America prides itself on its freedom of expression, and it has a reputation for tightly restricted libel law. Indeed, a study of more than 600 media-related suits in the 1980s found that ninety percent were won by the media or thrown out of court before even going to trial. Even a case ending in summary judgment can cost the victorious defendant $25,000 or more, and the bill for a full trial can easily pass $100,000. The volume of libel suits has not diminished and many defendants settle out of court simply to avoid crippling costs. Clearly, writes Donald Gillmor, we are suffering a major crisis in libel law.
In Power, Publicity, and the Abuse of Libel Law, Gillmor takes a revealing look at the state of libel law and offers a compelling agenda for change. He begins with a disturbing review of the abuses of libel in our times, examining both famous and little known cases. Wayne Newton, for example, won an initial $22.7 million jury award against NBC for an unflattering story--even though he went on to get a Nevada casino license, a $19 million loan, the Presidential Medal of Freedom, and was made grand marshal of an Independence Day parade in Washington, DC. "It was not clear," Gillmor writes, "for what NBC was being punished; the network obviously hadn't damaged Newton's reputation." Even tiny papers suffer crippling lawsuits. One 1,300-circulation publication was sued for $20 million; even though the case was dismissed, the defense cost $20,000. Such actions, Gillmor writes, dampen the fire of a free press.
Lively journalism has always been an American tradition--if anything, the press was far more reckless in the days of the framers of the constitution; they often suffered its barbs even as they sought to protect it. Today it is almost impossible for the state to prosecute for seditious libel or criticism of government. But civil libel law, Gillmor shows, has taken its place in punishing verbal attacks on government officials, in spite of decisions intended to protect free speech and press (notably New York Times v. Sullivan). He proposes radical structural changes in the law to make it impossible for policymakers and celebrities to sue for libel. At the same time, he appeals to editors to ensure that those they wrong will have opportunities to respond in the media. As Justice Louis Brandeis wrote long ago, the remedy to wrongs in the press "is more speech, not enforced silence."
"Libel laws have become complicated almost beyond human comprehension," Gillmor writes. "The result is a profusion of libel suits, in which the only clear winners generally are libel lawyers." This provocative and revealing book illuminates a path out of the confusion and toward a safer environment for our cherished birthright, freedom of speech and press.