PUBLISHING ERRORS: LIBEL OR LIABLE

The publishing industry daily delivers to U.S. consumers a product almost as ubiquitous as the air we breath. Remember the childhood riddle: Q. What is black and white and (phonetically) red all over? A. The newspaper.

Billions of dollars each year are spent on words and pictures. Newspapers, magazines, books, television, radio, letters, graffiti and billboards are a few countless forms of media. Publishers range from small - you and me - to the gigantic newspaper and television chains. Published products touch on every aspect of human existence.Inevitably some of these products are defective; sometimes advertently and sometimes inadvertently. A church bulletin with an incorrect hour for a Sabbath service may cause only de minimus damage while a pharmaceutical company's product information bulletin with incorrect dosage instructions may cause death.

The publishing industry claims to have, and indeed, does have at least some exemptions from common law product liability claims. For example, absent ''actual malice" on the part of a publisher, a public figure has no cause of action for libel resulting from the printing of false or erroneous statements. The principal conclusion from New York Times vs. Sullivan.

Pursuant to the First Amendment's purpose of encouraging free and open debate on matters of public importance, such statements are protected no matter how defective.

At the same time there are many instances in which publications are treated just as other products when the contents are defective and cause injury. The First Amendment is not a shield from all liability, tort or otherwise.

As Justice Holmes remarked long ago, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic."

Where is the line between protected free speech with the resulting immunity from product liability claims, and publications not immune from product liability laws? Two recent cases illustrate the lack of clear precedent.

In an Illinois case, Alm vs. Van Nostrand Reinhold Co., an intermediate appellate court refused to hold the publisher of a how-to book liable where the plaintiff was injured when a tool shattered while he was following the book's instructions. The plaintiff argued that a publisher has a duty to provide adequate and safe instructions and to give warnings to intended purchasers and users of its publications. The Illinois court rejected this theory on the grounds that it would expose publishers to indeterminate liability and have a potentially ruinous effect on the publishing industry.

Furthermore, the court reasoned that the plaintiff's theory would have a chilling effect on the exchange of ideas and would lead to problems of content based restrictions of speech as courts tried to ferret out actionable speech

from protected speech under the First Amendment.

It does not take much imagination to see that the exact same instructions if inserted in a package by the tool manufacturer would not receive First Amendment protection.

A different result was reached by the Ninth Circuit Court's recently affirmance of a $12.7 million verdict against a publisher in Broklesby vs. United States.

In that case the survivors of the crew members killed in an airplane crash sued the government and Jeppesen and Co., publishers of a chartbook that aids pilots in landings. The court found that Jeppesen's chart was defective and unreasonably dangerous to the users and found that the publisher could be held strictly liable for its contents.

The dichotomy makes fascinating theorizing, but it has interesting practical ramifications for lawyers. Counsel for the plaintiff in a case involving an allegedly erroneous publication should prepare and try the cases as though it were a simple everyday product liability case. The jury will understand that!

Counsel for the publication should prepare and try the case as though it were the most important case since the 1735 defense of John Peter Zenger against a charge of libeling the British governor of New York. The court will understand that!

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