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Fewer defamation cases go to trial, but when they do, the media are more likely to win. From the Summer…

Fewer defamation cases go to trial, but when they do, the media are more likely to win.

From the Summer 2005 issue of The News Media & The Law, page 30.

By Grant Penrod

The Jan. 12, 1999, edition of the Chicago Tribune ran an incredible story about prosecutorial misconduct. Among the revelations: Forensic shoe-print examiner John Gorajczyk told a grand jury investigating a DuPage County murder that a boot print at the crime scene did not match the boot of one of the codefendants.

Gorajczyk had more: Lead prosecutor Thomas Knight told him to “keep his mouth shut” about the mismatch.

The story, reported in a five-part series, “Trial and Error: How Prosecutors Sacrifice Justice to Win,” was juicy &#151 but wrong. Gorajczyk never testified before the grand jury. Private investigator Stephen Kirby did. He’s the one who told the grand jury that Gorajczyk told him that Knight said “don’t discuss this with anyone.”

Tribune reporter Maurice Possley got the facts straight in the original draft of the 5,000-word story. But an editor changed it in the ninth draft and Possley failed to catch the error before the story went to press.

Knight sued the Tribune, Possley and reporter Ken Armstrong for defamation. Even though the reported facts were false, a jury found in favor of the newspaper in May after an 11-day trial in Illinois state court. The win is part of a trend of the media winning more and more jury trials, even in cases like the Tribune‘s where the reporting is wrong, according to the Media Law Resource Center, which collects and analyzes such statistics.

Errors are “inevitable in free debate, and . . . must be protected if the freedoms of expression are to have the breathing space that they need to survive,” the U.S. Supreme Court wrote in 1964 in New York Times v. Sullivan. Thus, the court ruled, public officials can win defamation lawsuits over comments about their official conduct only if they prove that they were spoken or published with actual malice &#151 “with knowledge that it was false or with reckless disregard of whether it was false or not.”

In the Tribune case, one key element of the newspaper’s success was how the jury applied the actual malice standard, said the newspaper’s lawyer, Charles L. “Chip” Babcock of Jackson Walker LLP in Dallas.

“I think the jury just could not believe that there was any actual malice here &#151 that this was done intentionally, that these mistakes were intentional,” Babcock said. “Several of them had commented that the case was over after the first witness because the first witness was the reporter who had made the editing mistake and he explained it very logically as to how it happened and it was just an innocent mistake. That’s all there was to it. I think he was a very good witness.”

Another important aspect of the case was showing the jury that Knight had not been harmed by the article, Babcock said. Knight, now in private practice, represented himself at trial and admitted that no one stopped doing business with him because of the article.

The Tribune‘s win is in line with an upswing in libel trial wins for the media, said MLRC Staff Attorney Eric P. Robinson.

In the 1980s, the media won just 35.7 percent of the defamation cases that went to trial. That increased slightly to 39.1 percent in the 1990s. But as of mid-July, the percentage of media wins so far this decade has jumped to 56.9 percent.

So far this year, the media have won six of eight trials.

“People are pretty sophisticated about the media these days and how they work and how the First Amendment plays a role in that,” Robinson said. “Although the media come under a lot of criticism these days I think people understand the importance.

“There are egregious cases where reporters go just out of bounds,” he said. “Obviously that happens, but when you generally look at it most reporters try to do a good job, and also when you have a high burden of proof of actual malice, it is hard to prove that kind of stuff.”

Another reason the media may be winning more is because media lawyers are getting smarter about how they conduct trials, Babcock said.

“I think there is still a lot of hostility to the media among the general populace,” he explained. “You’ve got to be very careful when you’re picking your jury to try to identify people who are hostile to the media and keep them off the jury if you can. There were several people on the Tribune case who, if we’d have let them on the jury, would have been very bad for us. One of the alternate jurors who wound up not sitting in on the deliberations because there was no need for an alternate was very critical of the paper. These things are really dangerous.”

He pointed out that it can be hard to get jurors to apply the actual malice standard in cases where the media reported something falsely. “It is very difficult to get jurors to look past that. I’ve had juries in the past that once they’ve decided that the statement was false they didn’t spend a lot of time worrying about actual malice,” he said.

Babcock also said that increased willingness by news media companies to settle cases rather than try them before a jury means they win more trials. “The attitude of a lot of media companies was ‘We’re gonna try everything.’ And if you try everything you’re gonna try your bad cases as well as your good cases. Now I think we’re just trying good cases by and large. There are a couple of companies who are not going to settle anything, but very few,” he said.

MLRC statistics show a decrease in the number of trials since 1980. There were 263 defamation cases that went to trial in the 1980s and 179 in the 1990s. So far this decade, there have been 72 defamation trials.

“I think its also important to look at the overall process from when a case is filed to the final results after appeal,” Robinson said. “When you look at that broad scope, the bottom line is . . . it’s still pretty hard to win as a plaintiff.”

Neither Robinson nor Babcock think that plaintiffs have succeeded in turning to other types of lawsuits, such as invasion of privacy or intentional infliction of emotional distress.

“There has always been an effort, and there probably still is, to try and circumvent defamation or libel because it is so hard to win these things on the law,” Babcock said. “But I don’t frankly see a lot of success by plaintiffs.”

Robinson explained that “higher courts are applying First Amendment principles to these claims. Basically saying they are a libel claim in another guise so that the same First Amendment principles apply.” Since the law is less defined as to nondefamation claims, courts are addressing them issue by issue, he said.

So how do people who are upset with the news media fight back?

“They start a blog,” Robinson quipped. “It’s a bit facetious but also partially true now. I think there is a lot of amateur and professional media criticism out there. The media, again as a whole and this is a vast generalization, is under the kind of scrutiny they have never been under before,” he said, which in turn causes the media to scrutinize itself with “a fine tooth comb.”