "Constitutional Liberty and the Law of Libel: A Historian's View," The American Historian Review, 74 (Decem- ber 1969), p. 443. 9Burt v. Advertiser Newspaper Co., 28 N.E. l, 4 (1891); Wolfford v. Meeks, 30 So. 625, 627 (1901); Starks v. Comer, 67 So. 440, 442 (1914). the stat« or offiC1 Thegener defense f 30:. AN that if i for publi belief th editor Co a”Swer‘abl 10 the statement was made within the limits of fair comment or official privilege would result in an unfavorable verdict. The general attitude of the judiciary was that even a limited defense for false defamatory comment would be to open Pandora's Box. A New York court reflected this attitude when it said that if it were to grant a special privilege to newspapers for publishing defamatory statements made in the good faith belief that they were true, "the effect would be that an editor could publish what he p1eases...without really being answerable for the truth of what he says."10 8. The Supreme Court In 1925, the Supreme Court reversed its long standing position barring application of the First Amendment protections to state law.11 State-oriented freedom of expression issues were brought within the realm of constitutional protections through implementation of the Fourteenth Amendment. While the First Amendment could limit only the powers of the federal government, the due process clause of the Fourteenth Amendment was judged to incorporate the guarantees of the First Amendment into state law. This paved the way for the creation of a formidable body of 10 King v. Root, 4 Wend. 114, 139 (1829). 11Git1ow v. New York, 268 U.S. 652 (1925). constit levels press. confine as picl otsceni ll constitutional law limiting the restrictive powers of all levels of government in the area of freedom of speech and the press. Over the next several years, case law spelled out the confines of governmental reach in areas of expression such 13 as picketing,12 pamphleteering, public demonstration,14 15 16 obscenity and prior restraint upon publication. Despite the sweep of First Amendment protections, the area of defamation remained almost unchanged for forty years following the application of constitutional protections against state infringements upon expression. The prevailing theory was that the First Amendment was designed to protect only expression that might hold value to the decision-making public. Defamations were falsehoods, which contained no intrinsic value toward furthering the public awareness. They were thus, beyond the protections of the Constitution. 'Zorotherhood v. Hanke, 339 u.s. 470 (1950); Amalg, Food Employees Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968). 13Love11 v. Griffin, 303 U.S. 444 (1938); Martin v. City of Struthers, 319 U.S. 141 (1943). 14Thomas v. Collins, 323 u.s. 516 (1943); Edwards v. South Carolina, 372 U.S. 229 (1963). 15Roth v. U.S., 354 U.S. 476 (1957); Miller v. California, 413 U.S. 15 (1973). 16Near v. Minnesota, 283 U.S. 697 (1931); Bantam Books v. Sullivan, 372 U.S. 58 (1963). Th rarely instant my ex issue. Iht defamat' We the iresentg I'otecti 12 The Court approached the question of defamation only rarely compared to other forms of expression. In many instances, the Court would speak about the nature of defama- tory expression, but defamation was usually a peripheral issue. For the most part, it remained a state issue. The Court's over-all inaction in reforming the law of defamation was not due to a lack of opportunity. In 1941, more than two decades before Sullivan, the Court was presented with an opportunity to extend constitutional protections to criticism of public officials. In Schenectady 17 Union Publishing Co.) v. Sweeney, the issue under consider- ation was the constitutional limitations upon awarding damages for defamation of a public official, roughly the same as was the case in Sullivan.18 The Court of Appeals rejected the argument that while "truth” was an unshakable constant, proving truth was often a matter of interpretative opinion which could chill the journalistic process. It l7316 U.S. 642 (1941). 18The case involved Representative Martin J. Sweeney, a follower of Father Charles Coughlin, the famous "radio priest" of the 1930's. Sweeney was reputed to be Coughlin's voice in Congress. The publication stated that Sweeney had opposed an appointment to the federal bench because the appointee was Jewish. Sweeney sued for defamation. sustain for the not ott case we have be grantir Officie “0 0911 unchanS Of Gite 15y fal areDart / ——o u) l3 sustained the existing law that made the journalist responsible for the truth, completely and in all of its particulars, when not otherwise protected by the traditional defenses.19 The case was appealed to the Supreme Court, where the law could have been overturned. This would have had the effect of granting first amendment protections to criticism of public officials. Instead, the justices divided equally, offering no opinion. This sustained the lower court ruling and left unchanged the existing state of defamation law. The issue of extending the constitutional protections to defamation law lay fallow for the next 23 years before the Court was again prepared to consider the issue. The traditional view of the Court continued to be that the free press clause of the First Amendment raised no serious restrictions when the issue was defamation. Although extension of the constitutional privilege was not the issue, the Court addressed itself to the conflicting nature of free expression and defamation law in Near v. Minnesota:20 [P]unishment for the abuse of the liberty accorded to the press is essential to the protection of the public....[C]ommon law rules that subject the libeler to responsibility...are not abolished by the 19122 F.2d 288 (1941). 20283 u.s. 697 (1931). Adecade again st 14 protections extended in our Constitution.21 A decade later, in Chaplinsky v. New Hampshire,22 the Court again stated this position: There are certain self-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Con- stitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or "fighting words."23 C. The Minority View This arbitrary position taken by the Supreme Court and the rigid protections of common law defamation were not accepted in all jurisdictions. A "common interest" privilege had gained some credence on the state court level. Prior to 1964, ten states had accepted at least a limited extended privilege in cases involving public officials. While the extent of the privilege varied from state to state, all of the court rulings enunciated the theory that the public interest was best served where the media was free to discuss public issues.24 lebid. at 715. 22315 U.S. 568 (1942). 23Ibid. at 571 (Emphasis added). 24This minority view had been accepted in various forms in: Arizona, California, Connecticut, Iowa, Kansas, Michigan, Minnesota, New Hampshire, South Dakota, and West Virginia. Perha view was lh deciding 1m in this 19 tht the p activities are involv lEnade av 'Under a f 30canvags lions Of C “inneSOta tine preSS, (Equjred a M the COr HESS is a 5”5"”"461 e 15 Perhaps the most important case representing this minority view was Coleman v. MacLennan.25 The Supreme Court, in deciding Sullivan, adopted much of the rationale put forth in this 1908 Kansas case. In Coleman, the state court ruled that the public has an obvious interest in the conduct and activities of its officials. Where matters of government are involved, the widest possible arena for discussion must be made available if the public interest is to be served. "Under a form of government like our own, there must be freedom to canvass in good faith, the worth of character and qualifica- tions of candidates for office."26 In a 1925 case, the Minnesota Supreme Court went even further, asserting that the press, because of its unique role in a free society, required a certain breathing space if it was to fully function in the common interest. "The benefit of the liberty of the press is a myth," the court said, "if a newspaper must be answerable for the literal truth of every word it prints."27 2598 P. 281 (1908). 26Ibid. at 286. 27Friedell v. Blakely Printipg7Co., 203 N-W-.974. 975 (1925)- THE SI CHAPTER II THE SULLIVAN TO ROSENBLOOM ERA: TIPPING THE BALANCE TO THE MEDIA A. The Begjnnings of the Constitutional BalancingpProcess The extension of the constitutional privilege was not a chance incident that happened along in 1964. It was not an inevitable evolutionary development in the law of defamation; nor was it an isolated judicial change whose occurrence was oblivious to the social context of the time. The United States Supreme Court has been called the court of last resort, but it does not necessarily have to accept every case that is appealed to it. In fact, of the more than 5,000 yearly appeals, the Court grants certiorari to only about 150 cases.28 When the Court does grant certiorari to a case, it is usually because it wishes to consider the larger issue involved, rather than the facts of the particular instance. Former Chief Justice William Howard Taft described the function of the Supreme Court as "[E]xpounding and 280. Elder, "The Supreme Court and Defamation: A Relaxa- tion of Constitutional Restraints," Kentucky Bench & Bar, 21 (January 1980), p. 38. 16 v',‘ a I' II' II" 17 stabilizing principles of law...passing upon constitutional questions and other important questions of law for the public benefit."29 Another former chief justice, Fred M. Vinson, put it more succinctly, saying, the Court addresses itself only to questions "whose resolution will have immediate importance far beyond the particular facts and parties involved."30 The Court grants certiorari to a case when it feels the issues involved have constitutional bearings upon larger social questions. The reasoning and rationale of the Court's balancing process in Sullivan, then, must be examined in the context of the social character and climate of the time. Cases involving defamation of public officials had been appealed to the Supreme Court prior to Sullivan. One may well ask why an issue was not unconstitutional over so many years, yet it was held to be in violation of the Constitution by a unanimous vote of the Court in 1964. This would appear contradictory when examining only the law at issue. The law at issue, though, never exists in a vaccum. To understand what led the Court to shift the balance of its protection from the individual to the media, through the 29Lewis, Gideon's Trumpet, p. 24. 3°Ibid.. p. 25- 18 extension of the constitutional privilege, it is necessary to view the social consciousness that was emerging during that period. A rebirth of widespread political activism began about a decade earlier. Within a framework of human rights and social change, the courts were rethinking traditional legal concepts. The primary moving issue within this framework of social change was the civil rights struggle. The courts, essentially through key Supreme Court rulings, developed a concept of constitutional social responsibility.31 A new atmosphere of social consciousness was spreading throughout society. There was a new awareness on the part of the public concerning the administration of public policy. Demands were being made upon public officials to right the existing wrongs in all frames of society. The media embraced the new concept of constitutional social responsibility. It brought forth a general inspection of new ideas and opinions. It gave coverage to social issues that had long been ignored and lent credence to some unpopular ideas. It demanded 3'This constitutional concept evolved in several areas of the law, such as: Safeguards in the administration of criminal justice, Gideon v. Wainwright, 372 U.S. 335 (1963) and Miranda v. Arizona, 384 U.S. 436 (1966); Civil Rights, Brown v. Board of Education, 347 U.S. 483 (1954) and Rogers v. Paul, 382 U.S. 198 (1965); and Reapportionment, Reynolds v. Sims, 377 U.S. 533 (1964). l9 accountability of those in positions of power and would scrutinize and criticize official activities. The only abridgment that confronted full and free airing of this expression was the antiquated laws of defamation. It was within this changing social context in 1964, in which the Court again addressed the defamation versus free expression balancing process. If the new social activism was to have effect, news reporters and social critics would have to be free to point out the unequal applications of justice and publicly criticize those who administered the policies. This was where the concept of social responsibility came into direct conflict with the traditional laws of defamation. Defamation was an ever-present deterring factor. The new social consciousness made extension of the privilege constitutionally acceptable. While the traditional interpre- tation of defamation may have proved adequate during previous eras, it was totally deficient within the Court's new perspec- tive of constitutional social responsibility. The question was no longer the media's right to free speech versus the individual's right to reputational protection. The public's right to know became a prominent element within the balance. Within this new context, the rights of individual reputation necessarily had to take a secondary position. 20 B. New York Times Co. v. Sullivan The case arose from an advertisement in the New York 11933, written and paid for by a group of civil libertarians. The advertisement was concerned with the plight of Negro students at a southern College. It implied that L.B. Sullivan, the Commissioner of Public Affairs in the college community, was responsible for some of the infractions. The advertisement contained numerous minor factual errors, which Sullivan used as the basis for his case. The trial court ruled for Sullivan and the judgment was upheld in the state supreme court. In a decision totally reversing the traditional legal concepts of defamation, the United States Supreme Court reversed the state court decisions and determined that there was a first amendment privilege protecting criticism of the official conduct of public officials. The Court weighed the first amendment guarantees of freedom of expression against a public official's interest in protecting his reputation. It concluded that the First Amendment prohibited recovery for non-malicious falsehoods concerning the activities of public officials. The Court held that: The constitutional guarantees require...a federal rule that prohibits a public official from re- covering damages for a defamatory falsehood relating to his official conduct unless he proves 21 that the statement was made with "actual malice".... With that one sweeping sentence, two hundred years of American defamation case law was changed. The Court addressed itself to the nature of the jour- alistic process. It concluded that "erroneous statement is inevitable in free debate, and...it must be protected if the freedoms of expression are to have the 'breathing space' that they need...to survive."33 The potential difficulty and expense of proving truth might result in the media exercising caution at the expense of valued expression. To avert this threat, criticism of public officials was invested with a constitutional privilege. Sullivan proved to be the perfect vehicle for the Court to extend the constitutional privilege into defamation law. The facts of the case alone proved the inequity of the existing balance and the need for the new constitutional protections. The factual errors in the advertisement were minor and did not effect the main thrust or theme. It was questionable whether there was any real damage done to Sullivan's reputation, regardless of the errors. Additionally, of the 650,000 papers published, only 394 were distributed 32376 U.S. at 279-80. 33Ibid. at 271-72. 22 within the entire state of Alabama and only 35 within the plaintiff's jurisdiction.34 Despite the questionable reputa- tional damages and the limited distribution of the publication, the county court jury awarded the plaintiff $500,000 in damages. The suit grew out of the context of race relations. The emotions were intensely hostile and this case presented itself to the trial jury as a means of punishing unpopular opinion. It would be difficult to find an instance where defamation law was more blatantly used to stifle free expression. It was a case that virtually begged for reversal if justice was to prevail. The purpose of the First Amendment was to insure a forum for unpopular expression; a protection against imposed restraints of ideas or opinion critical of governmental operation. The framers of the Constitution believed that as uncomplimentary or embarrassing this type of criticism could be, it was in the public interest to guarantee its right to be heard.35 The Sullivan balance carried the fundamental beliefs 34Ibid. at 260. 35The Constitutional Congress expressed this sentiment in the 1774 pronouncement, "An Address to the Inhabitants of Quebec." Where public policy is dependent upon the voice of the people, all lines of thought must be open to public judgment. The importance of free expression, it further of pr: 23 into the realm of defamation. The courts had traditionally viewed defamation law from the point of view of the protection of individual reputation. Sullivan weighed the balancing process from the prospective of free expression. The traditional balance looked only at the end result, the subject matter which ultimately appeared in the publication and the damage it inflicted upon a reputation. Sullivan looked beyond the effects and ramifications of the end result. It followed the chain of events back to include the effects upon the editorial process, to determine whether this aspect of defama- tion law unduly inhibited the free flow of information. From that perspective, the common law protections proved inadequate. Thus, defamation law, for the first time, was brought under the protection of the free speech clause of the First Amendment. William Prosser, the leading authority on American tort law, called the Sullivan decision "unquestionably the greatest victory won by the defendants in the modern history of the law of torts."36 It opened the door to more expansive stated, is "in its diffusion of liberal sentiments on the administration of government...whereby oppressive officials are shamed or intimidated into more honorable and just modes of conducting affairs." A. Kelly and W.A. Harbinson, The American Constitution: Its Origins and Development, (New York: W.W. Norton, 1970), p. 678. 36Prosser, Law of Torts, p. 819 24 interpretations of the new concept and spawned a ten-year effort by the Supreme Court to delineate the parameters of the constitutional privilege. It acted as a bridge indelibly extending the constitutional protections to defamation law. C. The New Judicial Attitude Over the next decade, the Court ruled in a number of defamation cases. The underlying theme of the balancing 37 process during the Sullivan to Rosenbloom era was the elimination of those elements within defamation law which could deter a journalist in the competent and conscientious pursuit of news or opinion. Self-censorship, though voluntary, 37The phrase, "Sullivan to Rosenbloom era" encompasses the ten year period from 1964-1974. During this period, the Supreme Court ruled in fourteen defamation cases utilizing the concept of constitutional privilege. The cases are, in order of decision: New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Garrison v. Louisiana, 379 U.S. 64, (1964); Henry v. Collins, 380 U.S. 356 (1965); Rosenblatt v. Baer, 383 U.S. 75 (1966); Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130 (1967); Beckley Newspapers Corp; v. Hanks, 389 U.S. 81 (1967); St. Amant v. Thompson, 390 U.S. 727 (1968); Pickering v. Board of Educ., 391 U.S. 563 (1968); Greenbelt Coop. Publishing Ass'n v. Bresler, 398 U.S. 7 (1970); Monitor Pariot Co. v. Roy, 401 U.S. 265 (1971); Time, Inc. v Page, 401 U.S. 279 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971); and Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). The Court applied parts of the constitutional privilege to certain privacy cases, such as Time, Inc. v. Hill, 385 U.S. 374 (1967), but since privacy is a different part of media law than defamation, for purposes of this paper, the Sullivan to Rosenbloom era" will refer to the above named Supreme Court cases. 25 had the same net result of stifling the flow of information and depriving the public of information which could potentially enhance their awareness. In Sullivan, the Court assumed the perspective of the importance of the iggge. It stressed that the primary concern was to assure that every vital issue reach the public, despite the effect it might have upon the reputations of the policy-makers. Once the Court assumed the prospective of the importance of the issue, the nature of the new balancing process was far too expansive to be confined within the limits of the public official status. It seemed inconsistent to place so much emphasis upon the importance of vital issues while limiting its application to public officials. If the issue in question was a genuine matter of concern to the decision-making public, the fact that the individual involved was not a public official did not make the issue less vital or important. This inconsistency in rationale made the extension of the constitutional privilege seem inevitable. From this new libertarian perspective of the period, the balancing process developed in a consistent progression toward enhancing the free flow of information. Each successive Court case enhanced or further extended the constitutional privilege. The Court, in its broad, sweeping move in 1964, erased or altered most of the reasoning that guided two hundred years of 26 case law. The effect was to leave a clean slate, a vacuum in the law. A lower federal court ruling during this period enunciated the void in the law. It said, "the law of libel now completely departs from the common law of libel that prevails in England and that existed in this country prior to 1964."38 Under the Court's new balance, rulings involving public officials would have to be based upon the constitutional privilege principle, which distinguished it from any prior conceptions of what comprised defamation law. It was only natural that the next several years after Sullivan would see a flurry of cases, as the Court attempted to establish a new process for balancing the constitutional privilege against the declining laws of defamation. 0. Expanding Upon the Sullivan Balance Application of the constitutional privilege seemed ripe for expansion. As broad as it appeared compared to pre-Sullivan standards, it still seemed far too confining in the new atmosphere which encouraged thorough investigative reporting and robust public comment. The confines of the law became apparent in the broadening scope of public interest criticism. The public activities of the lowliest township constable was fair-game for criticism because it was an elective office, but 38oodd v. Pearson, 277 F.Supp. 469, 472 (1967). 27 what of those persons outside of government who enjoyed a status of power or influence at least as great as most governmental officials? A social critic, for example, whose opinions influence millions of people and shape public thinking. Or what of the leaders of giant unions whose words can bring an entire industry to a hault? These people enjoyed a position and power equal to the official policy-maker, yet were excluded from the Sullivan rule. It was only natural that the next step for the Court was to broaden the applicability of the constitutional privilege. The vehicles the Court used to lift the constitutional privilege to a broader level were the combined cases of Curtis Publishing Co. v. Butts and Associated Press v. Walker.39 Butts involved an article in the Saturday Evening Pp§£_accusing the athletic director at the University of Georgia of conspiring to "fix" a football game. Walker arose out of civil rights hostilities involving enforced desegrega- tion. An Associated Press dispatch had described a former army officer as having taken charge of a crowd and leading a charge against federal marshals on a college campus. Both cases involved defamation actions brought by a publicly prominent individual. The Court's ruling broadened the Sullivan actual malice 39388 U.S. 130 (1967). 28 test to include all public persons, which encompassed public figures as well as public officials.40 It recognized that issues concerning the public interest went beyond the bounds of political expression. Certain policy determinations made in the private and semi-public4l sector had the same impact 42 Since and influence as decisions made in the public forum. such decisions were clearly a matter of public concern, the protections granted in Sullivan would certainly seem to apply. The actual malice test would be the standard applied to all individuals "involved in issues in which the public had a large and continuing interest."43 Thus, the Butts-Walker 40A four justice plurality supported a position which granted the media greater protection when discussing public figures, but not as great as the protections already allowed when discussing public officials. Three justices favored applying the Sullivan actual malice test to public figures as well as public officials. Justices Douglas and Black repeated their belief that the media should possess an absolute immunity. Thus, five justices supported at least applying the Sullivan balance to public figures. The Court has indicated in subsequent cases that it was this application, rather than the plurality position which had the effect of law. See Gertz v. Robert Welch Inc., 418 U.S. 323 n.7 (1974) and Greenbelt C00p. Publishing Ass'n v. Bresler, 398 U.S. 6, 8-11 (1970). 41A semi-public group or organization is any policy-making body whose decisions or activities influence thoughts or actions beyond its immediate group. 42388 u.s. at 154. 43Ioid. at 155. .11 I a.- I”: 29 balance afforded greater protections to the media by severely limiting the protections of defamation law to a large bloc of individuals. The tone and decisiveness of Sullivan, Butts and Walker unquestionably established a new mood in American courts which tended to favor the media-defendant in areas of uncertainty. There was a new safety in critically discussing and analyzing the public activities of all persons who were in the public eye. As long as the journalist acted within the guidelines of responsible journalism, there was no longer need to gingerly approach issues involving those individuals who were prominent in society, but who lacked the public title. E. The Actual Malice Test The new balance was directed toward encouraging robust debate. In order to accomplish this, the standard of liability necessarily had to provide the journalist with the greatest possible leeway. The "actual malice test," as formulated in Sullivan and expanded upon in later cases, provided a stringent set of protections against the chilling effects of defamation law. Sullivan prohibited a public official from recovering damages unless he could prove actual malice. The guidelines were clearly stated. The plaintiff had to prove the journalist's knowledge that what he printed was false, or prove that his 30 disregard for ascertaining the truth was so palpable as to exclude it from the broad umbrella of protections of free expression. This strict definition made the concept of "malice" a defensible charge placing the heavy burden of proof on the shoulders of the plaintiff. The actual malice test placed the journalist in the advantageous position in defamation actions. The Court further developed the actual malice test in Garrison v. Louisiana. It stipulated that only the use of a blantant, knowing lie to inflict harm was included in the 44 St. definition of actual malice. Amant v. Thompson defined the reckless disregard aspect of actual malice as the sub- jective awareness of probable falseness. The mere fact that the reasonably prudent man would have found cause to investi- gate was not enough to award damages.45 The actual malice test was designed to be a sword that cut both ways. It would protect the media from the threats of defamation law and the consequential Chilling effect. At the same time, though, it would protect the individual by allowing recovery for intentionally malicious or grossly reckless defamations, since these types of speech possessed no value and were preventable without fostering a climate of 44379 U.S. 64, 74 (1964). 45390 U.S. 727, 731 (1968). sel Iii the 31 self-censorship. One of the most important facets of 8153; and Walker was that together they demonstrated how the Court intended the actual malice test to be administered. In both instances, the plaintiff was wrongfully depicted, yet in Walker the Court ruled for the media-defendant while in BELLE it ruled against the media-defendant. The facts of the two cases act as guidelines for the determination of responsible journalism. Walker involved an incident of an immediate, newsmaking nature and was of considerable national concern. In the tumultuous events of the incident, the reporter transmitted the news as he saw it. The news required immediate dissemina- tion, allowing no time for the reporter, the wire service or the publications to confirm its accuracy. The dispatch was internally consistent and in keeping with prior publicized statements of the plaintiff. It was not unreasonable for the Associated Press to accept it at face value under the pressure conditions. The story in 8333;, on the other hand, did not involve "hot news" or important information of immediate concern.46 The story was acquired secondhand, in a manner which should have suggested that further investigation was appropriate. 46388 U.S. at 157. 32 The actions described in the story were not in keeping with the previous character of the person described in the article, which should have further suggested caution. The story would not have lost its newsworthy quality by delaying its publication. The Court determined that since there was no pressing urgency that the story be printed immediately, and since there was reasonable doubt as to its factualness, the periodical had reason and opportunity to investigate. The editors of the magizine were aware of their source's shady record and recognized the need for a thorough investigation of the serious charges, but failed to take investigative precautions. Recognizing the danger but failure to react constituted reckless disregard. F. Rosenbloom v. Metromedia, Inc. The constitutional privilege was designed to prohibit recovery from damages in matters that were vital to the public interest. Who, though, could really say where the legitimate public interest ended? Sullivan found that it extended at least to the activities of public officials. QUEES and Walker found that the legitimate public interest extended to include the activities of those individuals outside of government but who still had an impact on the social and economic atmosphere of a community. The concept, though, still seemed ripe for 33 expansion. The public interest rarely could be limited to the actions and activities of public personalities. Usually, in fact, it was the issue, not the particular individual, that attracted public interest. The notion that the legitimate public interest could be limited in terms of an individual's public/private status was a manufactured legal fiction. In assuming public attention, the public person also assumes the peril of inadvertent media error relating to that public personality. But what about private individuals? Should they be provided with a greater level of protection because they are not voluntarily involved in public activities? This would seem logical, but often the activities of private individuals are intertwined in the controversies of great concern to the public. Inevitably private individuals will occasionally become involved in issues of legitimate public concern. The fact that a private individual is involved does not decrease the issue's importance, so it would also seem logical that the presence of a private individual should not decrease the protections provided to the media. In these instances, it again comes down to a question of balancing the basic constitutional interests. Should the rights of the private individual be subverted to assure the free flow of information, or should first amendment interests be subverted to assure the private individual's greater need for reputational “I. “v 34 protection? The Court appeared to have decisively settled upon its commitment to the interests of free expression in Rosenbloom 47 v. Metromedia, Inc. The whole spirit of the post-Sullivan balance was directed toward unencumbering the media of the deterrent elements of defamation law. Rosenbloom was the inevitable climax of that progressively expansive application of the First Amendment. One observer, fearing the ultimate possibilities of the constitutional privilege and the judi- ciary's liberal application, described the constitutional privilege as an issue with an insatiable hunger that could only be satisfied when it had devoured all of its prey.48 In a sense, Rosenbloom fulfilled that prophesy. Rosenbloom was the third cog on the circle that re- structured defamation law. Sullivan established the actual malice test for public officials. Butts-Walker extended the test to public figures. In Rosenbloom, the Supreme Court ruled that even private individuals involved in matters of public interest were subject to the actual malice test. It completed the shield of protection. The decision virtually 47403 U.S. 29 (1971). 48Kenneth Cannaday, "Defamation and the First Amendment: The Elements and Application of the Reckless Disregard Test," 74 North Carolina Law Review 390, 399 (1971). 11'? W..- 35 did away with defamation awards except in those instances of blatantly irresponsible or malicious journalism. The defamation case emanated from the arrest of George Rosenbloom on charges of distributing obscene literature. The media-defendant broadcast a police report that authorities had confiscated "obscene books" belonging to Rosenbloom. It failed to use qualifying words, such as "allegedly" obscene, or "what police described as obscene." Rosenbloom was acquitted of obscenity charges stemming from the arrest. He then brought suit for defamation in what appeared to be an ironclad case under the traditional judicial view of defamation. The trial court awarded the plaintiff $250,000 in general and punitive damages. In a surprise reversal, the Court of Appeals bypassed the traditional defenses of truth and fair comment, upon which newsmen generally had to rely in suits brought by private citizens. The court said that the fact that Rosenbloom was a private citizen did not take precedence over the constitu- tional privilege. In affirming the decision of the appeals court, Justice Brennan wrote, "[i]f a matter is a subject of public or general interest, it suddenly cannot become less so merely because a private individual is involved...."49 The guarantees of the 49403 U.S.at 43. 36 first amendment were not intended to be limited to public personalities or public affairs, but to all relevant informa- tion.50 When the newsworthy value was found in the event, the status of the individual became inconsequential. "The public focus is on the conduct of the participant...not the participant's prior anonymity or notoriety."51 The opinion concluded that society's interest in protecting individual reputation must sometimes "yield to other important social goals."52 The constitutional privilege would no longer be limited by the status of the individual, rather, "the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an "53 If the issue issue of public or general concern.... involved was a public concern, that alone was cause to invoke the constitutional privilege. To limit protection to the status of the individual limited expression to issues already in the public mainstream. The avowed purpose of the constitutional privilege was to grant protection to any expression that could enhance public consciousness. When 50Ibid. 5'Ihid. 52laid. at 49. 