Press: Newswatch Is It Fact Or Opinion?

The courts are now being threatened by “a freshening stream of libel actions, which often seem as much designed to punish writers and publications as to recover damages for real injuries.” This warning comes from Federal Judge Robert Bork, a respected conservative who is considered the leading judicial candidate for President Reagan’s next appointment to the Supreme Court.

Bork was one of a 6-to-5 majority on the District of Columbia Court of Appeals that voted last month to dismiss a libel suit against Rowland Evans and Robert Novak, whose Washington column appears in about 180 newspapers. In his 37-page concurring opinion Bork suggested that the courts ought to be stricter about the rash of libel suits. He did not mention General William Westmoreland’s $120 million suit against CBS–in which the general’s attorney vows to “dismantle” CBS News–or former Israeli Defense Minister Ariel Sharon’s $50 million suit against Time Inc. Bork examined the conflicting rights of a man to his reputation and the press’s constitutional right to its opinions.

Evans and Novak had been sued by Bertell Ollman, a Marxist professor at New York University, who claimed that he lost his chance to become head of the University of Maryland’s political science department because of a column they wrote criticizing his proposed appointment. He sued for $1 million, plus $5 million in punitive damages, sums that Bork called “quite capable of silencing political commentators forever.”

Some years back, in a poll published in the Washingtonian, Evans and Novak were voted the “least respected” in the Washington journalistic establishment by their press corps colleagues. They specialize in puffing up tendentious controversies, usually based on tips and leaks from right-wing sources, but colleagues acknowledge that they are often first on a story, and their reporting is well grounded. It was their mixture of fact and opinion (what the law calls “hybrid statements”) that disturbed some of the judges.

The Supreme Court said in Gertz vs. Robert Welch, Inc. that “there is no such thing as a false idea,” meaning that opinion is not punishable; opinions should be countered not by judges and juries but by “the competition of other ideas.” But facts can be false and actionable. Evans and Novak had quoted one unnamed political scientist as saying that “Ollman has no status within the profession, but is a pure and simple activist.” Is that an opinion, or a fact subject to verification? To Judge Antonin Scalia, who is also a Reagan appointee on the court of appeals, this was a “classic and coolly crafted libel.” But not to Bork. Ollman, he reasoned, was no cloistered academic. He boasted that most of his students became Marxists and had invented a Monopoly- like game called Class Struggle, in which workers moved a little hammer around . a board while capitalists moved a top hat. With such advocacy, wrote Bork, Ollman had made himself a public figure and therefore “must accept the banging and jostling of political debate” in which some factual assertions should be treated as “rhetorical hyperbole” and hence as opinions.

In the recent election, Bork continued, “many cruel and damaging things were said,” some of which “may well meet the law’s standards for actual malice –reckless disregard for the truth.” But “we would be astonished and highly disapproving if the defamed candidate brought an action for libel . . .

“In the past few years, a remarkable upsurge in libel actions, accompanied by a startling inflation of damage awards, has threatened to impose a self- censorship which can as effectively inhibit debate and criticism as would overt government regulation.” Bork also sees “evidence mounting that juries do not give adequate attention to limits imposed by the First Amendment,” and when this is so, judges “should take cases from juries.”

Bork obviously hoped to start a dialogue on the subject. Judge Scalia agreed on the problem but not on the solution: “What a strange notion that the problem of excessive libel awards should be solved by permitting, in political debate, intentional destruction of reputation–rather than by placing a legislative limit upon the amount of libel recovery.”

Either way, both judges seemed to say, things have got out of hand.