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The Supreme Court has not ruled in a libel case in more than a decade. But today, the Court is expected to discuss whether it is time to re-examine its libel doctrines and strengthen protections for the media. The case at hand, Santa Barbara News-Press v. Ross, No. 03-1338, has been in the courts for 15 years. It is one of many the Court will review at its private conference with an eye toward adding some to its docket for the term that begins in October. After multiple appeals and two trials, a jury in 2000 awarded businessman and lawyer Leonard Ross $2.25 million in damages for articles appearing in the Santa Barbara newspaper after he acquired controlling interest in Santa Barbara Savings and Loan. The articles, according to briefs in the case, reported that Ross had been investigated years earlier by federal agencies for involvement in the alleged extortion and kidnapping of his business partner Barry Marlin. The stories noted that Ross was never charged in connection with the case. Soon after the articles appeared, Ross sued the newspaper in California Superior Court in Los Angeles. The trial court determined Ross was not a public figure, thereby making it easier for him to win his case. Instead of having to prove the newspaper acted with malice in printing the articles, Ross only had to show the paper was negligent. The jury awarded Ross $7.5 million in damages against the newspaper in 1991, but the verdict was set aside and a new trial was ordered. The second jury, following the same determination that Ross was not a public figure, came back with the lower award, and the newspaper appealed. The California Court of Appeal agreed that Ross was not a public figure, and it rejected the newspaper’s defense that the statements in the articles were substantially true. The appeals court declined to conduct an independent review of the facts. In its petition to the Supreme Court, the newspaper, owned by the New York Times Co., challenges the appeals court’s determination on the public figure issue and on independent review of the facts. Kelli Sager of the Los Angeles office of Davis Wright Tremaine filed the petition. In its 1984 ruling Bose v. Consumers Union, the Supreme Court said appeals courts must independently review the evidence establishing malice in libel cases. Since then, lower courts have split over whether that same rule should apply to other elements of libel cases such as truth or falsity. Similarly, lower courts have split over the definition of a public figure, especially in cases involving people who own or control controversial businesses, according to the newspaper’s brief. The Court established the higher burden of proof for public figures in libel cases in the 1974 case Gertz v. Welch. “The split on these issues could not be more apparent,” says Sager, who has been defending the newspaper since the litigation began. “And the effect of these determinations can spell the difference between a winning plaintiff and a winning defendant.” Sager acknowledges that the justices have not always been sympathetic to the press in recent years in nonlibel contexts such as privacy, but she says that, on balance, this was a good case to bring to the high court. “You have to consider all the factors,” she says, adding that the California ruling needs to be struck down especially on the public figure issue. “It’s a horribly chilling thing, and the issues are not on the margins.” A brief filed on behalf of several major media companies also urges the high court to grant review. Floyd Abrams of New York’s Cahill Gordon & Reindel tells the Court that print and broadcast media “depend on independent appellate review and the public-figure doctrine in preparing news reports and editorials about such people without the fear of chilling libel suits.” What the Santa Barbara newspaper did in its profile of Ross, Abrams adds, is what other news groups “do countless times a week.” Ross, in opposing review, asserts that the newspaper is trying to “convert the specific constitutional shields afforded the press into a sword with which unfettered media conglomerates can slay the good name and reputation of anonymous persons.” Ross, who filed the brief on his own behalf, said media organizations are hoping the court will “homogenize the wide array of figures targeted by the media so as to provide a perfect design to defame without liability.” OTHER CASES UP FOR REVIEWColorado v. Miller, No. 03-836. Whether a month-old tip from an informer can create probable cause to justify a search warrant. � Bailey v. United States, No. 03-1073. In claims under United States v. Winstar, does the “case or controversy” requirement of the U.S. Constitution require dismissal of a claim against the government because the damages suffered by the government as a result of its own breach were greater than damages suffered by petitioners as a result of the government’s breach? � Runningen v. Kentucky, No. 03-1416. Whether the exclusionary rule is triggered when evidence is obtained in the defendant’s home as a result of information obtained in an illegal search of someone other than the defendant. � Norwood, Mass. v. New England Power Co., No. 03-1370. Interpretation of the “filed rate” doctrine of Federal Power Act. � Dallas Glen Hills LP v. Corfield, No. 03-1372. Diversity jurisdiction in case involving Lloyd’s of London. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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