53Ibid. at 37. ire lCl _.,, 37 issues extended beyond the public sector, there was a legiti- mate public interest in providing the protection that would allow the media to bring them to the public arena. G. The Sullivan to Rosenbloom Balance In Prospective Rosenbloom was the logical culmination of the Court's progressively expansive application of the constitutional privilege. The values of free expression had clearly assumed greater proportions in the eyes of the Court than the need for individual reputational protection. The electorate was dependant upon the media to disseminate vital information that it would have no other means of acquiring. Newsmen could not fully serve that function while the shadow of defamation law covered the newsroom. The Court, especially in the earlier decisions, accepted this premise as a theme for the creation and expansion of the constitutional privilege. Each ruling appeared to be another step in an ultimate progression. Professor Harry Kalven, noted Supreme Court observer, said, in 1965, the "invitation to follow a dialectic progression from public officials to government policy to public policy to matters in the public domain... "54 seems...to be overwhelming. This early prophesy proved true. 54Harry Kalven, "The Scope of the First Anendment Pro- tection For Good Faith Defamatory Error," 75 Yale Law Journal 642, 644 (1966). 38 There was no period in American history when the media stood on safer judicial ground in the area of good-faith defamation than during this period. This journalistic high-point in the constitutional balancing process appeared to be the end of the judicial balancing struggle.55 With the focus on the subject-matter, rather than the individual's status, most of the traditional causes for litigation would never even reach trial. This series of cases brought into law a uniform constitu- tional definition for determining defamatory communications. For all appearances, the Court had ended the conflict and settled upon a balancing process. The weight of the Court was to give paramount consideration to the values of freedom of expression. The resolve was to ensure that information would not be withheld from the "market-place of ideas" because of the threat of litigation. From the constitutional prospective, Rosenbloom appeared to settle the issue of the applicability of the constitutional privilege. The practical use of the concept, though, on the lower court level, proved far more complicated. 55Frederic C. Coonradt, "The Law of Libel Has Been All But Repealed," The Quill, (February, 1972), p. 19. the pr public 163 r+ 39 H. Faultering Application of the Public Interest Concept Rosenbloom lifted most of the constraints and allowed the protections of the constitutional privilege wherever the public interest could be found. In application, though, it was this lacking of bounds which proved to be its failing. Policy formulation comes from the Supreme Court, but policy implementation takes place on the lower court level. While the Rosenbloom balance was theoretically consistent, its implementation on the lower court level proved inadequate. The plurality decision was content to leave the bounds of its decision at issues of "public or general interest." It was willing to allow the "delineation of the reach of that term to future cases."56 The unforeseen aspect was that the lower courts were unable to delineate the proper reach. The concept was so broad and unconfined that the lower courts could not negotiate it. Its potential application was so vast that courts came to regard the "public interest" as being synonymous with “newsworthiness." They were unable to differ- entiate where the legitimate public interest in the decision- making process ended and simple public curiosity began. While there was certainly value to be found in the latter, it was not significant enough to demand that an individual sacrifice his 56403 U.S. at 47. (_J‘ ( ) LN 40 his reputational interests to insure its dissemination. In practice, the public interest concept was almost all-inclusive in scope. The media, which were largely respon- sible for creating public interest, were virutally able to operate within boundaries that it had generally drawn. All events in some way effect others and can arguably be said to be within the area of the public or general interest. Without definite guidelines in such an uncertain area, the courts tended to defer to the arguments of the media. The lower courts, sensing the leaning toward free expression of the Supreme Court, generally yielded to the position that if an event attracted the attention of the media, it possessed worthwhile value.57 There were a scattering of lower court decisions which ruled that an issue was not a public controversy,58 but these were too few and too obscure in nature to establish any concrete principles. The area of false credit reports was the only clear category which the courts deemed not to be 59 a matter of public interest. While everything the news 57For a listing of cases with findings of "public interest" in a variety of areas, see Gertz v. Robert Welch, Inc., 418 U.S. 323, 377 n.10 (1974). 58Matus v. Triangle Publications Inc., 286 A.2d 357 (1971) and Francis v. Lake Charles American Press, 265 So.2d 206 (1972) are two examples. 59Hood v. Dun & Bradstreet, Inc., 486 F.2d 25 (5th Cir. 1973); Oberman v. Dun & Bradstreet, Inc., 460 F.2d 1381, (7th 41 media printed did not automatically become newsworthy, the courts tended to use a media-oriented yardstick. A specific incident or event could be judged to be of public interest based upon its newsworthy quality and its social effects. More far reaching, though, was the fact that the public interest could include broad scale general tapics encompassing everything which fell within its scope. This meant that a specific incident, not inherently of public interest, could be deemed to be of public interest if it was somehow related to a larger public issue. All-encompassing general issues such as unemployment or organized crime possessed a public interest value. If a specific event of a primarily non-public nature could be related to such a larger issue, according to the Rosenbloom balance, it could be judged to be a matter of public interest. A private individual could be involved, even peripherally, in such an event and lose the broad protections of defamation law. When an event could be related to a general topic of public interest, the media could plead the constitutional privilege. Since almost every event Cir. 1972); Kansas Elect. Supply Co. v. Dun & Bradstreet, Inc., 448 F.2d 647 (10th Cir. 1971); Grove v. Dun & Bradstreet, Inc., 438 F.2d 433 (3rd Cir. 1971); Baird v. Dun & Bradstreet; Inc., 285 A.2d 166 (1971). Even this one area which the courts found to be out of the public interest was clouded, somewhat, by the the fact that the defendant in each of these cases, Dun & Brad- street, was not considered a part of the media. It is a confidential reporting service. could a: of gene) hv app Hi unable and the tion of tnvisio anew) 42 could arguably be said to somehow be a part of a larger issue of general interest, the reputational protections of defamation law appeared to be more of a legal concept than a legal reality. Without Supreme Court guidance, the lower courts were unable to distinguish where a legitimate public interest ended and the interests of individual reputation began. This applica- tion of the Rosenbloom balance apparently went beyond the limits envisioned by the Court. In 1974, just three years after Rosenbloom, the Court examined the constitutional balance in a new light. we connit itee . Note or it ll vd CHAPTER III GERTZ AND ITS PROGENY: STRIKING A NEW BALANCE A. The Shifting Weight of Judicial Opinion In 1974, the Court abruptly shifted direction. In G313; v. Robert Welch, Inc.,6O it found that its "profound national commitment" had tipped the balance so far in the direction of free expression as to almost obscure the state's interest in protecting individual reputation. It observed the consequences of its rulings over the preceding decade and determined that it was necessary to strike a new balance; a balance that would bring the rights of the individual back into line with the rights of free expression. £3135, and the series of cases that followed, determined that when examining the area of defamation law, it was neces- sary to consider more than just the precepts of the First Amendment and press freedom. The tort of defamation was designed to protect individual reputation and those considera- tions had to be given adequate protection. The basic conflict 6O418 U.S. 323 (1974). 43 of the [GI ca. 011 ii 44 of these values became the issue to be judicially rebalanced. Whereas the goal of free expression is to extirpate self- consorship, the primary tool in protecting individual reputa- tion is to encourage a measure of self-censorship. Self- censorship, or deterrence, as it is referred to by the advocates of individual reputation, is the only device that truly protects reputation. Damages can be paid once the harm has been done, but money cannot truly correct the hurt. Individual reputation is a fragile thing. A reputation cannot be repaired by pounding out the dents and slapping on a coat of paint. While money can mitigate the effects of the damage and even sooth hurt feelings, the damage has been done. Deterrence, on the other hand, prevents the damage at the source, before it ever occurs. Instilling a measure of deterrence and caution lessens the potential of injury to reputation through defamatory falsehoods. G333; was a major shift in position, since its ruling effectively instilled that air of deterrence. It was a withdrawal from the Court's commitment to extend the balance in the direction of free expression. It involved a total restructuring from the line of thought established in the Sullivan to Rosenbloom era balance. The Court re-examined that balance and found it inadequate in protecting the reputations of private individuals. It said, 45 "[t]he need to avoid self-censorship by the news media is...not the only societal value at issue."61 Specifically, the Court acknowledged the state's legitimate "interest in providing a legal remedy for private individuals injured" by a defamatory falsehood.62 Rosenbloom's shift of judicial focus from whether an individual was a public figure to whether the event was a public controversy wrongfully usurped the state interest in protecting individual reputation. £3535 ruled that regardless of how important a public issue may be, each individual maintains a certain level of privacy of which he cannot be deprived. When an individual is determined to be a private figure, his need for protection is even greater. The method the Court used to increase pro- tection to private individuals was to roll back the encompas- sing coverage of the constitutional privilege. B. Gertz v. Robert Welch, Inc. The case emanated from an article in American Opinion magazine, an ultra-conservative monthly affiliated with the John Birch Society. The article involved an alleged con- spiracy against a police officer convicted of shooting a street youth. Elmer Gertz was an attorney retained by the 6lIhid. at 328. 62Ibid. at 329. fanil; attic invol cons arti trin itu: 46 family of the murdered youth to represent them in a civil action against the police officer. Although Gertz's involvement in the criminal proceedings was minimal, the publication portrayed him as the mastermind of a communist conspiracy to discredit law enforcement agencies. The article also erroneously implied that he has a lengthy criminal record and labeled him a "leninist" and a "communist- fronter."63 i Gertz filed a defamation action in federal district court. The court rejected the magazine's contention that the plaintiff should be considered to be a public person and awarded a jury verdict of $50,000 to the plaintiff.64 The judge, however, entered a judgment for the defendant notwith- standing the verdict. The court ruled that the constitutional privilege was applicable to the discussion of any public issue, irrespective of the individual's status.55 Gertz took his 63Ibid. at 324. 64The case was tried before the Rosenbloom ruling. This made it a significant element whether or not Gertz was found to be a public person. 65This was essentially what Rosenbloom set forth, though this trial occured two years before the Court handed down that decision. While this was a minority view at the time, it was consistent with certain lower federal court decisions. For example, see: Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970); Wasserman v. Time, Inc., 424 F.2d 920 (D.C. Cir. 1970); United Medical Laboratories v. CBS, 404 F.2d 706 case to the in the inte aninority Following t aHeals cou and held tr. of public 1 was unable Publication the defenda lIlVllege. Gertz Court by a denimms before the listed a Claim a c injury it the same 47 case to the Court of Appeals, where he was again unsuccessful. In the intervening period, the Supreme Court had ruled in Rosenbloom. The opinion of the lower court judge in Gertz, a minority view at the time, had become the accepted law. Following the reasoning of the Rosenbloom plurality, the appeals court gave no regard to the status of the individual and held that the subject of the article concerned an issue of public interest. The court further held that since Gertz was unable to show clear and convincing evidence that the publication had acted with "actual malice," the actions of the defendant fell within the protections of the constitutional privilege. Gertz again took his case to a higher court. The Supreme Court by a five to four decision, reversed the lower court decisions and ruled with the plaintiff. The central issue before the Court was whether a media-defendant that had pub- lished a defamatory falsehood about a private individual "may claim a constitutional privilege against liability for the «66 injury inflicted by those statements. This was essentially the same issue that had fractionalized the Court in‘Rosenbloom. (9th Cir. 1968); Sellers v. Time, Inc., 299 F.Supp. 582 (E.D. Pa. 1969); Bishop v. Wometoco Enterprises, Inc., 235 So.2d 759 (Fla. Dist. Ct. App. 1970); Farnsworth v. Tribune Co., 253 . N.E.2d 408 (1969); Garfinkel v. TwentyeFirst Centurngublishing Co., 291 N.Y.S.2d 735 (1968). _— 66418 U.S. at 332. 1191 the CO! d. 48 In 8333;, though, the Court was looking at the issue from a new prospective. The majority Opinion explicitly rejected the public issue concept. Instead, it adopted a test that concentrated upon the status of the individual. peppg left unchanged the balance of protection between media interests and public persons. It found, though, that when a private individual was the subject of a defamation, free expression and reputational interests compete on a dif- ferent level. It there was to be a true balance, there would have to be a different standard of liability that protected those interests of the private individual. To facilitate this dual balancing system, Rosenbloom's public issue concept had to be discarded. The focal point of examination necessarily had to be the individual's status in order to determine the appropriate balance to apply. The Court offered a general definition of its new public figure distinction: For the most part those who attained this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust them- selves to the forefront of particular public con- troversies in order to influence the resolution of the issues involved.67 67Ibid. at 345. This app: deans to of free private The negligen would re lhree ye m. t negliger BE! llecede. State 1, t0613111 ”(livid Similar Tie on) not lmp Stilts, tion, t f UUrt H 49 This approach was viewed by the Court as a more equitable means to strike a balance between the countervailing interests of free expression and the interests of the state in compensating private individuals for harm from defamatory falsehoods. The Rosenbloom plurality had rejected the concept of a negligence standard of liability, fearing that self-censorship would result from the "inherent uncertainty" of such a standard.68 Three years later, the weight of opinion had shifted. In Geppg, the Court expressed a willingness to permit a qualified negligence standard. Gertz invalidated all post-Rosenbloom case law. The precedence created by these cases were no longer binding upon state law. The Court returned to the state level the right to apply the legal remedy for defamations involving private individuals. States were free to define an "appropriate standard of liability" less rigid than the Sullivan standard.69 The only limitation set by the Court was that the states could not impose liability without fault. This ruling allowed the states, either through legislative statute or judicial interpreta- tion, to establish negligence fault criterion. In effect, the Court was saying that a significant level of deterrence could 68403 u.s. at 50. 69418 u.s. at 347. be tolera‘ hvolved. The Htered t of the pu Ufa negl Protectit mitigate reasoned protect) lt iWTnali oi the ‘ litre mu to Plac opted I 5 WP til] 50 be tolerated when the rights of a private individual were involved. The new Geppg balance of constitutional values drastically altered the existing power structure. The re-establishment of the public/private individual status and the acceptance of a negligence standard were powerful new forces for the protection of reputational interests. The Court sought to mitigate this by providing new media protections which, it reasoned, would balance against the new individual reputational protections. It was judicially impossible to toatlly protect the journalist against good-faith error and safeguard the rights of the private individual at the same time. The protections were mutually incompatible, which forced a choice of where to place the greater judicial attention. In peppg, the Court opted toward the rights of the individual, leaving self-censor- ship as a lurking threat. Since the new balance could not exclude the threat, it sought to diminish its effects. This was to be achieved through a restructured framework of permis- sible damage recovery. The Court restricted recoveries in defamation actions to compensation for "actual injury," unless the injurious statement violated the actual malice test. The reasoning for this limitation was that it was the threat of outrageous damage avar that was thl “largely on damages," t the potentir lnendnent f effect vhic unlflpular 0 tion of We types of em include dam We“ l‘lfilate The Cc Punitive d: Punlll‘te d; \ 51 damage awards, not the threat of violating defamation law, that was the greater self-censoring factor. It was the “largely uncontrolled discretion of juries to award damages," through use of presumed damages, that compounded the potential to "inhibit the vigorous exercise of First "70 Amendment freedoms.... Presumed damages have a deterring effect which provide an opportunity to juries to punish 7' The Court drewback from a total repudia- unpopular opinion. tion of presumed-type damages when it recognized certain types of emotional distress as "actual injury." Awards could include damages for personal humiliation and mental anguish when related to impairment of reputation. The Court further limited damage recoveries by disallowing punitive damages where actual malice could not be established. Punitive damages foster self-censorship beyond the individual's 7Orbid. at 349. 7lThis was a significant departure from the common law of defamation. In the common law, presumed and punitive damages were essential parts of defamation law. Fostering an atmos- phere of deterrence from publication of falsehoods was con- sidered to be the state's primary interest. The use of severe punishment for violators was the remedy. The current American law of defamation views the state's interest to be in compen- sating the individual for reputational injury. Throughout the Sullivan to Rosenbloom era, punitive damages were not disallowed, but were looked upon as permissible only in extreme cases. Usually, when juries awarded outrageous damages, the court would limit or void them. need it that cc injury the de- equili indivi but de not on found When t hot or hi the Case i let (’9'- 3" In GErez \ 35 em) 1'! ”rUGET 52 need for protection. The state's interest in supporting laws that could lead to self-censorship ends when compensation for injury is achieved. Punitive damages were designed to punish the defendant, which goes beyond simple reputational protection. The Court reasoned that it had reached an appropriate equilibrium between first amendment guarantees and a private individual's remedy for defamation by increasing media liability but decreasing the threat of damages. Thus, 93:35 established not only a new balance, but a new doctrine. This new doctrine found that there could be an acceptable level of deterrence when the rights of the individual were involved. C. The Doctrine of Reputational Protection The new §3315_balance, like the Sullivan balance, was not an evolutionary process of law. It was not developed by the progression of one concept after another on a case-by- case basis as was Common Law defamation and most tort law. Neither, was it a casual withdrawal or a simple narrowing of an accepted concept. Chief Justice Burger's objection to the §e££g_balance was based upon this aspect. He described it as embarking "on a new doctrinal theory which has no juris- n72 prudential ancestry. The new balance was a conscious effort 72418 U.S. at 355. by the Cou. andlocate and reputat hvoring it little morv anew const 1n sh' issue to t under whic heed by t Self-censo Eff9Ctllate that), ne ll wa 'fIOTding “tent to reveayed. Setforth in j"dici‘. 53 by the Court's majority to restructure the existing balance and locate the fulcrum between free expression interests and reputational interests closer to that end of the scale favoring the private individual. For the second time in little more than a decade, the Court had set out to create a new constitutional law of defamation. In shifting the focus of judicial consideration from the issue to the individual, the Court altered the basic doctrine under which defamation is judged. After 33333, the issue faced by the courts would not be the prevention of potential self-censorship, but rather, what degree of self-censorship effectuates a reasonable accommodation of the First Amendment and the need to protect private individuals. It was clear that the Court was reversing the trend of affording ever-increasing protections to the media, but the extent to which the balance would be altered remained to be revealed. The future application of the new prescriptions set forth in 33333 would establish the extent of the change in judicial preference in the shifting balancing process. 0. Time, Inc. v. Firestone The Supreme Court's first test of the Gertz balance and the new doctrine of reputational protection came in Time, Inc. 73 v. Firestone. Gertz had established a whole new set of 73424 u.s. 448 (1976). ia- ta 54 ground rules. Nearly every facet of defamation law had been redefined. It restructured the application of the constitutional privilege. It developed a new standard of liability for the media. And it realigned the system of awarding damages. Firestone, as the first defamation case to reach the Court after 33333, would serve as a test of how these newly enacted facets would be applied to form the new balance. Firestone evolved from the divorce proceedings of Russell and Mary Alice Firestone, of the socially prominent industrialist family. Mrs. Firestone filed for separate maintenance, her husband counterclaimed for divorce. It had been a turbulent marriage that culminated in a sensational divorce trial. The long, drawn out trial received nationwide publicity because of the social position of the litigants and the colorful, sensational testimony. The Florida Supreme Court characterized the trial as a "veritable cause celebre."74 Mr. Firestone had sought the divorce on the grounds of extreme cruelty and adultery. The trial court granted him the divorce, but not upon the grounds he had claimed. Rather, the court referred to the "lack of domestication" on the part of both parties 75 as cause for the decision. The order of the court was 74Ibid. at 454. 75Ibid. at 450. vague an granting The status 0 magazine in the t verdict 55 vague and confusing, not specifing any further grounds for granting the divorce. The sensational character of the trial and the social status of the litigants had attracted the attention of 1133 magazine, as well as other local and national news outlets. On the basis of four sources, a news item concerning the verdict was composed and included in the following issue of 1133. The newsmagazine reported that Russell Firestone had divorced his wife on the claimed grounds of extreme cruelty and adultery.76 Mrs. Firestone alleged that the magazine's charge of adultery was false, malicious and defamatory, since there was no express finding in the final judgment that either party was guilty of marital infidelity. She brought suit for defamation against the publication based upon that factual misstatement. 75The article appeared in the magazine's "Milestones" section. It read: OIVORCED. By Russell A. Firestone Jr., 41, heir to the tire fortune: Mary Alice Sullivan Firestone, 32, his third wife; a onetime Palm Beach school- teacher; on grounds of extreme cruelty and adultery; after six years of marriage, one son; in West Palm Beach, Fla. The l7-month intermittent trial pro- duced enough testimony of extramarital adventures on both sides, said the judge, "to make Dr. Freud's hair curl." (TEX Fir of the des 118$ 119T 0h (_r LI) ‘5 w L. .2 TI) L': -4 (‘f n! (I) ”'1 'Lu /_f7‘ 56 The case bounced through the state court system for the 77 The courts had to grapple with several next seven years. First Amendment implications, such as the applicability of the Rosenbloom public interest concept and the determination of whether Mrs. Firestone's name and position in society and the notoriety generated from the divorce action merited the designation of "public figure." One element that added to the difficulties of the courts was the fact that the constitutional principles of defamation were in an almost continual state of transition during the period of litigation. The first judgment in the case was made in 1968. The Florida Supreme Court's final ruling came in 1974. It was during that time frame in which the law of defamation, through Supreme Court rulings, changed most drastically. 1133_established its position before the Supreme Court on two arguments consistent with the Gertz line of reasoning. 77Mrs. Firestone won a jury verdict. The Florida District Court of Appeals reversed in light of Rosenbloom. The Florida Supreme Court reversed the district court decision on the basis of its not being a matter of public interest and remanded it back to district court. The district court maintained it reversal of the trial court judgment, this time on common law grounds. 0n final review, the Florida Supreme Court affirmed the trial court decision in favor of Mrs. Firestone. Time appealed to the United States Supreme Court. 57 First, that Mrs. Firestone had attained both the general and the limited-issue public figure status through her name and position and through her activities in the course of the divorce trial. Second, the published item was a report of a judicial proceeding, a special class of information which was deserving of the stringent protection of the actual malice test, even if the characters in the article proved to be private individuals. The Court rejected both of these claims by a five to 78 three decision. The majority found that Mrs. Firestone 78The majority included Chief Justice Burger and Justices Stewart, Blackmun, Powell, with Justice Rehnquist delivering the opinion of the Court. Justices Brennan, White and Marshall dissented. The Rosenbloom, Gertz and Firestone decisions formed an interesting triangle of media law. The three cases addressed the same critical issues in ways that totally reversed the law over a short period of five years. It is noteworthy to observe the consistency of the justicies with respect to the question of media protections in these cases. Chief Justice Burger and Justice Blackmun, two of the three justice plurality that supported the public interest concept in Rosenbloom voted to support reputational interests in Firestone. This was quite a turnabout considering that Firestone was an almost total repudiation of Rosenbloom's plurality opinion. The decision and reasoning of Justice Blackmun seems most confusing and inconsistent. He supported the protections of Rosenbloom, which provided the media with the greatest safeguards in defamation ever accepted by the Court. In Gertz, he supported reputational interests, but stated that those were not his true feelings. He said he reversed the position he had taken in Rosenbloom on the ground that "it is of profound importance...to have a clearly defined majority position that eliminates the unsureness engendered by Rosenbloom's diversity." He then added, "If suit bala its trig to Dro iv C'Jl' Des Slip 4U} \ 58 had not surrendered her private status. Her activities in the divorce proceeding, though prominent, were not of a caliber sufficient to overcome the demands specified by the 33333 balance. The Court applied the 33333 public status definition in its most narrow reading. The senational nature of the divorce trial made the participants widely known even beyond the social status they enjoyed prior to the trial. Mrs. Firestone had extensive access to the media, which she used to refute or explain the charges and counter-charges in the proceedings. It would seem that these actions constituted a my vote were not needed to create a majority, I would adhere to my prior view." 418 U.S. at 354. That is a somewhat curious method of administering constitutional adjudication. Despite his claimed support for media interests in Gertz, he supported the even more restrictive measures of Firestone. In that case, he offered no separate opinion attempting to explain such inconsistent reasoning. Justices Brennan and White consistently voted to support media interests in Rosenbloom, Gertz and Firestone, though Justice White's support was not always as tenacious as that of Justice Brennan. Justice Stewart consistently voted for reputational interests in all three cases. Justices Powell and Rehnquist were not on the bench at the time of Rosenbloom, but were consistent in their support for reputational interests in Gertz and Firestone. Justice Marshall voted for reputational interests in Rosenbloom and Gertz, but dissented in Firestone. While this may appear inconsistent, his Firestone dissenting opinion explained that his objection was not with the rule of law, but rather, with the method in which it was applied in the particular case. Though Justice Stevens was on the Court at the time of Firestone, he did not take part in the decision. 59 voluntary assumption of risk of good-faith misinterpretation of aspects surrounding the divorce. The Court did not find this to be the case. It ruled that Mrs. Firestone did, indeed, seek-out the media and voluntarily provide information. These activities, though, did not constitute an effort to influence the outcome of the controversy. The fact that her efforts were designed to inform, rather than influence, allowed her to retain her private status. Thus, an individual may actively seek publicity or identification with a certain cause or controversy while still retaining the protections of the private individual. Firestone added still another element of consideration to the 33333 definition of public status. It imposed the requirement that the subject-matter of the particular con- torversy be worthy of legitimate public interest. Only after that precondition was met, would it be relevant whether the individual's public character or activities constituted a designation of public figure. This meant that it was not only necessary for the publication to show that the individual made a conscious attempt to influence the resolution of the issue, but also to show that the issue itself was a "public controversy" worthy of constitutional (Zonsideration. This was a significant addition to the public status 60 definition. According to the Court, Mrs. Firestone's status and public activities did not qualify her as a public figure, but that was secondary to the determination that a divorce proceeding did not constitute a "public controversy." Even if Mrs. Firestone's name or public activities had qualified her as a public figure, the constitutional privilege would have been blocked by the Court's determination that a public controversy did not exist. This distinction added yet another hurtle to the application of the constitutional privilege. It became necessary not only for journalists to weigh the activities and intentions of the individual within a particular issue, they also must determine whether the issue's significance qualified it as a public controversy. Both of these new interpretations to the 33333 public status definition served to further narrow the classification of individuals who, by the nature of their public character or their activities, could be classified as "public figures." The Court also rejected Time's claim that information involving the nation's courts held such a level of importance that it required the special protections of the actual malice test as the standard of fault. Even within the limited and admittedly vital area of judicial proceedings, the Court ruled that the public interest had to be effectively balanced against reputational interests. Reporting upon the workings of the judi grar The sub. thrr whit con C011 _,., .4- “'5 61 judicial system was not sufficient justification for a blanket grant of the protections of the constitutional privilege. The subject-matter of the judicial proceeding, like the subject-matter in any other area, had to be worthy of the public controversy designation. The dissolution of a marriage through judicial proceedings was the type of subject-matter which could draw public attention, but was not a "public controversy" within the guidelines of the 33333 public status definition. Protections of false reports, the Court judged, would "result in an improper balance between the competing interests in this area."79 Firestone served warning that the previously untested 33333 balancing process would lean heavily to the protection of the individual. When there was doubt or uncertainty, the rights of the individual would take precedence over the interests of the media. The professed role the Court viewed for itself in Firestone was to strike a balance between the "public's interest in an uninhibited press and its equally compelling need for judicial redress of libelous utterances."80 What Firestone turned out to be was a total repudiation of Rosenbloom's expansion of the constitutional privilege and 79424 u.s. at 456. 801bid. at 456-57. 62 the purging of any remaining aspects of the "public-issue" concept not already explicitly rejected in Gertz. E. Wolston and Proxmire In the 1979 term, the Court made two rulings that defined with further particularity the characteristics that distin- guished the public/private status classifications. They continued the Firestone line of narrow application of the public figure concept. In a 1974 article published by Reader's Digest, Ilya Wolston, the nephew of a convicted Soviet agent, was incor- rectly accused of being indicted for espionage activities. The controversy involving Wolston was the result of a highly publicized federal grand jury investigation, in 1958, into Soviet activities in the United States. He was charged with criminal contempt for failing to appear at a grand jury hearing. Subsequently, Wolston appeared and plead guilty to the charge. At no time was he indicted for espionage. In Wolston v. Reader's Digest Association, Inc.,81 Wolston brought action charging that the article had wrongly accused him of being indicted for engaging in spying activities. The district court ruled that Wolston was a public figure because he "became involved in a controversy of a decidedly 81443 u.s. 157 (1979). pub not to the the trr ti) JU: lie in by 63 public nature."82 The court granted the media-defendant's motion for summary judgment due to the plaintiff's failure to show proof of actual malice. The Court of appeals affirmed the judgment.83 Basing its judgment on the Gertz and Firestone rationale, the Supreme Court reversed the rulings of the lower courts in an eight to one decision.84 The Court's majority found that Wolston's voluntary choice not to appear before the grand jury did not constitute a "voluntary thrust" nor did he "inject" himself to the forefront of the controversy in an attempt to influence its outcome."85 The simple fact that he received a contempt citation did not make Wolston a public figure. Thus, the plaintiff would not have to meet the stringent requirements of actual malice. 82429 F. Supp. 167, 177 (D.D.C. 1977). 83578 F.2d 427 (D.C. Cir. 1978). 84Only Justice Brennan dissented. His dissent supported the lower court's ruling that the "issue of Soviet espionage in 1958 and of Wolston's involvement in that operation con- tinues to be a legitimate topic of debate...." 