By Albert Samaha
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Imagine an aggressive reporter interrogating Rupert Murdoch and Michael Eisner under oath, accusing them of unsavory attempts to control media coverage, including her own. This scenario is not a Hollywood fantasy. It's a reality that beckons to Nikki Finke and her lawyers.
As the Voice reported last year, Finke is the media and entertainment reporter whose stories about the Walt Disney Company got her fired by the New York Post, after which she sued Disney and the Post for $10 million. The odds that she will get her day in court have been increased by a California judge who recently rejected motions by both companies in which they claimed that her lawsuit threatened Disney's First Amendment rights.
Los Angeles Daily Journal reporter Garry Abrams, who has followed the case from the start, told the Voice, "Disney and the Post failed to convince the judge that the case is about corporate free speech and not about firing a reporter for Mickey Mouse reasons. It's always possible that a case will settle, but this one looks like it will be hard-fought every step of the way."
Clyde Hettrick, a lawyer who represents the former Post scribe, said, "Ms. Finke as an individual reporter standing alone has been able to meet the procedural attacks of two of the largest media empires on both coasts and has prevailed at every juncture. She looks forward to proving the merits of her case before 12 citizens of California."
Disney lawyer Patricia Glaser said, "We respectfully disagree with the judge. Our position is supported by the law, and I would think every major media company would be filing amicus briefs to support it."
Post lawyer Slade Metcalf did not return calls. A Post spokesperson had no comment.
Finke's lawsuit centers around events that took place last winter, when she worked briefly for the Post. After producing a run of breaking stories, Finke became a favorite of business editor Jon Elsen, who offered her an $85,000 contract. But her luck ended on January 29, 2002, when the Post published two Finke articles on pending litigation against Disney, in which Winnie the Pooh licensing rights are being contested. It's not clear what angered Disney the mostthe cartoon showing Mickey Mouse feeding documents into a shredder, the headline "Deep Pooh-Pooh," or Finke's prediction that Disney could take a significant financial hit if it lost the case.
Disney president Robert Iger fired off a letter accusing Finke of serious mistakes. In February 2002, Post editor in chief Col Allan fired Finke for what the paper later dubbed "inaccuracies" in her reporting. Yet no corrections ever ran.
Finke retained the services of Pierce O'Donnell, a prominent L.A. lawyer who represented Art Buchwald when he sued Paramount over the genesis of the movie Coming to America. In April, O'Donnell filed a complaint documenting the dangers of media conglomeration and accusing the Post and Disney of libeling Finke and sacrificing her on the altar of big business.
The Post and Disney filed countersuits in which both companies claimed that Disney was practicing free speech by pointing out alleged inaccuracies in Finke's reporting. In a statement released last spring, Disney explained that the First Amendment cannot be used both as a shield for reporters and as a sword against their subjects. Disney added, "The Post's hiring and firing decisions are solely the responsibility of the newspaper."
In a statement released last spring, a Post spokesperson said, "The notion that the Post gave favorable treatment to Disney is laughable."
The countersuits filed by Disney and the Post are known as anti-SLAPP motions. SLAPP stands for "strategic lawsuit against public participation," a/k/a a nuisance suit. The typical victims of SLAPP suits, the people who usually file anti-SLAPP motions, are political activists, not multinational media corporations.
L.A. County Superior Court Judge Gregory Alarcon threw out Disney's countersuit in June and the Post's in December. Disney's appeal is now pending in the California State Court of Appeals. The Post has filed a notice of appeal.
In an interview, Finke's lawyer praised the judge's decision, calling SLAPP a misnomer for this case, because Finke did not threaten Disney's ability to speak out on news coverage. Typically, companies speak out by writing letters to the editor or op-ed pieces. But Disney was not exercising free-speech rights when it threatened to pull ads from the Post and wrote a letter criticizing Finke, Hettrick argued. Furthermore, he said, the Post was not taking a stance on an important public issue when it terminated an employee who got in the way of its business relationships. He says the judge found that "the public is not served by gratuitous attacks on Ms. Finke."
If the appeals court sides with Disney and the Post, the case will be dead. If not, Finke's lawyers will proceed with discovery. The key question may be, How much is the Post willing to pay to settle the case? In an affidavit, Finke claims that PR man Howard Rubenstein, whose company represents the Post, told her in a private conversation that the Post had done a good reporter wrong and that he believed she would get a settlement.