Libel Lawyers as Risk Counselors: Pre‐publication and Pre‐broadcast Review and the Social Construction of News1

Abstract

American libel law presents profound dilemmas about how to provide compensation to individuals for injury to their reputation without destroying First Amendment values of free expression and unfettered public debate. This paper looks at the substantial legal costs incurred by publishers and broadcasters in defending themselves against charges of libel, the response of the courts to limit press self‐censorship occasioned by the risks of libel litigation, and the perverse effect they both have on the social construction of the news. These tensions are captured in the role of the media lawyer who reviews news stories prior to publication or broadcast and advises editors about libel risks. Data are presented from interviews of 53 in‐house and outside counsel who regularly review stories for newspapers, television stations and networks, magazines, and other news organizations. A paradox emerges: media lawyers, in pursuit of constitutional protections of free speech, have come to enforce responsible journalism, while subtly chilling and shaping the ways the news is told.

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