Libel lawsuits — in threat or reality — often seem like a looming financial tornado threatening an already-beleaguered news industry. With the public trust in the news media at a well-documented historic low, libel lawsuits may increase in both number and size.
Law.com ran a piece in March of 2021 suggesting the United States is in a “Golden Age of Defamation” as “the current climate provides a soap box for critical speech, risking ruined reputations and vast economic consequences” as Democrats lauded billion-dollar libel suits against right-leaning news outlets.
Meanwhile, former President Donald Trump pledged in 2016 to “open up” libel laws so he could more easily sue news organizations. And Sarah Palin’s current lawsuit against The New York Times over a factual error is testing that notion.
Given that backdrop of political polarization and weaponized libel laws, it’s worth looking back in time to a landmark academic study from the 1980s.
A group of three professors from the University of Iowa — Gilbert Cranberg, John Soloski and Randall P. Bezanson — kicked off a study called the Iowa Libel Research Project in the 1980s. The group studied and coded almost every libel case between 1974 and 1984 with an aim to understand why plaintiffs sue. They conducted extensive interviews with plaintiffs and defendants (newspaper editors and staff members).
“We also wanted to know how plaintiffs and defendants feel about the disputed stories, the media and their experience with litigation,” wrote Bezanson in The California Law Review in 1986. The study also became a book and involved many presentations and discussions throughout the news media industry.
Back then, the media industry was shocked by a $120 million suit by Gen. William C. Westmoreland against CBS and a $50 million suit by Ariel Sharon against Time. Those amounts, even when factoring in inflation ($120 million would be $345 million today), pale in comparison to the $2.7 billion lawsuit by Smartmatic against Fox News last year. ABC settled a $1.9 billion libel suit by Beef Products Inc. by paying the company $177 million in 2017.
Their study found that most — roughly 90% at the time — litigants lost in court and those who won tended to win rather small monetary awards in damages. In other words, libel suits were hugely expensive and tiresome to both news outlets and to the people suing them.
Bezanson noted the major motivating factor for libel suits wasn’t usually monetary but rather a desire to restore reputation, correct falsehood, or exact vengeance. Although two-thirds expressed dissatisfaction with the litigation experience, roughly 90% of plaintiffs who lost said that the lawsuit “accomplished something.”
“Plaintiffs view the lawsuit as an instrument for self-help, regardless of its judicial outcome,” Bezanson wrote. “The act of suing represents a legitimation of their claims of falsehood. Indeed, many plaintiffs may believe they have no other means of recourse, and therefore feel that litigation is the only way to set the record straight.”
Their research found plaintiffs often contacted the media outlet before contacting a lawyer. They often felt the media outlet showed “indifference, arrogance or insensitivity” in listening to the concern. As a result, the plaintiff often then contacted a lawyer. Most of the news outlets the Iowa researchers interviewed said their media organizations responded poorly to complaints.
“Most plaintiffs would welcome nonjudicial alternatives, but only if the opportunity for public vindication of their interest in reputation could be assured,” Bezanson wrote. An overwhelming majority of libel plaintiffs — 83% — said they would be interested in nonlitigation alternatives, but the researchers found few lawyers at the time were presenting nonlitigation alternatives to clients.
“Remarkably, the plaintiffs’ sense of anger and frustration radically shifted by the end of the litigation process from the media to the judicial system,” he wrote, noting 67% expressed dissatisfaction with the justice system.
The researchers were “convinced that less formal, nonjudicial processes for adjudication, negotiation, or mediation should be found,” wrote Robert B. Downs of the University of Illinois, in a 1988 review in The Library Quarterly of the resulting book “Libel Law and the Press: Myth and Reality.”
Jim Borelli, an attorney who specializes in media and insurance issues, said the Iowa study “helped the media get better at handling” issues like reader feedback, corrections, clarifications and retractions. At the time, he said, few newspapers had an ombudsman to field reader complaints. “Reporters would handle calls from angry readers on their own stories instead of passing them on to their editors. Many national news organizations did not have a well-thought process” for dealing with reader complaints.
Borelli, an adviser to Vett Inc. and its VettNews Cx software for managing reader feedback (of which I am the founder and CEO), said in the 1980s most newspapers had well-staffed copy desks that provided several layers of review to catch typos, check facts and correct errors. Thanks in part to the Iowa study, many metro and national newspapers hired ombudspersons and reader representatives to respond to reader complaints and feedback. “As we know, the economic downturn in the publishing industry in recent years has led to severe staff cuts in newsrooms. Those cuts may well have diminished those systems,” Borelli told me.
The findings and legacy of the Iowa study reaffirm to us at VettNews that our Cx product for managing reader feedback and corrections is a valuable system that enables newsrooms to listen to their audience at crucial moments. It enables constructive dialogue rather than spawning hostility, resentment and expensive lawsuits.
Tracking down those Iowa researchers now, I discovered Gilbert Cranberg died in 2018 after a lauded career at The Des Moines Register and the University of Iowa. Randall P. Bezanson died in 2014 after a prolific career in legal and academic scholarship and leadership at the University of Iowa and Washington and Lee University School of Law.
John Soloski moved on to become dean and, later, a professor at the Grady College of Journalism and Mass Communication at the University of Georgia in 2001, where he worked before retiring this year. Soloski spoke to me by email and Zoom and said the project involved a decade of his life and took him far and wide to talk with press groups and media lawyers, including to Australia, which was a “libel capital of the world.”
“At that time, truth was not the ultimate defense in a libel suit,” Soloski said. He reiterated how insights from the project helped people better understand the motives of various parties in libel suits. “Corrections turn out to be not a major factor in sending people to court. The news media are really good and prompt at fixing factual errors, but are loath to fix errors of implication, suggestion, etc. These are the real factors that send people to court.”
When we talked about news tech products that aim to improve norms and practices in reader feedback (such as VettNews Cx), Soloski said this kind of system makes more sense to the public than long codes of journalistic ethics written by and for journalists.
“A real news organization depends on one thing and only one thing: its reputation,” he said. “Anything that protects that reputation is incredibly important, particularly if it’s transparent to viewers and readers.”
He noted social media giants will face massive liability if Washington reforms Section 230 and allows people to start suing Meta (owner of Facebook and Instagram), Twitter and others for libelous content shared on their platforms.
“The number of libel suits against the news media pale compared to the ’70s and ’80s, but there are huge dangers on the horizon,” Soloski wrote. “Eliminating Section 230 could open a new area of libel law. Equally scary is that a few Supreme Court justices want to revisit Sullivan,” the landmark 1964 case that ruled that, for public officials to successfully sue a news outlet for defamation, they had to prove that the news outlet acted with “actual malice.”
Palin’s lawsuit against the Times could give them the opportunity. Soloski, though, doesn’t think Palin’s lawsuit will prevail in changing libel law. And its likelihood to go to the U.S. Supreme Court? “I don’t think the Palin case has a chance,” he says.
