Rather, the problem is the procedure by which allegedly defamatory falsehoods are adjudicated. The losers in the current system are all-encompassing, chief among them being the subjects of false and defamatory statements published by the news media. “Many innocent victims of defamatory attack,” writes Jones, “are without redress under the present law.”

To a lesser degree, Jones suggests, members of the press are ill-served by our nation’s libel laws, as they face “intrusive inquiries into editorial processes” and substantial costs associated with litigation and potential liability. Finally, the public suffers as well, primarily because there is no effective mechanism in place to correct published errors, which may dissuade some citizens from becoming involved in public controversies.

Hence the centerpiece of Jones’s book: a detailed proposal to procedurally revamp libel law into a multi-stage process designed to ferret out the truth, and, in the process, to encourage even more robust debate of public issues. Jones gets there by providing incentives for both aggrieved parties and the media to settle factual disputes early and at a reasonable cost.

Litigation Phases

Jones begins with an important, albeit debatable, assumption. Would-be libel plaintiffs, he believes, are primarily interested in having a defamatory falsehood corrected rather than pursuing money damages to compensate for reputational harm. The first stage of his procedural reform, then, is the “Retraction and Correction” phase. In this stage, defamation victims must make a demand that falsehoods be corrected. If a defamer agrees and publishes a full and fair retraction to roughly the same audience of the original challenged statement, then the plaintiff can only recover proven economic damages.

Jones next turns to what he calls the “First Phase of the Litigation.” Here the parties litigate the issues of defamatory meaning and falsity. If either or both of those issues are contested, they are submitted to a trier of fact. If published statements are adjudged to be false, the plaintiff recovers his attorney’s fees (and, again, can recover proven economic damages). At this stage, Jones surmises, the parties will be motivated to settle the matter, obviating the need to delve into the more time-consuming and costly inquiry of assessing fault.

If the “First Phase” does not lead to resolution of a dispute, the parties proceed to the “Second Phase,” which is roughly akin to the manner in which most libel disputes are litigated today, namely, where all issues – including defamatory meaning, falsity, and fault – are adjudicated together.

Theoretical Merit

To be sure, Professor Jones’s proposals have theoretical merit. If one agrees that most libel plaintiffs are motivated by the desire to “set the record straight,” and not by the desire to be enriched by a publisher’s mistakes, then a two-or three-step process makes some sense. It would force a defamation “victim” to at least request a retraction. If a publisher unreasonably rejects this entreaty, it could be subject to economic, reputational, and punitive damages.

Such a procedure may also benefit the media, who often are confronted by subjects more aggrieved by a perceived unfairness or bias of a published report than by its alleged falsity. A quick resolution on “truth” may well nip a legally meritless case in the bud.

Too often, though, the truth or falsity of a published report is simply too difficult to determine – or is so intertwined with the issue of fault – that early resolution is not practicable. Jones acknowledges this reality. And so have others who have considered proposals comparable to Jones’s that have yet to gain acceptance. In 1994, for instance, the National Commissioners of Uniform State Laws adopted a retraction statute with proposals similar to those that Jones touts, but with no takers to date.

William Jones is to be commended for the clarity of his proposal and the strength of reasoning he puts behind it. His straightforward acknowledgement that there are “possible pitfalls” to his proposal is similarly laudable. In the end, however, neither state legislatures nor the Supreme Court (the latter being the avenue Jones peddles to correct defamation law inefficiencies) are likely to advance his cause. And trial judges – already burdened – would likely balk at providing special procedures for a tort claim.

The more enjoyable passages of Professor Jones’s book involve his crisp, lively accounts of the leading principles and caselaw that have shaped not only defamation law, but also the law of invasion of privacy and the new challenges posed by the Internet. While I disagree with a few of Jones’s views of some legal principles, Jones nonetheless shines as a thoughtful analyst of common law and constitutional jurisprudence. And though the book is not a user-friendly resource for the frequent libel law practitioner, it is an insightful and commanding explication for the legions of judges and lawyers whose exposure to libel and privacy law is more fleeting, and even more so for newcomers to the field.