Two apparently unrelated stories in and about the New York Times on Friday caught my eye since, put together, they may suggest the risks presented by threatened libel actions in the new newspaper economy.
In the four and a half decades since the court handed down its decision in Times v. Sullivan, major newspapers have been wealthy enough to withstand the risks and threats of libel actions. In the Sullivan case, the Alabama court originally ordered the paper to pay $500,000 to Sullivan, and the Times faced eleven other suits that, collectively, could have cost it $6 million. One apparent purpose of those suits was to intimidate the Times and to reduce the aggressive coverage of the civil rights movement in the south. One probable contributing motive for the court’s sweeping decision making it difficult to recover for claims of libel was the court’s belief in the importance of press coverage of the civil rights movement.
In the decades after Times v. Sullivan, the courts continued to expand the protection against libel claims, making it more and more difficult to recover, particularly for public officials and public figures. At the same time, the mainstream media became more and more wealthy, making it easier for them to be self-insured and to fight off almost all libel claims.
Might that be changing? One story in the paper yesterday revealed that for the first time in 40 years, the Times Company has decided to forego any dividends in order to save $35 million. You can find that sory here: http://www.nytimes.com/2009/02/20/business/media/20times.html?_r=1&scp=1&sq=times%20dividends&st=cse. The decision makes sense in today’s horrific financial climate, but would have been unthinkable just a couple of years ago when the company was spending more than a billion dollars on the purchase of the Boston Globe and on a new headquarters building.
A separate story reported that the Times had settled a lawsuit filed by Vicki Iseman, a Washington lobbyist with close ties to Senator John McCain. Some readers felt that the story implied that Ms. Iseman and Senator McCain had a romantic relationship. As Clark Hoyt, the Times’ ombudsman, explained: “judging by the explosive reaction to the 3,000-word article, most readers saw it as something else altogether. They saw it as a story about illicit sex. And most were furious at The Times.”
Apparently the settlement does not require the Times to pay any money to Ms. Iseman or to “retract” its original story. It requires the paper to let Ms. Iseman’s lawyers present their views on the paper’s website. You can read that story, along with related links, here: http://www.nytimes.com/2009/02/20/business/media/20lawsuit.html?scp=1&sq=times%20libel&st=cse. Also, without “retracting” the story, the paper did run a joint statement as well as a “Note to Readers” in the print edition that retracts the implication of the story, or what Clark Hoyt felt that “most readers” felt that the story implied. The note says: “The article did not state, and The Times did not intend to conclude, that Ms. Iseman had engaged in a romantic affair with Senator McCain or an unethical relationship on behalf of her clients in breach of the public trust.”
In one sense, this is a triumph for the web. It provides the print media with a new method of dealing with the complaints of those who feel that they have been libeled or at least treated unfairly. They don’t have to print every element of a retraction or directly present the plaintiff’s point of view in their newspaper or magazine. They can use the web for that purpose. In some respects this is also a major advance for the complainants. They can have their views presented more completely and, perhaps, to settle a libel case with less expense.
But it also may suggest that newspapers may have started to become more concerned about the expenses of libel suits – both the costs of a defeat and the costs of litigation. It may represent one more thing to worry about in the era that seems to be upon us.
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