February 17, 2011

Taking the Media to Court

% Won by Defendants
1980s 37.3
1990s 40.4
2000s 52.1
Overall 1980-2009 41.4

55.8% – Percentage of lawsuits ultimately won by media defendants in the past 30 years

News broke last week that former USDA official Shirley Sherrod had filed a defamation suit against Andrew Breitbart, the conservative activist who posted an excerpt of a speech that appeared to show the African-American woman making anti-white remarks. Sherrod was quickly pressured to resign her job, but within a day, it became clear that the remarks in the video had been taken out of context.

If the Sherrod/Breitbart case goes to trial, the suit will no doubt generate considerable media attention and energize advocates on the left and right.  The outcome is impossible to predict, but according to the Media Law Resource Center—which tracks First Amendment litigation—the results for media defendants have been improving over the last few decades.

In the 1980s, for example, just 37.3% of the trials were won by the media defendants. That number rose to 40.4% in the 1990s and climbed again to 52.1% from 2000 to 2009, according to an MLRC study of 570 verdicts from 1980 through 2009.

Indeed, when you factor in trials, post-trial motions and appeals, media defendants ultimately ended up winning 55.8% of all cases from 1980 through 2009.
“There’s no question that at the trial stage, plaintiffs fared much better in the 1980’s”  than they have in recent years, says Sandra Baron, executive director of the MLRC. Furthermore, the number of suits against media organizations that have gone to trial has steadily been decreasing. In the 1980s, MLRC documented 268 trials. In the 1990s this dropped to 196 and from 2000-2009, there were just 137 cases against media organizations that went to trial.

But when media defendants did have to pay, the average award given to plaintiffs has been $2.8 million, a figure the MLRC attributes to a few very big verdicts. The median reward is considerably smaller, $300,000.

Tricia Sartor of PEJ