Libel Experts Differ Over Court Ruling

Two libel experts here expressed disappointment Monday at the Supreme Court’s refusal to consider appeals of a record libel award of more than $3 million won by a tobacco company from CBS and a commentator at a CBS-owned television station in Chicago.

However, attorney Floyd Abrams, a First Amendment specialist, and Henry Kaufman of the nonprofit Libel Defense Resource Center, differed slightly on the ramifications of the court’s decision.

The size of the award, Abrams said, may encourage similar lawsuits in cases of editorial commentary.

“I fear that this case may send the wrong message about the availability of libel suits to suppress what may be viewed as disagreeable opinions,” he said.

But Kaufman said he didn’t think the court’s refusal to hear the case was “necessarily a significant precedent” in libel suits involving editorial commentary.

“The real problem was the size and nature of the award,” Kaufman said, adding that the award was almost four times larger than any previously upheld by courts after all appeals had been exhausted.

The federal lawsuit was brought by Brown & Williamson Tobacco Corp., maker of Viceroy cigarettes, against CBS Inc., and WBBM-TV anchorman Walter Jacobson. A jury had found for Brown & Williamson, awarding it $5 million; the amount was changed after appeals by CBS.

In its suit, the tobacco company accused Jacobson of libeling it in 1981 in a nightly feature, “Walter Jacobson’s Perspective.”

In his commentary, the anchorman, who is still at WBBM, said there was a Viceroy advertising strategy to attract young people to smoking by relating cigarettes “to pot, wine, beer and sex” and to present cigarette smoking as “an initiation into the adult world . . . as an illicit pleasure.”

He said his remarks were based in part on what he said was a confidential report prepared by the Federal Trade Commission.

CBS appealed the jury verdict. Last August, a federal appellate court rejected CBS’ assertions that the broadcast was truthful and that Jacobson’s remarks were intended as opinion and, therefore, could not be held as libelous. The court also said that there was insufficient evidence that Brown & Williamson had adopted the advertising strategy that Jacobson cited.

In its ruling, the court made CBS liable for $2 million in punitive damages, $1 million in presumed damages, and held Jacobson liable for another $50,000 in damages.

It was this verdict that the Supreme Court, without comment, let stand on Monday.

“We’re disappointed,” said CBS attorney Doug Jacobs. “We thought this case was ripe for review” from its merits to the issue of damage awards, he added.

Brown & Williamson, in a statement from its headquarters in Louisville, Ky., said “the good name of the company and its people have been vindicated.”

A spokesman at the company said that, with interest, the total award CBS has to pay comes to about $3.4 million.

Kaufman, whose center is funded by various news organizations, said the high court’s ruling was particularly disappointing, because while media libel awards have been increasing, “we’ve been able to hold the line at the million-dollar barrier.”

He referred to final awards decided on by courts after appeals. Such awards usually are much lower than those reached in jury verdicts, he said.

“For the future, this case is going to stand alone as the real ‘sore-thumb’ award of media-libel litigation,” he said.

Eight other major media companies, in friend-of-the-court briefs, had urged the Supreme Court to hear CBS’ appeal, Kaufman said.

The companies are Capital Cities/ABC, NBC, the New York Times, Dow Jones, Fox Television, the Hearst Corp., Newsweek and the Washington Post.

The basic argument of their petition, he said, “was that presumed and actual damages (in libel awards) both ought to categorically be declared unconstitutional, in violation of the First Amendment.”

That has been argued from time to time, he said, “and I think a lot of people saw this case as an excellent one to bring those issues to a head, given the size of the award.”

There remains the possibility that the more than $3 million that CBS now has to pay may not prove the record in libel awards.

A new federal trial is to be held in Los Angeles--no date is yet set--to determine damages in a libel suit won against NBC News by entertainer Wayne Newton. A federal court jury in Las Vegas initially awarded him $22.8 million.

However, when the judge in the case reduced that to $5.3 million last November, Newton rejected the award and asked for a new trial to determine damages.