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First brought in Washington, D.C., the serpentine suit was filed again in Florida in 2000, and has now reached New York, where Emerson seeks to depose Daily News reporter Bob Port. Why Port? Prior to the Daily News and APBNews.com, Port worked for the AP, where he edited Cole's 1997 report on terrorism. After the series ran, Port wrote a memo in which he alluded briefly to Emerson, noting that in the view of the reporters on the series, some of Emerson's information "did not check out."
On May 10, Port was served in New York, where Emerson is represented by Richard Horowitz, a private investigator and former Israeli army officer who is pressuring Port to talk about Cole and Emerson. In his latest salvo, Horowitz argues that under New York's shield law, journalists are not protected from having to testify about the editorial process. According to Horowitz, "It's as if Port witnessed an accident."
But not everyone thinks it should be easy to haul witnesses out of the newsroom and into court. AP outside counsel Richard Winfield moved promptly to quash Port's subpoena, asserting that the editorial process is protected from disclosure in civil cases by the First Amendment and by the New York shield law.
"To require Bob Port or the AP to cough up that information would chill the freedom of the interchanges that are necessary in the development of a series," says Winfield, a First Amendment litigator who helped revise New York's shield law in 1990. "Journalistic work product should not be interfered with unless there's a compelling state interest."
Reached at the Daily News, Port called Emerson a "brilliant investigator" who has "made a huge contribution to what's known about terrorism. I respect him for doing that, but I wish he would just drop this lawsuit." Port continued, "It's wrong to drag reporters into court and make them talk about their reporting and editing process."
Last week, the dispute was assigned to Judge Edward Lehner of the Supreme Court of New York County. If the court sides with Emerson, it could open the floodgates, inviting lawsuits from every source, subject, or writer who wants to pick a bone with an editor. That would be a disaster.
Emerson's attempt to depose a journalist is just the latest chapter in a controversial career. After a stint with U.S. News, four books, and countless op-eds, Emerson had his crowning moment in 1994, when he produced the PBS documentary Jihad in America. In 1995, as he would later testify in Congress, he was summoned to the office of "a federal law enforcement official" who told him that "a group of radical Islamic fundamentalists had been assigned to carry out an assassination of me." While Emerson has never produced more details to prove that he was targeted by a hit squad, he told the AP that he was forced to adopt the security measures used by Salman Rushdie.
In recent years, Emerson's media presence has dimmedperhaps because, as he has claimed, pro-Arab groups in the U.S. tried to blacklist him, or perhaps because he's the type to see a terrorist under every kaffiyeh. In 1995, The Nation accused him of promoting anti-Arab "hysteria," and in 1998, NPR dropped him as a commentator after he made what an NPR ombudsman called "unsubstantiated allegations," such as linking the Oklahoma City blast to Arab terrorists. These days, Horowitz can only name one publication that Emerson writes forThe Wall Street Journal. According to one journalist, he has been "bounced from the mainstream" and spends his time "raising money from wealthy Jews."
Enter the Weekly Planet's John Sugg, who began investigating Emerson after he showed up in Florida in 1996, accusing local Muslim scholars of being active in the Islamic jihad. Sugg's 1999 exposé painted Emerson as a pro-Likud fanatic who systematically misrepresents documents and sources. Emerson found two points in Sugg's earlier reporting irksome: his claim that the Justice Department had no evidence of a death threat against Emerson, and a dismissive quote from Cole claiming that Emerson had tried to pass off something he wrote as an "FBI report."
Those two allegations form the backbone of Emerson's libel case. The warring facts are dense and ambiguous, but one thing is clear: Back in 1997, Emerson felt burned by the AP because the reporters relied on him heavily, then cut him out of the finished product. That betrayal didn't provide grounds to sue, but Sugg's story appeared to be a ripe target.
Asked whether Emerson is essentially a disgruntled source, Horowitz said, "Steve wasn't just a source, he was a consultant." He says Emerson has to sue because "they're claiming Steve gave [the AP] a document saying it was from the FBI files but that he himself authored. That's one notch below bribing a journalist." Horowitz insists that the document came from an FBI source who was not Emerson. And if the AP doubted the document, Horowitz asks, why didn't they confront their source, instead of simply cutting him out of the series? (Port says Emerson was treated fairly and professionally.)
Sugg stands by his stories, saying that he reported what he knew at the time, sought Emerson's comment, and has updated the record as new information became available. He says that because Emerson holds himself up to be a terrorism expert, he is what is known as a "vortex public figure," whose credibility is fair game for comment.
Sugg's lawyer, David Snyder, suggests that "the real purpose of the lawsuit is not to recover damages, but rather to chill any comment about Emerson's status as a reliable source, and to deter further reporting about that." Snyder notes that Emerson is trying to use the reporter's confidentiality privilege as a sword to obtain AP testimony, at the same time using it as a shield to protect his own confidential sources.
Cole's lawyer, Patricia Anderson, doesn't take Emerson seriously. Says Anderson, "A lot of times people file these suits just so they can tell their friends at cocktail parties, 'He said that about me, but I sued him!' " Anderson understands that Emerson "felt he was due more credit than [the AP was] willing to give. But this is a free country, and journalists get to make those decisions, not judges or juries."
Horowitz calls his adversaries' parries "a smoke screen" and vows to prevail, although he is only charging a "friend's rate," if that. "If people actually believe the allegations [about Emerson]," he says, "those are as serious as can be. He passed off his own material as government documents, and lied in his testimony to Congress? We can't let that go by."