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Hastings Communications and Entertainment Law Journal

Authors

Elad Peled

Abstract

This article discusses mandatory retraction, which court rulings and legal literature rarely have addressed. The article proposes a solution designed to provide adequate protection for the reputation of public figures, which may be defined as "constructive mandatory retraction." Under the proposed solution, courts handling public figures' libel actions against the media would be empowered to grant a new remedy, namely, a declaratory judgment stating that the falsity of the defaming publication has been established by clear and convincing proof, accompanied by an injunctive relief ordering the defendant to report on that decision in a prominent manner. Courts may grant this new remedy irrespectively of the defendant's state of mind prior to the publication.

The proposal aims to resolve two First Amendment concerns raised by compelled publications. First, compelled publications arguably contradict the Supreme Court's consistent position that one may not be forced to make any expression against his will. Yet, a careful study of the Court's decisions in this context reveals that, under its approach, obliging a person to state uncontroversial facts or communicate information without affirming a belief is much less offensive than compelled speech that concerns an opinion or an idea, and can be constitutionally justified by sufficiently important interests. Hence, compelling a defendant to inform his audience of the indisputable fact that a declaratory judgment was issued against him, without requiring him to actually admit the falsity of the defaming publication, would not infringe upon his First Amendment right not to speak. Second, compelled publications allegedly burden the freedom of the press by interfering with the editorial autonomy of the press. However, given the restrictions on the application of the remedy posed by this article, a significantly vast portion of editorial autonomy would remain intact. While editorial autonomy would be subject to "technical" interferences, the substantive element of this concept, concerning the press's ability to be an independent player in the political sphere, would not be harmed. Moreover, this article's proposal removes any "chilling effect" that led the Supreme Court to adopt the actual malice requirement in New York Times v. Sullivan, because that ruling's purpose was protecting free debate from the stifling threat of outsized money awards. As the proposed remedy does not involve money liability, and its non-damages financial implications are expected to be negligible, it will not deter publishers from reporting on controversial issues.

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