Fencing in the Fourth Estate

The Fourth Estate and the Constitution: Freedom of the Press in America, by Lucas Powe

Trasforming Free Speech: The Ambiguous Legacy of Civil Libertarians, by Mark Graber

Who is Lucas Powe, and why does he think I make too much money?

And why does Mark Graber want to restrict my right to disagree with Powe?

Powe, professor at the University of Texas School of Law , is the author of The Fourth Estate and the Constitution. One of his conclusions is that the only ones who benefit from the current libel-law system, largely constructed upon the U.S. Supreme Court’s 1964 decision in New York Times v. Sullivan, are media-defense lawyers: “While the problems that the libel rules pose for the press are complex, they ultimately can be subsumed under a single heading: money. Libel litigation, as we have already seen, allows attorneys for the media to make out like bandits.”

Bandits? I confess to being a media-defense lawyer, and I do spend a considerable portion of my professional life representing various media clients in libel litigation in the television, cable, newspaper, and magazine industries. But a bandit? Our clients needed defending, and the First Amendment is the libel-defense lawyer’s weapon of choice, even more than truth, because it is easier, and most times cheaper, to claim First Amendment protection than to litigate the “truth.”

As a consequence, the scope and extent of First Amendment rights today are greater than at any time in our nation’s history even if the extent isn’t as great as the plain language of the amendment would permit. Accordingly, we media-defense lawyers prefer to think of ourselves as those who have an opportunity, as Powe more gently observes elsewhere in his book, “to do well by doing good.”

If Powe thinks media lawyers make too much money, his colleague Mark Graber, an assistant professor of government at the University of Texas, wants to make sure we don’t spend more of it exercising our First Amendment rights than those less fortunate. He notes in his new book, Transforming Free Speech: “Individuals have the constitutional right to convert their material resources into political expression as long as the average member of the community can afford to invest similarly in politics .... No one has a constitutional right to use economic privilege to magnify otherwise relatively weak political skill .... Affluent Americans have no First Amendment right that permits them to achieve political success through constant repetition of relatively unwanted ideas.”

Issues of compensation aside, friends of the First Amendment will find a lot to like in Powe while only the politically correct will find comfort in Graber. Lucas Powe’s last book, American Broadcasting and the First Amendment, won several awards and is a seminal work in the field. It effectively destroyed the oft-stated basis for government regulation of broadcasting and demonstrated that “regulation in the public interest” is merely a convenient cover story for government censorship, political abuse, favoritism, and corruption. His solution: complete First Amendment freedom akin to that enjoyed by the press for all broadcast media, including radio, television, cable, and any new technologies that may emerge.

Powe’s new book is even better, despite his lawyer-bashing. The first part of the book is one of the best short overviews of the history of the First Amendment I have read. The second part is an in-depth coverage of four major First Amendment issues facing the press today—libel, prior restraints, access to sources and information, and antitrust.

Powe’s chapter on libel is on the mark when it properly identifies the principal, unintended consequence of New York Times v. Sullivan and its actual-malice rule: It turned the libel trial away from what the defendant said about the plaintiff to a scrutiny of how the press put the story together, what reservations the reporters and editors may have had about parts of the story, and why they chose to say one thing rather than another.

This is wrong. It violates the spirit of the First Amendment because it isn’t the government’s job, through its judicial branch, to second-guess editorial judgment, and yet that is precisely what happens any time a public official or public figure brings a libel suit. A lot of time and attention have been devoted to proposing reforms to correct this defect. Most proposals include an elimination of punitive damages and a return to truth as the primary focus of the trial.

I am in a minority among media-defense counsel, but I believe I reforms such as these deserve serious consideration because winning libel cases is not always the same thing as protecting the First Amendment. More-prominent media-defense attorneys, such as Floyd Abrams, oppose the reforms because most would involve abandoning the New York Times v. Sullivan standard requiring a public-figure plaintiff to prove that the media knew the story was false or entertained serious doubts as to its truth.

It’s a trade-off I am willing to make to get the government out of the editorial process and the reporter’s mind. But Powe resents those who won’t make the trade-off and who conclude that the proposed reforms are an attack on the First Amendment: “The best explanation for their ridiculous conclusion is that they have wholly internalized the fact that the First Amendment is responsible for their fat wallets—so that an attack on the latter is perceived as an onslaught on the former.”

Relax, professor. There is a simpler explanation to the opposition of many media-defense lawyers to the reforms. We win most of our cases today under the New York Times standard (which is, after all, our job), so why change? Powe grudgingly admits that this may be an explanation but rejects it because, among other reasons, “it ignores the press’s interest in litigation alternatives that cost less and therefore chill less.”