443 U.S. at 172. Justicies Blackmun and Marshall concurred with the Court's majority that Wolston was not a public figure, but their decision was based upon the lapse of time. Wolston's activities in 1958 may have made him a public figure at that time, but by 1974, it was no longer true. Ibid. at 170-71. 85Ibid. at 168. 64 The other case, Hutchinson v. Proxmire,86 resulted from the presentation of Senator Proxmire's "Golden Fleece Award" for wasteful governmental spending. The alleged defamation involved a barbed reference to a $500,000 federal grant award to Ronald Hutchinson, a behavioral scientist. The district court ruled that Hutchinson was a public figure for the limited purpose of comment on his reciept of federal research funds.87 The court's decision was based upon three elements from the 33333 rationale: 1) Hutchinson had published several articles on the topic of human behavior, making his a pervasive voice on the subject; 2) His successful applications for the grants constituted a voluntary thrust; and 3) His response to Proxmire's criticism received significant access in the media. The court of appeals affirmed, further sustaining the defense's position that such comment by Proxmire, as a member of the Senate, was immune from prosecution.88 Again, the Supreme Court reversed the lower courts' 89 rulings. It found the courts had improperly applied the 86443 U.S. 111 (1979). 87431 F. Supp. 1311 (v.0. Wis. 1977). 88579 F.2d 1027 (7th Cir. 1978). 89Again the vote was eight to one, with only Justice Brennan dissenting. 65 provisions of Gertz. Hutchinson was not a limited public figure since he had not "thrust himself or his views into "90 Neither the the public controversy to influence others. fact that he was a widely published Scientist nor his application and receipt of federal funds qualified him as a public figure within the particular issue. The issue, as offered by Proxmire, was waste in government spending Hutchinson's actions had not sought to influence policy nor invite comment in that regard. Addressing the argument that Hutchinson enjoyed a significant level of media access, the Court found that the public attention he had attained had resulted from publicity generated by the controversy. His access was not the "regular and continuing access to the media that is one of the accouterments of having become a public figure."91 The overall effect of Wolston and Proxmire was to further limit the definition of the limited-issue public figure. It is not enough to be identified with a legitimate public controversy, even in a prominent position. The individual must actively advocate a position in the controversy prior to the defamation. The key word is "actively." The actions of 90443 U.S. at 135. 9‘Ihid. at 136. 66 the individual must indicate more than a simple acceptance or adherence of the ideals or beliefs. In Proxmire, the Court gave special emphasis to the fact that the plaintiff had "not thrust himself or his views into the public controversy to influence others."92 In Wolston, the Court noted that though the plaintiff's actions aroused public interest, his motivation was not designed as a public comment upon the issue of concern.93 Thus, the effect of the two cases was to shift the primary consideration from the level of risk the individual voluntarily assumed to the level of influence the individual sought to exert.94 Proxmire also redefined the element of the individual's access to the media as an indication of public/private status. As initially put forth in 33333, the significance of "access" was simply as an indicator of the individual's ability to refute the defamation. Proxmire effectively made superfluous the element of the individual's ability to react to the defamation. To simply be able to publicly refute a defamation was no longer adequate indication of public status. The 9216id. at 135. 93443 U.S. at 168. 94James J. Greenfield, "Defamation and the First Amendment in the 1978 Term: Diminishing Protection for the Media," 48 Cincinnati Law Review 1027, 1036 (1979). 67 plaintiff had to have had a regular and continuing access prior to the defamation for it to count for defamation purposes. One chilling aspect of Proxmire seemingly obscured by the public figure issue was the ability of the media to report and quote federal legislators. Brought into question were certain protections that existed even prior to Sullivan. The issue revolved around the interpretation of the Speech and Debate Clause of the Constitution. It says that federal legislators "cannot be held responsible for anything they say...no matter now criminal it may be," except by their house in Congress.95 This guarded legislators from defamation litigation within the scope of their official activities. In 1959, the Court expanded upon this rule in Barr v. Mateo.96 The ruling invested the comments of federal officials with an absolute privilege, even when made "within the outer para- "97 The constitutional clause and the meters of his duties. subsequent ruling were designed to protect government officials from the threat of defamation law in the administration of government policies. Proxmire considerably narrowed this 95U.S. Const. art. I, sec. 6. 96360 U.S. 564 (1959). 97Ibid. at 579. 68 protection by ruling that newsletters, press releases and other forms of comment outside of Congress expressed only the views of individual members and were not protected by the Speech and Debate Clause. This brought into serious question the traditional media protection of official privilege to report on public officials within the scope of their duties. The reasoning behind this media privilege was that there are certain persons whose actions are so vital to the operation of self-government that the media had to be free to report their words and actions without fear of a suit for defamation.98 The Proxmire ruling clouded the issue of whether the news media can reproduce legislators' comments if they are thought to be potentially defamatory. The fact that a statement regarding governmental opera- tions is made by a legislator is in itself, news. Such comments are made within the official duties of the legis- lator and could effect the decision-making public. In the past, the media had been able to routinely assume protection and report or reprint the official's release. The Proxmire case places this assumption in doubt. The ramifications to the media involve a potential threat of defamation law whenever 98Donald L. Smith, The New Freedom to Publish, (New York: Magazine Publishers Association, 1969), p. 52. 69 publishing press releases of governmental officials. After Proxmire, the media must be as wary of such comments from public officials as they would be about comments from any other source. F. Herbert v. Lando The issue in Gertz, Firestone, Wolston and Proxmire involved the applicability of the constitutional privilege. In Herbert v. Lando,99 the Supreme Court again faced a balancing process of reputational and free expression interests. This time, though, it involved the right of the allegedly defamed plaintiff to inquire into the journalist's thoughts, procedures and conclusions versus the first amendment protec- tions of the editorial process. Whereas cases involving the applicability of the constitutional privilege considered the appropriateness of the actual malice test as the standard of fault, Herbert involved a redefining of the processes of the test, itself, in a way that could potentially limit its protective effects. At issue was the right of a public figure to delve into the journalist's procedures and mental processes to attain evidence that could satisfy the demands of the actual malice test. 99441 U.S. 153 (1979). 70 Anthony Herbert, a retired army officer and Vietnam veteran, attracted widespread attention when he publicized the claim that his superior officiers in Vietnam concealed reports of atrocities and other American war crimes. The issue of war crimes was already a prominent and hotly' debated issue at the time of the accusations. Herbert's charges received extensive media coverage and comment. The 333 television news program "60 Minutes" reported on Herbert and his charges. The segment was produced by Barry Lando and narrated by Mike Wallace. Lando also wrote a related article on Herbert which was published in the Atlantic Monthly. Herbert, alleging that the program and article "falsely and maliciously portrayed him as a liar and a person who made war crimes charges to explain his relief from command,"100 brought suit in federal district court against CBS, Lando, Wallace and the Atlantic Monthly. Herbert conceded that he was a "public figure," which obligated him to prove that the alleged falsehoods were published with knowledge that they were false or with reckless disregard of the facts. He attempted to establish knowing or reckless falsity through inquiries into the state of mind of the defendants involved in the editorial process. In 100Ibid. at 159. 7l depositions taken by Herbert's attorney, Lando detailed the role he played in the preparation and broadcast of the program. The transcript of Lando's depositions consisted of 2,903 pages and 240 exhibits, including interviews, reporter's notes, film not used on the broadcast and preliminary drafts of the telecast script. Lando answered questions as to what he had learned during preparation of the broadcast, details of discussions with those people who were interviewed, and the nature and extent of communications with news sources. He refused, however, to answer questions regarding personal beliefs, Opinions, intentions and conclusions that were involved in the producing and editing process. The refusal was based upon the claim that the First Amendment prevented inquiry into either the journalist's state of mind or the editorial process. Herbert then sought an order from the Federal District Court to compel the answer.101 Herbert argued that since the actual malice test placed central importance upon the defendant's state of mind, the 10‘73 F.R.D. 387 (S.D.N.Y. 1977). Herbert based his request on Rule 37(a)(2) of the Federal Rules of Civil ELgcedure. It states, in part, "If a defendant fails to answer a question pr0pounded or submitted...the discovering Party may move for an order compelling an answer...." He Claimed the questions were legitimate under the circumstances, based upon Rule 26(b), which permits discovery of any rnatter involved in the pending action" if it "appears rsaasonably calculated to lead to the discovery of admissible evidence." 72 line of questions were relevant, appropriate and crucial to the issue of malice.102 Lando based his position on the premise that editorial judgment is constitutionally protected. Without such a guarantee, the defense argued, journalists would refrain from candidly expressing their criticisms and evaluations for fear that such discussions may, at some future time, be construed as involving actual malice.103 A chilling effect would descend upon the whole editorial process. The court ruled against that argument, finding no basis in the First Amendment nor relevant case law that asserted a constitutional privilege of "editorial judgment." The Second Circuit Court of Appeals reversed the district court in a two to one decision. By allowing such discovery by the plaintiff, the court reasoned, journalists would be reluctant to express their doubts. The chilling effect would forge back to the very thought process. The tendency, the majority opinion stated, "would be to follow the safe course of avoiding contention and controversy-~the anti- "104 thesis of the values fostered by the First Amendment. To compel answers to such questions would intrude on the l0273 F.R.D. at 391. 103568 F.2d 974, 984 (2d Cir. 1977). 104Ibid. at 985. 73 "heart of the editorial process" and was inconsistent with first amendment precepts.105 The court held that an absolute first amendment privilege protected journalists from inquiry into thoughts, opinions and conclusions and shielded the substance of conversations with editorial colleagues.106 The majority and concurring opinions of the appeals court gave overwhelming support to the privileges and protections of the First Amendment. Their reasoning was reminiscent of the rationale of the Sullivan to Rosenbloom era that gave judicial prominence to the interests of free expression. 1°5Ibid. 106The Court of Appeals ruling grouped the types of questions Lando had refused to answer into five categories: 1) Lando's conclusions during his research and investigations regarding people or leads to be pursued, or not to be pursued, in connection with the "60 Minutes" segment and the Atlantic Monthly article; 2) Lando's conclusions about facts imparted by interviewees and his state of mind with respect to the veracity of persons interviewed; 3) The basis for conclusions where Lando testified that he did reach a conclusion concerning the veracity of persons, information or events; 4) Conversations between Lando and Wallace about matters to be included or excluded from the broadcast publication, and 5) Lando's intentions as manifested by his decision to include or exclude certain material. 568 F.2d 983. In creating the "editorial process privilege," the court barred all questions that related to the content of these five categories. lerha of th asi) Epr ‘.h 74 Perhaps that should have been a foretelling of the reaction of the Gertz and Firestone era Supreme Court. The Supreme Court reversed the appeals court ruling in a six to three decision.107 The Court held that no such "editorial process" privilege, as that delineated by the court of appeals, existed in law. It also found that the right to allow the plaintiff to delve into the editorial process was not an unreasonable intrusion. Since Sullivan and 33333_required a public person to focus on the journalist's state of mind, the thoughts and editorial processes of the journalist should be Open to examination. While Sullivan and 33333 provided the media with vast safeguards against self-censorship, the Court ruled that these cases did not specify any first amendment bar on the sources "from which the plaintiff could obtain the necessary evidence to prove. the critical elements of his cause of action."108 The Court noted that in the past, courts have freely admitted state of mind evidence in defamation cases without constitutional objection. At common law, the courts had routinely admitted "any direct or indirect evidence relevant 107Justice White wrote the majority opinion, supported by Chief Justice Burger and Justices Blackman, Rehnquist, Powell and Stevens. 108441 U.S. at 160. tot defe cite the dent 75 to the state of mind of the defendant and necessary to defeat a constitutional privilege...."109 Justice White cited eighteen post-Sullivan lower court decisions in which the plaintiff had introduced this type of evidence to demonstrate abuse of privilege and twenty-three post- Sullivan cases in which defendants had introduced this type of evidence to show good-faith. No objections were raised or constitutional barriers cited to the introduction 110 of this evidence in these cases. The Court found no instance, either before Sullivan or Since, that overturned the evidentiary discovery process and established an editorial privilege. '1' 109Ibid. at 165. HOIbid. at 165 n. 15. HlThe opinion of the court of appeals that such a priv- ilege did exist was based, in part, upon its reading of Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973) and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). Certain language in both of these cases support the contention that governmental intrusion into the editorial process is forbidden by first amendment guarantees. In Herbert, the Court stated that the court of appeals had misread and misapplied the guarantees afforded to the two cases. Columbia Broadcasting System and Tornillo sought to prevent efforts to intrude into the editorial process prior to publication. The Court said that the fact that government is barred from dicta- ting "what must or must not be printed neither expressly nor impliedly suggest that the editorial process is immune from any inquiry whatsoever." 441 U.S. at 168. Post-publication dis- covery in a defamation action involves no prior restraint. The Court found no basis in the two cases to mandate an unequivocal protection. 76 Despite the finding that an editorial privilege was unprecedented in case law, it was within the domain of the Court to modify established constitutional doctrine and create such a privilege. But to develop such an evidentiary privilege, Justice White's majority opinion argued, would be a substantial deviation from the balance struck in Sullivan and 33333. Public officials and public figures were already in a substantially disadvantaged position. Such an "impen- etrable barrier" would comprise "a substantial interference with the ability of a defamation plaintiff to establish the necessary ingredients of malice...."112 Establishing such a media protection would seem especially anomalous since "defendants themselves are prone to assert their good-faith belief in the truth of their publications, and libel plaintiffs [would be] required to prove knowing or reckless falsehood with convincing clarity" based upon existing evidence.113 The majority opinion reasoned that to place a bloc on this type of evidentiary discovery would create an imbalance in an area where the protections of the plaintiff have already been substantially diminished. In answer to criticism that permitting such discovery 112441 U.S. at 170. H3Ibid. at 171. 77 questions would intolerably chill the editorial process by requiring disclosure of editorial discussions, opinions and conclusions, the Court saw no inhibiting element to the honest, competent and prudent journalist. The Court said, "if the Claimed inhibition flows from fear of damages liability for publishing knowing or reckless falsehoods," it is not inconsistent with the precepts of Sullivan, which never sought to grant such protections.H4 Justice White found it highly unlikely that discussion in editorial decision-making would be chilled. Exposure to liability for recklessness, he suggested, should promote frank interchanges of fact and opinion in order to avoid unnecessary error.115 The Court conceded that its decision would escalate litigation costs. It took the position, though, that excessive litigation costs due to pretrial discovery was not exclusive to defamation law. It is a problem in all areas of law that involve the discovery process. The fact that editorial process inquiry was an acceptable means of uncovering actual malice made it an element of defamation law. Litigants would simply have to depend upon the 114Ibid. at 174. 115Ibid. at 175. 78 discretion of the trial judge to prevent abuse.“6 One of the most significant aspects of Herbert was the relative obscurity from which the issue arose. It was an unusual issue to come before the Court. It was not the nature of the issue that was unusual, but rather its lack of previous adjudication. Until Herbert, the Supreme Court had never considered whether the first amendment freedom of the press limited the efforts of the plaintiff to obtain discovery information in a defamation action.117 The issue had not simmered in the state and federal courts for years before coming to the Court for resolution. Neither was it a hotly debated issue in journalistic and legal journals. In fact, prior to Herbert, it was an issue which many lawyers, judges and journalists failed to recognize as unresolved.118 The language of the Supreme Court's decision would suggest that it did not break new ground; it simply ruled in accordance with Sullivan that no editorial process privilege had existed or was required by the First Amendment. In actual practice, llfirbid. at 176. l171bid. at 179. 118D.T. Fenner, "Herbert v. Lando: The Defamation l’Iaintiff's Burden of Proof and His Access to the Editorial Process," 9 Capital University Law Review 97, 105 (1979). 79 however, it did establish a precedent and altered pretrial procedures in this type of defamation litigation. It legitimized the concept of permitting broad and extensive editorial inquiry. Prior to Herbert, this was never resolved. The usual procedure was for the trial judge to determine whether the questioning delved so deeply into the editorial process as to violate the protections of the First Amendment. Though this was a subjective decision that could vary from court to court, it did not pose a significant constitutional question until Herbert. The Court's ruling in Herbert gave judicial blessing to un- restrained discovery of the editorial process. That served to make such inquiry a routine procedure in the discovery process; a new element in defamation law. In all future public figure defamation cases, the journalist may assume he will be required to submit to indepth questioning into editorial procedures and communications with colleagues. Herbert expanded the scope of discovery in defamation actions and signaled that the Supreme Court's retreat from the rigorous doctrines of the Sullivan to Rosenbloom era would not be limited to redefining individual status and the applicability of the constitutional privilege. CHAPTER IV STATE COURT BALANCING OF INTERESTS: ESTABLISHING STANDARDS OF FAULT A. Reaction to the Gertz Balance Prior to 1964, there was no single "defamation law." Every state interpreted the law differently. Definitions of concepts such as "libel per se," "negligence" and "fault" varied according to state statutes and local readings. Some gave broad interpretations to the traditional defenses of "official privilege" and "fair comment," while others read them in their most literal Common Law terms. Sullivan was the first judicial attempt at a nationalized defamation standard. The line of cases that followed brought defamation law together under a national constitutionally consistent reading. 33333 reversed that trend and returned to the individual states the right to set defamation standards and reputational protections. "We hold that, so long as they do not impose liability without fault, the states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods injurous to a private 80 Hdividua cwntitut latitude involving standard innortant Court rel nuch pro The more self-ten the med: lhtereg Courts. Ir liabiy; a dete Slble DeSpit Such i 82 individua1.""9 In so saying, the 33333 Court redefined constitutional limitations, allowing states considerable latitude in establishing standards for liability in cases involving private individuals. The right to establish a standard that imposed a level of fault is among the most important determinations in defamation law. The Supreme Court relinquished to the states the determination of how much protection it chooses to provide the private individual. The more stringent the standard of liability, the greater the self-censoring effect. The level of deterrence imposed upon the media determines how the balance of free expression interests and reputational interests will be viewed by the courts. In relinquishing the right to determine standards of liability, the Court did not specify the means by which such a determination should be made. As such, it would be permis- sible for state legislatures to adopt a standard by statute. Despite this, to date no state legislative body had instituted 120 such a statute. Thus, in those jurisdictions where it has become necessary to decide upon a standard, it has been left Hg418 U.S. at 347. 120As of June, 1979. 83 to the courts to set the policy. When a court is placed in the position of choosing a level of fault liability, there are three general types of standards available. These standards are: 1) Actual malice when the subject is a matter of public concern; 2) Gross negligence or unreasonable conduct; or 3) Negligence.121 The choice of one of these standards essentially deter- mines where the weight of judicial protection will rest in the balancing process. The actual malice standard, also known as the Rosenbloom subject-matter standard, provides the journalist with the greatest amount of protection. The focus of consideration is upon the issue, with private individuals as well as public figures and officials being subject to the rigors of the actual malice test. Negligence, on the other extreme, offers the journalist the least amount of practical protection in a defamation action. Under a negligence standard, the journalist owes a certain level of care to the private individual. When this level is breached, 1ZlNegligence on one end of the scale and the Rosenbloom- type actual malice standard on the other end are the extremes the courts have considered. Literally, there could be any number of standards when going beyond these extremes. Imple- mentation of such extreme standards, though, seems highly unlikely and possibly in violation of the law. Since anything beyond the three proposed standards has yet to even be judi- cially considered in this context, this section will concentrate upon the proposed standards. 84 even when it is accidental and done with the most sincere of intentions, the journalist is liable. Gross negligence or unreasonable conduct is an intermediary standard between these two extremes. It provides a greater level of protection to the individual than does the actual malice test, but it also allows the journalist the leeway of an honest mistake. The question is not whether the journalist was negligent, but rather, was the journalist's negligence so irresponsible that the defamatory material itself should have suggested that greater consideration was required. The choice of which of these standards the court chooses reflects the balance of weight to be afforded to reputational interests and the interests of free expression. The effects of the stringency of the standard on what will ultimately appear in print are obvious. A more stringent standard exposes the media to a greater amount of liability. To the extent that this factor increases media risk, the likelihood of self-censorship correspondingly increases. Thus, the state is presented with the choice. The selection of a negligence standard represents the determination that the state's interest in protecting the individual is greater than the interest placed in free expression. Imposition of an actual malice standard indicates that the importance of 85 free expression has been found to outweigh the interests in protecting reputation.122 B. The Actual Malice-Rosenbloom Standard When the Court overruled Rosenbloom and allowed the states to determine their own standard of liability, it did not exclude Rosenbloom's subject-matter test as an applicable standard. A minority of the states that have settled upon a standard have elected to stay with this public-issue based concept. In some of these minority jurisdictions, the require- ments are more rigid than in others, but the issue is still the ruling point of concern. Two of the first state cases to determine a standard of fault, Aafco Heatigg & Air Conditioning Co. v. Northwest Pub- lications, Inc.,123 decided Six months after Gertz in an Indiana court, and Walker v. Colorado Springs Sun, Inc.,124 decided nine months after Gertz in a Colorado court, refused Gertz's option to adopt a negligence standard. In Aafco, the Indiana Court of Appeals noted that Gertz had provided the option to the courts, but chose to apply the actual malice 122Charles W. Gerdts and Kevin J. Wolff, "State Court Reactions to Gertz v. Robert Welch Inc.: Inconsistent Results and Reasoning." 29 Vanderbilt Law Review 143, 149 (1976). 123321 N.E.2d 580 (1975). 124538 P.2d 450 (1976). 86 criterion. It made no sense, the court reasoned, "to distinguish between 'public' and 'private' figures in terms of the constitutional guarantees of free speech and press."125 In Colorado Springs Sun Inc., rather than chosing from the available standards, as the court did in 33333, the Supreme Court of Colorado set out to particularize a new subject-matter, actual malice standard. The court said, in instances where the defamed person is a private individual, but the matter under consideration involves a matter of public or general concern: [T]he publisher of the statement will be liable to the person defamed if, and only if, he knew the statement to be false or made the statement with reckless disregard for whether it was true or not.126 This part of the court's standard appeared to mirror the Rosenbloom standard. The standard differed from Rosenbloom in its articulation of ”reckless disregard." Rosenbloom had utilized the definition for reckless disregard that had been formulated in St. Amant. It stated that there must be convincing evidence to Show that the defendant "entertained serious doubts "127 as to the truth of the publication. The Colorado court 125321 N.E.2d at 583. 126538 P.2d at 457. 127390 U.S. at 731. re 87 rejected this definition as being too broad. Instead, it chose the more narrow definition of reckless disregard applied in general tort law. Rather than requiring a showing that the journalist consciously entertained serious doubts as to the story's truthfulness, it required a less stringent Showing of the evidence that the journalist unquestionably should have entertained some doubts. This new standard utilized the broad Rosenbloom concept of public-issues minus St. Amant's broad application of recklessness. Thus, it maintained Rosenbloom's subject-matter test, but made it easier for private individuals to hurtle the actual malice test. In effect, it was a hybrid of the Rosenbloom concept influenced by 33333. It gave precedence to the interests of free expression, but also took into consideration Gertz's concern for the private individual. Michigan had traditionally adhered to liberal rules regarding defamation. Even prior to Sullivan, Michigan had case law supporting a broad subject-matter standard with regard to public officials. Peisner v. Detroit Free Press,128 the first Michigan case to test the new ground after Gertz, evolved from alleged defamations regarding judicial proceedings. The appeals court ruled that Since the state had no post-Gertz 12882 Mich. App. 153 (1978). 88 cases defining a standard of liability, its judgment would be based upon earlier Michigan decisions. The court in Peisner relied heavily upon Lawrence v. Fox,129 a 1959 case. That case ruled that the media enjoyed a qualified privilege to report upon matters of public interest. The Peisner court ruled that although the Lawrence qualified privilege was based upon an issue and circumstances involving a public official, "it was not limited to publications con- cerning public officials."130 Considering the circumstances of the case in question, the court said, "the public's interest in the administration of justice gave rise to a qualified privilege to report on events affecting a judicial proceeding."l3l The Peisner decision gave credence to the adoption of a Rosenbloom-type of standard, but its rationale and application was limited to judicial proceedings, which fell short of a general adherence to an actual malice standard. In a ruling a few months later, the Michigan Supreme Court solidified a qualified privilege of a publication to report on all matters of public interest. In Schultz v. Reader's Diges_3,132 the state supreme court supported the Peisner decision 129357 Mich. 134, 97 N.W.2d 719 (1959). 13082 Mich. App. at 161. 1“mm. at 163. 1324 Med. L, Rptr. 2356 (1978). 89 Eile followed the same method of invoking pre-Rosenbloom case 1 alw as justification for adopting actual malice as Michigan's gleaneral standard of fault. It rejected the idea that first innuendment principles could be based upon the status of the itwdividual. A news publication has a duty to report, comment c>r-criticize where the public interest so warrants, the court saaid. A subject-matter, actual malice standard allows the n1edia to exercise that duty. "It is clear that the doctrine ()f qualified privilege does not rest on a finding that the plaintiff is notorious, but rather it rests on the interest or duty of the person making the statement."133 Alaska, like Michigan, looked to pro-Rosenbloom case law for direction. The Alaskan courts have also taken a tradition- ally liberal approach to defamation law. As early as 1966, five years before Rosenbloom, the Alaskan Supreme Court !“u1ed in favor of a subject-matter, actual malice privilege. .In Pearson v. Fairbanks Publishing Co.,134 the court found that VVhere an "issue or matter of public interest" is involved, a F>rivilege extends to misstatements of fact, "so long as such "lisstatements are relevant to the subject matter" and are not 133Ibid. at 2363. 134413 P.2d 711 (1966). 90 5 flown to have been made with "actual malice."135 In Gay v. 33f lliam,136 the Alaskan Supreme Court was forced to make its f‘i rst post-33333 judgment in this area. The court chose to r‘eztain Rosenbloom's actual malice standard. Based upon Pearson, i t: found that "long before Rosenbloom or 33333," the Alaskan ccaurts "struck the balance between the competing interest of seafeguarding an individual's reputation and allowing freedom (Jf'debate and expression on public issues." The judgment was " to extend the privilege in favor of the public's interest in “freedom of discussion on public issues."137 The court chose not to retreat from that position. In Sobel v. Miami Daily News,138 a Florida circuit court reversed the state's previous acceptance of a negligence standard in favor of an actual malice standard. The court 'found that in Firestone, the Florida Supreme Court "assumed" Tzhe state's standard of liability for a private defamation to tbe journalistic negligence. Since the United States Supreme C13urt vacated that ruling, the state's standard of fault still 135Ibid. at 713. 1355 Med. L. Rptr. 1785 (Alaska 1979). 1371bid. at 1788. 1385 Med. L. Rptr. 2463 (Fla. Cir. Ct. 1980). 91 r‘eamained to be established.139 As such, it was left to the c:C)urt in Sobel to settle upon a standard. It found actual niailice to be the most appropriate based upon traditional fir‘ee expression thinking. The court said, "a contrary rule vvc>uld hinder vigorous reporting and needlessly impede the f‘low of information and ideas essential to intelligent self- government."140 The actual malice standard envisioned in Scabel, though, viewed matters of legitimate public interest n1ore rigidly than was applied in the Rosenbloom years. Referring ‘to Firestone, the court suggested that a matter of public interest must concern more than a mere "gossip column item Stemming from a seamy divorce pr0ceeding."14l Of the five states that have accepted actual malice as the standard for private defamation, the Florida decision is in the most precarious position. When the United States fSupreme Court vacated the state decision in Firestone, it was riot on the basis of its acceptance of "journalistic negligence." I‘t could just as rightfully have been judged that the Florida ilepreme Court's acceptance of a negligence standard was still 1 n force. Additionally, Sobel was a circuit court ruling. '39Ibid. at 2464 n. 4. '401bid. at 2465. 14libid. at 2464 n. 4. 92 bdl1ile decisions of intermediate courts carry great weight in aliasence of adverse pronouncements, state supreme courts are r1c3t bound by such determinations.142 The fact that the S'tate's supreme court already accepted a negligence standard c>r1ce could prove fatal to Sobel's actual malice standard 5 hould the sympathies of the state's higher courts still 1 ean to negligence fault liability. These five states are the only jurisdictions to adopt a: Rosenbloom-type actual malice standard.143 Despite the shifting sympathies of the United States Supreme Court, these 142Commissioner v. Estate of Bosch, 387 U.S. 456 (1967)- 143In Louisiana, the standard of fault, as a result of two countradictory decisions, is still uncertain. In LeBoeuf _y, Times-Publishing Co., 327 So.2d 430 (La. App. 1976), the court of appeals adopted a qualified Rosenbloom-type actual malice standard. A case determined in the Louisiana Supreme Court a year later, though, brought the acceptance of this qualified privilege into serious doubt. In Mashburn v. Collin, 355 So.2d 879 (1977), the state high court expressly r~efused to decide the issue of adopting a standard of fault liability after ruling in the case on a different issue. hdashburn was determined by the state supreme court, its r‘uling would take precedence over the appeals court decision in LeBoeuf. The effect of Mashburn was to place the establishment ()f a standard of fault in limbo. Whether Mashburn vacated the LeBoeuf standard is uncertain. The state supreme court ruling Geffectively left the door open for other judgments. The (determination of Louisiana's fault liability standard will have to be settled by future case law. The only other attempt to adopt such a standard came in Egagler v. Pheonix Newspapers, Inc., 547 P.2d 1074 (1976). The Court of Appeals of Arizona ruled in favor of the media- defendant on the basis of a Rosenbloom-type actual malice standard. On appeal, though, the Supreme Court of Arizona, 560 P.2d 1216 (1977), reversed the decision. Opting for a negligence standard. Since 93 s tate court rulings that sustained the Rosenbloom-type S'tandards of fault uniformily echoed their belief in the rieaed to be more protective of free expression interests. They a'1l expressed a cognizance of the state's obligation to <)\/ersee reputational interests, but concluded that the potential 0'f self-censorship was the greater evil to be averted. C. The Gross Negligence Standard The New York Court of Appeals formulated the "gross r1egligence standard," an intermediate standard between the Rosenbloom actual malice standard and a negligence standard. 