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September 25, 2001You might call them the Tasini 13. The National Writers Union is alerting its membership that The New York Times has blacklisted 13 freelance writers who, with union president Jonathan Tasini, challenged the paper for violating their copyright. The Times and other publications, they argued, had published their work in electronic databases such as Lexis-Nexis without permission or compensation. The directive to all Times editors went out two days after one of the plaintiffs, author and playwright Barbara Garson, wrote a personal essay for the Times about the "close-up death" of the World Trade Center disaster and called for the city to "not rebuild those same arrogant towers."
"My goodness, it's my fault," Garson said when told by the Voice that her name is on the list. "I slipped through." But not on purpose. The author of Money Makes the World Go Around: One Investor Tracks her Cash Through the Global Economy from Brooklyn to Bangkok and Back was at a friend's place after the disaster when a Times editor called looking for a personal account. "If [the editor] ever knew my name was a bad name, she wasn't thinking about it. I never knew my name was a bad name," says Garson, who actually challenged The Washington Post/Los Angeles Times chain for articles in their sister paper, Newsday. Her disputed articles were not in The New York Times. (The papers she challenged haven't blacklisted her, she says.)
In June, the U.S. Supreme Court sided with the writers, saying that the publications should work with the union on a licensing agreement for the writers. The Times, though, refused, and instead decided to remove stories from databases unless writers gave up their rights. It apparently also directed editors not to work with the plaintiffs again, an order reiterated by Michaela Williams, the Times director of editorial contracts, on September 18 after Garson's disaster story appeared. Williams told the paper's editors via e-mail that she was "sending this list again, just in case it didn't reach you," adding, "Our lawyers recommend that the newspaper not engage any of the below named plaintiffs to write for the newspaper."
The list includes New York University law professor Derek Bell, author and book reviewer Margot Mifflin, finance writer Lynn Brenner, technology expert Sonia Jaffe Robbins, and parenting expert and professor Mary Kay Blakely. A recipient forwarded Williams's e-mail to Tasini, who in turn exposed it to the NWU membership, likening the Times's move to "the discredited and immoral blacklists of the 1950s." He urges union members to write Williams and call Times publisher Arthur Sulzberger to complain that such a don't-hire directive is "contrary to freedom of expressionthe ideal that all newspapers must live by." Tasini tells the Voice that he is shocked that the Times would actually circulate a blacklist: "I said to the members: Even I didn't believe The New York Times would stoop so low, and I've been dealing with them for a long time."
Lawyers for the Times deny that the paper of record is blacklisting anyone. The memo was about communication and legal protection, assistant general counsel George Freeman insists, adding that the case isn't really over. The Times is back in lower court, negotiating a settlement with the plaintiffs. "We're just talking about the 13 people who basically brought us to court," he explains. "Everything [Times editors] say can go back to their lawyers." He admitted that the memo may have circulated because one or more plaintiffs had gotten back into the paper, but did not specify Garson or anyone else.
Garson cedes the Times a technical point. "I imagine they have a right to wait until the thing is settled financially," she says. "But I don't think it's nice." She worries, though, that the directive could have additional consequences. "I would be much more concerned if that no-no list extended to reviewing my recent book." Garson emphasizes she is not worried about receiving back damages from the publishers; she just wants to help future writers by getting the publications to agree to a fair payment for republishing articles. "It's about a fair living in the future for all writers."
Plaintiff Mifflin's name may also have slipped by the Times censors. She recently wrote a book review for the Times that is supposed to appear October 21. Her editor has assured her that it will still appear, despite her name on the list. "The blacklist is an insult to freelancers and a slap in the face of the Supreme Court," Mifflin says.
Times counsel Freeman insists the 13 names only constitute good legal sense. "The references to Joe McCarthy are silliness," he says. When asked, he assures that once the case is finally overit's gone eight years to datethat the editors will be free to engage those writers again should they want to. "Absolutely. Once the case is resolved, there would be no question whatsoever," Freeman says.
Oddly, though, several of the names on the list have long dropped out of the suit, settled their cases, or never had a dispute with the Times in the first place. H. Bruce Franklin, for instance, settled his dispute with The Atlantic several years ago. Of the 13 names, Tasini reports, only eight are still part of the suit and awaiting settlement. That confounds Mifflin: "In this crowning act of contractual carpet-bombing," she says, "they're attacking not only the victors in this suit, but also writers who dropped out of it years ago."
That proves that the list is about even more than retribution, Tasini says: It's a warning to any other writers who would dare challenge The New York Times. "I think it's simply another step they're taking to lash out and put pressure on writers. It's the same mentality that has suggested they should force people to sign their rights away," he says.
Author's Guild general counsel Kay Murray, who represents Bell and Brenner, does not believe the blacklist can help a case the Times has already lost. "The horse is out of the barn," she says. "I as an attorney cannot see their legal strategy. Liability has been established." She also expresses surprise that the memo came a week to the day after the World Trade Center disaster: "I guess they were able to catch their breath on Tuesday the 18th," she says of the Times.
Garson, too, is struck by the timing. "During the crisis, everybody in New York loved everyone else. I am sorry to return to our normal petty business as usual," she says.