1990: A Supreme Court Decision Fosters Litigation
A private citizen raises high the standard for justice—but pays a price.
[This article originally appeared in the Spring 1990 issue of Nieman Reports.]
It’s a great honor to receive an award named for Elijah Parish Lovejoy—a man who was harassed by a mob and shot to death for exercising his Constitutional Rights of Freedom of the Press.
Lovejoy, mercifully, is on a very short list of American newspaper editors who have been silenced by murder.
Murder, of course, is now out of date. The modern way to silence criticism is to price it out of existence with protracted libel or defamation litigation. If you are a public official or corporate executive whose plans are being thwarted by robust debate, there’s no need for violence. You simply sue. And sue. And sue.
It is, to be sure, a more civilized method than stoning or shooting, but just as deadly to freedom of speech. Faced with the prospect of tens of thousands or even hundreds of thousands of dollars—perhaps millions— in legal costs, critics become too fearful to speak out. Their anxiety is not for the loss of their lives, but for the loss of their homes or for the nest eggs they have put away for retirement or for the education of their children.
Ironically, this new era of litigation was spawned by a Supreme Court decision—Times vs. Sullivan—that was meant to strengthen the rights of citizens and the press in public debate. In this case, more than 25 years ago, the Court ruled that civil rights leaders in Alabama were not guilty of libel against public officials in Montgomery even if they had made at least seven errors of fact in an advertisement published in The New York Times. The Court said errors were inevitable in vigorous public discussion and were to be permitted except in the presence of “actual malice,” which the Court said had two tests: one, if the error was made with actual knowledge of its falsity, or, two, if it were made “in reckless disregard of the truth.”
Much of the press rejoiced, but three of the nine Justices—Douglas, Black and Goldberg—knew better. They warned their colleagues that they were committing a grave error—putting qualifications on free speech involving public issues. And this, in the end, they said, could undermine freedom of expression and threaten democracy itself, which, of course, is predicated upon free and open debate. The other Justices were not persuaded and for about a decade it appeared that Justices Black, Douglas and Goldberg had overreacted.
Then came the late 1970’s and early 1980’s, the worst years in the history of the American media for libel and defamation suits. Such cases as General William Westmoreland against CBS, Defense Minister Ariel Sharon of Israel vs. Time magazine, and the president of Mobil Oil vs. The Washington Post burst upon the courts. Each case cited “knowledge of falsity” or “reckless disregard” or both, and each case inspired other public officials and other corporate executives to sue. Only in the last two or three years has the flood of cases against the media begun to recede. Much of the press and television are girded by libel insurance and the wealth of large communications companies. And large papers and networks have been able, when lower courts rule against them, to fight through the appeals courts to jurists who are better equipped than juries to gauge the intentions of the Supreme Court in Times vs. Sullivan.
Noting this trend, and watching huge jury verdicts melt away in the appeals courts, some law firms now seem less interested in taking on libel cases against large newspapers, newspaper groups, and television.
But there is never a time to breathe easy when the First Amendment, and all it protects, is at stake. Law firms have now discovered a new and fertile field: non-media defamation cases— that is, cases pitting business against private individuals, or public officials against private citizens, or private citizens against private citizens.
More private individuals are being sued for speaking their mind publicly than ever before, and they are being intimidated into silence in a way that large newspapers and broadcast companies never were. Small wonder. Private citizens generally do not have the financial underpinning or the insurance protection necessary to withstand a determined legal assault by a corporation or by a public official who is backed by a governmental or political apparatus.
The very worst fears of Justices Black, Douglas and Goldberg are being realized. They understood that most public officials themselves are immune from libel and defamation litigation from anything they do or say while engaged in the conduct of their official duties. They recognized that if public officials cannot be sued during public debate, and private citizens can be, then there will be a dreadful imbalance in the conduct of the public’s business.
How far have we as a society come along this perilous road? Far enough that two academics, without enough resources to do a complete survey of America’s courts, nevertheless could find 200 recent cases in which libel or defamation law has been used as an instrument of political power.
The professors, both with the University of Denver, are George W. Pring of the College of Law, and Penelope Canan, of the Department of Sociology. They concluded that “Every year hundreds, perhaps thousands, of civil law suits are filed in the United States whose sole purpose is to prevent citizens from exercising their political rights or to punish those who have done so.”
Consider the plight of Alan La Pointe, a design consultant from Richmond, California. He opposed a trash incinerator plant that was planned by the West Contra Costa Sanitary District. La Pointe’s campaign against the plant uncovered some questionable expenditures that resulted in two grand jury investigations.
La Pointe filed a taxpayer lawsuit in 1987 after the California Attorney General ruled that funds for construction of the plant had been improperly spent. A year later, the sanitary district countersued—not against the Attorney General but against La Pointe himself for $42 million, charging that he had killed the plant project by speaking out against it.
Eventually, the sanitary district lost its $42 million lawsuit and was ordered to pay La Pointe’s legal fees. Now, La Pointe is preparing to file another suit against the sanitary district for malicious prosecution and violating his civil rights.