144 In Chapeadeau v. Utica Observer-Dispatch Inc., the court provided a distinct balancing process favoring private individuals along the lines of Gertz, but requiring that for the private individual to recover, a higher level of fault than simple negligence would have to be Shown. The court ciefined its fault standard: [TJhe party defamed...must establish, by a pre- ponderance of the evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.1 T‘he compromise quality of the gross negligence standard is 144341 N.E.2d 569 (1975). 1451bid. at 571. 94 1 r1 the measure of fault required for recovery. The actual niealice standard required a showing of knowledge that the defamation was false or that the journalist entertained s erious doubts as to its truthfulness. This was a difficult S'tandard to hurdle, too difficult and unfair for the private ir1dividual, according to Gertz. The requirement of a s imple showing of negligence hardly seemed enough protection vvhere first amendment protections were involved. The New ‘York court's opinion reflected the view that punishment for r1egligence in defamation must be considered in a different light than punishment for negligence in ordinary tort law.146 Chapadeau's standard requires that a plaintiff Show by a preponderance of evidence that the journalist's conduct was "grossly irresponsible." This is a more stringent fault 146A standard of fault less than actual malice, requiring a judicial measure, was not a new concept in defamation law. I”t is interesting to note the Similarity of Chapadeau's "gross "negligence standard" with the "extreme departure test" formulated lZ>.y'Justice Harlan in Butts. It said liability would rest upon a. "showing of highly unreasonable conduct constituting an extreme departure from the standards of investigating and "eeporting ordinarily adhered to by reasonable publishers." 33238 U.S. at 155. The "extreme departure test" was designed “tr: provide a standard of fault where neither of the extremes ialapeared to adequately protect both sets of interests. 'T11e "extreme departure test" was supported by a plurality <>f the justices, but was not a generally accepted standard even before Rosenbloom negated the need for the test. 95 standard than an ordinary negligence standard. The addi- tional latitude provided to the media is less inhibiting and hence, less likely to result in self-censorship. It also appears to conform to the need for extra protection for the private individual. Despite the standard's more equitable approach to establishing a level of fault, no other state has adopted a similar standard. The judicial appeal of the standard is that it does not force the courts to choose from the extremes of a Rosenbloom-type or negligence standard. It does not require the weight of the judicial system to place too much emphasis upon one interest at the expense of the other. Its ciifficulty stems from its requirement that courts make further scrbjective determinations of the degree of fault, a decision Yvi th which most courts appear to be uneasy.147 147The New York courts have reaffirmed and utilized Efllfilgadeau's "gross negligence" standard on a number of occa- SI‘DFIS: Greenberg v. CBS, 5 Med. L. Rptr. 1470 (N.Y. Sup. Ct. Arep . Div. 1979); Grobe v. Three Village Herald 5 Med. L. 3F*t1~. 1769 (N.Y. Sup. Ct. App. Div. 1979). Though New York 15 1:he only state to have adopted a gross negligence standard, ‘it lias been readily utilized. It does not appear that the I:1z39te will reverse its polition and choose either of the (’T‘e accepted standards. 96 D. The Negligence Standard The historical concept of negligence in general tort law involved injury to an individual that was caused by a second individual's breach of a duty of care owed to the injured party.148 The traditional level of care that a negligence standard required was "reasonable care under like circumstances."149 In order to sustain an action for negli- gence, the burden of proof placed upon the injured plaintiff was to demonstrate the defendant's absence of reasonable care.150 A typical defamation negligence standard created along these lines is one articulated by the Supreme Court of Washington. It said: [A] private individual may recover for a defamatory falsehood...on a showing that in publishing the statement, the defendant knew, or in the exercise of reasonable care, should have known that the statement was false, or would create a false impression in some material respect. TTTe Illinois Supreme Court said that under a negligence stan- dard of liability: 148Prosser, Law of Torts, §30, p. 143. l491bid., §32, p. 151. ‘501bid., §38, p. 208. 15lTaskett v. King Broadcasting Co., 546 P.2d 81. 85 (1975)- 97 [T]he question would be, not whether the defendant entertained doubts of the truth of his statement, but rather whether he had reasonable grounds to believe it to be true, and a failure to make a reasonable investigation into the truth of the statement is obviously a relevant factor. 52 Thus, fault hinges upon a judicial determination of what the journalist should have perceived as warnings that caution or further investigation was required. While the reasoning advanced by the state courts in adopting a negligence standard vary, somewhat, in style and presentation, certain of the rationale offered appear in many, if not all of the decisions.153 According to this rationale. 152Troman v. Wood, 340 N.E.2d 292. 298 (1975). 153Arizona, Peagler v. Phoenix Newspapers Inc., 560 P.2d '1216 (1977); Arkansas, Dodrill v. Arkansas Democrat, 5 Med. L. lzptr. 1385 (Sup. Ct. 1979); Connecticut, Corbett v. Register Ptlb. Co., 356 A.2d 472 (Sup. Ct. 1975); District of Columbia, fibillips v. Evening Star Newspaper Co., 2 Med. L. Rptr. 2208 (ESup. Ct. 1977); Hawaii, Cahill v. Hawaiian Paradise Park Corp,, 5413 P.2d 1356 (1975); Illinois, Troman v. Wood, 340 N.E.2d 292 (l 975); Kansas, Gobin v. Globe Pub. Co., 531 P.2d 76 (1975); Keentucky, Scripps v. Cholmondelay, 3 Med. L. Rptr. 2462 (Ct. App. 1977); Maryland, Jacron Sales Co., v. Sindorf, 350 A.2d 688 (1976) and Metromedia v. Hillman, 5 Med. L. Rptr. 1620, ((3t.. App. 1979); Massachusetts, Stone v. Essex County News- lléJEjyg3, 330 N.E.2d 161 (1975); North Carolina, Walters v. §515Lford Herald, 2 Med. L. Rptr. 1959 (App. Ct. 1976); Ohio, “\Omas H. Malon3y 8 Sons Inc. v. E.W. Scripps Co., 334 N.E.2d 4594- (Ct. App. 1974); Oklahoma, Martin v. Griffin Television %{%§E3, 549 P.2d 85 (1976); Oregon, Harley-Davidson Motorsports, —~e§~_, v. Markley, 568 P.2d 1359 (1977); Pennsylvan1a, Math1s V ~ Philadelphia Newspapers, Inc., 445 F. Supp. 406 (1973); \ er1nessee, Memphis Pub. Co. v. Nichols, 569 S.W.2d 412 (1978); :eXas, Foster v. Laredo Newspapers Inc., 541 S.W.2d 809 (1976); i rginia, Mills v. Kingsport Times-News, 5 Med. L. Rptr. 2288 (AE’.C. 1979); Washington, Taskett v. King Broadcasting Co., 546 P.2d 81 (1976). 98 any fault standard more strict than negligence would impose too great a burden on the private individual. While these state court decisions do not deny the potential chill on the media from a negligence standard, most stand fast to the position that the state's equal interest in protecting private individuals and compensating them for injury makes such an effect unavoidable. Negligence is an acceptable burden for the media to bear in relation to the interests of the individual. Since private individuals neither seek public scrutiny nor have ready access to self-help means, their dependency upon the state for reputational protection is intensified. The Supreme Court of Oklahoma summarized this (:ommon line of thought in stating that a "reasonable balance t>etween the rights of the news media and the rights of the FJr‘ivate individual is best achieved by the negligence balance."154 Taskett v. King Broadcasting represents one of the more reactionary decisions against the reasoning that gave primary C<:ess for its failure to take into account the state's interest in providing a remedy for the vast protections given t" ‘the media. It said a negligence standard was "totally '54549 P.2d at 92. 99 justifiable in light of the state's overriding interest in providing a realistic remedy to an otherwise helpless private citizen."155 In addressing the question of inevitable self- censorship, the court said that some deterrence by the media might result, but suggested that it could be "desirable if it leads to a greater caution in the publication of matters involving private Citizens."156 Adapting the reasoning generally accepted in the pre-Sullivan era, the court said, "any social value derived through a defamatory falsehood per- taining to a truly private individual is 'clearly outweighed by the social interest in order and morality.”157 Much of the reasoning used by this and other courts in adopting negligence liability standards harkens back to an earlier line of thought in defamation law. In Troman v. Wood, the Illinios Supreme Court said the actual malice test was designed to perpetuate an uninhib- ited marketplace of ideas. To that extent, it functioned perfectly, but in doing so, it provided little relief to the defamed individual. The Court said, "a person is responsible 155Ibid. at 86 (Emphasis added)- 1551bid. at 86. 157Ibid., quoting, in part, Chapjinsky v. New Hampshire, 315 U.S. 568, 572 (1942). 100 for damage that he intentionally or negligently inflicts upon another."158 A negligence standard more fairly represents both interests which the state has been charged with preserving. While most of the rationale used by the courts in adopting negligence standards was directed in a 33333fstyle reasoning expressing a need for greater protection of the private individual, some of the courts used the opportunity to denounce Rosenbloom-type standards. Several of the courts expressed the feeling that Rosenbloom's combined punch of a public-issue application of the constitutional privilege and the actual malice test as the fault standard served more to encourage irresponsibility among the media than it did to encourage robust debate. In Foster v. Laredo Newspapers, Inc., the Texas Supreme Court said: [S]uch a test puts a premium on ignorance, encour- ages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant's testimony that he published the state- ment in good-faith and unaware of its probable falsity. 59 Another commonly expressed rationale was that the actual malice standard simply placed too much power in the hands of the media. In Thomas H. Maloney 8 Sons v. E.W. Scripps Co., 158340 N.E.2d at 297. 159541 S.W.2d 809, 819 (1976). 101 the Supreme Court of Ohio felt that too many crucial judgments were dependent upon what the media believed to be "news." Accountability, the court said, is an essential ingredient in maintaining balances of power and protection. One of the very foundations of law is that every person is accountable for his actions.160 When the element of accountability is overshadowed, even for the best of intentions, an imbalance will inevitably occur. The Supreme Court of Hawaii took an even harder position against the vast latitude that the actual malice test provided to the media. In Cahill v. Hawaiian Paradise Park Corp,, the court said recovery for injuries to a private individual would be awarded not only upon a showing of "highly unreasonable conduct," but even where the media-defendant had been shown to possess question- able motives.l5l Just as certain states accepted actual malice on the basis of pre-Rosenbloom case law that adhered to that position, other states accepted a negligence standard on the same 162 basis. In Mathis v. Philade1phia Newspapers, Inc., the Pennsylvania Supreme Court found that since Gertz removed the 160334 N.E.2d at 497. 161543 P.2d 1356, 1366 (1975). 152445 F. Supp. 406 (1978). 102 constitutional constraints upon state law, the court was free to abandon the Rosenbloom mandate. It chose to resolve the fault liability balance issue by "drawing on the policies that traditionally have shaped the Pennsylvania law of libel "163 and slander. The court found that there existed "no discoverable aspect of Pennsylvania law which would favor retention of the actual malice standard."164 That judgment was closely analogous to the decision in Virgina. In Mills v. Kingsport Times-News,165 the court found that Virginia law prior to Rosenbloom controlled the issue. The state's negligence standard made the media liable for inaccurate reporting. When publishing material from sources other than the public records, the publication "assumes the risk" for its accuracy.166 The courts in IllinoislP7 and Kansas168 interpreted their state constitutions as obligating the state to provide citizens with an adequate remedy at law to redress injury 163Ibid. at 412. 164Ibid. 1555 Med. L. Rptr. 2288 (D.C. 1979). 166Ibid. at 2293 167Troman v. Wood, 340 N.E.2d at 297. 168Gobin v. Globe Publishing Co., 531 P.2d at 83 103 to reputation and to render the media liable for such injuries. In both cases, the courts judged that in Situations involving private individuals, the actual malice test did not provide an adequate remedy. Thus, negligence was determined to have a constitutional basis as the appropriate standard of fault to balance the competing interests. While most courts have utilized the traditional concept of negligence, others have reasoned that media-defamation involves extenuating issues not involved in general tort law. Under these Special circumstances, they have found, the traditional view of negligence was not appropriate. The clash of first amendment rights demands a definition of media negligence which bases its balance upon a professional standard of care. This type of qualified negligence standard specifically takes into account some of the extraordinary circumstances of the journalistic process. 169 The Restatement (Second) of Torts is a treatise of precedents and interpretations of tort law. It condenses the myriad of case law into a workable definition and offers specific guidelines where the law is uncertain or has not fully developed through case law. While it lacks the legal validity of judicial enactment, it is influential in the 169The Restatement_(Second) of Torts, (St. Paul: West Publishing Co., 1977), §580B, Comment (1) (1977). 104 formulation of legal thinking, especially where the courts have not settled upon a definite course. Its 1977 edition adopted a qualified negligence standard of liability for the media-defendant when a private individual is the subject of a defamation. The Restatement acknowledged Gertz as the influence in formulating its standard. The recommended balance for fault liability suggests: One who publishes a false and defamatory communica- tion concerning a private person, or concerning a public official or public figure in relation to a purely private matter not affecting his conduct, fitness or role in his public capacity, is subject to liability, if, but only if he, (a) knows that the statement is false and that it defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently in failing to ascertain them.170 Thus, under subsection (c), journalists are liable for negli- gently publishing defamatory statements concerning persons designated as private individuals. They Should, the Restate-. ment recommends, be held "to the skill and experience normally possessed by members" of the journalistic profession.'7l And, journalists should not be judged to have acted negligently when the record shows they "acted reasonably in checking the truth or falsity or defamatory character of the communication l701bid., §5808. 17'1bid., §5808, Comment (1)(g). 105 before publishing it."172 The Restatement offers three Significant factors that state courts should take into consideration when implementing a negligence standard. First, is the timeliness, or newsworthy value of the story. It must be determined whether the communication was "a matter of topical news requiring prompt publication to be useful, or...one in which time and oppor- tunity were freely available to investigate...."173 When the latter is true, a more thorough level of investigation would be expected to fulfill the requirements of due care. Second, there must be a legitimate measure of public interest inherent in the story. While this harkens back to Rosenbloom's subject- matter test, this would require a far more stringent criterion. It would separate matters of genuine public concern from the spreading of mere gossip. The less value contained in the comment, the more certain a journalist should be that the information is accurate. The third factor involves a con- sideration of the extent of damage to the plaintiff's reputa- tion. This would involve a consideration of how extensive the dissemination and how easily the plaintiff could have protected his reputation by means at his own disposal. l72Ibid. l73Ibid., Comment (1)(h). 106 One of the practical difficulties of a negligence standard is defining "media negligence." Negligence is a subjective term that could vary from court to court. The Restatement offers a professional standard of care from which a general workable criterion could be used to define l'negli- gent conduct." It said a journalist: is held to the skill and experience normally possessed by members of that profession. Customs and practices within that profession are relevant in applying the negligence standard, which is, to a substantial degree, set by the prpfession itself, though a custom is not controlling. 74 The delineation of professional journalistic standards would be established through the use of expert testimony. In adopting its negligence standard, the Illinois Supreme Court specifically rejected this concept of a professional standard of care used as the yardstick of negligent conduct.175 It said that such a system would make newspaper practice in the community the controlling standard. The purpose of a standard of fault in defamation is to make the media account- able for the injuries it inflicts. The court reasoned that a system accepting a professional standard of care would permit the media to set its own standard of negligence.176 174Ibid., Comment (1)(g). 75Troman v. Wood, 346 N.E.2d at 298. '751bid. 107 Four other courts have viewed this issue differently. The Supreme Courts of Kansas, Oklahoma and Arizona and a U.S. District Court in Kentucky177 adopted the standard suggested in the Restatement or a similar standard of pro- fessional care. The Kansas court said, "the standard to be applied in determining such negligence is the conduct of the reasonably careful publisher or broadcaster in the community or in similar communities under existing circumstances...."178 The court answered two of the main criticisms of adopting a professional standard of care. The first criticism was that a professional standard of care would force smaller publications with limited staffs and budgets to have to measure-up to standards of the larger metropolitan media outlets. The Kansas standard compares media conduct on a professional basis with media in similar circumstances. The second criticism, one most pronounced in the Illinois court's rejection of a professional standard of care, was that most communities in the United States are served by only one newspaper. Such a situation would make it impossible to 177Gobin v. Globe Pub. Co., 531 P.2d at 84-85 (Kansas 1975); Martin v. Griffin Television Inc., 549 P.2d at 91- 92 (Oklahoma 1976); Peagler v. Phoenix Newspapers, 560 P.2d at 1219 (Arizona 1977); and Turner v. Harcourt, Brace, 5 Med. L. Rptr. at 1440 (Kentucky 1979). 178531 P.2d at 84. 108 establish an equitable standard. The Kansas court did not foresee any procedural difficulties or inequities in estab- lishing a standard based upon the standards of neighboring media or "similar communities under the existing circum- stances."179 In general, the media acts in a competent and responsible manner. This would be the basis for the profes- sional standard. Thus, it would be a broad-based media of comparable Size and resources that would set the professional standard, not the particular publication. A professional standard of negligence for the news media would not, necessarily, set a more exacting standard for the plaintiff than the ordinary, less definitive, standards of negligence. Its advantage, though, is that it would remove a measure of the subjective nature of negligence. It would set a level of professional care; a standard of "journalistic "'80 Negligence, as a legal concept, would be malpractice. judged on a professional basis, much as the professional conduct of doctors and lawyers are judged. Justice Brennan, critical of the Court's decision to pass on to the states the responsibility of establishing standards of fault liability, predicted that most states 179531 P.2d at 84-85. 180549 P.2d at 91. 109 would opt for the more stringent individual protections of a negligence standard.]8] Thus far, his prediction has proven correct. Of the twenty-six jurisdictions expressly adopting a standard of fault Since 33333) twenty have settled upon a negligence standard. 7 Even though 33333 left the states with no choice but to consider the level of protection to afford the private individual, most of the courts welcomed the opportunity to realign the balance. The courts readily moved to bring defamation law closer into line with the thinking of general tort law, despite the influence of first amendment protections. Similarity of rationale and theme of the courts over a wide spread of states and geographic regions would indicate that the use of negligence as a standard has become a trend of national significance. 0n the basis of the widespread embracement of the negligence standard, it would have to be concluded that negligence, rather than a lesser standard, has become the most judicially acceptable level of fault. 181418 U.S. at 366. CHAPTER V IMPLEMENTATION OF THE NEGLIGENCE STANDARD BALANCE Since the United States Supreme Court has chosen to allow this area of defamation law to develop on the lower levels of the judicial system, the early trends and philosophical yardsticks that have developed could be a measure of media liability for a generation of defamation law. The clear preference has been toward the negligence standard, so it is important to examine the position of the media under this balance. While it may theoretically seem to be reasonable to demand that the journalist be certain of the facts when an individual's reputation is at stake, in practice, it is not always that simple. Most publications, such as daily newspapers, news broadcasts and newsmagazines face the pressures of continual deadlines. If a story is to best serve the public it must reach the public while it still commands its newsworthy value. Occasionally, in an effort to bring this information to the public while the story is still fresh in the public's consciousness, misstatements of fact can pass as truth. In Sullivan, the Court recognized 110 111 the journalist's precarious position, when it said, "erroneous statement is inevitable...it must be protected if the freedoms of expressions are to have the 'breathing space' that they need to survive.'"182 A case before the Federal Court of Appeals during the Sullivan to Rosenbloom era recognized and enumerated the pressures involved in the journalistic process and the inevitable result of a strict standard of fault: Verification...is a time-consuming process, a factor especially significant in the newspaper business where news quickly goes stale, commentary rapidly becomes irrelevant and commercial oppor- tunity...can easily be lost. In many instances consideration of time and distance make verification impossible. Thus the newspaper is confronted with the choice of publication without verification or suppression.183 The court stressed the intangible means upon which news is collected, such as "educated instance, wide knowledge and confidential tips."184 These elements, along with experience and professional judgment, are avenues of information which often are impossible to verify. While these judgments prove valid in the vast majority of instances, such impalpable qualities could be interpreted as negligent guesswork in a 182376 U.S. at 271-72, (quoting in part from NAACP v. Button, 371 U.S. 415, 433 (1963). '83Washi3gton Post Co. v. Keogh, 365 f.2d 965. 972. (1966). '34Ibid. court of law. One commentator described the media's reaction to post- 33333 rulings as an "almost paranoiac tendency toward any move...which is perceived to be an outside intrusion" into the newsroom.185 While this overstates the adversary rela- tionship, there unquestionably is a tension between the media and the legal system. It is not a fear of account- ability, however, that makes the media apprehensive of outside examination and adjudication of their procedures. It is more basically the consternation of having their uncommon and inordinate situation judged on a common and ordinary basis, which is essentually what the typical negligence standard does. On the creative level, the editorial process involves the content judgment of particular situations. Determinations are made on the basis of available evidence as to the veracity of certain conclusions and sources. Conclusions are reached and pursued until the give-and-take of the creative processes bear fruit. 0n the more practical level, the editing process is constantly confronted by deadlines, outside pressures, financial limitations and functional impracticabilities. Potentially newsworthy items continually come to the attention of journalists and editors. Priorities must be weighed 185B.L. Duckworth, "Communications Law: The Decline of Press Privilege," l9 Washburn Law Journal 54, 73 (1980). 113 against restrictions of time and the confines of staff size and economic outlay. There is the constant pressure of time and the drive to present an issue while its newsworthy value is at its height. Daily newspapers publish several thousand original stories every year plus several thousand more concerning regional, national or international affairs that involves publication from other sources based upon outside investigations and observations. A single phrase or sentence from any of these thousands and thousands of stories could potentially result in defamation litigation. The professional demands and institutional limitations upon the editorial process frequently make complete invest- igation and verification difficult, impractical or impossible. In formulating a news story, a jorunalist is usually called upon to piece together a variety of second-hand sources into a concise report of a particular incident. Under the pressure of deadline, this often calls for rapid subjective determinations. Additionally, many news stories are of a type that cannot be completely verified. It would not be paranoiac to suspect that the average person, not schooled in these demands and limitations of the profession, could not relate to the circumstances that surround a particular story's journalistic process. This, though, is precisely what the typical negligence standard effectuates. 114 What makes a negligence standard even more threatening is the fact that a statement may well be true, but it is impossible to prove its complete accuracy to a jury. Many types of facts simply cannot be verified. They are illations based upon a preponderance of relevant facts. In these instances, the media-defendant is at the mercy of the jury's reading of the story's accuracy. What is sound journalistic judgment may appear to the ordinary man as negligent conjecture. If a publication is not certain that it can substantiate the accuracy of a story to a jury's satisfaction, the safe reaction would be to veer clear of the uncertain area rather than subject itself to judicial second-guessing. In doing so, much truthful, beneficial information would never leave the newsroom. A jury's retrospective determina- tion of whether "reasonable care" was exercised can never accurately gauge the pressures of time, the newsworthy quality and the cumulation of facts that went into making an editorial judgment. In Rosenbloom, the Court rejected the acceptability of a negligence standard because it "would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of the steps taken by it to verify the "186 accuracy of every reference.... The Court was specifically 186403 U.S. at 50. 115 protecting against the chilling effect that could result from uncertainty. While the occasions in which journalists necessarily had to fall back on the broad protections of actual malice were comparatively few, the fact that the protection existed fostered an atmosphere conducive to vigorous and thorough reporting. Gertz's allowance to the states to adopt negligence standards for private individuals has made the journalist vulnerable to judicial assessment of procedures, thus reintroducing the element of uncertainty. The inadequacy of such a system comes in the application of the term "negligence." It is an intangible term whose parameters are subject to individual interpretation. The descriptive terms of the negligence standard seem plain enough. A "preponderance of evidence," a "standard of care" and "reasonableness" are not abstract concepts. What they are, though, are subjective determinations and should be recognized as such. This has left the journalist in the difficult position of having to negotiate an uncertain standard of liability. The manner in which the lower courts in Firestone viewed the publication's journalistic process illustrates the unpredictability inherent in allowing the imposition of negligence liability. One appellate review of the facts 116 found Time's actions to be a "flagrant example of 'journalistic III-'87 negligence. A review of the same set of facts by another appellate court found the magazine's procedures to be an "188 Even "honest, careful attempt at truth and accuracy. among the members of the Supreme Court there was no consensus of whether the newsmagazine had acted negligently. Justice Powell's concurring opinion found that there was no substantial evidence of actionable negligence. He further found that the trial court ruling was sufficiently ambiguous "to have caused the reasonably prudent newsman" to misread the ruling.189 Justice White, on the other hand, found that the lower courts had considered the issue and had established negligence 190 on the part of Time. Discerning the level of negligence in Firestone was hardly an easily recognizable or applicable measure, as evidenced by the differing judicial assessments of fault. It is not a workable system that requires journalists, unsophisticated in the intricacies of the law, to adequately weigh the uncertain factors when the courts, themselves, cannot define the concept with any certitude. Neither the 187305 So.2d 172, 178 (Fla. 1974). 188254 So.2d 386, 389-90 (F1a. Dist. Ct. App. 1971). 189424 U.S. at 466-69. 190Ibid. at 482. 117 interests of the individual nor first amendment interests are served when the levels of negligence liability can vary from court to court. The term "fault" and the definition of a standard of care was left open by Gertz. In Firestone, the Court failed to define an appropriate criterion of measurement for "negligence." In effect, there still is no standarized measure of negligence liability. In refraining from particularizing an acceptable standard of care, the Court has left journalists at the mercy and discretion of juries and trial judges. Just as most journalists are unsophisti- cated in the intricacies of the law, most trial judges and juries are unsophisticated in the intricacies of the journalistic process. In granting permission to the states to determine a standard of care, the Court stipulated that there must be some evidence of culpable conduct on the part of the journalist. This stipulation, though, might have little bearing in the emotion of the trial. With the distress of the plaintiff clearly visible and the protections of the First Amendment only an abstract in the jury's mind, negligence liability could effectively rest on falsity alone. This is especially true when the media-defendant espouses an unpopular cause. The uncertain nature of the negligence standard will, 118 in some cases, lead to the imposition of a standard approaching strict liability.191 While this arguably guarantees more responsible reporting, it demands too high a price. Justice Douglas' 33333 dissent warned that when a system imposes damages "upon a finding that the publisher failed to act as 'a reasonable man'....it may well be the reasonable man who refrains from speaking."192 When the law poses strict barriers that make it safer for a journalist to refrain from heated issues than to discuss them, neither justice nor the public benefit. Since negligence is the standard accepted in the vast majority of states that have considered the issue and all indications Show that such will be the trend in states and jurisdictions that must make the determination in the future, there must be certain procedural provisions to insure some level of protection to the media. The negligence standard must be tempered by substantial judicial controls over the jury, The trial judge must bear in mind that the jury is comprised of neither legal nor journalistic authorities. His instructions to the jury should adequately worn jurors not not to confuse falsity with negligence. It must be stressed 191G. Ashdown. "Gertz and Firestone: A Study in Consti- tutional Policy-Making," 61 Minn. Law Review 645, 675 (1979). 192418 U.S. at 360. 119 that the fact that a defamatory statement was false and injurious alone is not sufficient for a judgment for the plaintiff. There must be a clear "showing that the publisher or broadcaster knew or Should have known that the defamatory statement was false."193 The courts have great discretion in this area. If the negligence standard is to be used in a means even approaching a balance, this discretion must be used to balance prospective to the jury and assure that when negligence is the judgment, there was indeed, at the very least, negligent behavior. Failure of the court to exercise this discretion or to explicitly instruct the jury as to the qualifications of journalistic negligence should be the strict basis for appeal or reversal. 193418 U.S. at 348. CHAPTER VI THE PUBLIC/PRIVATE INDIVIDUAL STATUS DISTINCTION A. Uncertainty In the Law The Supreme Court first noted a difference between public figures and private individuals in defamation law in 1967. After more than a decade of litigation, there is still no clear distinction. In the Court's two most recent defamation decisions, it was still annunciating further distinctions between the two classifications. The purpose of requiring a public/private distinction and a duel standard of liability was to insure free debate on issues of significant public importance, while equally insuring that the private individual's interests in reputational protections are not obscured. It can be argued that the manner in which the lower courts applied Rosenbloom placed the individual at the mercy of circumstances, but the Court's response in Gertz and Firestone is equally not the answer. It has placed the media in the untenable position of blindly assuming risks in publication. The guidelines provided by the Court have yet to produce a defined and trenchant distinction. A recent district court 120 121 decision most graphically described the difficulty facing the courts, when it said, "[dlefining public figures is much like trying to nail a jellyfish to the van."194 As a result of the uncertainty, the classification of public or private status in defamation cases is usually so tenuous and subtle as to require near subjective court determinations. ~As evidenced in Wolston and Proxmire, the lower courts have been unable to evenly apply the confusing, equivocal and enigmatic provisions of 33333_and Firstone. This designation, though, could be the court's most crucial judgment. The public or private status accorded to the plaintiff by the court determines a significantly different standard of proof. The public figure must overcome the stringent requirements of actual malice. The private individual must only show the level of fault required by state law, usually simple negligence with fault.195 Since the status attributed to the plaintiff by the court is often the pivotal determinant, a closer examination of the reasoning and considerations applied by the Court in establishing individual status criterion is necessary. 