The curious case of the disappearing libel suit

For the first time in decades, there are no active libel suits pending against the Times Company (owners of the NY Times, Boston Globe, and many other papers). Nor has there been an active libel suit against Time Inc. in nearly a year. In general, libel cases have been slowly disappearing.  The Media Law Resource Center found that libel trials in the 2000s were down more than 50 percent from the 1980s. In 2009, there were only nine.

The New York Observer takes a look at the curious case of the disappearing libel suit, citing—as every article written on media law must—Cahill’s First Amendment legend Floyd Abrams: “I don’t know of many litigators, whether they represent the defendants or plaintiffs, who are doing a lot in this area.”

Three main theories are posited for the decline:

1.    A track record of limited success for plaintiffs discourages people from suing. (The 1964 Supreme Court decision The New York Times v. Sullivan established the “actual-malice” doctrine for libel cases, meaning that if a public figure or official wanted to pursue a libel case, a story had to written with knowledge that it was false, or with a "reckless disregard" for the truth. This is a very high bar.)

2.    The Web. Corrections can be quickly made online, heading lawsuits off before lawyers are even called. Also, there are low barriers to responsive publication online. In the words of a longtime Wall Street Journal counsel: “People who used to feel frustrated that they couldn't get their viewpoint across now can … They can put their response on a Web site. They can find an outlet that will publish it. They can get their perspective out immediately.”

3.    The financial travails of the traditional media have forced deep cuts in investigative reporting—which is often the sort of journalism that sparks libel suits. (Cleary this explanation is inextricable from #2.)

-posted by brian