Introducing a New Concept Into Libel Law
‘We think that institutional malice will make the libel inquiry more attuned to the real world.’
In their article, “Institutional Reckless Disregard for Truth in Public Defamation Actions Against the Press,” published in Volume 90, number three of the Iowa Law Review, page 887 (2005), University of Iowa law professor Randall P. Bezanson and University of Iowa emeritus journalism professor Gilbert Cranberg explain in depth why they believe the new concept of “institutional malice” that they propose be applied in libel cases will be able to withstand judicial scrutiny on constitutional grounds and how this concept relates to aspects of tort law. In the article below, they touch on some of the ideas contained in that article in which they propose a different standard of liability be imposed on news organizations.
The U.S. Supreme Court’s decision in New York Times Co. v. Sullivan turned 40 last May. While the ruling is far from ready for the scrapheap or to be traded for a new model, we believe it is due for an overhaul. A major reason why this overhaul is needed is the dramatically changed media landscape since the U.S. Supreme Court in 1964 crafted its landmark rule on libel.
When that ruling was issued, only one newspaper company was listed on any stock exchange, and therefore publicly traded, and that company had gone public only the year before. Nowadays, publicly traded companies account for a substantial chunk of daily and Sunday newspaper circulation, while media ownership generally has become much more concentrated. It would have been unimaginable to the justices in 1964 that a single broadcaster would own nearly 1,300 radio stations, as Clear Channel Communications does today.
The combination of consolidation and public ownership has powerfully concentrated the minds of media managers on maximizing profits. The upshot of these changes has been the emergence of management styles at news organizations that mean they are today indistinguishable from any other business by their focus on profit margins, stock price, and stock options. As we (with John Soloski) wrote in “Taking Stock: Journalism and the Publicly Traded Newspaper Company,” published in 2001, “By and large, so little attention is paid [by corporate executives] to a company’s brand of journalism that it is possible to study a [compensation committee] report of how top managers are rewarded and not realize that the enterprise discussed is engaged in journalism.”
The belt-tightening that goes handin- glove with public ownership has done serious harm to journalism. As The Washington Post’s Leonard Downie, Jr. and Robert Kaiser wrote in their book, “The News About News: American Journalism in Peril,” a couple of years ago: “Most newspapers have shrunk their reporting staffs, along with the space they devote to news, to increase their owners’ profits. Most owners and publishers have forced their editors to focus more on the bottom line.”
The justices who decided New York Times Co. v. Sullivan could not have foreseen these developments, let alone their impact on libel. The ruling instructs that the key element in a defamation action by a public official is actual malice—that is, the state of mind of the reporter or editor at the time the damaging falsehood was published. The central questions involve whether the journalists were aware it was false or had serious doubts about its accuracy but published in reckless disregard of the doubts. As a consequence, when a charge of libel is filed, everything about the editorial process is autopsied and minutely examined to reconstruct what the journalists knew and when they knew it at the time they did the story.
Everything is examined, that is, except the part played by corporate headquarters and publishers by the budgets, and thus the working conditions, they imposed. Journalists do not work in a vacuum. If cutbacks encourage turnover or leave a newsroom shorthanded or not properly trained, that can seriously erode the newsroom’s ability to ride herd on error. Nevertheless, it is the reporter or editor who bears the brunt of the actual malice inquiry.
Corporate Managers and Libel
We believe that when libel suits are brought against media corporations, as distinct from their journalist-employees, the courts should recognize the concept of “institutional malice.” We mean by this term the corporate decisions made knowing that they would produce a journalistically unjustified heightened risk of false and defamatory publication.
To be sure, media companies are no strangers to such defamation suits. They are made parties to the actions because, like the banks Willie Sutton robbed, that’s where the money is. But seldom, if ever, are they held to answer in any direct way for the slipshod journalism their management policies produce. If a damaging error slips by an undermanned copy desk because copyeditors spend much of their time paginating, it will be the reporter (and perhaps the copyeditor) who made the error who will be grilled in depositions, not the company’s chief executive officer or chief financial officer, or even the publisher, whose reckless business decisions decimated the copy desk.
Under our proposal, cases challenging the editorial decisions of individual journalists to publish a possibly false and defamatory story would be decided the old-fashioned way—using the actual malice standard. A news organization’s liability, on the other hand, would depend on proof that its business decisions were made in reckless disregard of the likely risk of defamatory publication.
We emphasize that this is not intended as an end-run around the actual malice standard, set forth in New York Times Co. v. Sullivan, which protects the press effectively. Rather, it is intended to fill a void that allows key corporate behind-the-scenes players in libel to avoid being answerable directly for their conduct. Nor will any plaintiff who attempts to establish institutional malice find it an easy road to traverse.
We think that institutional malice will make the libel inquiry more attuned to the real world. And if it should give media managers pause as they prepare to ax a newsroom budget, so much the better.
If, instead, liability based on actual malice is all that exists, then errors spawned systematically by corporate policy choices will remain free from liability because the errors will not, by definition, be assigned to the writers’ actual knowledge about truth. A further consequence will be that actual malice, and the defamation tort that accompanies it, will operate perversely to absolutely immunize—and thus to encourage and reward—unacceptable choices at the corporate management level. Such an incentive to compromise journalism and its quality is tragic for it jeopardizes the very purpose and promise of the First Amendment.
Randall Bezanson is Charles. E. Floete Professor of Law at the University of Iowa; Gilbert Cranberg is George H. Gallup Professor of Journalism Emeritus, University of Iowa, and former editorial page editor of The Des Moines Register.