DOCUMENT RESUME ED 362 918 CS 508 352 TITLE Proceedings of the Annual Meeting of the Association for Education in Journalism and Mass Communication (76th, Kansas City, Missouri, August 11-14, 1993). Part VI: Media and Law. INSTITUTION Association for Education in Journalism and Mass Communication. PUB DATE Aug 93 NOTE 363p.; For other sections of these proceedings, see CS 508 347-362. For 1992 proceedings, see ED 349 608-623. PUB TYPE Collected Works - Conference Proceedings (021) EDRS PRICE MF01/PC15 Plus Postage. DESCRIPTORS Copyrights; *Court Litigation; Freedom of Speech; *Legal Problems; *Libel and Slander; *Mass Media; Media Research; Sex Discrimination IDENTIFIERS Canada; Congress; Editorial Policy; European Court of Human Rights; Federal Communications Commission; First Amendment; Florida; Journalism Research; Journalists; Public Records; Search Warrants ABSTRACT The Media and Law section of this collection of conference presentations contains the following 12 papers: "An Analysis of the Role of Insurance, Prepublication Review and Correction Policies in Threatened and Actual Libel Suits" (Elizabeth K. Hansen and Roy L. Moore); "Private Defamation Plaintiffs and Falsity since 'Philadelphia Newspapers, Inc. V. Hepps'" (Brian J. Steffen); "'Craft v. Metromedia, Inc.' and Its Social-Legal Progeny" (Jeremy Harris Lipschultz); "Words That Might Get You SLAPPed: Economic Interests vs. the First Amendment's Speech and Petition Clauses" (Paul H. Gates, Jr.); "Journalists' Right to Copy Audio and Video Tapes Presented as Evidence durint Trials" (Sherrie L. Wilson); "A Rupture in Copyright" (Frederick Wasser); "Expansion of Communications Freedom by the European Court of Human Rights" (Robert L. Spellman); "The 'Opinion Defense' Is Not Dead: A Survey of Libel Cases Decided under the 'Milkovich' Test" (W. Robert Nowell, III); "Editorial Coverage of 'Rust v. Sullivan'" (Elizabeth Atwood-Gailey); "Access to Discovery Records in Florida Criminal Trials: Public Justice and Public Records" (Charles N. Davis); "The Use of Search Warrants in Canada and the U.S. To Obtain Photographic Evidence from Journalists" (Cindy M. Brown); and "Too Much Power in the Hands of Too Few: Congress, the FCC and the Superpower Debate, 1939-1942" (James C. Foust). (RS) *********************************************************************** Reproductions supplied by EDRS are the best that can be made from the original document. *********************************************************************** PROCEEDINGS OF THE ANNUAL MEETING OF THE ASSOCIATION FOR EDUCATION IN JOURNALISM AND MASS COMMUNICATION (76TH, KANSAS CITY, MISSOURI, AUGUST 11-14, 1993). PART VI MEDIA AND LAW. 11.11 DEPARTMENT Of EDUCAT1ON Ofto al Educabortsi liermare sad Improvement "PERMISSION TO REPRODUCE THIS EDUCATIONAL RESOURCES INFORMATION CENTER (EIMC) MATERIAL HAS BEEN GRANTED BY Nit Tam rferzament hes been moroduceas ,xt from IMO woofs or oidanmanon onden.,d E\\Axa_IN 0 Minor charges hove med. lo Improve reproductmo cluMay Points ol mm or ogamone stated in the cloco- mom do not necessarily eimeasitnt official OEM gammen oe melecy TO THE EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC)." 2 Cj BEST' COPY AVAILABLE ABSTRACT AN ANALYSIS OF THE ROLE OF INSURANCE, PREPUBLICATION REVIEW AND CORRECTION POLICIES IN THREATENED AND ACTUAL LIBEL SUITS By Elizabeth K. Hansen Assistant Professor Eastern Kentucky University and Roy L. Moore Professor University of Kentucky A random national sample of 305 editors andpublishers was interviewed by telephone to examine (1) how they view libel and itsimpact on their newspapers and (2) the role of libel insurance, prepublicationreview of articles by attorneys and complaint policies for corrections in threatened andactual libel suits. The results indicate that libel is increasing as amajor concern and that precautions such as prepublication review of articles byattorneys, libel insurance and written or unwritten policies for handlingcorrections do not necessarily insulate newspapers from libel suits. In fact, newspapers that hire attorneys, buyinsurance and develop formal correction policies are more likely to have been suedfor libel than those that do not. Respondents overwhelmingly believed thatmost people who threaten to sue for libel would be satisfied with a retraction orapology from the newspaper, indicating a need for newspapers to pay closerattention to their correction policies and thus defuse potential libel suits. While editors and publishers felt chilled bythreatened and actual libel suits, they also agreed that the possibility ofbeing sued made them better journalists. Paper presented to the Law Divisionof the Association for Education in Journalism and Mass Communication AnnualConvention, August 11 - 14, 1993, Kansas