September/October 2000 | Contents

HOW THEY CAN HELP US, HOW THEY CAN HURT US

BY NEIL HICKEY

Journalists and lawyers. Siblings under the skin. A symbiosis that's often uneasy but essential to a free press. Journalists vex in the normal course of their work. Rich and powerful corporations demand redress. Average citizens want justice for offense to their reputations. Judges, juries, and gladiatorial media lawyers vigorously test the boundaries of where collecting and disseminating the news becomes lawbreaking. Ever since Andrew Hamilton successfully defended the printer John Peter Zenger in 1735 for accusing New York's royal governor of corruption and incompetence, lawyers for the press and their adversaries have been battling to define the size of the clearing in the woods where journalists can confidently operate. "The Question before the Court, and you, Gentlemen of the Jury," Hamilton declared, "is not of small nor private Concern, it is not the Cause of a poor Printer . . . . It is the best Cause. It is the Cause of Liberty."

Now more than ever, lawyers are becoming part of the editorial process. Attorneys for plaintiffs increasingly are claiming that journalists too often break the law while collecting the news. More cases are going to trial. Juries are returning big verdicts against news organizations. Courts are showing a general hostility to the press, reflecting the public's low esteem of the profession. Some big anti-media law firms work hard to derail investigative pieces before they're published or broadcast, and then conduct p.r. campaigns to discredit them afterwards. The cost of litigation is making media lawyers more cautious than they used to be. Says a veteran newsman: "These days, you need lawyers who are better than ever."

Lawyers in the lives of journalists, says Reuven Frank, former president of NBC News, are "unfortunately necessary." Not a necessary evil; just plain necessary. Are they wet blankets on aggressive journalism? Are they sometimes too cautious in turning thumbs down on hot stories, thereby smothering enterprising reporting? In megacorporations that own news organizations, are they more concerned with shareholder value than with their journalists' desire to tell the whole truth?

Some are. Others share the journalists' DNA and are eager to push the envelope's insides and challenge the limits of the law on how news gets covered.

Over the last few months, cjr has talked to dozens of media lawyers and journalists about how the two professions relate in the newsroom's daily life; and about how lawyers can help journalists and where they can hurt them. Unpredictably, we found newspeople almost unanimously sanguine about their dealings with attorneys -- both in-house and outside counsel -- who cast a flinty, critical gaze at news stories before the public sees them. "If you've got an attorney who's stuck in the law and doesn't care a lot about the news, you've got a problem," says Mike McGraw, a Kansas City Star reporter. "But one who enjoys working with newspapers, who enjoys watching news get broken, can be a big advantage. After spending many hours with counsel, I realized I can learn a whole lot by listening to them."

Media law is a landscape of shifting sands and moving targets. The body of case law is immense, ambiguous, and sometimes contradictory; guaranteed, risk-free guidance from lawyers is hard to come by. Journalists are suffering through a period when the public's opinion of the profession is at an all-time low, and when judges and juries are angered about media methods of newsgathering that sometimes include trespass, misrepresentation, and fraud.

In this issue of cjr, we offer a package of articles examining the important legal issues that newsrooms currently are dealing with: alleged lawbreaking by newsgatherers, along with libel, subpoenas, and the Internet. We take a look at lawyers who spend their careers defending the press and others whose specialty is representing corporations and individuals who claim they've been wronged.

Most journalists, over the course of a career, will spend time with lawyers -- some friendly, some acting for aggrieved plaintiffs. "The best news stories are going to upset people," says Brant Houston, executive director of Investigative Reporters and Editors (IRE), who earlier spent nine years at the Hartford Courant and four at The Kansas City Star. "Investigative reporting lives on the edge. You know upfront there will be complaints about a hard-hitting story." The lawyer's job is to make the legal perils perfectly clear and then let the editors decide. "The worst case," Houston says, "is where you have a lawyer who's not really a writer or editor trying to edit the story."

Newsroom lawyers are painfully aware of the potential minefields that face them in counseling journalists. Richard M. Schmidt, Jr., who has represented the American Society of Newspaper Editors for thirty-one years, understands how a reporter can balk when sternly challenged on a story nearing publication. "The journalist has worked long and hard and the lawyer comes along and says, look, you haven't proved these facts." It's not the lawyer's job to turn thumbs down, Schmidt insists. "I say, 'Here's the weakness of your case, and here are the problems you'll face if you go ahead with the story.'"

In the wake of bombshell cases like Food Lion and Chiquita, are newsroom lawyers putting the chill on reporting more than they did in the past? Victor Kovner, of the New York office of Davis, Wright, Tremaine, doesn't think so. "To the extent there's a chill, it comes from the law, not the lawyers applying the law."

One in-house lawyer -- for a news organization that takes glee in bending the law while doing splashy undercover stories -- says that dealing with those staffers is like giving sex instruction in a classroom: "You advise them not to do it, but you know they will anyway. So you tell them how to get the most protection."