194Rosanova v. Playbgy Enterprises, 411 F. Supp. 440. 443 (S.D. Ga. 1976). 195See text accompanying notes 155 to 186. supra. 122 B. The New Gertz Public/Private Balance An essential element of the new 33333 doctrine was the separation of public figures from private individuals. This separation, however, once again presented the courts with the problem of having to draw that fine-line distinction 196 of individual status. One of the primary agruments put forth in support of the Rosenbloom balance was that such subjective judicial judgments would not be required. While the Rosenbloom subject-matter test did eliminate the need to judicially separate the status classifications, the 33333 Court determined that the private individual's reputational interests were being overshadowed. When a defamation involved a public official or a public figure, there was an assumed level of risk. In gaining the benefits, recognition or notoriety of being a public person, that individual 196The joint cases of Butts and Walker inaugurated the Supreme Court's distinction between public figures and private individuals. Though all nine justices ruled that there was a distinction between public figures and private individuals, there was no majority opinion as to how the protective measure should be applied. Since there was no majority opinion, the rule of law was never clearly estab- lished. Lower courts had administered both the extreme departure test and the actual malice test to cases involving public figures. See, Fotochrome Inc. v. New York Herald Tribune Inc., 305 N.Y.S.2d 168 (1969) and Pauling v. National Review, Inc., 269 N.Y.S.2d 11 (1966) as examples of applica- tions of both tests. Ultimately, the Court would have had to settle upon one of the tests, but Rosenbloom was decided before such a decision was necessary. 123 surrendered a measure of protection. It was a give-and-take situation which equalized, or at least mitigated, the seemingly inequitable aspects of the constitutional privilege. But a private individual involved in a public controversy did not assume the necessary measure or risk by entering the public arena nor was he the beneficiary of the benefits, recognition or notoriety which the public person enjoyed. Without the stature of the public person, the private individual did not have independent access to the various channels of information from which he could counter the damages of the defamation. In the case of the private individual, there was no give-and-take. He was forced to bear the full brunt of the Rosenbloom balance. Ruling that the interests of the private individual had to be restored, the Court in 33333, reverted back to its earlier position supporting a dual standard based upon individual status. It said that the state's interest "in compensating injury to the reputation of private individuals requires that a different rule should pertain with respect to them.197 Thus, no matter how difficult the task, it became necessary for a status distinction to be made. Since the Court made the public status of the individual 197418 U.S. at 326. 124 a pivotal element, it had to define "public figure" so that it could become a workable concept. It characterized two methods by which an individual could be designated a public figure. First, through widespread involvement in societal affairs, the individual could achieve such a level of "fame or notoriety that he becomes a public figure...in all contexts" and for "all aspects of his life."198 The second category involves an otherwise private individual who voluntarily enters a public controversy and thereby assumes the risks of adverse publicity.199 That person becomes a "limited-issue" public figure within the confines of the controversy. The first category involves a limited range of individuals who are pr0minent in the public eye and have attained a public personality independent of any particular issue or concern. These people are generally recognizable through social, business, entertainment or pseudo-governmental associations. Their name, image or personality can elicit attention beyond any public controversy. Further, to qualify in this category, the individual must be recognizable, by 198Ibid. at 351. 1991bid. 125 name or reputation, to a major portion of the public. It is not enough to simply be well known in certain areas of the community. This range of individuals could be characterized as "public personalities." The second category is broader, but less definable. This individual's public attention is drawn from the extent of involvement in the public controversy. There must be a conscious thrust into the vortex of the controversy. The individual's involvement must be more predominant than a simple peripheral association with it. The limited-issue public figure assumes a "special prominence in the resolution" of the controversy.200 This was a stringent set of guidelines. The manner in which the Court applied the facts of 33333 to this definition revealed that the new balance would clearly tilt toward individual protections. Elmer Gertz was a prominant Chicago attorney, well known in the local legal community. He was also prominent within the liberal movement. He had taken a leadership role in numerous liberal activities and had, on occasion, acted as a public spokesman for certain causes. In many respects, Gertz would appear to qualify as a public figure in either of the two categories. The Court's narrow 200Ibid. at 351-52. 126 application of its new definition revealed how strict it intended for the definition to be interpreted. While Gertz's name and reputation were well known within certain circles of the public, it was determined that he had neither attained sufficient fame or notoriety in the community 33 13333 to be considered a general public figure. His name recognition, according to the Court, was within a variety of limited groups and did not constitute the broad public recognition required for the designation of a general public figure. Further, his activities within the particu- lar controversy were not of the policy-making nature nor had he significantly involved himself in the specific event to be classified a "limited-issue" public figure within this controversy. An individual clearly had to fall within the parameters of one of these two categories to qualify as a public figure. The decision in 33333 expressly signified that the Court would look upon those individuals who were borderline public figures as retaining their private standing. The overall effect of the new 33333 public/private balance was to narrowly define the class of persons who would be characterized as "public figures." This brought increased liability and uncertainty to the journalistic process as the 127 number of individuals who could avail themselves of defamation law again inflated. C. Plundering the New Balance 33333 accomplished exactly what it set out to do. It established a new balance realigning the protections afforded to the media and the individual. The new balance created a completely new structure of guidelines and definitions. In many ways, the 33333_restructuring of defamation law was more concise than the one it replaced. The structure that developed during the Sullivan to Rosenbloom era evolved on a case-by-case basis. The 33333 balance totally realigned defamation law creating a new structure balancing all of the major areas in unison. The public/private status definition was a delicate balance. A balance that caused the media to rethink its its position, but it was a workable structure. Whenever an area of law is overturned, as was the case with the 33333_ balance, the real meaning of the law can only be determined by how it is applied in subsequent cases. When there is a judicial balance as delicate as the one created in 33333, the courts must apply case law to it with the senSitivity and precision of a surgeon's scaple restructuring a bodily organ. Without such precision, the balance cannot be 128 maintained. Far from the precision of a surgeon's scaple, the Court applied Firestone to the Gertz balance with a pickax and plow. Upon examination of the decision and reasoning of the Court in Firestone, it can only be concluded that it was the Court's intention to limit the designation of "public figure" and the category of "public controversy" to only those issues of the most immediate and critical nature. This is contrary to the 33333 balance which sought only to protect the legitimate private individual who became involved in a public issue and lacked the self-help means to counter- balance the effects of the defamatory report. The facts of Firestone make it highly questionable how it could be adjudged that Mrs. Firestone was deserving of such a high measure of protection. The descriptions provided by the Florida Supreme Court would seem, for all appearances, to portray her as a public figure and this particular divorce proceding as a public controversy within the guidelines set forth in 33333. The Florida Supreme Court noted that the Firestone's "marital difficulties were...well known," and the divorce proceeding became a "veritable cause celebre in social Circles "201 across the country. The seventeen month trial engendered 201271 So 2d 745, 751 (Fla. 1972). 129 43 articles in the Miami Herald and 45 articles in the Palm Beach Post.202 Additionally, it attracted widespread notice in the national news media. Concerning Mrs. Firestone's public status, the Florida court described her as "prominent among the '400' of Palm Beach society," and an active member "of the sporting set."203 During the course of the divorce trial, She initiated and conducted Several press conferences. Even prior to the divorce proceeding, her name and social status attracted the attention of a sizeable portion of the public. Her activities were often reported in the media due to interest generated by her social character. Her appearances in the media were frequent enough to warrant her subscribing to a press Clipping service.204 Despite Mrs. Firestone's vast public character and the public nature of the judicial proceeding, the Court designated her to be a "private individual." This totally plundered the public figure/private individual distinction and the guide- lines for the protection of legitimate private individuals established in Gertz. Mrs. Firestone enjoyed a lifestyle that attracted public interest. Far from shunning the accompanying 202424 U.S. at 485. 203271 So.2d at 751. 204424 U.S. at 485. 130 publicity, the facts suggest that she was most aware of it and not altogether uninterested. When the publicity became harsh and deprecating, the Court's ruling allowed her to retreat behind the protective shield of the private individual. This was a violation of the spirit of every defamation case since Sullivan. The basic crux of post- Sullivan defamation law was that when people place themselves in a position of public awareness, they cannot cry foul when the public light inadvertently portrays them falsely. It was clear from the Court's tone in 33333_that the reputational interests of the individual would reign most prominent in judicial thinking. Firestone, though, revealed just how inflexibly rigid the definition would be applied. The Court's application of the definition in Firestone went far beyond the original purpose of protecting individuals who were unable to protect their own reputations due to their limited public status. Firestone placed critical emphasis upon the purpose of the individual's involvement. Specifically, the Court focused on the element of the individual voluntarily thrusting himself to the forefront of the controversy. The individual's level of involvement had to be intentional and directed to qualify him as a public figure. This approach, while theoretically reasonable, places 131 an unduly heavy burden upon media interests. When an indivi- dual is intricately involved in a public controversy, all of his words and actions regarding that controversy have a potential effect upon its outcome. As a result of Firestone, though, it was no longer enough to weigh the effects of the words and actions as measures of the indivdual's influence upon the controversy. The Firestone approach demanded that the journalist determine whether those words and actions were deliberately designed to influence the controversy. That made it necessary for the journalist to measure the indivi- dual's intentions. An individual's intentions, though, are a state of mind. Intentions can be inferred from actions, but the Court failed to recognize that in most instances these are highly subjective judgments. There is usually a fine-line of distinction between statements that are intended as explanations and those that are intended to influence. When intentional actions by the individual effect the controversy, it is not always possible to deduce whether they were consciously designed to influence or simply to inform. Despite the subjective nature of such judgments, the burden of liability is placed upon the journalist to read intent into the individual's words and actions. Judgments such as these are speculative at best. l32 Firestone's questionable reading of the public/private status definition instilled a built-in element of uncertainty into the journalistic process. For the media to operate to its fullest capacity, it must be able to assume certain protections when appearances suggest the individual qualifies as a public figure. For all appearances, Mrs. Firestone had thrust herself to the forefront of the particular controversy, as required by the £313; definition. She became an active member of her social circle by choice, a group whose lives received constant media attention. Additionally, she instituted the initial litigation which eventually led to the divorce proceedings. Her high media visibility demonstrated a prominent role in the public eye. Her fre- quent disclosures to the media seemed to demonstrate an effort to influence the issues. Even if one were to accept the Court's premise that all of this, in addition to her name and social position, did not make her a public figure, either for all purposes or for this limited issue, it should have been sufficient to entitle the media to act upon the good-faith assumption that she did, in fact, possess public figure status under the gggtg definition. Without a certain level of protection for such assumptions, the ggrtg definition holds no protection whatsoever for first amendment interests. This is not intended to suggest that all marital difficulties, l33 for example, are public controversies, or that even most could be considered so. The Firestone case, though, because of the prior notority of the participants and the nature of the circumstance, presented a controversy involving more than private individuals involved in activities of a totally private nature. It is in these types of situations that the journalist must possess a measure of operational leeway. An offshoot of the Firestone emphasis upon the element of thrusting to the forefront of controversy was the virtual elimination of the posibility of the "involuntary" public figure. The effect of stressing this aspect was that individuals who gained prominence unintentionally or invol- untarily would not be subject to constitutionally privileged media comment. This reasoning ignored the fact that there are certain situations where individuals can be pulled into legitimate public controversies. These situations, usually unpleasant, are instances where individuals ordinarily would not vol- untarily become involved. Despite this, circumstances can draw an individual into the vortex of the situation. An individual that is forced to give important testimony, against his wishes, in a legal action, could be unwillingly forced into a decisive position. Once in such a critical position, circumstances could dictate that the individual 134 play a prominent and directed role. If this situation is a public controversy, it is a legitimate tOpic for media coverage and comment. Since the activities of those individ- uals prominently involved in a public controversy are usually inseparable from the controversy itself, it stands to reason that the constitutional privilege would be extended at least as far as allowing the media to report the actions of these individuals. This overemphasis upon the element of voluntarily thrusting to the forefront of the controversy further distorted the balance of interests. Occasionally, individ- uals will involuntarily become significantly involved in a controversy. This is not to suggest that even the unknowing innocent bystander would be considered an involuntary public figure. That type of reasoning was one of the major failings of Rosenbloom. But when an individual's participation in a controversy, involuntary though it may be, appears to be prominent, directed and influential, it would be improper to judge him to be less than a public figure. In such instances the "involuntary" distinction seems artificial at best. Within the journalist's operational guidelines, it must be concluded that the category of individuals who become l35 public figures "through no purposeful action of their own,"205 is so limited, that it cannot be assumed in any situation. If there was one message in this area of defamation that the Court was sending to journalists, it was that an individual's involvement must be not only actively designed and directed, it must also be purposefully voluntary. To assume that any lesser degree of involvement would qualify an individual as a public figure is to tread in dangerous waters. Unlike Gertz and Firestone, Wolston and Proxmire did not break new ground in determining public/private status. The cases derived significance from their refinements of previous pronouncements. The Court further narrowed the limited-issue public figure category by adding new quali- fications to the already strict reading of the status definition. Specifically, the cases focused upon the nature of the characteristics and motivations of the indivi- dual in assessing status. In Wolston, the Court further delineated the emphasis Firestone placed upon the element of "voluntarily thrusting" oneself to the forefront of a particular controversy. According to the Court, Wolston's voluntary failure to appear before the grand jury did not, in itself, constitute 205418 u.s. at 345. l36 a voluntary thrusting into the controversy. Such a determi- nation could only be made upon an examination of motives. Wolston's reason for failing to appear was given as mental depression, which was not relevant to the controversy, allowing him to retain his private status. Had his refusal to appear been designed as a statement on the pr0priety of the government's investigation, however, it could have been found to be an effort to sway public opinion and deter- mine the final outcome, thus, a "voluntary thrusting."206 The fault in this reasoning was that in the immediate case, the refusal to appear occurred sixteen years earlier, which allowed time to ascertain and consider motives. It failed to take into account the immediacy of most news events. When a news story is breaking, the motivations of the individual involved in the event are not always available as the facts of the event transpire. The failure of a particular witness to appear in court, for example, could result in a default judgment. If the case were a public controversy, it would seem that media coverage of this action would be protected by the constitutional privilege. Based upon Wolston, though, the individual's status could not be determined until the motives for such a failure to 205443 U.S. at 167. l37 appear were revealed. With the pressures of news gathering and an issue's limited newsworthy life, a journalist cannot always wait for motives to be revealed. If comment is withheld until the motivation is determined, the newsworthy value could fade. Again, the Court was placing the journalist in the position of blindly assuming the risk of publication. In determining the individual's motivation, the Court focused upon the "nature and extent" of involvement in the issue. It may be true, as the Court concluded, that Wolston's "failure to respond to the grand jury's subpoena was in no way calculated to draw attention to himself in order to invite public comment or influence the public with respect to any issue,"207 but if this were a breaking story, such an immediate conclusion on the part of the journalist would necessarily have to be speculative. There are occasions where the media must be able to assume "action by inaction" on the part of the individual. The fact that Wolston was related to a convicted espionage agent would not have implied public figure status; nor would the fact that he was called to testify about his knowledge of espionage activities. The fact, though, that he failed to appear and was charged with contempt, thrust him into the controversy in what appeared 207Ibid. at l68. l38 to be a prominent and directed role. It was a significant event within a legitimate public controversy. Regardless of the motivation, in certain instances the intentional inaction of an individual can play an influential role in the resolution of the particular issue. Thus, in such instances, voluntary inaction should constitute a voluntary thrusting. This "action by inaction" concept would allow the media to report upon available facts when it could be shown that the individual's motivations were not immediately assessable. In this way, the journalist may proceed, where the inaction influences the course of the controversy, without being confronted by the uncertainties of indeterminate motivations. While the dual standard based upon individual status, provided in the £311; definition, seemed fairly innocuous on balance, the methodology utilized by the Court in Firestone, Wolston and Proxmire in administering it proved most ominous for media interests. Its application in these areas revealed that judicial implementation will serve more as a protective device for private individuals than as a balancing agent of free expression and reputational interests, as it was proposed to be. Despite how rigid, incongruous or judicially discordant one may view the Court's usage of the definition, it is an intricate part of the current law of defamation. Since this l39 "balance" is the standard within which journalists must work, it is necessary to draw a composite picture of how the Court envisions the characteristics of the "public figure." From an examination of the reasoning and appli- cation of these cases, it is possible to draw certain conclusions. The "general" public figure category appears to be measured not so much upon the level of the individual's overall notoriety or prominence, as the definition suggests, as upon how much influence over public opinion the individual derives or could exert from the notoriety or prominence. It is not enough that the individual's name or position claim a significant measure of public recognition, he must also command enough public attention to influence public decisions, if he so chooses. This category will contain the most socially and politically visable individuals; the potential "movers" in society. The individual must have a high measure of visibility and be able to utilize the accompanying power in the marketplace of ideas. A person can be said to enjoy a measure of public recognition, but if that public notice does not place him in the position of being able to potent- ially influence public thought, he does not fall within the category of the general public figure. l40 The more complicated and uncertain distinctions are in the application of the limited-issue public figure category. The identification of individuals who become public figures as a result of thrusting themselves to the forefront of a certain issue is where the journalist's position will be the most tenuous. It is this category of news which most often confronts journalists since it is usually events, rather than personalities, that bring individ- uals to public attention. The individual must make a concerted effort to affect the resolution of a public controversy. This is a narrow distinction that hinges upon the individual's actions and intentions within the controversy. When Elmer Gertz con- sented to represent the family of the slain youth, for example, the issue was already a public controversy. The attention of the media was focused upon the case and Gertz was most likely aware of the probability of media exposure. The fact, however, that he did not intentionally attempt to resolve the particular controversy or appeal to the media to influence public opinion allowed him to maintain his private status. A contrasting example of this distinction was Exner v. 208 American Medical Association, a lower court decision, based 208529 P.2d 863 (1974). l4l upon the stipulations of ggrtg, which found the plaintiff to be a public figure. The plaintiff was a physician who was an opponent of public water fluoridation. His level of recognition within his profession and circle was roughly equal to Gertz's recognition within his profession and circle. Both had authored books and articles and enjoyed a recognition level sufficient to lecture before groups and appear on local radio and television broadcasts. The distinction was that the plaintiff in Exner drew his level of public recognition from the issue of fluoridation. The prominence he enjoyed was intertwined with the public controversy in question. More importantly, his actions were actively directed at stopping the practice. Gertz's public reputation was separate from the particular controversy. His level of public recognition was established before he entered the controversy and he did not attempt to further enhance it or to direct media attention at the position he advocated. This procedure called for fine distinctions of words and actions and their effects. Firestone further complicated this weighing procedure when it ruled that even the seemingly clear appearance of public status based upon the individual's character, statements and activities was no guarantee. The Court's interpretation of Mrs. Firestone's role indicated that l42 an individual may be centrally and actively involved in a public controversy and may seek and even encourage the public attention that accompanies active involvement in a public controversy, yet retain public status. The aggregate effect of Wolston and Proxmire was to further narrow the limited-issue public figure. The two cases advanced the Firestone thesis that an individual had to purposefully thrust himself into the controversy with definite designs toward influencing the outcome. A person would become a limited-issue public figure "only if he literally or figuratively 'mounts a rostrum' to advocate a particular view."209 The Court viewed public figure status as a tool to achieve an end. The individual must intentionally pick up that tool and actively use it in a directed manner to become subject to constitutionally privileged comment. Thus, the post-ggrt£_measure of the limited-issue public figure category requires the journalist to consider a two-fold analysis of action and intention. First, it is necessary to ascertain if the individual's purposeful activities within the controversy garnered a level of recognition and prominence sufficient to influence its 209443 U.S. at l69. 143 disposition. Second, the journalist must assess the indivi- dual's intentions within the controversy. There must be significant reason to believe that the intent of the actions was to influence a position. Unless both of these elements apply, the assumption must be that the individual did not surrender his private status. D. "Public Controversy" As Part of the Public/Private Definition Firestone added a new element to the public/private status definition. It imposed the preconditional requirement that the issue from which the defamation stemmed be a "public controversy." Only after that requirement was satisfied would the character and activities of the individual become a consideration. The new "public controversy" concept demanded far more of an issue than simply that it be of general or public interest. A public controversy, as envisioned in Firestone, had to possess a cogent level of importance. The subject- matter of the issue necessarily had to have a potential to alter, in some significant way, the public commonweal or consciousness. The predominant consideration appeared to be the amount of influence an issue could exert upon public thought, rather than the interest value or concern generated by it. In weighing the value of an issue to determine whether 144 it was a genuine public controversy, the rule of measure was based upon its potential impact for social change. The manner in which the public controversy requirement was implemented in Firestone strongly suggested that the Court intended to restrict the public figure designation to controversies where the prominence was derived from political, rather than mere social concern. The further away the subject strayed from the realm of public affairs, the less likely the matter would be deemed a public controversy and the individual involved would be deemed to have public figure stature. The Court's application and determination of the public controversy concept failed to reflect the intent of the £313; balance. In applying this new concept, the Firestone majority suggested that even if Mrs. Firestone had been judged to be a public figure for this issue, the constitutional privilege still would not have been extended, since the issue was not a "public controversy." The whole public controversy concept, though, seems foreign to the individual status rationale offered in QELEE- A reading of the full text of ggrtz_makes it doubtful that the Court ever intended a strict public controversy valuation to be a measure in determining public status. If there was one overriding theme in the Court's rejection 145 of the Rosenbloom plurality, it was the difficulty in identifying when an issue genuinely becomes a public contro- versy. The indecisive nature of the concept made it an inadequate scale of measure for the application of the con- stitutional privilege. In rejecting the process that required an appraisal of the public value of a matter, the Court said, that requiring such a judicial measurement would force "judges to decide on an ad hoc basis which publications address issues of 'general or public interest' and which do not." Such a difficult and subjective system "inadequately serves both competing values at stake." The Court concluded, "[w]e doubt the wisdom of committing this task to the conscience of judges."210 Having rejected the appropriateness of judicial inquiry into the determination of an issue's public controversy value in gertz, it is highly unlikely that it would sanction such a process in its new balance. Yet that is exactly how the Firestone majority interpreted the term "public controversy" to be used. Even if one were to accept the Court's reasoning that a "public controversy" measurement was meant to be a part of the Gertz definition, the Firestone reading of the concept was so restrictive as to limit the application of the 210418 u.s. at 346-47. l46 constitutional privilege to only those controversies of the most critical and immediate importance. Firestone left the very dangerous presumption of law that only those issues unequivocally necessary to an informed society required constitutional protection. Instead, the presumption of law should be that only those issues of a truly non:public nature should lack constitutional protection. If the "public controversy" concept was read in this broader sense, much of the chilling uncertainty would be removed. This method would more properly incorporate first amendment interests into the balance. The media would be placed in a far less vulnerable position when having to guess how a court will characterize a particular controversy in addition to having to guess how the individual's status will be characterized. The restrictive Firestone application of the public controversy concept will significantly stifle the development of legitimate public discussions. Public controversies usually begin simply as matters of general or public interest. It is impossible to draw the exact line where an issue actually becomes a public controversy. When a specific issue appears to involve matters of a non-public nature, it should suggest to the journalist that he proceed with the utmost caution and chariness. But if first amendment l47 interests are to be served, the balance must allow leeway for the media to develop those issues that are of potential public importance. In many instances, it is only through airing in the media that issues become legitimate public controversies. Wolston and Proxmire further expanded upon the nature of the "public controversy" concept. Firestone was con- spicuously vague as to precisely what would constitute a "public controversy" designation. It recognized that certain aspects of an individual's personal life were not subject to public speculation, but appeared to be intentionally uncertain with regard to further definition. It was this uncertainty which led to the confused application of the "public contro- versy" concept by the lower courts in Wolston and Proxmire. In both cases, the lower courts found a public controversy to exist, yet the Supreme Court overwhelmingly rejected this proposition in Proxmire and qualified its acceptance in Wolston. The Court gave judicial form as to how it intended for the public controversy concept to be applied. An issue that simply sparked public attention, concern or discussion was ggt_enough to constitute a "public contro- versy.“ The Court perceived a public controversy as an issue that, in itself, tended to arouse debate and compelled v 148 2ll pe0ple to disagree and take sides. The Court stressed the distinction between issues where the subject-matter was simply of public concern and those issues where a public controversy was actually found to exist. In Proxmire,212 the Court said that the defense had identified "concern about general public expenditures" as the public controversy in 2l3 question. The Court rejected this position saying that the issue of public expenditures was a concern shared by most people, but not a controversy. It did not offer any basis for contention; therefore it did not qualify as a "public controversy." The Court made a clearer delineation of this distinction in Wolston. It found it "difficult to determine with precision the 'public controversy' into which" the defense suggested Wolston had "thrust himself."214 If the issue of the article was judged to be the general matter 2]]Jean Arnwine, "Wolston and Hutchinson: Changing Contours of the Public Figure Test," l3 Loyola of Los Angeles Law Review l79, 195 (l979). 2'25enator Proxmire is an individual, but his position in the case was akin to a media outlet and the ruling against him affected media interests. For the purpose of this discus- sion, Proxmire's position will be discussed as synonymous with the media. 213443 u.s. at 135. 214443 u.s. at l68 n. 8. l49 of "Soviet espionage," it was, again, a concern, but not a public controversy. This was based upon the reasoning that "there was no public controversy or debate in 1958 about the desirability of permitting Soviet espionage in the United States [since] all responsible United States citizens understandably were and are opposed to it."215 If. though, the nature of the issue was judged to be the more specific adversative examination of the "propriety of the actions of law-enforcement officials in investigating and prosecuting suspected soviet agents," a public controversy would exist.216 This was an issue which could arouse debate and spark dialogue, thus constituting a public controversy. The requirement that the issue be adverse in nature significantly narrowed the class of potential public con- 217 troversies. That, though, appears to have been the intent of the Court. It was the logical next step in the Court's overriding concern that every individual designated a "public 215Ibid. Justice Brennan's dissenting opinion rejected this position; agreeing with the court of appeals that "the issue of Soviet espionage in l958 and of Wolston's involvement in that operation continues to be a legitimate topic of debate today...." 