Edward L. Carey v. Britt Hume, Jack Anderson

MacKINNON, Circuit Judge

(concurring) :

L concur in the foregoing opinion but wish to add some additional reflections on the practical result if appellant’s claim were to be sustained.

In recent decisions the Supreme Court has substantially changed the longstanding libel law of this nation so as to make newspapers, broadcast stations and all others immune from civil or criminal responsibility for libelous statements against public figures unless the statements are made maliciously, i. e., “with knowledge of their falsity or in reckless disregard of whether they are true or false.” Garrison v. Louisiana, 379 U.S. 64, 78 , 85 S.Ct. 209, 217 , 13 L.Ed.2d 125 (1964); New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964). The news media has been quick to take advantage of this new-found freedom and since the decision in New York Times, supra, the nation has witnessed an enormous expansion in the publication of articles and statements that under prior law would have subjected the publishers to liability for libelous defamation. This development in the law also comes at a time when the speed of electronic communication has greatly *640 increased and a growing concentration has developed in the ownership, power and influence of the news media. 1 This, coupled with the existence of widespread electronic communication networks, vests a relatively small number of people with the ability within a few minutes to blanket the nation with statements that for the prior 200 years were held to be actionable libel. This is an enormous power.

In this case we are requested by appellant, a news reporter, to decide that the news media in effect possesses virtually absolute immunity from liability for libel. This would result if those employed by the news media were freed from the obligation to testify as to their sources, or alleged sources, of their libelous publications. If that were the law, the reporters and their employers (newspapers and broadcast stations) could as a practical matter in most cases never be held accountable for the serious injuries they cause. In cases where recovery is justified the amount of damage, which depends upon the degree of malice, would be much more difficult, if not impossible, properly to assess where the reliability or existence of an alleged informant is unknown and unknowable. The appellant, Britt Hume, admitted as much in an article of his published in The New York Times Magazine, December 17, 1972:

Yet Carey has a point. If newsmen can refuse to name the source of defamatory stories, they can effectively vitiate what is left of the libel laws [after New York Times v. Sullivan] by hiding behind anonymous sources whenever sued.

The logic of that statement by Hume disposes of his argument in this case and should dispose of any claim for a reporter’s immunity if the law is to be fair to the general public. If the law were otherwise, an injured plaintiff attempting to prove his case would face a blank wall, with practically no opportunity to discover the identity of the alleged source upon which the defense claims reliance.

If media publishers of defamatory material were to be given immunity from disclosing their sources, public figures would be greatly restricted, if not prevented, from recovering their damages, cf. Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969), cert. denied, 396 U.S. 1049 , 90 S.Ct. 701 , 24 L.Ed.2d 695 (1970), 2 but more importantly, private individuals would be equally prevented from securing fair compensation for their injury because the immunity of the reporter from disclosing his alleged news source would apply to all suits whether the injured person was a public figure or a private citizen. This immunity would also inure to the benefit of the reporter’s employer, the newspapers and news media.

In my view such immunity from practically all responsibility for libelous publications by the news media, constituting, as it would, a substantial departure from previously well settled law, would be contrary to the public interest and not conducive to a responsible press. The news media must be free but it should also be responsible. To hold that it is responsible to the same extent as all other citizens are responsible for libelous publications, with the additional freedom recognized in New York Times , does not amount to an infringement on the constitutional guarantee of free speech and the freedom of the press. Cf. Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972).

In my view the constitutional grant of “freedom ... of the press” does not convey an absolute immunity to the press to publish libelous information that it receives and then protect itself and the source by exercising a privilege *641 that prevents the victim from proving the malicious intent of the source or publisher. The constitutional privilege contemplates a responsible press. To grant the media what as a practical matter amounts to absolute immunity — absolute privilege — would tend to lead to irresponsible journalism which would be, to paraphrase Walter Lippmann, “corrupting to the whole journalistic process.” 3 I accordingly concur in the foregoing opinion because I believe it to be a correct statement of the law and sound public policy as well.

. 99.8 per cent of the homes of America have radio and television sets. Statistical Abstract of the United States, 1972, at 691. In addition, in 1971 newspapers had a daily paid circulation that reached 62,108,000 homes. Id. at 501.

. A frequent response to questioning as to sources would bo that given by the defendant in Ginzburg, supra: “I don’t recall who I had in mind when I wrote that statement.” 414 F.2d at 332 .

. Walter Lippmann commented as follows in an interview on the general subject of the responsibility of the press :

Q: There’s been a great concern over the freedom of the press recently — the right of newsmen to protect their sources, the effort of the government to intimidate the media. Tou’ve been concerned with this problem throughout your career. Do you think there is a serious threat to freedom of the i>ress?

A: [By Walter Lippmann] I think that very often troubles of the press come from a commercialized desire to get scoops, to be the first to print the news. These “sources” very often are places to get tips of what’s going to happen. The desire of newspapers to he the first to print particular information is corrupting to the whole journalistic process. In the journalistic world I grew up in, it wasn’t a question of law whether you had to divulge your sources. It was a question of whether the reporter had the guts to refuse to reveal where he got the information, whether he was willing to go to prison if necessary. That was regarded as the elementary code of a newspaper man. The reverse of that was — and this was always my practice — when someone told me something in confidence, I didn’t pass it on to the reporters so we could get a scoop. I had a relationship with the man I was interviewing and I didn’t want to print that.

Washington Post, March 25, 1973 (emphasis added).