Institutional Reckless Disregard for Truth in Public Defamation Actions Against the Press

Since its beginning, the actual malice test first announced in 1964 in New York Times v. Sullivan, has suffered from problems that are increasingly traceable to the changing face of journalism. Its demand that the mind of the reporter be proved with convincing clarity has adverse consequences for plaintiffs and news organizations alike. End runs around the subjective state of mind inquiry by plaintiffs have become more common. And the actual malice test's predictability, its capacity as a standard of liability to yield consistent and coherent results across a body of cases, remains a hollow promise. As Robert Sack famously put it, successful libel plaintiffs resemble the remnants of an army platoon caught in an enemy crossfire. Perhaps the central flaw in the subjective malice/recklessness test is its focus on individual rather than corporate conduct, a shortcoming so fundamental that, in our judgment, the test should be supplemented, in the press setting at least, with what we call an institutional reckless disregard standard. This would be a largely objective assessment of the corporate decisions that affect journalism when they manifest knowing indifference to the risk of defamatory falsehood that flow from the decisions. Why would such a standard be preferable? First, the actual malice/reckless disregard standard focuses on the state of mind of a reporter or editor instead of on the underlying factors that can give rise to defamatory publication, and over which writers and editors may have little or no control. Second, the actual malice/reckless disregard standard is blunt-edged. Third, while libel actions may be traumatic for journalists, the shift of financial liability to the business as a whole insulates journalists from responsibility for knowing and false misbehavior, thus in effect making them more indifferent to the risks their behavior imposes on others. Fourth, by exacting punishment based on conduct of journalists, not on organizational recklessness, the actual malice/recklessness inquiry frees news organizations to adopt risky practices without fear of consequences. At a time when market-based forces are placing great financial pressure on newsrooms and the publicly traded organizations that own most of them, a rule that frees journalistically dangerous corporate decisions from cost or consequence is likely, perversely, to facilitate the very choices that the law should discourage. For these reasons we propose a different method of liability for news organizations, one that rests liability on corporate decisions that are known to present a heightened risk of falsity and defamation because of the impact of such decisions on staffing, training, editorial oversight, copyediting and related factors that affect the reliability of the news product and that cannot be justified on grounds related to the quality or journalistic performance of the news organization. We believe that decisions that are knowingly, indeed often calculatedly, taken to increase profits or personal wealth at the cost of slipshod journalism should not be relieved, as they are now, from consideration in establishing liability.