Though he is winning the battle, Alan La Pointe today is a much more cautious civic activist. La Pointe told California magazine recently that he was having second thoughts about being a public crusader. He says, “You think, why should it be you? You wonder, is it worth the toll?”
Another example can be found in upstate New York, where yet another proposed trash burning plant was opposed by 328 residents in Washington and Warren counties. The protesters signed petitions, wrote letters to the editor of the local newspaper, conducted public demonstrations and, when all else failed, went to court to block construction of the plant.
The boards of supervisors in both counties grew impatient with the protests and the delays. In April of this year, the governments of Washington and Warren counties sued their own citizens by filing a $1.5 million lawsuit against the protesters.
Or consider, for a moment, two cases in Pennsylvania, the home state of my newspaper, The Philadelphia Inquirer. In one case, Raymond Henderson, a local leader of the NAACP, the National Association for the Advancement of Colored People, went before the Township Council in Braddock, a suburb of Pittsburgh, and complained that the firing of a black township secretary had been “racially motivated.” The council sued Mr. Henderson.
In Towamencin Township, a suburb of Philadelphia, the Township attorney sued a private citizen, Robert C. Smith, for complaining at a township board meeting that an order by the state Environmental Protection Agency had been subverted by the township.
Ultimately the cases were dropped, but not before Mr. Smith had spent $10,000 in his defense and not before Mr. Henderson decided that fighting for what he perceived to be racial injustice could carry a price beyond his means.
Both men were left pondering an interesting question: If you cannot press a grievance before your township board, where then might you press it?
It is disquieting, to say the least, to learn that so many American citizens who voice a grievance are getting sued for their pains.
In California, a Squaw Valley millionaire by the name of Rick Sylvester led a citizen fight against a proposed luxury resort and golf course planned for his mountain community. The developers responded with a $75 million lawsuit.
Sylvester’s case is about to go to court, and he estimates his legal expenses thus far have been several hundred thousand dollars. Sylvester calls the lawsuit “a monster that has moved in with the family.”
The developer’s lawsuit against Sylvester, and against others opposing the project, quickly stifled what had been robust public criticism of the project. The Army Corps of Engineers, seeking comment on the proposed development, couldn’t get any Squaw Valley residents to come forth. The Army Engineers then issued a public notice soliciting anonymous comments from concerned and frightened citizens.
You may have heard the story of Bob Barker, the television game show host and former beauty pageant emcee who has become an animal rights activist. Barker’s fierce defense of animals has made him some enemies including, oddly enough, The National Humane Association. In September, the Humane Association filed a $10 million libel suit against Barker, charging that he has been too critical of the organization’s West Coast Regional Director.
Bob Barker is presumably wealthier, and probably more committed to his cause, than many of his fellow citizens.
But how many of us have heard of Cathy Blight, former president of The Humane Society in rural Livingston County, Michigan?
A few years ago, she learned that 22 municipal dog pounds in the area were giving their unclaimed strays to a kennel operator, who then sold some of the animals for medical research experiments.
Cathy Blight wrote an outraged letter to the editor of the weekly Livingston County Press. In her letter, she demanded that the township and county governments cancel their contract with the animal broker.
Several townships and Monroe County eventually did cancel their contracts. The kennel operator responded with three lawsuits—one against Monroe County, one against the newspaper, and one against Cathy Blight for writing the letter to the editor.
The County settled its case out of court. The newspaper—which was financially backed by libel insurance— eventually settled. But Cathy Blight, private citizen, had no safety net. She suffered one setback after another in the Michigan court system. Two months ago, the Michigan Supreme Court let stand a lower court verdict that awarded the kennel operators $125,000 from Ms. Blight.
Today, Cathy Blight is running out of options. She left her job with The Humane Society. She must cash in her retirement savings to cover the legal costs. There is a lien against her house because of the libel award. A San Francisco law firm has volunteered to argue her case before the U.S. Supreme Court free of charge. But as of today, it is not at all certain that the case will get that far. Cathy Blight is thinking about cutting her losses and settling the case.
As an editor, I care deeply about freedom of the press, just as I know you at Colby College must to honor an Elijah Lovejoy year after year who died in the pursuit of it. As an editor, I wonder how secure freedom of the press ultimately will be if private citizens don’t feel free to speak out.
Freedom of the press has not survived and thrived this long in America because it is a right reserved exclusively for the powerful press. It has survived, and thrived, because citizens rightly see press freedom as merely an extension of their own freedom. They are free to question, challenge and accuse the lawmakers they elect, so they are comfortable when the press is extended that same freedom.
But if they lose that freedom—and in place after place, and case after case, they are—then they will, rightly, be less interested in seeing it extended to the press. Then, the silence will extend from the public meeting, to the editorial offices of my newspaper and others, to the giant presses themselves.
It is a silence Elijah Lovejoy refused to permit—and he died for that. Now, more than 150 years later, the silence approaches again.
Eugene Roberts, a 1962 Nieman Fellow, is President and Executive Editor of The Philadelphia Inquirer. In November, he gave this talk at Colby College, Waterville, Maine, where he was presented with the Annual Elijah Parish Lovejoy Award.