Mind-Reading in the Courtroom

A ruling this week by an appeals court in Washington has blurred the protections of free speech and press in the First Amendment to the U.S Constitution that its framers intended should be razor sharp. It filled the air with so much specious drivel about journalism that the First Amendment all but disappeared in a mist of misinformation.

The decision by two members of the U.S. Circuit Court of Appeals in the District of Columbia overruled a federal judge who found in favor of the Washington Post in a libel case. The issue, as in all libel cases brought by public figures against the news media, was whether the Post showed “actual malice”--a knowing or reckless disregard for the truth--in a 1979 article that said the now-retired president of Mobil Oil Corp., William P. Tavoulareas, used his influence to steer Mobil business to his son’s shipping company.

A jury found in favor of Tavoulareas, and awarded him $2 million in damages. U.S. District Judge Oliver Gasch rejected the verdict on the grounds that the evidence did not support a finding that the Post knew the story was false or recklessly disregarded the truth.

In a 2-1 majority opinion, Justice George E. McKinnon found “clearly false” the allegation in the article that Tavoulareas “set up” his son, Peter, in the shipping business, and said that the evidence established “actual malice with convincing clarity” on the part of the Post.

The language offered thereafter as support for the view gets sufficiently murky to obscure any constitution. The Post, he said, is a self-confessed “hard-hitting” newspaper whose reporters are under pressure from the top to produce “high-impact investigative stories of wrongdoing.” That kind of pressure, the justice seemed to be saying, is enough to make any reporter recklessly disregard the truth--one yardstick for judging malice.

Reading minds is a trick that belongs in magic shows, not in courtrooms. Courtrooms also are for rational analysis of evidence--not, as Justice J. Skelly Wright said in a dissenting opinion, for meandering criticism of what justices “take to be the general climate in journalism today,” as though the court were “some kind of journalism review.”

“Our mission is to see that the First Amendment is vigorously protected and that libel verdicts not supported by clear and convincing evidence do not stand,” Wright said. “If this excessive jury verdict on these mundane, flimsy facts is upheld, the effect on freedom of expression will be incalculable.”

Investigative reporting is, by its very nature, aggressive and--to use McKinnon’s word--”adversarial” because people and institutions in the public eye rarely volunteer their mistakes or, worse, machinations. Aggressive searching for facts often is the only means of getting beyond an innocent smile, and investigative reporting over the years has rewarded not the reporters but the readers who would otherwise lack sufficient information on which to form judgments about public policy.