One big magnet for lawsuits is the many TV newsmagazines in prime time schedules -- especially 60 Minutes, 20/20, and Dateline NBC -- each of which regularly offers mini morality plays pitting victimizers against victims, and allowing the vindicators (the TV folk) to ride to the rescue and grandly expose injustice. The alleged victimizers sometimes sue. 20/20's boss, Victor Neufeld, told a recent IRE convention: "The legal climate is very tense. Juries and judges in the last few years have felt that the media have gotten too aggressive, too much involved in people's private lives." Jurors, listening to invasion of privacy tales in court, murmur to themselves, "That could be me," and penalize the reporters. Television stations and networks most often attract the fire of litigants during sweeps periods when they air ratings-building investigations of eye-catching malefactions. Unlike print media, TV and radio stations risk losing their licenses over clumsy reporting; sensitive to that risk, their lawyers apply especially talmudic scrutiny to stories before broadcast.

That didn't save Dateline NBC in 1992, when an overzealous producer doctored a GM truck with explosives to make better pictures during a staged crash. An NBC News executive ruefully recalls that the segment was well-lawyered, but no attorney had reason to inquire of the reporting team: Did you put a cherry bomb under the truck to assure a fiery blast? "You would just assume that nobody would be so stupid as to do that," the executive says, "but I guess you should never make assumptions." GM sued and won a large settlement.

One of the major shifts in the lawyer-journalist axis in recent years has been the subsuming of news organizations into huge conglomerates having disparate, non-journalistic corporate interests. "That's a big worry, a subject of great concern," says Corydon Dunham, counsel to Cahill Gordon & Reindel and former general counsel to NBC. "Corporate chieftains have shareholder value in mind. They have to. It's a systemic problem arising out of the ownership structure." Thus, a legal challenge to ABC News, CBS News, or NBC News (owned, respectively, by Disney, Viacom, and GE) may trigger a different response than one aimed at, let's say, Knight Ridder, whose main business is journalism.

In 1971, for example, The New York Times and The Washington Post accepted the risk of publishing the Pentagon Papers -- a journalistic decision by owners who had no doubt what business they were in. But CBS in 1995, then owned by Laurence Tisch, a businessman with hotel and tobacco interests who was preparing to sell the network to Westinghouse, showed wobbly knees when threatened with a lawsuit over a 60 Minutes segment -- a sorry tale dramatized in the movie The Insider.

When Disney owned The Kansas City Star before selling to Knight Ridder three years ago, all controversial stories and potentially problematic investigative series were vetted by Disney corporate counsel in New York. It was a lousy system, says Star reporter Mike McGraw: "We'd have these marathon telephone conversations with lawyers in New York, many of whom had never set foot in Kansas City. They didn't know if I'd been a reporter for twenty-five years, which I have, or two. It was frustrating. I didn't enjoy it."

Inevitably, battling for press freedoms can become an expensive item in a media company's budget. "I've always viewed legal costs as a normal newsroom expenditure, like reporters and newsprint," says Michael Gartner, former president of NBC News. "It's absolutely vital to the success of a news operation." He feels that in-house lawyers are a better idea than outside counsel because management doesn't worry that editors and reporters are running up big legal bills every time they need guidance. Gartner recalls that the Des Moines Register used to have the term Chief Lawyer on Duty -- the CLOD. The CLOD's name was posted in the newsroom every day and the news staff could call him at any hour of the day or night.

"I'm a lawyer myself," says Gartner, "and I've always insisted there be really good First Amendment counsel everywhere I've worked. Investigative reporters, especially, must have as their partner a good lawyer. It's absolutely vital."

Perhaps the media's most intractable problem with the law is the low-grade, pervasive hostility that judges, juries, and the general public have shown toward the press in recent years. A study released in June by the First Amendment Center indicates that a majority of Americans -- 51 percent -- think that the press in America has too much freedom to do what it wants.

"Judicial antipathy toward the press is as serious as I've ever seen it during a thirty-year legal career," says Bruce Sanford, an attorney at the Washington, D.C., firm Baker and Hostetler and author of the 1999 book Don't Shoot the Messenger, subtitled: "How Our Growing Hatred of the Media Threatens Free Speech for All of Us."

The effects of that hostility are easily observed, Sanford says. For example, Judge Susan Webber Wright's refusal to allow media access to President Clinton's deposition in the Paula Jones case. The judge was "scornful, absolutely contemptuous" of reporters' requests because she felt they were mostly interested in learning about identifying marks on the president's genitals, rather than in the larger issues of the case.

Sanford coined the phrase "canyon of distrust" to describe "a gorge between the public and the media that has grown deep, dark, and airless" in the last decade, and which has resulted in huge libel awards and more judgments against journalists for alleged illegal methods of newsgathering.

Lawyers and journalists? They're yoked together in the age-old effort to expand press freedoms. If Andrew Hamilton was the first media lawyer back in 1735, many of his successors have been equally passionate -- often against high-powered anti-media forces -- in fighting for "the best Cause . . . the Cause of Liberty."

Neil Hickey is CJR's editor at large.