Nesson: Its hard to pin it in any given place. Times and Sullivan was an opinion written with the best of intentions and great ambition by a great justice who I think didn't see the pitfalls of opening up the subject in the particular ways that he was opening it up...Once you set a kind of an open-ended agenda in an adversary system where there are high stakes, its inevitable.

Simons: How would you change it?

Nesson: I think the actual malice concept has got to be changed... To me the question in libel is not whether the statement was true as much as whether it was justified when it was printed...

Lewis: Just say a word more about you mean by justified."

Nesson: There is, to me, a question of whether a reporter, a newspaper was acting within the norms of journalism in printing what they printed. Something like a gross negligence standard.

Lewis: ...I began to be with you until you said that.

Nesson: So help me out.

Lewis: ... When you get into the norms of journalism, you are trying to impose a straight-jacket on a profession which isn't a profession and which for the best of reasons in American history, that you have stated--the kind of country we are--should not be stamped out with something to be judicially delineated. We don't want to do that. Sometime's it's the outsider, it's the Tom Paine, it's the, quote, reckless, irresponsible character who does great things. We don't want to be judged by the standards of The New York Times.

Simons: And we don't want norms. There's no such thing as norms. Crimson: Well now that Professor Nesson has opened himself up for attack on his flanks, maybe I'll let Mr. Simons and Mr. Lewis take a whack at giving some directions in which they would like to see the courts move in this area.

Lewis: I am uneasy about the actual malice standard for the reason Professor Nesson indicates...I would like to see several things happen... One is a realistic view of damages, which we've already talked about. If the purpose if the clearance of good name, the restoration of reputation, the making whole of actual injury, let's limit it to that and not turn it into a sort of a grab bag Two, I would like to focus on something more limited than we have now. Profesor Nesson has drawn you the picture of this bottomless subject of investigation What did the publisher know? How many other things did the publisher know? ... I suggested returning to the simple standard of whether it was true or not, because you would eliminate all of that search ..Lastly, I think we have to get at the judge jury question. The Supreme Court has been reluctant to do that I think quite wrongly. Judge Bork, who is regarded as a Reaganite conservative, says in this opinion that it is the duty of a trial judge not to let any speech or writing go to a jury in a libel case if the speech or writing is in what he calls the "public, political arena." I agree with that.

Crimson: Lawyers are demanding to go farther and farther into the actual process of gathering news and I was curious whether you thought that that was another aspect to this libel business that could potentially damage newspapers?

Simons: Oh absolutely, I think that's even more horrible than everything else, because it's notebooks and it's mentality and it's the news process, and for years growing up in the business, that was a no-no...I think that does have a chilling effect...

Lewis: Let me show you that there's occasionally some disagreement in the press--we're not totally monolithic--by putting a question to Mr. Simons if I may. Howard, isn't some of the responsibility for the thing the press's in the excessive and increasing use of anonymous material in newspapers, unattributed material?

Simons: Oh sure.

Lewis: If a newspaper runs a story saying, "An informed source tells us that Mr. Jones, who has been a hostage in Iran, was actually a runner for the heroin ring," is that right? Should you do that? And if he sues, shouldn't he be entitled to probe to get that name? He's a private citizen. He's not General Westmoreland.