23 Comm. Law. 1 (2005-2006)

handle is hein.journals/comlaw23 and id is 1 raw text is: Communications
Publication of the Form
on Communications Law
American Bar Association
Volume 23, Number 1, Spring 2005

In this issue
COVER STORY
Free Speech on Trial?
This review of libel trials since the 14th
century reinforces what every litigator
knows: juries can be fickle. Once seen
as the guardian of free speech, juries
in libel cases have found against the
defendants at least 60 percent of the
time since 1964. The author discusses
the constitutional safeguards available
to protect free speech.
Loose Lips Sink Ships ....... 2
Forum Chair Jerry Birenz takes on the
Internet and the disturbing ramifications
of our propensity to reveal everything
in cyberspace.
Are Talk Shows the Next
Bonanza for Plaintiffs? ....... 5
Definitely not. After a review of recent
tort cases, the author concludes that
courts have been justifiably reluctant
to impose liability on talk show hosts
and producers.
Report from Boca .......... 11
The 10th Annual Conference featured a
retrospective of two landmark cases
(Richmond Newspapers and Milkovich),
a play-by-play analysis of the 2004
election, and the customary hot topics.
Boot Camp for Media
Advocates ................. 16
A traditional highlight of the annual
meeting is a one-day session designed
specifically for new litigators that
allows them to hone their skills with
guidance from the pros.
Read All About It ........... 17
Former Forum Chair Tom Kelley takes
an affectionate look at Floyd Abrams'
new book, Speaking Freely, and
communications professor Kyu Ho Youm
critically reviews Dan Cohen's new book
on his role in Cohen v. Cowles Media.
Courtside ................. 23
First Amendment highlights of the last
Term and what to expect in October.

Trial by Jury: Two-Edged Sword?
CHARLES L. BABCOCK

I once had a prospective juror tell me
during voir dire that it would take two
newspaper witnesses to overcome the
testimony of one plaintiff witness in a
libel trial. In another case, a woman
said she could not be fair because the
newspaper defendant had endorsed the
candidacy of President Bush. Others
have expressed distaste for the media
during jury selection in a variety of
ways. All of these people were excused
from jury service for cause.
Then there are the media haters who
do not reveal themselves, and quietly,
sometimes eagerly, await their selection
as jurors in order to, as one recent juror
put it after the verdict, keep the media
from getting away with one. This com-
ment came in a case brought by a public
official where the absence of actual
malice was overwhelming and there was
no evidence approaching the clear and
convincing proof that the First Amend-
ment requires. We failed to spot this
media hater, who fortunately did not,
ultimately, sway the jury.
On the other hand, we have seen
jurors who have a profound respect for
free speech and the role that the press
plays in our society. One juror expressed
the view during voir dire in a libel case
between waste disposal companies that
everyone has the right to free speech,
even garbage companies. During The
Charles L. (Chip) Babcock (cbabcock@
jw. corn) is a litigation partner at Jackson
Walker LLP and a fellow in the American
College of Trial Lawyers and the Interna-
tional Academy of Trial Lawyers; he has
tried fourteen libel cases to a jury verdict.
He was assisted by his colleague Zola
Williams at Jackson Walker who did much
of the work for this article.

Cattlemen's case against Oprah Winfrey,
a juror spoke eloquently during delibera-
tions that he had seen many individual
rights lost during his lifetime. The only
right remaining, he said, was the right to
free speech, and this right is the only
way to recapture our lost liberties. His
comment was influential in driving the
jury to a defense verdict.
We have always seen this ambivalence
about free speech and press, perhaps best
articulated by the passage from Tom
Stoppard's Night and Day: I'm all for
freedom of the press, it's newspapers I
don't like. But in our early history,
juries were thought to be the salvation of
free speech and press. Indeed, the 1735
trial of John Peter Zenger saw a jury
nullify the libel instruction provided by
the court and exonerate a publisher who
criticized the Royal Governor of New
York. By 1996, however, we learned that
separate juries in Texas, Florida, and
North Carolina-all within a few months
of each other-had awarded over $20
million in damages against the ABC
network,1 even though, as a juror in the
Texas case said, I couldn't find anything
false in [the story].2
The twin, uniquely American, rights
to trial by jury and to free speech and
press most often intersect in libel cases.
Juries can promote free speech by
checking the chilling effects of a libel
judgment as occurred in the Zenger case.
But the jury, just as easily and, of late,
frequently reflects the majority sentiment
in the community by punishing unpopu-
lar speech and sanctioning the press, not
for what it says but for what the press
itself is perceived to be-rich, powerful,
and arrogant. To a large extent, juries no
(Continued on page 26)

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