TLast week’s self-immolation of Dan Rather is very Hegelian, as Frank Fukuyama might say. Every triumph contains within itself the seeds of its own destruction, and the greatest media triumph in my lifetime was the Supreme Court’s dreadful decision in NY Times v. Sullivan, in which our current standards for libel were first codified. In the rest of the world, if a journalist/newspaper/magazine/TV broadcaster, etc. comes out with something that is both false and damaging, you’re entitled to “be made whole.” This usually involves an apology and some sort of payment. That has always seemed to me to be the common-sense approach: They hurt you, they pay.
Not here. Here the mainstream media get enormous latitude, unless you’re a virtual unknown, in which case common sense still (mostly) applies. But if you’re a “public figure,” that is, if there has already been a fair amount of media coverage, in order to win a libel verdict you’ve got to prove either “reckless disregard for the truth,” or you have to demonstrate a state of mind. You’ve got to show that the person or institution that slimed you knew at the time that the “information” was false, and proceeded to publish or broadcast it precisely because he/she/it was out to get you. That’s called “malice.”
This decision gave the mainstream media enormous power. Combined with Watergate, it transformed the media from kibitzers to the Fourth Estate, a branch of government. Unelected media representatives do everything that traditional appointees and elected representatives do: They propose, endorse, and oppose policies, attack their political opponents, lobby for their favorite legislation, nominate candidates for high office, and, thanks to Senators Feingold and McCain, even have special privileges to pump out political propaganda.
Thanks to Sullivan, journalists were no longer required to have convincing evidence. The shoe was henceforth on the plaintiff’s foot. Instead of being forced to demonstrate that they had reported the truth–and punished when they didn’t–the media defied their victims to prove willful distortion. That turned out to be virtually impossible, or at a minimum enormously costly.
The results have been plain for a long time. If 60 Minutes, say, runs a nasty false story about you, and you want to sue to recover your good name, your attorneys will most always tell you to forget it. CBS has deep pockets and plenty of attorneys who are always ready to invoke “the people’s right to know” and will club you with the text of Sullivan as you pour money down the judicial rathole. Anyone who clears the very low bar of “public figure” can pretty much forget about trying to win a libel suit. Yes, it happens, but it’s the courtroom equivalent of Brigadoon: very rare and quickly disappears.
Sullivan was an open invitation to corruption, and power-seeking men rarely decline the pleasure. In the intervening years, journalists have trotted out all sorts of bogus “rules” to pretend that they were very attentive to truth (the “two-source rule,” piously invoked by Woodward and Bernstein during Watergate, is my favorite; I can find you two sources for most anything in contemporary Washington), knowing full well that they would never be forced to prove “truth,” and needed only the fig leaf of their professed honorable intentions to protect against the malice charge.
That’s the rich loam in which Rathergate germinated and came to full bloom. It’s bad for the media, bad for the public (whose vaunted “right to know” has long since been trampled in the interests of the media’s desire to exercise power), bad for civil society, and terrible for the scores of innocents whose reputations are shattered by false allegations.
I think that normal libel laws would help. If nothing else, they would accomplish at least two good things. First, they would slow down the remarkable speed with which (traditionally) libelous accusations are published, posted, and broadcast. Second, normal libel laws would give aggrieved parties a fair shot at their slimers, no small matter. Revenge is not only a satisfying act, it’s a purifying emotion, and Americans are said to care greatly about mental health.
To be sure, old-fashioned libel laws won’t “cure” the disease. I’ve won libel cases in both Great Britain and Italy, but I can’t say that the media are dramatically more cautious than they used to be. Some publications just build in damage payments as a cost of doing business. As one editor put it to me, “I knew you’d sue, and of course you’re right, but I just couldn’t resist.”
So be it. But at least he had to pay, and at least those who care about such things know he acted improperly. It’s a lot better than handing out hunting licenses to everyone with a word processor. Wouldn’t you say, Dan?
–Michael Ledeen, an NRO contributing editor, is most recently the author of The War Against the Terror Masters. Ledeen is Resident Scholar in the Freedom Chair at the American Enterprise Institute.