SANDY DAVIDSON: Libel laws aren't perfect, but could they actually be better?

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Sandy Davidson is a professor at the Missouri School of Journalism and a Curators’ Teaching Professor at MU and is an attorney for the Missourian.

As President Donald Trump gave his State of the Union address to a deeply divided nation, the Turner Classic Movie channel played “King Kong,” American Movie Classics played “Demolition Man” and BBC America showed “Braveheart.” The Syfy channel chose “The Goonies.” Were these channels engaging in political statements?

One thing President Trump has done that irritates journalists, among others, is call for a change in libel laws. Libel is an untrue statement that damages reputation. Trump said last February that he wants to “open up our libel laws,” meaning he wants to more easily sue news organizations. He does have a point, insofar as it’s not easy for a public official to win libel cases. But that’s how the U.S. Supreme Court decrees libel law should be.

Libel law has an interesting history. In 1964, the Supreme Court’s decision in New York Times Co. v. Sullivan spun libel laws around 180 degrees. The law changed from being favorable to plaintiffs to being favorable to defendants, which are often newspaper or broadcasting companies.

Here’s the way the law was prior to 1964, in what Trump would surely see as the “good old days”:

First, strict liability prevailed, meaning plaintiffs didn’t have to show any fault by defendants to win. Although strict liability is a concept that has been going out of favor, it’s still viable in some areas of the law. For example, if you own a wild animal, you’re strictly liable for your critter’s misdeeds.

Let’s say you own a tiger. Actually, an MU fraternity wanted to own a tiger. What could possibly go wrong? Say the tiger gets loose and kills a pet or even a person. Under strict liability, courts wouldn’t ask how careful you were while keeping your tiger. No, there would be only one question: “Is that your tiger?”

To win, plaintiffs also didn’t have to prove they suffered any damages from the libel. Instead, damages were “presumed.” And the burden of proof was on the defendant, who had to prove the statements in question were true.

But then the Supreme Court totally revolutionized libel law. Gone were strict liability, presumed damages, and defendants carrying the burden of proof. The Supreme Court said that, instead, the U.S. Constitution required that the plaintiff prove fault on the defendant’s part and show that damage actually occurred. And the court said it was the plaintiff’s burden to prove that the statements in question were FALSE, not the defendant’s burden to prove TRUTH.

The Supreme Court thought the old way of doing libel law was having a chilling effect on news media and decided it was time to give them “breathing space.” The court feared that news organizations could have important stories to tell, but would be so afraid of having to prove truth in court that they would just kill their stories. The court valued a free flow of information and also realized that the messengers are human, and humans sometimes make mistakes.

In short, the court decided to protect mistakes. If the “fake news” is a mistake, journalists are protected by the Supreme Court’s view of what the Constitution requires.

The total revolution in libel law took ten years, from 1964 to 1974. The court says that in order for public officials or public figures (think Oprah) to win, they must prove the defendant acted with “actual malice,” meaning with “knowledge that the statement was false” or with “reckless disregard of whether it was false or not.” Journalists are spared when they’re sloppy, but not when they knowingly spread a falsehood or entertain doubts about whether a statement is correct, but choose to spread it anyway.

Further, the court said it is not enough to prove actual malice by the usual preponderance of the evidence — anything over 50 percent. Instead, there must be “clear and convincing” evidence.

For private individuals, the court says states may set the standard for liability, so long as they require “fault.” In other words, strict liability is out, but states may decide that the lower standard of “negligence” — not taking the amount of care that reasonable journalists would take under the circumstances — is enough for private plaintiffs to prove.

Here’s a kicker: In the 1964 case New York Times Co. v. Sullivan, which involved a public official suing a newspaper for libel, the court ruled unanimously to require public officials to prove actual malice to win. But three of the justices, William O. Douglas, Hugo Black and Arthur Goldberg, would have gone further than the rest of the court by recognizing an absolute right to publish criticisms, which Justice Goldberg speaks of as an “absolute, unconditional privilege to criticize official conduct.” Had the court gone as far as these three, then public officials would have been precluded under the Constitution from bringing libel suits concerning their official conduct.

Wow! Giving anybody an absolute privilege to publish what they want would arguably unleash some real dogs of war — ones who would say anything as they go in for the kill of public officials they don’t like. Fortunately, the “absolute, unconditional privilege” didn’t prevail.

In 1974, the Supreme Court admitted that "plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test." If the court is setting standards so high that some individuals who were intentionally wronged still can’t win, then that arguably shows a flaw in our law. Could it be corrected without doing more damage than good? I’m not sure.

Clearly, under the old pre-1964 law that used strict liability, news organizations had to be very careful in fact-checking. They had no “breathing space” that the court says is constitutionally necessary. President Trump is saying, perhaps, that he’d like to suck the air out of that “breathing space.” He’d like to grease the skids for easier wins. In short, it seems he’d like the future to be like the old pre-1964 past.

Sandy Davidson, Ph.D., J.D., teaches Communications Law at the Missouri School of Journalism. She is a Curators Teaching Professor and the attorney for the Missourian.

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