- The Washington Times - Sunday, July 7, 2002

By Robert M. O'Neill
Indiana University Press, $37.95, 184 pages

Like Don Quixote's platonic infatuation with Dulcinea, federal judges romanticize about freedom of expression in largely shielding the media and sister industries from civil liability under the First Amendment. Decisions coo with sonnet-like praises for the virtues of undomesticated speech, for example, checking government abuses, promoting human dignity, advancing the search for truth, and, deflating social tensions that might otherwise erupt into violence. While such First Amendment poetry may be magnificent, it certainly is not serious law.
Now comes Robert M. O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia, with a predictably uncritical contemporary survey of free speech and theories of civil liability, "The First Amendment and Civil Liability." Its glance at pioneering issues raised by the Internet and the digitizing of music, television and movies is informative for the academic, practitioner or media entrepreneur. In the bulk of the book, however, Mr. O'Neill scrutinizes First Amendment law with ancient roots: defamation, invasion of privacy, the right of publicity, incitement, commercial speech, and news-gathering. Mr. O-Neil's performance is workmanlike, but it resists examining the mythological mountain from which he pontificates.
That neglect is worrisome because First Amendment law is unusually intellectually flabby. It craves a sparing partner to melt away the counterproductive excess. The fortress-like constitutional protection of the media from defamation suits is emblematic.
The landmark Supreme Court ruling in New York Times vs. Sullivan (1964) and its extended family progeny prohibit defamation, invasion of privacy, or first cousin tort suits for injurious falsehoods unless the victim proves the publisher knew of the falsity or acted in reckless disregard of the truth, i.e., acted with actual malice. The proof must be clear and convincing; and, reckless disregard requires showing the publisher subjectively entertained serious doubts about the truthfulness of his defamatory bite, which obtusely places a premium on lazy and unsubstantiated reporting.
The actual malice shield is technically confined to media assaults on public officials or public figures. Private anonymities are not barred by the New York Times from recovering compensatory (as opposed to punitive) damages for media negligence in publishing falsehoods. But such would-be plaintiffs are deterred by the daunting financial demands in fighting a media giant and the personal pain and aggravation to reputation by the filing of the lawsuit, simpliciter.
According the Supreme Court and its First Amendment cheerleaders, the actual malice rule promotes an enlightened public scrutiny and understanding of serious public matters in a republic that cherishes self-government. Without that liability shield, the High Court insists, the media would shy from aggressive criticism and exposure of abuses by those who strut in the corridors of power charting the nation's destiny. (Tort law ordinarily creates liability for unreasonably risking harm to persons or property.)
Falsehoods, it is said, are inevitable in fast-moving commentary and news reporting the first drafts of history. Better that errors flourish than that prudence prevail, even if reputations are destroyed in the process. (Remember the instant pariah status of Wen Ho Lee occasioned by uncorroborated media reports accusing the Los Alamos scientist of nuclear espionage on behalf of Communist China.)
But the New York Times doctrine seems sophistry on stilts. The Court unearthed no evidence of scandals undetected, government excesses unchecked, or public knowledge unenlightened during the two centuries before the 1964 inauguration of the actual malice doctrine. And in the ensuing 38 years, no convincing evidence of improvement on these counts has been adduced either by the Court or New York Times proponents.
Moreover, by encouraging the publication of sensationalized falsehoods, the actual malice rule may thwart its objectives. Government overreaching will not be arrested nor knowledge advanced by a media substantially disbelieved by the public because of chronic lying. Thomas Jefferson himself, after ascending to the presidency, urged bracing libel suits against newspapers to jolt the industry into responsible reporting needed for democracy to thrive.
Every other business whether law, medicine, accounting, or otherwise is vulnerable to liability for negligence. Yet all operate undaunted. Liability insurance prevents timidity. Damage caps are occasionally imposed by statutes to forestall financially crippling verdicts. Nothing suggests the news industry could not prosper under such a regime of negligence. Fewer defamatory falsehoods that would follow would not mean less news, but only less slipshod and irresponsible news stories.
Mr. O'Neil generally disparages liability for copycat crimes provoked by books, television, song lyrics, or the cinema. Since the Supreme Court's 1969 ruling in Brandenburg vs. Ohio, the media, publishing and entertainment industries have been generally free to plant criminal ideas in the minds of an audience. The narrow exception is when criminal action by a discrete fraction of the audience is both intended and intended to be imminent.
Federal judges and Mr. O'Neil reflexively endorse this doting on artistic creativity routinely featuring violence, sex, vulgarity and bigotry. Self-censorship and blandness would otherwise blight the nation's culture, according to these prophets. But were those national cultural earmarks before Brandenburg when iconoclasm was a passage of rite for America's youth? Why not expose industries trafficking in ideas or art to liability for creating unreasonable risks of copycat crimes? Why shouldn't these industries pay their way just like manufacturers pay for causing environmental pollution?
These are the types of fundamental unasked questions that persist in dwarfing First Amendment thinking. On that count, Mr. O'Neil disappoints more than rewards.

Bruce Fein is a lawyer and freelance writer specializing in legal issues.

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