Absence of Malice (1981) (Guest: Brian Hauss) (episode 27)

This episode examines Absence of Malice, a 1981 drama directed by Sidney Pollack. After Miami-based newspaper reporter Megan Carter (Sally Field) is tipped off by Justice Department organized crime strike force chief Elliot Rosen (Bob Balaban) about a criminal investigation into the disappearance and likely murder of a local union official, her paper runs a sensational front-page story. But the supposed target of the investigation, Michael Gallagher (Paul Newman), the son of an infamous bootlegger, is innocent; Rosen, the strike force chief, has leaked his name to the press to try to squeeze Gallagher for information. Gallagher is incensed and tries to pressure Megan to reveal her source. Megan initially refuses but later relents after her story unexpectedly leads to the tragic death of a friend of Gallagher's. Gallagher and Megan also become romantically involved. Gallagher hatches a plot to get even and get the government off his back. He causes an unsuspecting Megan to write another sensational story, this time implicating the District Attorney in a bribery scheme that Gallagher has invented. When the truth is revealed, both the prosecutors and the newspaper are humiliated, the victims of their own game of leaking information and reporting about it. Absence of Malice provides an insightful, if unflattering, picture of how newspapers operate and some of the ethical and moral complications that can result from the robust protections afforded the press under the First Amendment.  I’m joined by Brian Hauss, a senior staff attorney with the ACLU Speech, Privacy, and Technology Project, who has litigated numerous landmark First Amendment cases.

 Timestamps:
0:00     Introduction
3:31     The meaning of “absence of malice”
8:15     Deciding what a paper can print
11:22   A skeptical take on the absence of malice standard 
15:02   The meaning of “public figure”
20:47   A newspaper reporter’s First Amendment privilege?
26:10   How the government handles leaks
30:20   A troubling increase in leak prosecutions
32:31   The “Leaky Leviathan”: How the government uses leaks
39:06   The obligations of the press
42:43   The legal vs. ethical obligations of the press
48:11   Assessing critiques of the absence of malice standard
54:59   Timeless questions explored by the film

Further reading:

Adler, Renata, Reckless Disregard: ‘Westmoreland v. CBS et al. & Sharon v. Time (1986)

Barbas, Samantha, The Enduring Significance of ‘New York Times Co. v. Sullivan,’ Knight First Amendment Institute (Mar. 18, 2024)

Liptak, Adam, “Clarence Thomas Renews Call for Reconsideration of Landmark Libel Ruling,” N.Y. Times (Oct. 10, 2023)

Pozen, David E., “The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information,” 127 Harv. L. Rev. 512 (2013)

Stone, Geoffrey R., “Why We Need a Federal Reporter’s Privilege,” 34 Hofstra L. Rev. 39 (2005)

Law on Film is created and produced by Jonathan Hafetz. Jonathan is a professor at Seton Hall Law School. He has written many books and articles about the law. He has litigated important cases to protect civil liberties and human rights while working at the ACLU and other organizations. Jonathan is a huge film buff and has been watching, studying, and talking about movies for as long as he can remember.
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