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Abstract

It has become a truism that media defendants in libel cases are being hit by increasing numbers of ever-growing punitive damage awards. More than a decade ago commentators began lamenting that "[t]he libel 'megaverdict,'... virtually unknown until the 1980s," had "become commonplace." That trend has continued in the intervening years, with reports of substantial libel damages verdicts coming in on a monthly basis. In the face of this development, one would expect the press and its lawyers to respond with what should be (from the media's perspective) an appealing and powerful argument: that the First Amendment precludes the award of punitive damages in libel cases, at least when the plaintiff is a public figure. Fifteen or twenty years ago, when massive libel awards first became a notable phenomenon, there was some reason to think that such an argument could be successful. Several state courts had held that the First Amendment - or analogous free speech provisions in their state constitutions - barred the award of punitive damages in libel cases. A fair number of commentators (some of them quite prominent) had reached the same conclusion, albeit typically with little analysis. And the Supreme Court had not squarely addressed the issue.

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