443 U.S. at 172 (quoting 578 F.2d 427, 43l). 216443 U.S. at 168 n. 8. 217Arnwine, "Wolston and Hutchinson: Changing Contours of the Public Figure Test," p. 196. lSO figure," intentionally, actively and knowingly placed them- selves in that position. It added protection to the interests of individual reputation at the continued expense of first amendment interests. The required adverse nature of the controversy places yet another element of judgment upon the journalist and greater potential for misjudgment. The whole public/private status definition, as discussed earlier, requires subjective judgments. This new element within the judgment process instills an even greater subjective sense. Everytime a further distinguishing element is added to the process, it becomes more subjective. The more subjective the determination, the more the final judgment will be based upon the particular judge's opinions and beliefs and less upon the rule of law. The greater the subjective nature of the element, the more it becomes a "crap-shoot" for the journalist. The perfect example of this situation was demonstrated in Wolston. The issue of "Soviet espionage" could very convincingly be argued to be of an adverse nature. The six justice majority opinion said that it was not, but the two justice concurring opinion,218 the dissenting opinion and the court of appeals ruling believed that it was a public controversy. 218The two justice concurring opinion found that the issue was, indeed, a public controversy in l958. It was only over the period of years that its public importance declined. l5l Thus, while the Court attempted to define more precisely the guidelines of the ”public controversy" concept, it, in fact, made it more subjective and variable to individual interpretation. The whole application of the Firestone-Wolston-Proxmire public controversy concept lacks the continuity and pre- dictability necessary to any equitable balance. A journalist could conscientiously apply the facts to the process described and still arrive at a different conclusion from a court of law. The fact that consideration and reason was used in the determination process matters little, as the primary concern of the Court continues to be with protecting reputational interests and compensating the wrong done to the individual. E. "Access" As An Element of Public Status One of the distinctions the Gertz Court found between public figures and private individuals was the public figure's greater ability to resort to "self-help" means to counteract 2'9 Judicial proceedings were intended the defamatory comment. only as a final step for those who had no other resort. Since public figures usually enjoyed greater access to the media to combat false statements, they had less need for 219418 u.s. at 344. l52 judicial protection. The protections that Gertz attempted to redefine were for those individuals who lacked such access. The holding in Firestone proved inconsistent with this reading. The facts of Firestone speak for themselves; Mrs. Firestone hardly lacked access to the media. During the course of her divorce proceeding she called several press conferences. The fact that the news media responded to her calls to relate her position indicates the high level of access to the media she enjoyed. Counsel for both litigants were frequently quoted in the media reports. There were numerous revelations throughout the trial regarding the escapades of both parties. When these charges became public knowledge, the media seemed not only willing, but eager to get the response of both parties. It cannot be said that Mrs. Firestone, through her status, lacked the means of self-help. The ggrtg_balance did not stipulate that the defamed individual must be able to fully right the wrong of the publication to qualify as a public figure. It was intended, instead, as a measuring device. The greater the availability of self-help through access to the media, the less need for judicial intervention. Mrs. Firestone enjoyed access to the media and the opportunity to rebut, the two important l53 self-help traits of the public figure according to £3335. Under such terms, Mrs. Firestone's high measure of self-help could hardly qualify her as less than a public figure. The Court ruled, though, that simply having the means of self-help was not enough. The access must be used with the directed purpose of defending a position within the controversy. The fact that she did not use the access as a self-help means to defend her position would seem to be inconsequential from the standpoint of the 93:35 definition. The fact that she did have the self-help means at her disposal would indicate that she qualified as a public figure and not in need of judicial intervention. Proxmire gave a new and even more limited reading to the element of access to the media for rebuttal of the defamation. It found that having access and even aggressively using it to refute a defamation may not suffice. The decision stated that where the access comes after the publication, such access is immaterial in determining public figure 220 status. For access to have any bearing upon the public figure determination, it must be a "regular and continuing access."22] 220443 u.s. at 135. 22‘Ibid. l54 This interpretation of access is far more limiting than it would initially appear. It would imply that an individual could not be propelled to immediate public status by his activities within the incident of public controversy. This new element of consideration requires that the individual must have had media input into the controversy prior to the defamation. Since Proxmire is the Court's most recent ruling, it is uncertain exactly how future Court cases will read this element. Taken in its strictest sense, which is how the Court has ruled in recent decisions, it could suggest that regardless of how thrustful an individual's motives or influential his activities, without previous media input he would not qualify as a public figure. This raises serious questions concerning the whole application of the public figure definition. If, for example, during a peaceful demonstration, an individual emerges from the crowd inflaming emotions that lead to violence and destruction. Prior to Proxmire, there would have been little question as to the individual's designation as a public figure and the applica- tion of the constitutional privilege. It was a legitimate public controversy and the individual's actions were purposeful and directed toward influencing a position. Proxmire, though, added the element of "regular and continuing access" to the 155 media. If, prior to the incident, the individual possessed no public character or had made no public statements on the issue of concern, it could not be found that he enjoyed a regular connection to the media. After such an incident, the individual would unquestionably have vast access to the media with which to refute a defamation, but that, according to Proxmire, is immaterial in determining public figure status. If Proxmire is to be interpreted as it appears the Court intends, this individual would be free to sue the publication for defamation as a private individual. In addition to the potentially extreme situations, such as the one described in this example, the media will face the more common problem of judging exactly what will satisfy the "regular and continuing access" requirement. How many times must the individual be quoted in the media to fulfill the stipulation? Would the publication of a letter to the editor be enough? Would the fact that an individual had regular and continuing access to the local media satisfy the public figure requirement for a national publication? This is yet one more area of uncertainty opened by the Court. It is a quantitative judgment in which the media must assume an ever increasing risk in publication. 156 G. A Summary of the Public/Private Status Definition During the progression of cases from Gertz to Firestone to Wolston and Proxmire the Court unquestionably shifted its prospective of who should be designated a "public figure." According to the EELLE rationale, those who had voluntarily sought public attention and, in turn, possessed access to the media to rebut the defamation, were to be given less protection because the state's interest in providing a forum for redress was correspondingly reduced.222 In the three subsequent cases involving the public/private classification, the Court repeatedly explained away factors that would otherwise have indicated a public figure designation under the gertz rationale. As a result, the limits of the constitu- tional privilege have been confined to a very narrow and journalistically risky area. Firestone, Wolston and Proxmire gave onerous form to the public/private status definition. The post-Q3313 balance presents a maze of requirements which must be satisfied before the individual will qualify as a "public figure." The prevailing application of defamation law makes those instances when the journalist can publish with certainty 222Thomas J. Sniscak, "Libel Becomes Viable: The Narrow Application of Limited Public Figure Status In Current Defamation Law," 7 Ohio Northern University Law Review l25, lBl, (1980). l57 rare or nonexistent. There are certain elements, though, with which the journalist should be familiar. The following is a general summary of how the Court currently envisions the application of the limited-issue public figure classification. There are three main elements that must be satisfied before there can be a finding of public figure status. The first element is the issue. It must be deemed worthy of the "public controversy" designation. That means that the issue must be essential to an informed society. Though it does not limit the category to political issues, that appears to be the safest area for the journalist to assume that protection will be granted. Also, the issue must be of a nature that sparks controversy. Rather than simply re-enforcing a public concern, it must tend to force the public to give thought to the controversy and arouse dialogue. The second element involves an examination of the individual's motivation within the controversy. The individual must be intentionally involved in the public controversy and his actions must be specifically directed to influence particular ideas, beliefs or values. Journalistic coverage and comment of an individual may not extend beyond the "nature and extent" of the individual's involvement in the public controversy. Comment and criticism must not reflect upon the individual who has not "voluntarily thrust" himself 158 into an adverse position. The final element is access to the media. The access must be used in a directed manner to influence a position and it must have occured on a regular and continuing basis prior to the defamation. All of these circumstances, characteristics and inten+ tions must be present for the individual to qualify as a limited-issue public figure. A deficiency in any aspect could lead to the withholding of the constitutional privilege. This summary of the attributes of a limited-issue public figure, though, does not provide the journalist with a consummate set of workable guidelines. Most of the judgments that are required of the journalist are either subjective in nature or demand an understanding of motivations not always evident as the story is developing. Thus, even the most conscientious journalist who is familiar with the pitfalls in defamation law assumes a risk in publication and must bear the burden in making subjective or quantitative judgments. The effect of the progressive narrowing of the public figure category has been to instill an increasing air of deterrence through uncertainty. CHAPTER VII REPORTING OF JUDICIAL PROCEEDINGS AND OFFICIAL RECORDS The Rosenbloom balance was based upon the presumption that there are certain categories of information of such vital interest and importance to every individual that the protection to the media must be insured to guarantee pub- lication. The Firestone balance assumed exactly the opposite course from Rosenbloom. It virtually adopted the position that no category of information was so inherently important that it took precedence over the private individual's rep- utational interests. If the fault of the Rosenbloom balance was to be found in its broad application, the major fault of the Firestone balance is in its single-minded adherence to protecting the reputational interests of the private individual over all other valid considerations. Nowhere was the impracti- cality of this narrow approach more evident than in the Court's rejection of the proposition that reports of judicial proceedings possess such a level of importance that they merit special protection. The Court's reasoning was based upon the premise that all court proceedings do not involve issues of public interest. l59 160 Since individuals are usually drawn into court to obtain redress or to defend against actions initiated by others, they are not voluntary participants. To grant a special protection to all judicial proceedings could expose private individuals to media attention without the protections of defamation law. The basic fault in the Court's reasoning was its initial judgment that all judicial proceedings are not of vital public interest and importance. While each individual case may not inherently be of such interest, the fact that it is placed for public resolve gives it its public value. The courts are public adjudicating bodies. They settle Civil disputes and crimes against the state. Their decisions become public law and set future precedents. Since every individual is expected to live within the framework of the law, any determinations which affirm, reject, redefine or elucidate upon some element within that framework of the law is automatically an issue of public importance. In the past, the Court has recognized the critical role the press plays in "subjecting the...judicial process to "223 extensive public scrutiny and criticism. This concept was best expressed by the Court just a year before its 223Sheppard v. Maxwell, 384 u.s. 333, 350 (l966). l6l Firestone ruling. In Cox Broadcasting Corp. v. Cohn,224 it said, "[inth respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice...."225 Firestone showed a total lack of understanding by the Court for the difficulties encountered by laymen attempting to summarize and report judicial proceedings. The Court's defamation rulings of the Sullivan to Rosenbloom era revealed at least a rudimentary comprehension of the procedures and difficulties involved in the journalistic process. It gave consideration to the fact that within its confines and pres- sures, journalism was an imperfect craft. If the public was going to benefit, a margin had to be allowed for that imperfection. One of the great faults of §££££a and more especially Firestone, was the judicial demand of factual precision and a comprehension of legal concepts by laymen in reporting official proceedings. Firestone's rejection of the claim that all media reports of judicial proceedings should be protected by the actual malice test was narrow in scope and did not provide the tolerable margin for error 224420 U.S. 469 (1975). zzslbid. at 491-92. l62 that is essential when the journalist is called upon to interpret official proceedings. The Court in Firestone said that the public interest in accounts of judicial proceedings was amply protected by the 226 provisions of Cox. But Cox only precluded states from imposing civil liability upon the publication of truthful information contained in official court records open to the public. The divorce judgment in Firestone proved that Cox was not enough to protect the reporting of judicial proceedings, even when the publication makes a genuine effort to verify its facts. The decision issued by the district court judge could be termed confusing at best. The decision was not based upon the grounds for action presented to the court. Rather, it gave lip service to the-grounds, but found its affirmation of the divorce decree in some obscure reasoning; a ground that had never been recognized by Florida law as a ground for divorce. Additionally, the article faithfully presented the premise of the divorce judgment. Time's report read as a legal layman might interpret this confused reasoning. By its very nature, legal material is abstruse, technical and filled with confusing jargon which requires a specialized expertise. ox would be sufficient protection if every 226424 U.S. at 452. l63 reporter of judicial proceedings had a law degree, but short of that, there must be a permissible margin for good-faith error or misinterpretation.227 The rationale which allowed for the publication of the true contents of public records, but would punish inadvertent mistakes or misinterpretation of fact, was a throwback to the line of thinking that existed in defamation law prior to the extention of the constitutional privilege. Prior to l964, the discussion of the activities of public officials was recognized as beneficial and was protected so long as the material was truthful and factual. But the benefit, the traditional line suggested, could be found only in the truth. Since the misstatement bore no actual value, it was deserving of no protection. Anytime journalists reported such 227Time magazine reported the grounds for divorce as extreme cruelty and adultery. As discussed earlier, the divorce court's ruling mentioned these elements, but the official grounds were based upon a more obscure and confused reasoning. Time's "fault," according to the Florida district court, was based upon the reasoning that however obscure or confusing the divorce court's ruling, it was clearly stated that Mrs. Firestone would receive alimony. According to Florida law, alimony cannot be awarded when the grounds of the divorce involve the wife's adultery. The Florida court determined that "fault" was involved on the part of Time for not recognizing this fact. It would be difficult to imagine a situation that better illustrates the media's vital need for special protection when reporting upon the highly technical and often vague area of judicial proceedings. l64 activities, they did so at their own risk. Sullivan recog- nized the inequity of such a system and its harmful self- censoring effects upon information of recognized benefit. It reasoned that the simple right to accurately state the facts did not fulfill the requirements of free expression. Without protection for good-faith errors in the discussion of public activities, there could be a fear or hesitancy to make any such comments. In Firestone, the Court failed to see the correlation. Cox provided for the truthful publication of public records as socially beneficial, but Firestone said journalists may only publish at their own risk. Providing only for the protection of factually accruate information is not sufficient to guarantee that all beneficial information will be transmitted. There must be a balance of protections that protects the media as it performs its function in dis- seminating information of acknowledged value. Requiring a strict standard of factual correctness in reporting judicial proceedings and official records is chilling in nature without fostering a higher level of journalistic practice. In a concurring opinion in Firestone, Justice Powell conceded that the newsmagazine went to great lengths to confirm its facts, "[t]here was substantial evidence, much of it uncontradicted, that the editors of Time exercised considerable care in checking the accuracy of the story prior 165 to its publication.”228 lime, in fact, could not have exercised greater care under the circumstances of publication.229 A strict doctrine of factual accuracy could not have encouraged lime to act any more responsibly or prudently. The only way the mistake could have been avoided was to refrain from publication. That is the only option for protection offered by Firestone's doctrine of liability. The First Amendment's promise to protect the flow of vital information was intended to prevent situations where the media would be forced to make such a choice. In Firestone, the Court said that to allow a special protection to all judicial proceedings would amount to nothing more than a return to the Rosenbloom standard.230 This would 228424 u.s. at 466. 229The divorce decision was rendered late in the after- noon of December l5, l967. The next issue of the magazine would go to print early the next day. In the ensuing hours, the magazine received a wireservice report that Russell Firestone had been granted a divorce from his wife, whom he had accused of adultery and extreme cruelty. Time's Miami bureau, in response to a request for more information, quoted exerpts from the court's opinion that strongly inferred adultery. Later, the magazine's Palm Beach stringer reported that Mrs. Firestone's attorney had said the technical grounds for the divorce were given as extreme cruelty and adultery. All of this transpired within the limited time, mostly evening hours, that was available for verification. 230424 u.s. at 454. 166 be true, but only within the very limited range of judicial proceedings and official records. This information is of such value to the public well-being that it justifies extending special first amendment protections. The Rosenbloom standard was broad in scope, which made application complicated and sometimes unfair. Within the limited range of judicial proceedings, though, the application of the actual malice test is neither too vast nor too encompassing. Its limits are clearly defined and recognizable to the public and the media. The decisions in judicial actions and the informa- tion contained in official records, even when seemingly obscure, bear upon the laws of the land. As such, it genuinely does concern every citizen and merit special protection. When information of recognized and acknowledged value to the public is at stake, and the extent of the constitutional privilege can be confined to a limited and definable area, it is not unjustified to place the public's right to receive vital information over the protections of the private individual. Permitting a constitutional privilege for this special area would have necessitated a standard based upon the issue rather than the status of the individual. That, perhaps, was its greatest sin in the eyes of the Firestone purge of all remaining elements of the Rosenbloom standard. In the Court's I67 drive to totally erase the Rosenbloom issue-oriented concept, it failed to recognize the special circumstances of judicial proceedings and official records. To approve such a special privilege would have upset the whole tempo of the post-Q3355 doctrine that has emphasized the individual as the focal point from which all determinations originate. The reporting of official proceedings and the contents of official documents is an essential part of the process played by the media in keeping the public informed of the activities of their government and the laws that guide their lives. In Cox, the Court acknowledged the essential role the media plays in condensing, interpreting and disseminating this vital information: [I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations.... Without the information provided by the press most of us and many of our represent- atives would be unable to vote intelligently or to register opinions on the administration of government generally.23] The Court's ruling in Firestone jeopardized the free flow of this vital information by forging an atmosphere condusive to deterrence. Since it would be infeasible to print a verbatim offering of every judicial proceeding or official 231420 u.s. at 491. l68 document, it falls upon the journalist to wade through the information and interpret its meaning. As was demonstrated by the Firestone divorce judgment, such information is not always clear, concise and to-the-point. Unless publications are accorded leeway in offering rational interpretations, any report of such official activities is a flirtation with defamation law. The only alternative is to refrain from publication. CHAPTER VIII THE MEDIA AT TRIAL: THE CHILLING EFFECTS OF THE INEQUITABLE BALANCE A. The Media In Retreat Recent Court defamation decisions have burst open the courtroom doors to plaintiffs with real or imagined vexations against the media. The clouding and even obscuring of the major protections of the constitutional privilege has left the media open to almost unlimited litigation. While our legal system pertinaciously assures every person his or her day in court, its misuse could threaten the free flow of information. In all areas of defamation law the protections of the media have been shrinking. A chilling effect has resulted as journalists must question the basic procedures of the journalistic process. The ultimate result of this judicial doctrine of deterrence could be a reluctance by the media to deal critically with groups or individuals where the potential for litigation is apparent.232 232Harriet F. Pilpel, "Cases of Libel and the Right to Privacy Raise Serious--and Inhibiting--Questions," Publishers Weekly, March 27, 1978, p. 50. l69 l7O B. ‘Inherent Prejudicies In the Trial System Most of what has been discussed thus far has involved a balance of legalgprinciples between the interests of free expression and individual reputation. It is these interests with which the Supreme Court has been primarily concerned. What may appear to be a balance of legal principles, however, does not always translate in actual practice. A theoretical balance in the law does not always reflect certain outside influences that effect the practical operation of the media. In court, these influences tend to work against the media- defendant. These influences, not considered in the balance of legal principles, can act as significant deterrent forces upon media thought. One such influence that confronts the media in defama- tion litigation is the vast discretion given to juries. Theoretically, the defendant is judged by a jury of his peers, open—minded, unbiased, and prepared to rule only on the facts presented at trial. As noble as this ideal may be, it is a legal fiction when it comes to the realities of tort law.233 All jurors bring certain sympathies, pre- judicies and points of view into the courtroom. Try as they might to place these feelings out of their minds in fairness 233R. Fletcher, "Fairness and Utility in Tort Theory," 85 Harvard Law Review 537, 540 (1972). l7l to the litigants, these are subliminal effects that make up every individual's thought process. These outside influences are most pronounced in tort law in general and defamation law in particular. Juries historically have been plaintiff- oriented in tort actions.234 Tort law involves an alleged hurt to the plaintiff inflicted by the defendant. The drama of the trial can act as a showcase for the plaintiff to display his hurt and arouse the sympathies of the jury. In tort cases involving physical violence or accident, the plaintiff can use his bruises, bandages or broken bones as tools to sway the jury. In defamation cases, the plaintiff bears his humiliation, mental anguish and suffering that resulted from the reputational injury. On the other side of the trial table, the jury sees the defendant, unhurt and unscathed. Since the plaintiff's hurt resulted from the defendant's mistake, it is only natural that their initial sympathies would tend toward forcing the defendant to bear the economic impact. When the defendant is a major newspaper, magazine or broadcast station, it further appears to the jury to be a grossly unfair contest--a battle of a defenseless individual against a vast and powerful organization that callously ignored the rights of the individual. It is not 234Prosser, Law of Torts, §37, p. 208. l72 difficult to see how a jury would be more influenced by individual plight than by the concepts of free expression. The media-defendant must also fight the fact that the jurors are journalistic laymen, unfamiliar with the pressures and deadlines inherent in the journalistic process. These pressures and deadlines must be met to achieve the greatest benefits from the newsworthy value of a story. It is more often this element, rather than negligence or incompetence, that results in inadvertent error. The weak position of the media-defendant before the jury is, perhaps, most pronounced when the defamatory statement espouses an unpopular cause. On the conscious level, jurors may view their part in the litigation as a menas of punishing unpopular opinion, as appeared to be the case on the trial level in Sullivan. On the subconscious level, jurors may close their minds to the judicial rights and wrongs of the case because the defamatory material is contrary to their own convictions. The media-defendant must overcome these inherent prejudices before he can begin to defend his legal position. In essence, the defendant is placed in the position of fighting a double battle. Most of the cases discussed in this paper have involved rulings of the United States Supreme Court, federal appellate courts and state supreme courts. It is important to remember, though, that all cases 173 must begin at the trial level and most never go beyond that point. The mere thought of having to defend a position to a hostile jury or convincing a jury of the intricacies and pressures of a journalistic process that makes a certain amount of unintentional error inevitable, is enough, in itself, to foster a chilling effect. The rulings of the Sullivan to Rosenbloom era made it appear that judicial weight was leaning too heavily to the media. In reality, it was necessary to lean judicial principles toward the media to balance the scales in practical operation. These decisions placed strict curbs upon the types of cases that could go to trial and the nature of evidence and liability upon which juries could rule. What appeared in theory to be a substantial repudiation of the protections to the individual, proved in practice to be a set of protections against the inherent prejudicies of the trial system. It can well be argued that Rosenbloom went too far in extending this line of thought. It lifted too much of what rightfully should have been left to the consideration of a jury. It can equally be argued, however, that current defamation law has turned its back on offering protections to the interests of free expression where the inherent inequities of the trial system work against the media. It l74 has returned to juries the vast discretionary judgments that intensifies the sense of misgiving and deterrence. C. The Deterring_Effects of Litigation As long as defamation laws exist, even the most sincere and competent journalist will experience some chilling fall- out. The greatest threat, of course, is the potential of losing a defamation action and suffering an outrageous damage award. The lesser, but more common, threat is the costs of defending a defamation suit.235 Another deterring influence not considered in the Court's balance of legal principles occurs when publications make editorial concessions and compromises based upon the potential threat of litigation and the expenses that will necessarily have to be incurred. Even when the chances of success are high, the costs of defending a likely suit may deter or compormise the publica- tion of potentially inflammable material. It can cost as much in fees and expenses to successfully defend against a charge of defamation as it does to lose. In this sense, the sincere and competent journalist runs the same risks as the 235Charles H. White is a trial attorney specializing in journalistic law and was formerly with a firm representing the Toledo Blade. Mr. White estimated that by 1978 standards it would cost a minimum of $8,000 in fees and expenses to defend any suit that went to trial, and could run much higher. The successful defense in Rosenbloom, for example, is reported to have cost almost $l00,000 and that was a decade ago. l75 careless or negligent journalist. The late Washington columnist Drew Pearson was sued for defamation approximately 275 times during his career. He won all but one suit, which was settled out of court. To defend himself in these suits he was forced to spend hundreds of 236 While Pearson was in thousands of dollars in legal fees. a position where he could afford to fight the constant legal battles, most publications and journalists are not. The obvious temptation is to pull back, to impose a form of self-censorship as a means of protection. Rosenbloom recognized the chilling effects of potential defamation litigation. It said, "it is not simply the possibility of a judgment for damages which results in self-censorship. The very possibility of having to engage in litigation...is threat enough."237 The actual malice test was extended to the area of "public issues" to reduce the potential situations that bring on defamation litigation. With less cause for action, there would be less of a threat of having to engage in litigation. The new temper of the Court toward maximum protection of reputational interests has reimposed all of the old threats 236Don R. Pember, Mass Media Law, (Dubuque: Wm. C. Brown Publishers, l977), p. 97. 237403 U.S. at 52-53. 176 of litigation expense. Defamatory suits present an ever- present danger. Rather than approaching serious social issues with vigor, as the Sullivan to Rosenbloom era Court envisioned, publishers must approach subjects with caution, choosing their fights on an economic basis. Some plaintiffs institute even groundless suits, hoping the nuisance value will force the publisher to settle rather than carry it to trial.238 Where as most major publications would usually fight these suits, sometimes the smaller ones must swallow principle and settle to keep expenses down and their heads above water. The majority of the print media in the United States are small, limited circulation publications. Economic factors necessarily must be considered when the publication's continued existence is in jeopardy. The spiraling legal expenses resulting from increased pretrial discovery and the greater number of cases that will go to trial because of the subjective nature of the public figure classification could be the economic straw that breaks the camal's back. Financially secure publications will be able to accept the additional litigation costs and mitigate them to an extent through increased prices and advertising rates.239 Actual 238Ashdown, "Gertz and Firestone: A Study in Consti- tutional Policy-Making," p. 667. 239Duckworth, "Communications Law: The Decline of Press Privilege," p. 70. l77 self-censorship due to additional potential costs should have little effect upon the major publications.240 It is a great deal easier to stand on principle and fight when the prospect of financial ruin is not a clear possibility. In smaller and financially marginal publications, though, the threat of additional litigation costs could materially impede operating procedures. These publications often do not have the financial resources to engage in prolonged defamation actions. This makes these publications particularly vulner- able to harassment and imprOper inquiry. A smaller publica- tion would be at the mercy of compromise or even self-censor- ship when its principles are necessarily only as strong as its financial statement. Another factor that will weigh against the publication is the potential absence of key personnel for extended periods. In the case of Herbert, for example, the preparation and execution of almost 3,000 pages of depositions took Lando from his job for hundreds of work hours. A large, financially secure organization such as CBS could undoubtedly replace him during his absence without too much injury. But the loss 240Broadcasting, 23 April 1979, p. 28 and Editor & Pub- lisher, 5 May 1979, p. 24. Editors of major metropolitan dailies suggest concern over the Herbert ruling, but doubt that its threatening elements will significantly affect their functioning or operations. 