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from: David Frum
to: Susan Estrich

Posted Wednesday, Jan. 14, 1998, at 3:30 AM ET

"Would it be better if Drudge had waited a day, asked to see the court papers himself, etc. Sure. But we're not talking about what people should be taught in journalism school."
Excuse me? What would you think if you read, "Would it be better if food companies ensured that their products weren't toxic? Sure. But we're not talking about what people should be taught in agricultural college." Or, "Would it be better if automobile companies made cars whose brakes worked? Sure. But we're not talking about what people should learn in engineering school."
Confirming the accuracy of damaging stories is not some academic ruffle or flourish. It's the heart and soul of journalistic responsibility.
A journalist who puts into circulation a false and damaging story does his victim an immense harm. I don't know about you, but if I had the choice of 48 hours of food poisoning or reading in the newspapers that I was a wife-beater, I'd choose the food poisoning. One can recover from sickness, but in the age of Nexis a libel lasts forever. And if that journalist has inflicted that harm negligently, it makes no more sense to excuse him by citing freedom of the press than it does to excuse toxic food on grounds of freedom to farm.
Let me return to this question of whether the phrase "it is rumored that" should be a defense to a libel charge. As the author of a story, you owe the reader an indication of whether the rumor is credible or not, as well as the news of its existence. There is a rumor that Procter & Gamble is run by Satan worshippers. There is a rumor that Snapple contains additives that sterilize black men. To report these rumors as rumors, without any reference to their truth or falsehood beyond a corporate denial, is to put lies into circulation; to damage the property and livelihoods of innocent people. And when the denial comes from the Clinton White House! To put it mildly, the truthfulness of this White House is not altogether beyond reproach.
There's another problem here that you as a lawyer should be alert to. Right now, the law holds that reprinting a libel is a libel in itself. That means that every journalist who hears a damaging story is required to confirm it for himself or herself. Now suppose we do it your way. Suppose we do away with the rules about republishing a libel. Suppose we make "I heard a rumor" a valid defense. Now courts will have to decide, in each and every libel case, what constitutes a "rumor." How widely must the Sidney Blumenthal wife-beating story be disseminated before I can run with it? One repetition? Two? Ten? A hundred? Can the entire vast media industry acquire legal carte blanche to attack Sidney Blumenthal because three Republican activists have been chattering among themselves?
Even more ominously, making "it's a rumor" a good defense in libel actions would have chilling effects on journalism far more serious than present-day libel. Here's how. As a journalist, your work begins when somebody tells you an interesting story. "Did you know that Sidney Blumenthal beats his wife?" That's called a lead. Under present law, you are obliged to check that story independently or else be liable. But suppose you could escape liability, if the story turns out to be untrue, merely by saying that it was told you as a rumor. "I heard it from Mr. Smith at the Republican National Committee."
Suddenly, many, many journalists would be tempted--when they heard a juicy rumor--to omit the tedious work of confirmation, and simply go with the story, knowing that if they are sued, they can shift the liability for the story to the person who passed them the rumor. Under the Estrich libel regime, nobody would ever dare tell a journalist anything, because every potential source would be on notice that passing on a lead to a journalist could potentially expose the source to a libel suit.
Now maybe I've misunderstood you, so let me ask you a few direct questions to dispel potential misapprehensions.
1) Do you think a public figure should ever be able to sue for libel?
2) If so, do you think the standard for judging such a case should be more lenient even than the present "reckless disregard of truth" standard? What should it be?
3) If, on the other hand, you accept the "reckless disregard of truth" standard, what must a journalist do to fall short of it? You apparently do not believe that the failure to make any effort to confirm a damaging rumor before printing it constitutes "reckless disregard." So what does?
These issues, it seems to me, are the crux of the matter, and I'd be very interested to hear your answers to them.

dialogues
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123456789101112
from: David Frum
to: Susan Estrich

Posted Wednesday, Jan. 14, 1998, at 3:30 AM ET
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Susan Estrich is a law professor at the University of Southern California. She is a columnist for America Online's "Great Debate" section. David Frum is a senior fellow at the Manhattan Institute and a contributing editor to the Weekly Standard. He is the author of What's Right: The New Conservative Majority and the Remaking of America. This dialogue was originally based on a lawsuit filed by White House aide Sidney Blumenthal against Matt Drudge, founder and gossip columnist of the Drudge Report. The focus of the exchange has now shifted to the Clinton sex scandal story. Click here to purchase David Frum's What's Right from Amazon.com.
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