Walter Jacobson last week touched off a meteorological phenomenon that strikes reporters, especially in TV, who are forced to play pundit when the press loses a libel case. It`s the devastating ”Chilling Effect.”
Burrrrrrrrrrrr!
This phenomenon can prod reporters, who may not know a whit about a particular case, to corral the nearest 1st Amendment specialist and somberly ask, ”Dan, will this decision have a chilling effect on the press?”
Instead, we inquired of potential changes in libel law and gained unconventional views from Joel ”Chicago Week in Review” Weisman, and Richard Epstein, a University of Chicago law professor and expert in civil law. In opposition, there was A. Daniel Feldman, a libel specialist whose clients include the Chicago Sun-Times and who was in demand last week by people wanting to know if he was chilled.
Weisman, 43, is a journalist-lawyer with newspaper experience before heading to law school and TV. He`s kept up with libel law and taught a course on the subject at Kent College of Law.
He acknowledges that a key aim of the 1st Amendment is maintaining a robust and aggressive media, especially when criticizing a government the people control. A driving principle is to tolerate mistakes and protect speech as much as possible, partly to retain an admirable flow of uncensored information and opinions.
But Weisman, who notes that ”I happen to be in two of the least trusted professions,” knows many distrust the media ”because certain mistakes that are made aren`t admitted and, even when admitted, too often go without penalty. There`s no business in the world where you can turn out a defective product, commit some wrong and that`s the end of it. There`s a resentment of that.”
Although the press loses most libel suits that go to juries (with a majority overturned on appeal), the burden of proof for a plaintiff in a libel suit is difficult. One must often show that a journalist printed what he knew to be false. In legal terms, that`s known as ”actual malice.”
Weisman suggests lowering the burden of proof, making the standard of recovery easier ”so that people would be allowed to not feel so helpless in the face of the press.” He also supports a limit on damages. ”A verdict of several million dollars doesn`t put CBS out of business, but it might well put a small newspaper out of business and that`s wrong.”
On Monday, the jury that found Jacobson guilty of libel began considering what, if any, damages to award Brown & Williamson Tobacco Corp. It strains credulity to believe the firm suffered much actual damage, but the jury could hit CBS for big punitive damages. They might include the cost of bringing the lawsuit, including attorneys fees, which the tobacco firm said total $1.3 million.
”What we`re looking for,” said Weisman, ”is a way to restore trust and relieve public frustration at the media but at the same time not open the media`s cash registers to the world.” He believes that ”most stories are responsible and if there are errors, the damages should be slight.”
Epstein finds it wrong that a media defendant, who may have made a mistake that ruins somebody`s career or business, can hide behind good motives. If a defendant shows no malice, he avoids any judicial determination of having made a false statement. As Epstein has written, ”Let a truck run down a pedestrian, or bad food poison a consumer, and the absence of malice is no excuse. The defendant must pay.”
He appears to narrowly interpret 1st Amendment protections of free speech. The critical test, he says, should be simply whether a statement was wrong. He, too, wants to limit recoveries. This could prompt more lawsuits, but maybe not. If there`s no huge payoff in the offing, some might not sue. At the same time, many plaintiffs might be content with the mere determination that they were wronged.
Feldman strongly disputes the idea of lowering standards, while also desiring elimination of punitive damages. ”I agree that mistakes are made, but the assumption that a libel suit is the way to correct them isn`t right.” He thinks the press should admit its errors more freely but that, given the unique time and deadline constraints it works under each day, it does a strong job. A substantial number of mistakes must be tolerated. ”This isn`t like the manufacture of automobiles.”
Those interested in libel should pop by a 2 p.m. Friday seminar hosted by the Illinois Judges Association in Ballroom D of the Hyatt Regency Chicago. Participants include Epstein and U. of C. colleague Geoffrey Stone; attorneys Elmer Gertz and Don Reuben; and attorney Rex Carr, who won a $9.2 million libel verdict against the tiny Alton Telegraph.
Reuben, whose clients have included The Tribune, is expected to arrive whispering, ”I told you so.” He originally had the Jacobson case but was booted by WBBM-TV management, which switched to Sidley & Austin. Matched against a New York law firm, Sidley lost big on its home field.