178 of a key worker for an extended period would unquestion- ably effect the performance of a small publication with a limited staff. The potential for self-censorship is not hard to perceive. The overall result of post-Q3335 law has been to abrogate the effective use of summary judgment procedures. The use of summary judgment was one of the media's most potent weapons against frivolous or malicious suits. By instituting summary judgment procedures, the media-defendant would force the plaintiff to justify the cause of action. If the plaintiff failed to establish injury and liability, the case would be thrown-out before ever coming to trial. The use of this procedure allowed publishers to avoid large litigation expenses that could result from groundless suits. The effective application of summary judgment has been reduced to only the most blatant instances of unfounded litigation. Herbert has forced the media-defendant into the position of having to fully establish its case before a cause for action has ever been established. Firestone found that there could still be a cause for action even if the plaintiff was unable to prove actual reputational injury. The presumed- type damages of humiliation and mental anguish are intangible in nature, making summary judgment procedures almost useless. Firestone, in tandem with Wolston and Proxmire, prescribed a 179 public status definition so tenuous and dependant upon subjective judgment that most cases necessarily must go to trial. In those instances where the plaintiff's case is groundless, the publisher will generally win the litigation, but the expenses incurred in going to trial could prove prohibitive. It could be argued that the legal expenses incurred by the plaintiff are just as great as those incurred by the media-defendant. While this may very well be true, it must be remembered that even the most prolific pursuer of defamation litigation engages in only a few cases over a lifetime. A publication is consistently confronted by the threat of litigation. In his Firestone dissent, Justice Brennan said, "[t]he specter of such expenses may be as potent a force for self-censorship as any threat of an ultimate damages award."241 The procedures and practices designed to protect media interests are useful only when they are within the practical reach of all types of publications. The media consists of outlets such as the New York Times and CBS, who can afford to pursue defamation protections to their limits, but econom- ically secure publications such as these represent only a small percentage of the nation's media. The Court in Herbert, 241424 U.S. at 475. 180 as in Firestone, failed to recognize that a balance of interests involves more than a balance of legal principles. The operational and financial realities must also be considered. While a publication has the right to pursue a defense through the courts, it is not always feasible. When a publication chooses not to print a story or compromises its position on the basis of potential cost, the whole balance of interests is upset. When the Court establishes a balance where the threat of numerous and costly lawsuits for real or imagined injuries could lead to deterrence, the interests of free expression are not served. Justice Marshall's dissent in Herbert noted that when faced with the prospect of escalating litigation expenses, "editors may well make publication judgments that reflect less the risk of liability than the expense of vindication."242 The nature of post-Cert; litigation invites abuses and unwarranted litigation. The only way this can truly be avoided through present Court guidelines is if the court system assumes a harsh position that threatens the potential misuses. This could be accomplished by penalizing those plaintiffs who use the law for vexatious purposes or to attempt to force an out-of—court settlement where the cause 24244l u.s. at 208. I81 243 of action is frivolous. In Nemeroff v. Abelson, a New York court dismissed a defamation action for being filed "in bad faith, vexatiously, wantonly, or for oppressive reasons."244 More significantly, in an attempt to discourage lawsdits of this nature, both the plaintiff and his attorney were assessed costs of $50,000.245 If this principle could be utilized to prevent misuses, it would go a long way toward assuring that the plaintiff's prerogatives will be used only in the means in which they were intended. It would nurture a sense of deterrence to the plaintiff with less than sincere motives. This prerogative of the court would not have to be exercised often. The mere fact that courts are prepared to deal harshly where the plaintiff's motives are insincere would substantially deter harassment motivated suits. Only if defamation litigation is closely guarded by the trial court to assure that it is not abused, can the potential threats of harassment, retaliation or needless litigation be prevented. 2434 Med. L. Rptr. 2505 (1979). 244Ibid. at 2512. 2451bid. at 2514. CHAPTER IX HERBERT: ASSULT ON THE EDITORIAL PROCESS A. Reputational Interests Versus Editorial Autonomy The Court in Herbert was correct in its reading of previous case law that no editorial process privilege had evolved. It was also correct in assessing that Sullivan's interpretation of the First Amendment did not require a privilege which would insulate the journalist from the efforts of a plaintiff to obtain discovery, as Lando had claimed that it did. Neither of these facts, though, precluded the Court from establishing such a privilege. When considered in light of the balancing process of free expression and reputational interests, it would not have been inappropriate to create an editorial process privilege. The Court's address of the issues in Herbert was a utilitarian, cause-and-effect approach. It perceived inequities in the individual's attempts to gain redress and responded by opening the bounds of discovery. That approach, though, failed to recognize the effects upon the more fragile concepts upon which first amendment interests are founded. The effects upon the editorial process and publication judgments will be 182 l83 subtle, but very real. The Court in Herbert placed too high a value upon the individual's right to vindicate his reputation at the expense of valued free expression interests. By allowing unconstrained discovery of the editorial process, Herbert will increase the frequency and extent of litigation. It is not unlikely that the threats posed by Herbert could be reflected in publication judgments. The editorial process could be altered as journalists become reluctant to voice doubts or reservations fearing that a verbal consideration of all of the possibilities could later be interpreted as entertaining serious doubts concerning the issue. The Court's ruling will ease the plaintiff's burden of proof, in certain instances, but the price this end exacts is too great. The added benefits to the plaintiff would hardly justify the blow to the overall function of the media in a democratic society. 8. The Perils of Editorial Probe The Court's examination of whether it should sustain an editorial process privilege was a very shallow examination. On the surface it would seem logical that if examination into the state of mind of the journalist and editorial discussions would help to uncover actual malice or recklessness, it would l84 be germane to the judicial inquiry. There are other elements, however, that also come into play when considering a balance of interests. The most important fact to bear in mind, is that the material which is judicially examined will not be verbatim accounts of the editorial decision-making process. They will be scattered accounts, condensations of opinion, and statements taken out of context of time and circumstance. Additionally, there will be factors involved that cannot be related by a simple restating of spoken words. People can interpret state- ments in ways the speaker never intended. What is offered as conjecture during the editorial process may later be construed as opinion. In recounting previous events, the essence of the moment can be lost. Words spoken among friends and trusted colleagues would not be as guarded or specific as judicial testimony would be. Though an opinion could be reasonable, it could be phrased in a damaging manner. When in the company of associates who understand the nature of the profession and the situation under consideration, the journalist may not feel the need to clarify the sincerity of the opinion. Also, there are the less serious moments. To break the rigors and tediousness of the editorial process, the journalist may joke about the subject under consideration. In the harsh realities of a court of law, such a joke may seem more vicious than funny. l/_ 185 Similarily, a conclusion a journalist reaches, though totally reasonable at the time, may not appear so at a later accounting. It could be hard for a jury to understand opinions or conclusions that were formulated as the story developed. The editorial process is neither an objective nor an exact system. The fact that a journalist may doubt the the veracity of one source while accepting the veracity of another, or vigorously pursuing one lead while allowing another, that eventually proved significant, to lay dormant, could prove damaging. To a jury having the prospective of knowing the whole story and the resulting defamatory injury, those determinations, based upon information avail- able at the time, could appear reckless or even malicious. More importantly, there is a significant difference between the act of considering all of the possibilities and actually entertaining serious doubt. While this may be clear in the journalist's mind, it cannot always be translated to a jury. Accounts of opinions and conclusions formulated during the editorial process may fail to express the complexities of this difference. It would hardly seem that the protections of a standard of "clear and convincing evidence" is served by the admission of this type of intangible evidence. The peril to the editorial process is not in the potential that this type of misconception will occur often. The I86 frequency with which journalists will be found guilty solely upon misinterpreted evidence attained from editorial inquiry will be relatively rare. This though, is not to suggest that Herbert has not affected a highly precarious atmosphere. The damaging effects will more readily be found in how journalists will preceive the threat of editorial inquiry. There is an innate threat to the journalist in the sheer possibility of outside probing into editorial procedures. It will inevi- tably have an inhibiting effect upon the whole editorial process. Though misinterpretation will not be frequent, it will always loom as an abeyant threat. It could alter the editorial process as journalists become defensive and protective without the autonomy of the newsroom. Those commentators who suggest the perils of Herbert have been exaggerated246 have failed to consider the psychological influences that the threat of editorial inquiry could present. The menancing aspects of editorial inquiry will be an omnipresent portent of danger. 246Francis 1. Dale and Mitchell w. Dale, "Full Court Press: The Imperial Judiciary vs. The Paranoid Press," 7 Pepperdine Law Review 24l (l980), and B.L. Duckworth "Communications Law: The Decline of Press Privilege, l9 Washburn Law Review 54 (l980), are two examples. I87 C. The Effects of Editorial Inquiry In assessing the effects that Herbert will have on the balance, it must be examined on two levels. First, the actual effects unrestrained discovery will have upon defamation litigation. Second, the potential effects Herbert could have upon journalistic decision-making. The effects upon defamation litigation, itself, is not likely to change markedly. Plaintiffs will be able to inquire into the editorial process, but rarely will it produce significant results that prove what could not be established through indirect evidence. In discovery, the plaintiff may intrude into the subjective conclusions and mental impressions of the journalist. Journalists will be asked why certain leads were followed while failing to follow others; why the words of one source was believed while another's words were discounted; and what discussion transpired with colleagues while the article was being prepared. At trial, the plaintiff's attorney will attempt to utilize this evidence to present a picture of actual malice or recklessness. The defense will counter with the introduction of evidence concerning activities, beliefs and conversations that sustain a position of competence, diligence and professionalism in the preparation of the story. In most instances, the actions of the journalist who acted reasonably, competently and l88 prudently will attest to the good-faith nature of the error. Generally, information attained through the discovery process will have little effect toward proving recklessness or malice. If information gathered through indirect evidence did not already strongly suggest actual malice, it is highly unlikely that delving into the editorial process will produce such evidence. Even the Court recognized this when it conceded that "plaintiffs will rarely be successful in proving awareness of falsehood from the mouth of the defendant himself."247 Even in those instances were actual malice wa§_involved, it is unlikely that this use of the discovery process will significantly enhance the plaintiff's case. Realistically, if a journalist was corrupt enough to publish a defamation with malice or was so unprofessional as to act with reckless disregard, it is unlikely that he would confess to it in depositions. l'I can't remember" could be the simple means to turn away suggestive inquiries into the preparation procedure. Invoking that answer would effectively shut off the pursuit into the state of mind while the journalist could not be held in contempt, fined or put in jail.248 247441 u.s. at 172. 248"Three Little Words," Editor & Publisher, 28 April l979, p. 96. A _' l89 When this happens, the plaintiff would be left to establish his position through objective, indirect evidence; precisely the route he would have had to pursue without Herbert's allowance of indiscriminate inquiry into the editorial process. In effect, the Court in Herbert gave its blessing to intrusion into the editorial process with little effective chance of actually affecting its desired end. While the actual effects that Herbert will hold upon the results of litigation appear minimal, the effects upon the journalistic decision-making process could prove most chilling. There are several underlying ominous aspects beyond the possible misconstruction of editorial practices that could potentially effect editorial judgment. Justice Marshall's dissent was the only opinion of the five offered by the Court that gave any real consideration to these underlying chilling threats. He observed that the "potential for abuse of liberal discovery procedures is of particular concern in the defamation context. designed to present the broadest scope of relevant informa- tion and facilitate expeditious resolutions can also be misused as tools of harassment, deterrence or retaliation. Herbert 249441 u.s. at 207. 190 made it possible for plaintiffs to delve deep into the editorial process; to force journalists to reveal thoughts, motivations, opinions and facts that would otherwise have remained confidential. This adds a harassment aspect to defamation that Sullivan and subsequent cases sought to prevent. The directives of Rule 26(b) of the Federal Rules of Civil Procedure direct a "broad and liberal" scope of discovery for litigants. Marshall observed that on occasions plaintiffs have used this for "tactics of attrition."250 The possibility of just this sort of abuse is even more prevalent in defamation. Alleged victims of defamation are usually driven by more than a simple desire for financial recovery. Given the nature of defamation litigation, "pre-trial maneuvers may be fashioned more with an eye to deterrence or retaliation than to unearthing germane material."251 Another element of Herbert that could chill editorial judgment, and hence, effect the balancing process will be the necessity of increased adjudication. The factual determination of the media-defendant's thoughts, opinions and conclusions during the course of the editorial process is central to the application of Herbert. According to the Court in Herbert, 2501bid. at 209. 2511616. at 207. l9l it is only through a piecing together of all of these elements that some picture of the journalist's state of mind can be judged. In the course of documenting or defending these state of mind inquiries, however, a major portion of defense costs will have been incurred by the time litigation reaches the trial stage. To this end, the protective elements of summary judgment, the legal tool to defend against nuisance cases, will be diminished. "Rather than submit to the intrusiveness and expense of protracted discovery," Marshall suggested, "even editors confident of their ability to prevail at trial or in a motion for summary judgment may find it prudent" to choose the safer route of deterrance.252 The Court's allowance of broad discovery also threatens the nature of investigative journalism. One of the basic threads that hold most investigations t0gether is the con- fidential anonymity that protects the source. The Court has dictated that journalists may be forced to reveal their sources under certain circumstances,253 but Herbert has made the plaintiff's access to this information readily accessible. Upon the pretext of a defamation action, a plaintiff could 2521bid. 253Garland v. Torre, 259 F.2d 545 (2d Cir. l958) and Branzburg v. Hayes, 408 U.S. 665 (l972). l92 force the journalist to reveal his source in discovery. Having learned the source of the journalist's information and having little cause for actual litigation, the plaintiff could drop the suit, having accomplished what he set out to discover. If the journalist refuses to disclose his source, the question would be submitted to the judge for a determination of relevancy. Since Rule 26(b) dictates a broad and liberal allowance of questioning, it could be judged that the relevancy can only be proved by forcing the journalist to answer. If the journalist refuses to concede, he could be found in contempt254 or a judgment could be rendered against him.255 Thus, to avoid this situation, the journalist could be forced to breach a confidence before the relevancy of such vital disclosures was documented or even before it had been established that a defamatory falsehood had been perpetrated. D. The Questionable Need For Editorial Inquiry The plaintiff can go a long way toward proving actual malice through the use of objective indirect evidence. In Goldwater v. Ginsburg,256 the court of appeals ruled that a 254Federal Rules of Civil Procedure, (Mineola, New York: The Foundation Press, Inc., 1973), Rule 26(b), p. 44. 255 Ibid., Rule 37(b)(2)(C), p. 62. 256414 F.2d 324 (2nd Cir. 1969). l93 finding of actual malice could be based upon evidence that revealed "slipshod and sketchy investigation techniques...."257 With this criterion in mind, the plaintiff could build a solid case that would strongly suggest malice or reckless- ness without resorting to inquiry into the editorial process. Through objective indirect evidence, the jury can infer the intentions of the journalist and the competence with which the story was developed. Justice Marshall emphasized this as his objection to Herbert in a speech to the Second Circuit Judicial Conference: ...I believe that discovery in defamation cases should not be allowed as to the substance of editorial conversations. Particularly because there are so many other means of proving deliberate or reckless disregard for the truth, this privilege, in my view, would be unlikely to preclude recovery by plaintiffs with valid defamation claims.258 A picture of culpable conduct involving actual malice, using indirect evidence, can be formulated through an examin- ation of the objective actions of the journalist. The plaintiff can attack the type of sources used or the credibility given them. If, for example, the journalist 257Ibid. at 339. 258Speech by Thurgood Marshall, delivered to the Second Circuit Judicial Conference, Buck Hill Falls, Pa., May 1979. l94 fails to corroborate evidence that proves false and damaging, where there was opportunity to do so, it could evidence recklessness. This would be especially true if the source was one that lacked credibility. If the plaintiff cannot prove that the journalist had prior knowledge that the source lacked credibility, he can establish that the journalist should have known this from thoroughly checking the source. If it was revealed through the use of reporter's notes or tape recorded or videotaped interviews that the source was critically misquoted, it could demonstrate recklessness or malice. Similarily, through deposition discovery of the source, it could be revealed that the journalist seriously misinterpreted or read too much into the comments of the source. Also, how the journalist utilized available material could indicate any ulterior motives. If the view presented in the story radically departed from the nature of the collective material, malice could be suggested. If, for example, favorable information about the plaintiff that proved germane to the issue was not used because it contra- dicted the thrust of the story, the motives of the journalist would be in serious doubt. All of this evidence can be learned from examining what the journalist knew, saw, heard and wrote and from critically examining the journalistic procedures exercised. l95 Without intruding into the editorial process, a comprehensive picture of the journalist's motives and competence can be develOped. At trial, the jury would be able to evaluate this objective indirect evidence along with the journalist's responses and demeanor to questions involving his activities. If the responses contradict the evidence or fail to satisfy the charges, the jury can infer that the editorial decisions demonstrated a reckless disregard for the truth. The neces- sity of state of mind evidence seems superfluous when the plaintiff already has full access to evidence of the journal- ist's objective behavior from which the motives and competence can be assessed. In terms of establishing a truly equitable balance, the creation of an editorial privilege would have been more just. A privilege safeguarding editorial judgments and communications would better serve the objectives of the First Amendment without placing an undue burden upon the plaintiff. Actual malice may be established through inherently implausible or inconsistent statements or through other circumstantial evidence. It was the opinion of the appeals court in Herbert that if actual malice could not be established through these avenues, it is highly unlikely that intrusion into the editorial process would substantially l96 enhance the plaintiff's position.259 Considering the nature of inquisition into the thought process, this seems very likely. The effects of Herbert will be felt in all phases of publication. At the very least, it will allow for intrusion into the editorial process. At worst, it could significantly alter publication judgments. The limited effect that this added discovery will benefit the plaintiff simply does not justify the negative effects it will have on free expression. E. Potential Expansion of Editorial Inquiry Editorial process inquiry, as designated in Herbert, is applicable only in cases involving public persons. One of the more fearsome prospects of Herbert is that state of mind and editorial procedural inquiry could be extended to the more lenient standards of the private individual in a defamation action. In states where negligence is the accepted standard of fault, as it is in most of the states that have adopted a fault standard, discovery into the editorial process would be especially improper. Some of the arguments offered in Herbert to imply the need for editorial inquiry for the public figure could be applied to the argument supporting the private individual's need for such 259568 F.2d at 984. l97 discovery. Despite these arguments, it would be highly inappropriate to extend this line of inquiry because of the private plaintiff's significantly lighter burden of proof. The potential for misconception of the journalist's discussions or procedural decisions is far greater when the oburden of proof is simple negligence. As described earlier, the public does not always perceive the nuances of journal- istic technique or the institutional demands of the profes- sion. In spite of this, the journalist who acted competently, conscientiously and professionally should prevail in most instances when the plaintiff must establish actual malice. When simple negligence is the standard of proof, though, the potential for distortions and misunderstandings of journalistic thinking and procedure giving rise to erroneous judicial verdicts is very threatening. It is not difficult to picture these aspects of routine journalistic procedure being convincingly characterized to a jury as negligent conduct. It is only a matter of time before the question of inquiry into the editorial process for private individuals becomes a judicial issue. Since the private plaintiff's burden of proof is significantly lighter, there is no ;hJstification within the balancing process for such an l98 abridgment of first amendment interests. The allowance of Herbert-type broad discovery to establish negligence would totally distort any semblance of an equitable balance. CHAPTER X CONCLUSION A. Prospective The old rhyme, "Sticks and stones will break my bones, but names will never hurt me," is appropriate for settling children's disputes, but in the adult world, names and words can be as damaging as the sharpest sticks and the heaviest stones. A person's reputation is a vital part of his being and his ability to function. Since the purpose of government is to protect individuals through social order, there can be no question but that it has a definite interest in protecting individual reputation. In direct opposition to the legal avenues that provide relief to the individual are the protec- tions of free expression. Free expression is based in the Constitution of the United States and the libertarian philos- ophy of the media in a free society. The First Amendment explicitly provides the media with protections to guarantee its position as the vital link that transmits ideas to the decision-making public. The protection of the individual's reputation and the guarantees of free expression are competing human rights. T99 200 They both possess historical validity that support their position in the struggle to find an accommodation. It has become the task of the judiciary to find an adequate balance that neither subjects the individual to undue public pillory through the media, nor forces the media to self-censorship to avoid undue prosecution, thereby depriving the public of vital information that it would otherwise have received. When the Supreme Court first brought good-faith defama- tion under the protective cover of the First Amendment, it ignited a fierce conflict of values. Since one value could gain only at the cost of the other, there was a built-in conflict that could be balanced, but never truly resolved. The primary failure of the Court in its attempts to reach an accommodation between the interests of freedom of expression and individual reputation has been its heavy-handed approach to any potential solution. These values are basic privileges of democracy guaranteed to every individual, yet in practice they ultimately clash. Though the Court has discussed the desirability of establishing a true balance, its opinions have failed to settle upon an operatively dichotomous relationship. The Court has failed to reconcile these interests because its sympathies have swung like a pendulum, first giving too much weight to the interests of free expression, then, too much weight to the interests of 201 reputational protection. The great fault of the Court's attempts to strike a balance has been that its approach has never had clear sight of an equitable, workable goal. Both of these antipodal interests have persuasive arguments in their favor. The Court has been swayed by these arguments to extremes of over protection and under protection of the interests in attempting to stumble onto the proper balance. The resultant state of defamation law is, at best, a patchwork of ambiguous reasonings and terminology. Terms such as "public controversy," "legitimate public interest," "limited public figure," "involuntary public figure," and a score of others have been developed to assess the changing state of the law. Some of these terms have assumed new meanings and applications as the Court has fluctuated in its positions. Others were developed to explain a new turn in the law only to find a different application in the next ruling. The uncertainties in the law and the tentative atmosphere that surrounds all defamation law show that the Court's efforts have been generally unsuccessful in truly protecting either value. Its attempts to register a solution that brings optimum strength to the interests of both sides has resulted in bringing lasting strength and security to neither. Rosenbloom was a much maligned decision. Most of the 202 critics of the case emphasize its shortcomings but failed to recognize its worthy intents and just how successfully it attained those goals. From the time the Court first extended the constitutional privilege, in 1964, it expanded upon the theme that the judiciary should not have a position in judging editorial considerations involving matters of public concern. The very fact that court action could loom, acted to interfere with free expression. The drive was toward limiting the judiciary as the determinating agent by limiting those instances in which it became necessary for the courts to determine what was appr0priate. Each succession in the case law in the Sullivan to Rosenbloom era reflected an effort by the court to take a step back from the front lines of defamation law. It was an effort to establish a set of guidelines under which defamation worries could be alleviated from journalists who worked competently and within the accepted limits of ethical journalism. The Court wanted to settle by principles of law, rather than on an ad hoc basis, the question of defamation. The Court seemed to envision the role of the judiciary as remaining far in the background, being called upon only in instances where there was reason to suspect a willful effort to injure an individual's reputation. Rosenbloom served this ideal perfectly. It embodied all 203 previous case law involving the constitutional privilege into a single broader, all-inclusive "public-issue" concept. This concept seemed to fulfill the vision of an open and indepen- dent media, free of the chilling effects of defamation law. Any reasonably competent and prudent journalist could feel secure in the daily operations of the profession. It is undeniable, though, that the state of defamation law under Rosenbloom did not reflect an equitable balance of interests. The "body count" left in the wake of constricting defamatory protections evidenced the need for greater reputa- tional protections. What the Court in Gertz failed to recognize was that the fault of Rosenbloom lay not in its reasoning, but rather in its application; or more properly, in its misapplication. Rosenbloom was a decision that was more theoretically sound than it was operationally functional. The Court ruled that the actual malice test should apply in all instances of public or general interest, but failed to elaborate upon its parameters or application. Confronted by this equivocal and somewhat enigmatic prescription, the lower courts retreated to a position of almost blind and total application of the law. The Court's method of reconciling the interests of the individual was to repudiate the whole Rosenbloom constitu- tional concept. Rather than altering the whole constitutional 204 theory to correct the imbalance, the Court more properly should have narrowed the existing prospective to bring the Rosenbloom concept into line with the needs of the individual. The Court should have established guidelines limiting the applica- tion of the constitutional privilege to matters of genuine public concern. It would have taken a certain amount of case law to settle upon a definite distinction between simple newsworthiness and actual public controversy, but the criterion would have evolved. It would certainly have developed in a more equitable and applicable manner than has the Gertz public/private status classifications. Rosenbloom's "public-issue" concept was based upon sound constitutional reasoning. The plurality opinion correctly assessed that if a matter is of significant public importance, "it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not 'voluntarily' choose to become involved."260 An issue of critical public importance does not suddenly become less critical or less important because the key participants are not already in the public eye or did not intentionally choose to be involved. By applying rnore exacting guidelines to the application of "public or ggeneral interest," comment upon the issues of genuine social 260403 u.s. at 43. 205 importance would have been guaranteed. At the same time, in those instances where the social need for robust debate was less important, the private individual would enjoy all of the protections afforded by conventional defamation law. More importantly to the operation of the media, the issue of defamation could settle into an equitable balancing process of adjudication that would be both journalistically workable and judicially applicable. G333; and the whole post—Gertz line of thinking has demonstrated a knee-jerk reaction to the inadequacies perceived in Rosenbloom. A majority of the Court came to view the "profound national commitment to enhance debate on public matters" as drawing perilously close to absolutism. It sought to reconcile the conflict of interests by reestab- lishing the division of public figure and private individuals. It was the begining of a line of thought that eventually seemed to lose sight of the goals and objectives of free expression and the position of the media in society. The Court embraced a new theme, a theme of deterrence. The primary focus of post-Gertz law has been in protecting individual interests. The effect of this new line of reasoning has been that no matter how legitimate or compelling the subject-matter, there are other factors involved. While these factors may have no bearing upon the social importance 206 of the controversy, they do ultimately determine whether the constitutional privilege will be applied. Gertz involved not only a shift in constitutional theory, but also a shift in the manner that the Court viewed the role of the judiciary in defamation proceedings. In Gertz, and more so in Firestone, Wolston, Proxmire and Herbert, the Court seemed to concede that the judiciary was an inevitable determining agent in defamation actions. It abandoned any vision of a balance of interests that was guided by legal principles and would allow the judiciary to remain in the background. Post-Gertz defamation law retreated to a point-of—view that would require a determination on the facts of each individual case. Thus, much of the application of post-Gertz law requires judgments of a subjective nature that can only be settled on a case-by-case basis. This development is ironic since the Court in Gertz condemned the case-by-case approach. It said such an approach "would lead to unpredictable results and uncertain expectations."26' For any system to succeed, it must develop a sense of continuity and predictability. The media must be able to assume how a certain matter will be characterized by the courts. Where continuity and predictability are 261418 u.s. at 343. 207 absent, the vaccum is filled by apprehension and deterrence. The simple fact is that the Gertz balance has proven so malleable in post-Gertz application that it has virtually become an ad hoc system of law. The Gertz_balance succeeded in totally realigning the major protective interests in defamation law. After Gertz placed the focus of protection upon the individual, though, the invitation to follow a dialectic prOgression away from free expression interests seemed inevitable. Firestone's heavy-handed determination to enhance the protections of the individual stripped the media of some of its most basic safeguards. Not only was Firestone's reasoning faulty and discordant, it failed on the larger scale to reconcile these interests into a more equitable balance. The obvious intention of the Court was to interpret the Gertz balance in a way that would make the media more aware and sensitive in situations involving private individuals and more accountable for resultant injuries. Though the intention may have been to nurture an increased sense of media circumspection, the uncertainties and inequitable reading has fostered an atmosphere of self- censorship. Rather than creating a balance, the media has been placed in the position of choosing between risking defamation litigation or refraining from publication. 