For the majority of libel claims, the case never goes before a jury. However, in cases where the libel claim goes through to trial, juries tend to give big awards, something the Raleigh News & Observer found out this week when a jury delivered a verdict that could run north of $6 million.
"Generally about seven out of every 10 cases are resolved in favor of a defendant before they ever get to trial. But the interesting thing is, of those that go to trial with a winning plaintiff, the verdicts tend to be very high," said Kevin Goldberg, member at Fletcher, Heald and Hildreth, and legal counsel to the American Society of News Editors. "When they do get to juries, juries like to rule in favor of plaintiffs and they like to really smack down the media when they have the chance."
In 2010, the N&O published a series of stories on the State Bureau of Investigation. The libel claim was brought by SBI Beth Desmond who claimed the newspaper and reporter Mandy Locke misrepresented interviews from outside experts and described her as unqualified. The jury agreed with Desmond, but N&O Executive Editor John Drescher stood by the story:
"Our 2010 stories about the SBI raised important questions about how that agency investigates and how agents testify at trial. After the stories were published, numerous changes were made in how the SBI and the state crime lab work. We appreciate the hard work the jury did during this trial but we disagree with the jury’s conclusion as well as the extraordinary damages it awarded. The N&O has not, and will not, shy away from reporting on tough issues important to North Carolina. We will appeal the jury’s decision and look forward to discussing these stories with the appellate courts."
The New York-based Media Law Resource Center has tracked every media tort liability case that has gone to trial since 1980, of which about 88 percent include a libel claim. From 1980 through 2015, media defendants won 251 of the 606 trial verdicts, or 41 percent, according to its data. However, the number of media trials has steadily declined throughout the decades, from 268 in the 1980s to 137 in the 2000s. "If this trend continues, we would expect only 53 trials during the entire decade of the 2010s," according to its report.
The average trial damage award to plaintiffs from 1980 to 2015 was $2.8 million; the median, $310,000, according to MLRC.
The average award has risen through the decades, even when adjusting for inflation, but two high-profile cases this year have the potential to throw all averages out of whack. Terry Bollea, aka Hulk Hogan, won a whopping $140 million verdict against Gawker Media, which published a sex tape that included the famous wrestler. Elsewhere, Rolling Stone finds itself in a defamation lawsuit brought after it ran a story detailing an alleged rape at the University of Virginia that contained several errors and was later retracted.
It is difficult to track settlements because they are often confidential, or could be reached before a claim is ever brought to court. Analyzing post-trial settlements, however, shows they are becoming more common. In the 1980s, the share of trials eventually settled was 7.5 percent, but increased to 17.7 percent in the 1990s and 18.5 percent in the 2000s, according to MLRC. It's up to nearly 30 percent so far in the 2010s, though MLRC cautions against drawing strong conclusions using data from only half the decade.
Goldberg said these kinds of verdicts can serve as a strong reminder to double and even triple-check facts.
"It reaffirms the need to be very precise and accurate at all times," he said. "Even if you thought you were before. It’s going to send that little extra air of, 'Do better.' Even if you were doing great to begin with."
While some like Goldberg saw the N&O verdict as a reminder for journalists to go over stories with a fine-tooth comb, others like David Bralow, an attorney who has represented dozens of libel defendants, worried it could, in fact, stifle hard-hitting newspaper investigations.
"The risk of going to a jury and having these sort of inconsistent and problematic verdicts creates a disincentive for the type of robust reporting that our democracy requires," he said. "In other words, newspapers that are already struggling, will not do the kind of important reporting in the community that’s necessary to inform the citizens of that community... (and become) less likely to cover the important stories of any particular community."
Bralow said he hopes increasing verdicts will not stifle a First Amendment right. "I can’t think of a trend that is scarier for the health of our republic," he said. "The idea is for our republic to function, we ought to have more speech, not less speech."