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Seeking Sullivan, Looking for Lange: Australian and US Defamation Law and News Production
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by the Wall Street Journal, which is readily available both in the US and in Australia in on-line and print versions? In short, a multi-site approach of the sort proposed by Marcus allows for a comparative focus, but also recognises the need to be alert to global flows of meaning and practice around concepts such as defamation. We have argued that, for both legal and sociological scholarship, there is value in moving beyond existing approaches to seek Sullivan and look for Lange through researching news production practices. In particular, such research should indicate how defamation law impacts on daily news production, and on news producers’ understanding of what constitutes news, in different media types both within and between countries. Perhaps most importantly, the research would provide insights into whether differences in legal definitions of defamation impact on news production, and if they do, in what ways? Such findings would provide not only a rich comparative analysis of defamation law in the US and Australia, but would also contribute to current understandings of how people interact with law in their everyday lives.
1
Eg, Marc Gunther, ‘The transformation of network news. How profitability has moved networks out
of hard news’ (1999) Special Issue Nieman Reports 20; Doris Graber, Denis McQuail and Pippa Norris ‘Introduction: Political Communication in a Democracy’ in Graber, McQuail and Norris (eds), The Politics of News: The News of Politics (1998) 1, 10; Lou Ureneck. ‘Newspapers arrive at economic crossroads’ (1999) Special Issue Nieman Reports 3. A legal review addressing technological change is provided by David A Logan, ‘All Monica, All of the Time: The 24-Hour News Cycle and the Proof of Culpability in Libel Actions’ (2000) 23 University of Arkansas at Little Rock Law Review 201.
2
Eg, see Timothy Marjoribanks, News Corporation, Technology and the Workplace. Global strategies,
local change (2000).
3
Eg, see New York Times v Tasini 121 S Ct 2381 (2001) and the defamation cases mentioned below in
Part II. In this paper we use the legal term ‘defamation’ rather than ‘libel’ (which is commonly used in the international literature) primarily due to the existence of the Defamation Act 1974 (NSW) which is particularly important in the Australian context.
4
We use the label of ‘news’ to encompass event-based and investigative reporting in all media, as well
as op-ed pieces and current affairs reporting or programs. It is a major area for defamation litigation, which underlies our choice, but that should not be taken to discount the applicability of such a project to media forms historically understood as ‘entertainment’.
5
We use the label of ‘media sociology’ but recognise the diversity of historical and current approaches
in what could also be called media studies, and which draws on politics, communications studies and cultural studies among others. For a consideration of the field’s breadth see the editors’ introduction in John Corner, Philip Schlesinger and Roger Silverstone (eds), International Media Research: A Critical Survey (1997) 1.
6
As Conley and O’Barr suggest, the way law’s practice deviates from law’s ideals has been
investigated so many times that it has come to be general knowledge: John M Conley and William M O’Barr, Just Words: Law, Language, and Power (1998) 12.
7
See eg, Richard Delgado, ‘Toward a Legal Realist View of the First Amendment’ (2000) 113
Harvard Law Review 778 (review of Steven H Shiffrin, Dissent, Injustice and the Meanings of America); Richard Delgao and Jean Stefancic, Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment (1997); Richard Abel; Speech and Respect (1994); Jack M Balkin, ‘Some Realism about Pluralism: Legal Realist Approaches to the First Amendment’ (1990) 40 Duke Law Journal 375.
8
(1997) 189 CLR 520 (Lange).
9
376 US 254 (1964) (Sullivan).
10
Eg see Brian C Murchison, John Soloski, Randall P Bezanson, Gilbert Cranberg and Roselle L
Wissler, ‘Sullivan’s Paradox: The Emergence of Judicial Standards of Journalism’ (1994) 73 North Carolina Law Review 7.
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| | Authors: Kenyon, Andrew. and Marjoribanks, Timothy. |
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18
by the Wall Street Journal, which is readily available both in the US and in Australia
in on-line and print versions? In short, a multi-site approach of the sort proposed by
Marcus allows for a comparative focus, but also recognises the need to be alert to
global flows of meaning and practice around concepts such as defamation.
We have argued that, for both legal and sociological scholarship, there is value in
moving beyond existing approaches to seek Sullivan and look for Lange through
researching news production practices. In particular, such research should indicate
how defamation law impacts on daily news production, and on news producers’
understanding of what constitutes news, in different media types both within and
between countries. Perhaps most importantly, the research would provide insights
into whether differences in legal definitions of defamation impact on news
production, and if they do, in what ways? Such findings would provide not only a rich
comparative analysis of defamation law in the US and Australia, but would also
contribute to current understandings of how people interact with law in their everyday
lives.
1
Eg, Marc Gunther, ‘The transformation of network news. How profitability has moved networks out
of hard news’ (1999) Special Issue Nieman Reports 20; Doris Graber, Denis McQuail and Pippa Norris
‘Introduction: Political Communication in a Democracy’ in Graber, McQuail and Norris (eds), The
Politics of News: The News of Politics (1998) 1, 10; Lou Ureneck. ‘Newspapers arrive at economic
crossroads’ (1999) Special Issue Nieman Reports 3. A legal review addressing technological change is
provided by David A Logan, ‘All Monica, All of the Time: The 24-Hour News Cycle and the Proof of
Culpability in Libel Actions’ (2000) 23 University of Arkansas at Little Rock Law Review 201.
2
Eg, see Timothy Marjoribanks, News Corporation, Technology and the Workplace. Global strategies,
local change (2000).
3
Eg, see New York Times v Tasini 121 S Ct 2381 (2001) and the defamation cases mentioned below in
Part II. In this paper we use the legal term ‘defamation’ rather than ‘libel’ (which is commonly used in
the international literature) primarily due to the existence of the Defamation Act 1974 (NSW) which is
particularly important in the Australian context.
4
We use the label of ‘news’ to encompass event-based and investigative reporting in all media, as well
as op-ed pieces and current affairs reporting or programs. It is a major area for defamation litigation,
which underlies our choice, but that should not be taken to discount the applicability of such a project
to media forms historically understood as ‘entertainment’.
5
We use the label of ‘media sociology’ but recognise the diversity of historical and current approaches
in what could also be called media studies, and which draws on politics, communications studies and
cultural studies among others. For a consideration of the field’s breadth see the editors’ introduction in
John Corner, Philip Schlesinger and Roger Silverstone (eds), International Media Research: A Critical
Survey (1997) 1.
6
As Conley and O’Barr suggest, the way law’s practice deviates from law’s ideals has been
investigated so many times that it has come to be general knowledge: John M Conley and William M
O’Barr, Just Words: Law, Language, and Power (1998) 12.
7
See eg, Richard Delgado, ‘Toward a Legal Realist View of the First Amendment’ (2000) 113
Harvard Law Review 778 (review of Steven H Shiffrin, Dissent, Injustice and the Meanings of
America); Richard Delgao and Jean Stefancic, Must We Defend Nazis? Hate Speech, Pornography, and
the New First Amendment (1997); Richard Abel; Speech and Respect (1994); Jack M Balkin, ‘Some
Realism about Pluralism: Legal Realist Approaches to the First Amendment’ (1990) 40 Duke Law
Journal 375.
8
(1997) 189 CLR 520 (Lange).
9
376 US 254 (1964) (Sullivan).
10
Eg see Brian C Murchison, John Soloski, Randall P Bezanson, Gilbert Cranberg and Roselle L
Wissler, ‘Sullivan’s Paradox: The Emergence of Judicial Standards of Journalism’ (1994) 73 North
Carolina Law Review 7.
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