The End of Libel?

Good news: Fewer cases are being filed. Bad news: It may be a result of weaker journalism.

When Robin Bierstedt joined the Time Inc. legal department in 1983, there were 20 active libel cases pending against the company. In her 27-year career, she has taken on dozens of spurned public figures, officials and organizations (hello, Church of Scientology!), all of whom had a serious legal beef with Time Inc.

Later this week, Bierstedt will retire, and she put it plainly when asked why she was leaving. “No more lawsuits,” she said.

For the first time in her nearly three decades at the world’s largest magazine company, there are no active libel suits against Time Inc. In fact, there hasn’t been an active libel suit in 11 months.

And she isn’t alone. “It’s never been lower,” said George Freeman, the New York Times Co.’s vice president and assistant general counsel, on the number of libel suits his company is facing.

He said that for the first time in his 29 years with the Times Co.—which owns The Times, The Boston Globe and many regional papers—there are no active libel suits at the moment. It’s been that way for about a year, a reversal from years past, when the Times Co. would have about 10 to 15 cases a year.

In a trend media lawyers around the country are just beginning to understand, libel cases have diminished at a fairly steady rate the last few years. Libel suits appear to be going out of fashion.

“The number is down significantly compared to a dozen years ago,” said Stuart Karle, the former news lawyer for The Wall Street Journal who now teaches at New York University Law School and at the Columbia Journalism School.

“It’s definitely a trend we’ve noticed,” Bierstedt said.

“I don’t know of many litigators, whether they represent the defendants or plaintiffs, who are doing a lot in this area,” said Floyd Abrams, the legendary media counsel.

Media lawyers have a few theories to explain the rapid decline. A track record of limited success for plaintiffs discourages people from filing such cases—clearly a good for media organizations. In addition, the Web has allowed for quick corrections, heading lawsuits off before they are even filed. Some individuals now even post their own responses on the Web, allowing them to vent steam before heading to court.

On the darker side, some media pros wonder whether the declining finances of media companies may be limiting the type of journalism that used to anger subjects and produce libel suits.

A quick refresher course may be in order. Ever since the Supreme Court ruled on The New York Times v. Sullivan in 1964, the actual-malice doctrine was established for libel cases, meaning that if a public figure or official wanted to pursue a libel case, a publisher or reporter had to write a story knowing that it was false, or having a “reckless disregard” for the truth.

While that case clearly benefited news organizations, it hasn’t stopped people for decades from suing. Until now.

“The number of libel cases going to trial has dropped to the point where it’s not worth doing the survey on an annual basis,” said Sandra Baron, the executive director of the Media Law Resource Center.

Baron was speaking about the annual—and now biannual—survey of libel and privacy trials that her firm rounds up and produces into a study. In the most recent study, the Media Law Resource Center found that libel trials in the 2000s were down more than 50 percent from the 1980s. In the 1980s, the center found 266 trials; in the ’90s, that number dropped to 192; in the past decade it dropped to 124. In 2009, only nine have surfaced so far.

Insurance firms have noticed the change as well. “On the media liability insurance side, we are not seeing as many libel suits filed against insureds, against our media policyholders,” said Michelle Worrall Tilton, the media liability program manager for OneBeacon Professional Insurance, a brokerage firm that provides insurance to media companies when they get sued.

In terms of the causes of the change in libel, look to the Web.

“There’s so much more out there,” Bierstedt said. “People will feel less offended by that one newspaper or magazine sitting around.”

“There’s a sense that it gets washed away,” Karle said.

Even if you Google your name and find an offending article, you’ll also find “8,700 other things from the last 10 days, too,” Karle added.

Not only is there much more out there, but now subjects can get their story out there. “People who used to feel frustrated that they couldn’t get their viewpoint across now can,” said Karle, The Journal’s lawyer for 15 years. “They can put their response on a website. They can find an outlet that will publish it. They can get their perspective out immediately.”

And then there’s the willingness of publications to go out and correct something that’s wrong online. No one has to wait days or even months for a correction no one sees! “On the Internet, people’s complaints get vindicated a lot more and much faster than in print,” Freeman said. “In print, maybe you’ll get a correction, but in the plaintiff’s view, the damage has already been done. On the other hand, if you complain about a mistake because you see it on the Internet, it’s more likely a rapid change can be made and people don’t feel the necessity to sue because they feel like their complaint has been dealt with.”

The more serious question is whether the financial state of media is another reason suits are dropping. “I think some of it can be explained by the fact that news organizations are cutting back investigative reporting and that’s what often generates libel suits,” said Laura Handman, a partner at Davis Wright Tremaine, and who has represented the Daily News, The Journal and The Observer.

“Not talking about Time Inc., but news organizations are spending less money on investigative journalism. That kind of journalism is not only expensive before the fact but expensive after the fact, when you’re defending it in a lawsuit,” Bierstedt said. “The (1991) Time magazine Scientology cover story was an expensive story to do and an expensive story to defend.”

There’s also a sense that given the poor financial state of news organizations, they may be more willing to make changes when there is an angry phone call placed from a lawyer before a story hits. Who wants to spend all that money when news organizations are barely scraping by?

“In respect to the smaller newspapers and the smaller broadcasters that work on a tight budget and the larger ones that aren’t doing well, the risks of litigation are considered very real and very troubling,” Abrams said.

Finally, media lawyers also said that after years of high expenses and low odds, plaintiffs may have finally figured out that libel suits don’t really work.

“Once everyone gets into the claim and begins to realize that it is so lengthy and onerous and so unpleasant for all involved, many claims seem to go away,” Baron said. “Claims are brought in by a certain level of anger. Then people will talk about it and resolutions will be found and corrections will be made or statements will be clarified.”

“It may be that 50 years after the Sullivan decision, plaintiff’s lawyers have come to grips with the fact that libel suits are hard to win, and it might not be worth the time and effort to spend in fighting,” Freeman said.

Additionally, media companies tend to fight the lawsuits on a matter of principle. A quick settlement, particularly with larger companies, is rarely in the cards.

This is not to say that journalists have it easy these days. Subpoenas are still dropping down on reporters. Media outlets are still getting sued. But when it comes to the old-fashioned libel case, lawyers and subjects might finally be calling it a day.

Beginning next week, Bierstedt will be in Martha’s Vineyard, beginning her retirement.

“I’ve been here 27 years, I’ve had a great, long career, but my practice has definitely changed,” she said. “I laugh when I say I came here for the lawsuits, but in a way I did. Defending journalists is one of the few worthwhile things a lawyer can do, and there’s just less of that work now. It’s just not like the days when we had nasty high-profile plaintiffs coming at us.”