208 Despite the renewed pivotal importance of the public figure and private individual distinction, the Court has yet to offer a precise definition that is both workable and applicable. Firestone, Wolston and Proxmire did little toward establishing continuity within the public/private status definition. What the Court has viewed as refinements of the Gertz precepts have only served to show that the present public/private status classification procedure is neither journalistically workable nor judicially applicable. While the Court has clarified certain elements in the determination of an individual's status, the new balance has not provided predictable standards for journalists to apply in particular situations. Until the Court can settle upon such a system, the balancing process will never be in sync. While the Court's determinations in Herbert cannot be attacked as legally unsound or beyond the rules established in Sullivan, its negative effects upon the free expression aspects of the balancing process far exceed the potential benefits to the individual. From the standpoint of creating an equitable balance, it would not have been incongruous for the Court to exercise its prerogative to establish an editorial privilege. Any deterring defamation regulations Inust be designed to create an incentive for "the press to 209 exercise considered judgment before publishing material that "262 In other words, the added compromises personal integrity. threat must be one that journalists can recognize and actively work to prevent. The protection against the advances of Herbert are not something that can be planned. The competent journalist must simply continue to function on the same level. The only preventative reaction to the ominous aspects of Herbert is to refrain from publication. The offshoot of defamation litigation in the middle and late 1970's has been to mitigate most of the basic protections to the media which the Sullivan to Rosenbloom era Court deemed essential to promulgating uninhibited debate on public issues. Sullivan and the cases that followed sought to make defamation actions strictly a defensive measure; a last resort protection for individuals against malicious or reckless journalists. The recent upsurge in defamation litigation, however, has revealed its use, in many cases, as an offensive weapon against the media. Just as the media embraced the Sullivan to Rosenbloom series of cases in their increasing roles in investigative reporting and public criticism, defamation plaintiffs today are using the post-Gertz series of decisions as weapons of harassment to stifle investigative reporting and public criticism. 262441 u.s. at 207. 210 It is certainly not new for the object of uncomplimentary articles to respond with the threat of defamation litigation. What is new, however, is the harassment value such a threat now carries. Recent defamation decisions have created a climate that encourages hurt parties to retaliate with litigation.263 These harassing elements of defamation law, added to those elements intentionally designed to deter the media, have spawned a new generation of threatening aspects that have led to an atmosphere of compromise and self-censorship. As these elements effect the operation of the media, the prospect of an equitable balance of interests becomes more and more illusionary. Because the chilling effects of strict defamation law are so subtle, they are not always immediately discernible. The post-Gertz emphasis upon insuring that every individual designated a public figure acted voluntarily and assertively within the controversy, for example, tends to discourage investigation into the manipulation of economic and social power from less visible sources. The Rosenbloom "public- issue" standard gave equal constitutional protection to the discussion of the use of private power as well as public power in issues that affected public life and thought. The 263"Chilling Libel," The Nation, Feb. 2, 1980, p. 99. 211 post-Gertz restrictions upon the constitutional privilege limits the applicability of media protection as the subject- matter veers away from public officials and the most visible public figures. This tends to encourage the media to confine its concern to the more traditional and recog- nizable forces of power. Investigating and commenting upon important issues involving individuals outside of the mainstream increases the risks in defamation law. This results in a retreat to dealing with issues in their broadest sense, rather than in specifics. It is safe, for example, to discuss the sorry state of the economy, but it becomes risky to discuss the individuals who contribute to the situation if they are not already persons attracting atten- tion within the controversy. One of the most common criticisms of newspapers is that they do not adequately cover local news. The post-Gertz disposition of constitutional protections, though, can make an in depth local investigation a hazardous undertaking. Local private power figures are far less likely to have attracted the necessary level of attention as those who deal on a broader scale. These individuals generally attempt to shun publicity, to carry on beyond the prying eyes of the public. The media must tread carefully when approaching issues involving power figures in the private sector. This 212 threat could force the media to succumb to a subtle form of self-censorship. It is safer to avoid local controversies and deal in national affairs involving recognizable public figures. There is less risk in discussing the activities of the Secretary of State in formulating foreign policy, than the manipulations that went into making a questionable local highway route determination. The effect of post-Gertz law has been to place most privately oriented public issues beyond the protective reach of the First Amendment. While the constitutional privilege still protects criticism of mainline officialdom and persons who seek public attention, the less obvious, but equally important, protection of comment concerning private involvement in controversial issues has been lost in the Court's over zealous efforts to enhance reputational interests. The Gertz balance was a delicate balance at best. Perhaps its ability to maintain as an equitable standard was doomed from the start by its exacting legal distinctions upon a legally inexact journalistic system. To the extent that Gertz sought to realign the fulcrum of the balance further to the end of the scale that provided greater pro- tection to the private individual, it has been unquestion— ably successful. To the extent that the Court sought to 213 settle upon an equitable and judicially workable balance, it must be judged that post-Gertz law has failed to represent both competing interests in its way as completely as the Rosenbloom balance failed in its way. One thing, though, is certain. The uncertainties created by Gertz and the inequitable nature of Firestone have guaranteed extensive defamation litigation for at least the remainder of this century. A recent Federal Court of Appeals decision made an interesting turn on the trend away from media protections. In Edwards v. National Audubon SocietyInc.,264 the court utilized the principle of "neutral reportage." Essentially, this principle states that when a responsible and prominent source makes serious, but potentially defamatory, charges against a public figure, the First Amendment protects the "accurate and disinterested reporting of those charges, regard- less of the reporter's private views regarding their validity."265 The theory behind this principle is that such charges, when publicly made, are at least as newsworthy as the specific content of the charges. As long as the media coverage is a fair and dispassionate account of the charges that seeks only 264556 F.2d 113 (2nd Cir. 1977). 255Ibid. at 120. 214 to report, rather than espouse, the specific claims, the First Amendment provides an immunity from defamation suits. A decision handed down a year after Edwards, in a different circuit of the Federal Court of Appeals, specif- ically rejected the Edwards principle of "neutral reportage." The court in Dickey v. CBS Inc.,266 refused to accept "neutral reportage" on two counts. First, it contested the Edwards reading of Time, Inc. v. Pape.267 Edwards found that Page allowed the media a Special privilege when reporting newsworthy comments by a thrid party. The court in Dickey interpreted Page as allowing the media a leeway for mistake or misinter- pretation when reporting third party accounts, but that leeway did not extend so far as to permit publication even where the journalist knowingly entertains serious doubts regarding the truth of the statements. Second, and more to the point of the court's objection in Dickey, the principle of "neutral reportage" appears to be in violation of the provisions of Gertz. Even if Edwards' seemingly inconsistent reading of 266583 F.2d l221 (3rd Cir. 1978). 267401 0.5. 279 (1971). The case involved the publica- tion of quotes from a federal commission report. The media- defendant had quoted allegations in a way that made them appear to be the findings of the commission. The Supreme Court ruled for the media-defendant, based upon the belief that the media cannot be held strictly accountable for transmitting newsworthy information from a third party report. 215 Eeee could be reconciled, the basic premise of "neurtal reportage" is incongruous with the Eerie focus upon indivi- dual status. In Dickey, the court rejected the reasoning utilized in Edwards. It said, "[i]t appears that what triggers the existence of the constitutional privilege of neurtal reportage...is not whether the plaintiff is a public or private figure, but whether the statement...is news- worthy."268 The basis of defamation law since 92135 has been that the application of the constitutional privilege "must be determined by reference to the public or private status of the plaintiff...instead of to the content of the defamatory statement.”269 The Edwards and Dickey contra- dictions of this one area only serve to demonstrate the confused interpretations and applications so prevalent in current defamation law. The doctrine of the current balance has been wholly directed toward the protection of the private individual. This balance is not likely to change direction again in the near future. The Supreme Court is often viewed as a single. continuous adjudicating body. In actuality, it is a nine member body of individuals that changes personnel over a 2581bid. at 1226 n. 5. 259Ibid. 216 period of time. The purpose of the Court is to rule upon the constitutionality of the law, but the decisions inevitably reflect the attitudes of the individual members of the Court. It is more than a coincidence that as the Court's more liberal justices have left the bench, the fulcrum of the balance has slid toward the interests of reputational protection. The four Court appointees of the Nixon Administration have exhibited a definite propensity away from the interests of free expression. It seems unlikely that the make-up of the Court will shift sufficiently in the near future to alter the current trend. When considering the eventualities of defamation law, journalists must bear this in mind. Over the next several years, defamation law adjudicated by the Court will most likely concern itself with elaborating upon the current balance, rather than restructuring yet another balance. Free expression interests have not faired well before the Court since eeeee and there is nothing on the current horizon to indicate that the trend will change. This is not to say that all of the media protectional gains of the post-Sullivan era will be totally reversed. Media interests may even prevail on certain points. What is indicated, though, is that the broad expan- sive judicial attitude toward the media has clearly ended. In areas of uncertainty, journalists must approach with caution. 217 It should be assumed that in such areas the winds of judicial consideration will blow with the protections of reputational interests. B. Proposed Balance As this thesis has demonstrated, the law of defamation is one of the most complex and contradicting areas of the law. There are sound arguments for both sets of interests that are rational and persuasive when examined individually, but are ultimately controvertible and irreconcilable when taken together. Any system that attempts to balance these rights will inevitably have to ignore certain compelling arguments that demand greater protection be given to either intereSt. The following is a proposed balance that has been formulated from the vantage point of observing the successes and failings of almost two decades of judicial attempts to find a proper application of the constitutional privilege. The objective of this proposed balance is to preserve as many of these compelling arguments as possible, at the least expense to the opposing interest. A Matter of Public Importance The Court's current line of thought has lost sight of the absolute necessity that the public receive all information that bears upon critical public issues. In the eyes of 218 post-geeee defamation law, all issues carry the same level of significance. It is only the stature and participation of the individual that is pivotal in determining the level of protection that will be afforded to the media. While this line of thought undoubtedly best serves the reputational interests of the individual, it does not serve the interests of the decision-making public. It is not in the best interest of the public to consider critical issues such as incidents involving toxic waste disposal in the same category as a grocery store opening. There unques- tionably are some issues of greater significance to society than others. There should thus be a level of protection that insures that the critical issues will be freely and openly discussed. Like Rosenbloom, the application of the constitutional privilege in this pr0posed balance will be based upon a public-issue concept. When a matter involves a subject of legitimate public importance, it will fall within the protective confines of the First Amendment. Under this proposed balance, the constitutional privilege would protect all speech of public importance. A matter of public importance is one that is within the sphere of legitimate public concern and which is related to matters warranting public exposition. 219 The difficulty inherent in any issue-oriented definition is in it implementation. Whether it be Rosenbloom's "public or general interest" concept, Firestone's "public controversy" concept, or this pr0posed balance's "public importance" concept, the means in which it is interpreted and applied determines how equitable the concept and how successful the the balance. In implementing the definition of "public impor- tance," the courts should be directed by certain guidelines. Whereas the Rosenbloom balance failed because its public-issue concept was too broad and encompassing, this proposed balance's public-issue concept will be limited by guidelines narrowing is application in two determinative ways. First, application of the constitutional privilege will be limited to specific incidents, events or points of concern which themselves must possess an element of public importance. The Rosenbloom concept tended toward a broader application based upon important general issues. A lower court decision during this period best expressed the view of the courts when it said that if an incident was related to "matters of a...general scope, such as unemployment, the problems of the aged, hospital care...[or] organized crime," it was deserving of constituional protection.270 This expanded application 27OGoldman v. Time, Inc., 336 F. Supp. 133, 136 (0.0. 1971). 220 would often bring events of a seemingly non-public nature under the protection of the constitutional privilege because they could be linked to a broader issue of public concern. Since almost every occurrence could in some way be related to a general public issue, the application verged upon being absolute. Under these circumstances, the rights of the individual were not adequately balanced. By requiring that the specific incident, event or point of concern be itself a matter of public importance, it can be assured that the constitutional privilege is not being applied to a substantially non-public matter. The second means of limiting the public-issue concept would be by restricting its definition. The broad Rosenbloom application virtually linked "public concern" and "newsworthi- ness" as synonymous concepts. While an incident that is simply newsworthy may well warrant public exposure, its social and political importance is not of such a level as to overwhelm the reputational interests that also require pro- tection. When matters of critical public importance are involved, the status of the participants must necessarily become secondary. When the nature of the subject-matter is of less importance to the public consciousness, however, the reputational interests of the individual become a signif- icant factor which the law should strive to protect and 221 preserve. Those issues of lesser importance should assume a comparable level of media protection. This instills a sense of caution to the media when less vital matters are weighed against reputational interests. In weighing the value of a specific incident to determine whether it is of legitimate public importance, the rule of measure should be based upon the social value or concern it exerts upon public thought. Obviously, the greater potential an incident has to effect public thought or generate serious public concern, the more likely it is to be of public impor- tance. There are particular incidents of such vital public significance that there is little question as to their inclusion within the protection of the constitutional privilege. The difficult distinctions involve a consideration of where personal matters become matters of public importance. An incident that is not of public importance is an incident that is principally of a non-public nature. That would be an incident where the public concern does not match the potential for reputational harm. Most matters relating to a person's private life are matters that normally would not receive the protection of the constitutional privilege. Matters such as an individual's finances, marital relations, or mental or physical health are personal. For a matter of a non-public nature to become a matter 222 of public importance, it must involve some extraordinary element that elevates its social significance. The issue of abortion, for example, is an issue of interest and concern, but a single individual abortion is a personal and private matter. If there is nothing within the particular case to raise it to a status of public importance, it is, and remains, strictly a private matter. The journalist who pursues such a story does so at the risk of the reputational protections of traditional defamation law. If, though, the father were to go to court in an attempt to stop the abortion, it would become a matter that stirs public thought on a social issue and becomes a matter of public importance despite its personal nature. The implementation of this concept encompasses fewer topics than the Rosenbloom concept. While it was designed to enhance discussion of genuinely important matters, it was also designed to instill an air of caution as the subject- matter veers toward the personal aspects of a person's life. It is true that intentionally designed forms of deterrence are contrary to the precepts of the First Amendment, but reputational interests must take precedence where the lack of social importance does not justify a special media privilege. An issue of lesser importance to the public should, by its nature, suggest to the journalist that greater 223 care should be used in its handling, since the rights of the individual are being exposed when the societal benefit is only marginal. Where the public importance does not match the potential for reputational harm, the constitutional privilege will not be extended. It is conceded that there is still a subjective sense about the exact meaning of "public importance." As with any system, this can only be settled over a period of time and a number of judicial applications. The structure proposed here, though, provides a more judicially applicable set of guidelines for establishing the social significance of a matter than any concept yet attempted. In addition to the judicial guidelines, it gives the journalist a better workable awareness of the limits and application of the constitutional privilege than currently exists under post-eeeee law. It also succeeds in better protecting the rights of the individual than did the Rosenbloom concept. These guidelines were designed to open public debate to the important issues without losing the prospective of where the public importance ends. It establishes that there are legitimate boundaries where a person's reputational interests take precedence. Together, these two means of limiting the public-issue concept should adequately serve to prevent the application of the constitutional privilege to matters of a substantially 224 non-public nature. At the same time, it will assure that those matters of genuine public importance will be protected and instill a sense of continuity and predictability. Fault Liability Part of the difficulty in establishing an equitable balance has been that the phrase "good-faith defamatory falsehood" encompasses too large an area of speech to be covered by a single standard of liability. This proposed balance will divide good-faith defamatory speech into two categories based upon the nature of the offending comment. Cateogry "A" concerns misstatements of factual informa- tion that result in injury to reputation. This would involve a mistake in the reporting of events or of official proceedings or documents. The mistake comes as a single factual misstatement or misinterpretation in an otherwise accurate account. Previous Supreme Court cases that would fall within this category are Sullivan, Walker, Rosenbloom, Firestone and Wolston. Each of these cases involved claims by the plaintiff that the media-defendant had made a factual error that was injurious. Category "B" concerns speech that could be described as opinion, criticism, innuendo or conjecture of fact concerning matters of public importance. In this category, it is the whole thesis or a premise of the article that is allegedly 225 defamatory and damaging to the individual's reputation. The nature of speech in this category involves unsubstantiated claims or damaging statements. Cases such as Garrison, Butts, Gertz, Proxmire and Herbert would be classified within this category. In each of these instances, it was a major premise to the article, rather than a specific misstatement of fact, that resulted in the cause of action. The designation as to which category the defamation is assigned is of critical importance since it will determine the standard of fault liability. Plaintiffs in cases involving category "A" will be required to satisfy the full requirements of the actual malice test, as stipulated in Sullivan and following cases. The plaintiff must prove that the misstatement of fact was made with knowledge of its falsity or with reckless disregard for whether it was true or not. This will require clear and convincing evidence that the media-defendant entertained serious doubts as to the truth of the statement. Except for the more stringent limitations upon the designation of a matter of "public importance," matters involving category "A" could be said to be in accordance with the Rosenbloom balance. Taking into consideration the pressures and procedures that are involved in newsgathering, a standard of actual malice proves to be more of a journalistic necessity than a license for careless 226 behavior. This is one of those areas where the importance of the subject-matter must prevail. The media cannot be inhibited by the potential of an inadvertent error when reporting upon the factual events that transpire in the course of a matter of public importance. The proposed balance differs from Rosenbloom in the application of liability in category "B." The standard of liability in this category will be similar to that designated by the Colorado Supreme Court in Walker v. Colorado Springs, .271 Inc Under this procedure, the standard of liability will still be based upon "actual malice," but the definition of "actual malice" will be narrowed to pr0vide greater protection to the individual. Specifically, the concept of "reckless disregard" within the actual malice test will be lessened. Rather than demanding proof that the media-defendant actually doubted the validity of the story, it will require clear and convincing evidence that the journalist unquestionably should have doubted the story's validity based upon the nature of the evidence or the character of the sources. The demand of clear and convincingyevidence will require the plaintiff to show not only that the defamation did not coincide with the facts, but that the defamation was an unreasonable and irrationally inconsistent evaluation of the facts. This could 27J]See notes 124 through 127 and accompanying text. 227 be described as reasoning and evaluation that is so divergent from the actual evidence that it can be judged to have been so intended. This is a somewhat lesser fault standard than conventional "actual malice," in that it does not compel the plaintiff to focus strictly upon the journalist's subjective doubts about the truth of the statement. The facts of eeeee serve as a good example of a violation of the fault standard in category "B." Elmer Gertz had made no secret of the fact that his political leanings were to the left. He had been associated with several liberal and leftist groups and related activities. As a lawyer, he had often represented clients whose judicial claim was against the power structures of the establishment or whose crimes could be considered politically motivated. On occasion, he had expressed certain public views that could be described as anti-establishment in nature. Beyond these facts, though, the media-defendant was able to offer no substantial evidence that would justify the claim that Gertz was leading a national Communist conspiracy against the police. There was nothing in the evidence that could reasonably or rationally link these actions to the accusations made in the article. If such a conspiracy existed, complicity would constitute a felony. Thus, the defamation also indirectly charged Gertz with the commission of a major criminal act. Based upon the 228 facts, it was unreasonable and irrationally inconsistent to conclude that Gertz was a Communist, that he was in any way a part of such a conspiracy or that he had committed a crime. In addition to showing that the media-defendant conjec- tured facts from non-existent evidence, as happened in §££££a the plaintiff may also attack the questionable nature of evidence the media-defendant used to formulate the defamatory premise. If the evidence is so tenuous and dubious in nature that it was unreasonable and irrationally inconsistent of the media-defendant not to be skeptical of its validity, it could constitute reckless disregard. The plaintiff could establish this by successfully questioning the highly dubious nature of the evidence, or the incredulity of the source, as was the case in eeeee. A less exacting standard of liability is justified because of the nature of speech in category "B." When speech involves opinion, criticism, innuendo or conjecture of fact, it generally suggests that thought and consideration went into the preparation of the story beyond the simple reporting of facts. Based upon the element of added thought and consideration in this type of speech, the individual is entitled to reputational protection when the media-defendant <:lear1y and convincingly presents an unreasonable or irrational 229 evaluation of the facts. Additionally, this type of speech is often more damaging to the reputation of an individual than an issolated factual misstatement. When dealing in this type of comment, the media should be more aware of the potential damaging effects. Under these circumstances, a standard less arduous than the traditional actual malice test is not impr0per. Individual Status Classification Since this balance is based upon the issue, it will not require a determination to be made of the individual's public status. The "public importance" definition is the applicable determinant for all indiviudals, regardless of classification. Status would only be relevant as it directly contributes to the public importance of a matter. Editorial Process Inquiey Broad editorial process inquiry, as allowed in Herbert, exacts too great a price upon the operation of the media. The slight benefits attained by the plaintiff simply do not justify sanctioning such a procedure in this proposed balance. The Supreme Court in Herbert justified the allowance of editorial process inquiry upon the reasoning that the actual rnalice test emphasized the media-defendant's mental process. Any'information relating to it was relevant and necessary to (rvercome the demanding requirements of "actual malice." 230 It is the position of the proposed balance that even under the requirements of the actual malice test such questioning is inappropriate. It would be especially inapprorpiate, though, in cases involving category "B." In category "B," the standard of liability has been eased from the traditional actual malice test. The focus of attention has been F broadened to include considerations beyond the media-defendant's mental process. Under these circumstances, such questioning a would be especially unjustified. r This balance will, however, sanction a conditional editorial process inquiry in certain instances. It has been noted that in the past information regarding editorial process procedures has been utilized as often by the media- defendant to defend his actions as it has been by the plaintiff 272 The Supreme Court, in in an attempt to establish guilt. Herbert, correctly assessed that it is an inequitable situation that allows the media-defendant to introduce editorial process evidence to support his defense, but would forbid the plaintiff from access to any such information that could benefit his case.273 272M. Franklin, "Reflections On Herbert v. Lando," 3l Stanford Law Review 1035, 1044 (July 1980). 273441 u.s. at 172. 231 Under the provisions of this proposed balance, plaintiffs may not inquire into editorial process procedures unless the media-defendant first introduces evidence or testimony of this nature in his defense. For purposes of this balance, inquiry into editorial procedures will be defined according to the five types of questioning characterized by the circuit 274 If the media-defendant chooses court decision in HELEELE- to offer editorial process evidence or testimony, the plaintiff will be free to delve into the thought process and procedures employed in assembling the story. According to this method, the editorial process would not be chilled by the prospect of future inquiry. This is a conditional editorial process privilege. The media-defendant would always have the option of prohibiting such inquiry. An editorial process privilege is appropriate under the circumstances of defamation law, but not when it can be used as a weapon against the plaintiff's case. When the media-defendant chooses to engage in such information, the plaintiff should not be placed in a patently inequitable position. A further advantage of this method is that where editorial process inquiry is employed, it would be at trial, not during discovery procedures. This would limit the added expense and 274See note 106 supra. 232 eliminate the harassment element, as the plaintiff would have to establish a cause of action before the case ever comes to trial. Damages The primary thrust of damage awards in defamation law should simply be to compensate the injured party for loses resulting from the offending statement. The purpose should not be directed toward punishment or deterrence. For that reason, awards granted under this proposed balance will be limited to pecuniary damages. Presumed and punitive damages unnessarily increase the potential of self-censorship. As the Court said in Eerie) "the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication "275 Damages should be limited to compensation of a false act. for actual injury and no more. Since all damages will have to be provable, the discretion of the jury in setting grossly outrageous awards will be severly restricted. This should also result in a corresponding reduction in the pressure upon a publication to settle defamation actions prior to trial. 275418 U.S. at 349. 233 Analysis This proposed balance does not claim to definitively settle all constitutional imbalances. No system could serve all of the needs of both sets of interests. Nor, does it pretend to be a perfect balance of interests. A greater pr0portion of the burden is placed upon the plaintiff, with the rewards, when victorious, not pr0portional to the burdens that are assumed. This can be justified, though, by the overriding importance of freedom of expression that goes to ~the very roots of participatory democracy. While it is not questioned that there is a need to balance constitutional protections, the protections of the private individual must not exact a penalty that results in suppression of information that is vital to the marketplace of ideas and an informed citizenry. Protection of individual reputation, though also an essential libertarian goal, operates on a more isolated, individual application. Free expression allows for the transference of information and ideas that have an impact upon every member of society on a continual basis. The shape of society, and ultimately the quality of life, is influenced by the information that is disseminated or withheld. This application of constitutional values to attain a greater good was best stated in Coleman v. MacLennan, the Kansas case that substantially influenced the development of the 234 Sullivan rule. The 1908 case said, "[t]he public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged."276 The intent of the constitutional privilege is not simply to protect the journalist in those instances where an injurious defamation has occurred. Its purpose goes far beyond that limited intent. It is designed to create an atmosphere that promotes free expression, that gives certain assurances to every journalist in the preparation and publication of a story. Many pe0ple view the constitutional privilege as a right to lie. In actuality, it is a cause to tell the truth. It is only when journalists feel confident that they will not be held strictly accountable for every statement that the precepts of free expression are served. The protections to individual reputation in this proposed balance are designed to protect the non-public aspects of an individual's life, to foster professional conduct on the part of the media and to compensate the individual for actual loss when professional conduct is unreasonably violated. Any measure of protection beyond this inhibits the function of free expression. The media are not always accurate and may not always 27698 P. at 286. 235 present a full and fair debate on the vital public issues. The important factor, though, is that the media transmit information and ideas. They are the cement that binds the nation. Free expression provides the opportunity for the people to judge for themselves what is right and what is wrong in society. As Judge Learned Hand said almost forty years ago, "right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authorative selection....To many this is, and always will be folly; but we have staked upon it our all."277 The manner in which a critical issue is presented may not always be the best, nor the fairest, but if it helps to develop public awareness or encourage and enhance public debate, it serves a genuine, beneficial purpose that overshadows the shortcomings. A society that accepts the benefits of a free press must also assume the risk that occasional good-faith defamations will occur. 277376 U.S. at 270, quoting from U.S. v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943). 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