Uninhibited speech

October 30, 2003

THERE SHOULDN'T BE a price tag on free speech. Exercising our constitutional right should not be a matter of whether we can afford to legally defend a controversial or unpopular view of a public figure. But a ruling by a federal appeals court in California sets a new standard in libel cases that undermines protections for consumer groups and the media and threatens the integrity of their work.

The U.S. Supreme Court shouldn't hesitate to review the case of Suzuki Motor Corp. vs. Consumers Union, publisher of the popular magazine Consumer Reports. Its previous concern that the potential cost of litigation could impede protected speech surely applies here.

The 1996 lawsuit involves the magazine's testing and rating of the Suzuki Samurai. In a 1988 article, Consumer Reports rated the small jeep as "not acceptable" because it found that it rolled over too easily. Suzuki sued the magazine, claiming that it had rigged the tests to boost its sales. A federal judge reviewed the evidence in May 2000 and tossed out the lawsuit before it got to trial. That procedure, known as summary judgment, is at issue here. Lawsuits dismissed at that stage save the parties and the courts the cost of full-length trials.

But the 9th U.S. Circuit Court of Appeals in San Francisco ruled that the lower court didn't need to examine all the evidence at that stage to determine if Suzuki had proved by "clear and convincing evidence" - the higher standard in libel cases - that Consumers Union had acted with "actual malice" in rating the Samurai poorly. Instead, it said the court only had to review certain claims by Suzuki. If those claims could potentially prove the automaker's case, then the matter should proceed to trial for a jury to decide. The Supreme Court's higher standard of proof comes into play when a public figure, whether a company or individual, sues a publication for libel or slander.

In appealing the 9th Circuit ruling, Consumers Union argued that the decision might well curb product-safety reviews and other negative reports. Twenty-five media outlets, including Tribune Co., which owns this newspaper, agreed in court papers.

When defending themselves against frivolous lawsuits, news organizations win nearly 80 percent of their cases at summary judgment. If they no longer have the option of resolving cases early on, the potential expense of a full trial could have a chilling effect on the extent and depth of journalists' work.

Consumers Union already has spent more than $5 million on the Suzuki case. Its lawyers say the expense of a trial could be four times that amount. Suzuki's lawyers have chosen to focus specifically on the alleged malice by the magazine. But the potential impact of the 9th Circuit's ruling exceeds the particulars of this case and cannot be ignored. Why shouldn't a judge weigh all the evidence to determine the merits of a libel claim? Indeed, the public good is placed at risk if frivolous and costly lawsuits are allowed to deter the exercise of free speech.

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