City, Missouri AN ANALYSIS OF THE ROLE OF INSURANCE, PREPUBLICATION REVIEW AND CORRECTION POLICIES IN THREATENED AND ACTUAL LIBEL SUITS By Elizabeth K. Hansen Assistant Professor Eastern Kentucky University and Roy L. Moore Professor UnNtersity of Kentucky Paper presented to the Law Division of the Association forEducation in Journalism and Mass Communication Annual Convention,August 11 - 14, 199C, Kansas City, Missouri ABSTRACT AN ANALYSIS OF THE ROLE OF INSURANCE, PREPUBLICATION REVIEW AND CORRECTION POLICIES IN THREATENED AND ACTUAL LIBEL SUITS By Elizabeth K. Hansen Assistant Professor Eastern Kentucky University and Roy L. Moore Professor University of Kentucky A random national sample of 305 editors and publishers wasinterviewed by telephone to examine (1) how they view libel and its impact ontheir newspapers and (2) the role of libel insurance, prepublication reviewof articles by attorneys and complaint policies for corrections in threatened andactual libel suits. The results indicate that libel is increasing as a major concernand that precautions such as prepublication review of articles by attorneys,libel insurance and written or unwritten policies for handling correctionsdo not necessarily insulate newspapers from libel suits. In fact, newspapers that hire attorneys, buy insuranceand develop formal correction policies are more likely to have been suedfor libel than those that do not. Respondents overwhelmingly believed that mostpeople who threaten to sue for libel would be satisfied with a retraction orapology from the newspaper, indicating a need for newspapers to pay closerattention to their correction policies and thus defuse potential libel suits. While editors and publishers felt chilled by threatenedand actual libel suits, they also agreed that the possibility of beingsued made them better journalists. Paper presented to the Law Division of theAssociation for Education in Journalism and Mass Communication AnnualConvention, August 11 - 14, 1993, Kansas City, Missouri 5 AN ANALYSIS OF THE ROLE OF INSURANCE, PREPUBLICATION REVIEW AND CORRECTION POLICIES IN THREATENED AND ACTUAL LIBEL SUITS INTRODUCTION In the late-1980s some experts predicted that libel suits would become less of a concern for media because, although damage awards were large,the number of new libel cases filed was declining (Sanford, 1988). That prediction has not materialized. The threat of megabuck libel verdicts has not diminished; instead, jury awards to libel plaintiffs are skyrocketing, according to a 1992 report from the Libel Defense Resource Center (Survey: Juries Hiking Libel Penalties). The average libel award made by juries in 1990-91 was $9 million, a record for libel awards and six times higher than the $1.5 million average award to libel plaintiffs during the 1980s. The only bright spots the LDRC study revealed were that the news media fared better beforejudges in the last two years and on appeals than :hey hadin the previous decade. Judges ruled in favor of the media in 66.7 percent of cases, compared to 52.6 percent of cases in the 1980s. On appeal, only 34.7 percent of libel awards were affirmed. Recently, the media have lost several major libel suits before the U.S. Supreme Court, including ones involving publicofficials and opinion (Harte-Hanks v. Connaughton and Milkovich v.Lorain Journal Co.), or the court, in denying certiorari, hasallowed lower court decisions again3t the media to stand.What these decisions and the LDRC study indicate is that the possibility of being saed for libel and being hit with a megabuckverdict 6 continues to be a serious concern for the media. As oneeditor who participated in our study put it: The defenses that seemed rock solid don't seem sosolid now...The courts have poked holes in all of our defenses againstlibel suits...One lawsuit could put you out of business even if you win." PURPOSES OE STUDY The purposes of this study are to examine (1) howpublishers and editors view libel and its impact ontheir newspapers and (2) the role of libel insurance, prepublicationreview of articles by attorneys andcomplaint policies for correcting errors in threatened and actual libel suits against a newspaper. BACKGROUND Since the U.S. Supreme Court constitutionalizedAmerican libel law with its decision in New York Times v.Sullivan in 1964, only a handful of empiricalstudies have examined the impact of libel on newspapers. Thatdecision prohibits apublicofficial from recovering damages for a defamatory falsehoodrelating to his official conduct "unless he proves that thedefamatory statement was made with 'actualmalice'--that is, with knowledge that it was false or with reckless disregard ofwhether it was false or not." Three years later the U.S. Suprem Courtextended the actual malice standard to public figures