How Free Can the Press Be?

Truth and Uncertainty (Harte-Hanks Communications, Inc. v. Connaughton)

Story 3 Truth and Uncertainty Harte-Hanks Communications, Inc. v. Connaughton 491 U.S. 657 (1989) Libel law is not really about truth. At least this is so when the press publishes a libelous statement about public officials, prominent public figures, or even ordinary persons who have injected themselves into a public controversy . In such cases libel law is about “actual malice”—whether the publisher knew the statement was false but published it anyway or had serious doubts about a statement’s truth and recklessly published it notwithstanding those doubts,indeed with indifference to them.To be sure, if a statement can be proved true, the publisher will be free of liability. But even if it can’t be proved true,and indeed even if the statement is proved false,the publisher is still off the hook as long as he or she didn’t know or seriously suspect its falsity at the time of publication. Libel law,in other words,is about what was believed about truth at the time of publication, about a publisher’s motive, about the journalistic process of gathering and checking information.None of these questions go to truth per se. A story believed true when published, but which turns out to be false, is not libelous, no matter how much harm comes to its victim. Likewise, a story that may actually be true, but whose truth the publisher doubted at the time of publication, may be subjected to liability to a person whose reputation was harmed, even though (as it turns out) deservedly. This is especially likely if the publisher failed to take steps to check the facts or corroborate the story and thus,perhaps purposely,avoided finding out more in order to avoid knowing the truth. For these reasons and others, many observers of the law have criticized libel law as irrational, bizarre, even perverse, and as highly intrusive into the journalistic and editorial process. What should libel law be about? Should it be about truth? Fairness? Responsibility ? Maintaining professional standards? What does truth have to do with journalism and, therefore, press freedom? If libel isn’t about truth, should the law at least require that the journalistic enterprise be a truth-seeking one? These are surprisingly complex and difficult questions, as we will see in our story. It is a story about the different forms of truth that often exist in a story or event,about a newspaper’s motive in publishing a story and how motive is related to journalism and news, and about sloppiness and indifStory 3: Truth and Uncertainty 83 84 how free can the press be? ference in finding and checking facts. It illustrates why and how libel law is not about truth. It also makes us ask, if it is not about truth, then is libel law worth all the trouble? * * * Daniel Connaughton was a lawyer in Hamilton, Ohio, a city of about sixty- five thousand people located twenty-five miles from Cincinnati,Ohio.He had been a Hamilton City Prosecutor, Butler County Prosecutor, and for a brief time an acting judge on the Hamilton Municipal Court.In 1983 he was in the private practice of law in Hamilton. He was also a candidate for the position of Municipal Judge in Hamilton.In Ohio judges are elected by the voters,not, as in many states,appointed by governors.Connaughton was running against the incumbent judge, the Hon. James Dolan, who had served as Municipal Judge for one six-year term. The race was, by all appearances, deadly boring, at least until September 1983. Then it became a close, hard-fought race, marked by emerging scandal, even becoming a bit dirty. Early in September 1983, amid increasing rumors about misconduct in Judge Dolan’s court,Connaughton’s wife,Martha,was informed by the president of the local chapter of MothersAgainst Drunk Driving that some people had received preferential treatment for driving under the influence (DUI) and other traffic charges in Judge Dolan’s municipal court. Martha Connaughton was specifically advised that Patsy Stephens was willing to talk about the many times she had visited the office of Dolan’s Court Administrator, Billy Joe New, and paid cash to dispose of DUI and minor criminal charges brought against her former husband and other relatives and friends. A week later, on September 15, Martha Connaughton met with Patsy Stephens to hear her story. The meeting lasted about thirty minutes and was attended by Alice...