THE USUAL REASONS –AND THEN SOME
The usual reasons–power, money and ”more opportunity”–along with a Greylord-related flap, are behind 10 partners splitting Friedman & Koven. They are Charles Gerber, former University of Chicago Law Dean Phil Neal, Philip Kayman, James Gardner, Ralph Russell Jr., Michael Sher, Paul Glick, Norman Gantz, Alisa Singer and Charles Ephraim. In large part, this stems from a struggle between firm heavyweights Gerber, who`s tight with the Pritzker clan, and Oscar D`Angelo for rights to succeed major domo Howard Koven whenever he retires. D`Angelo, quite the operator in city politics, was rightfully embarrassed by the Richard LeFevour trial when it was revealed that he paid for Avis rental cars for LeFevour during a period he represented Avis before LeFevour. Admittedly, Avis was stiffed by LeFevour, but Gerber and others made a big deal of D`Angelo then picking up the tab, suggesting a need to sweep ethical litter out the door. Some see the criticism of D`Angelo as a pretext for the Gerber group`s likely merger with Kanter & Eisenberg. They see no small irony since the Kanter firm, led by one of the nation`s most brilliant tax lawyers, Burton Kanter, hasn`t been a paragon of morality. Kanter and then-partner Roger Baskes were indicted for a conspiracy to avoid taxes on $700,000 in proceeds from a Nevada hotel sale. Baskes was convicted and Kanter was acquitted. Baskes was sentenced to three years in prison for a second tax evasion conviction related to the Nassau-based Castle Bank and Trust Co., focus of a controversial IRS undercover operation. Moreover, one of Gerber`s clients is Sam Zell, a real estate baron turned bigtime corporate raider. It was Zell who, under a grant of immunity, testified in 1977 against Baskes, his own brother-in-law. So, no one should get too self-righteous about D`Angelo.
COORLAS APOLOGIZES FOR SCHMIDT LETTER
We recently revealed how a few people took out office stationery and wrote letters of support to U.S. District Judge Milton Shadur on behalf of attorney Theodore Schmidt, right before Schmidt pleaded guilty to a misdemeanor income tax charge in the Cook County Board of (tax) Appeals mess. Those people included Circuit Judges Frank Siracusa and Arthur Perivolidis, former State`s Atty. Bernard Carey, now in private practice, and Peter Coorlas, head of Richie Daley`s probate division. Last week, Coorlas wrote to both a peeved Daley and Shadur, apologizing for the use of office stationery and underlining that the views expressed were his own.
BRIEFS: Illinois Supreme Court takes away the law license of Circuit Judge Wayne Olson, convicted in Operation Greylord, awaiting sentencing and now off the court payroll. It also suspends until further order the license of Jerry Berliant, notorious gate crasher who pleaded guilty to income tax fraud and got 20 weekends in prison. . . . Republicans slate Circuit Judges Edwin Berman and Michael Toomin to run for appellate court against Democrats Anthony Scariano and Charles Freeman, respectively, while picking for suburbs-only slots Judges Anton Valukas, dad of the U.S. attorney, and Patrick Grossi, along with attorneys Harvey Schwartz of Skokie and Alexander White of Des Plaines.
Mayor Harold Washington and attorney Judson Miner will be honored at the NAACP Legal Defense and Educational Fund dinner, 5:30 p.m., Tuesday, at the Drake, while Miner partner Allison Davis is named co-chair of the fund in Chicago. . . . Vince Connelly is named chief of special prosecutions in the U.S. attorney`s office, while Joseph Duffy, a former IRS agent key to the William Scott case, is the new chief of the criminal division, with Joseph Hartzler serving as top deputy. . . . Terry Chiganos, head of Richie Daley`s public integrity section, is splitting for private practice.
Northwestern Law students Michael Maduff and Neil Abramson win Midwest regionals of the American Bar Association`s first Negotiation Competition and advance to the Feb. 8 finals in Baltimore. The mayor`s top labor gun, Richard Laner, is elected president of American-Israel Chamber of Commerce and Industry. . . . Walter Cummings, chief judge of the federal appeals court, is named chairman of the Conference of U.S. Chief Circuit Judges, which handles problems concerning the 13 federal circuits. . . . The holiday period will be at least half over by the time the American Jewish Congress and other Jewish groups, challenging display of a creche inside City Hall and a menorah outside the Daley Center, ever get to court. They have a Dec. 13 court date with Sylvia Neil and Northwestern Law`s Steven Lubet for the plaintiffs, and city lawyers, along with Jerold Solovy, handling the defendants.
