Sue the Messenger, Part Two


Here’s a safe prediction for the new year: News and entertainment companies will become the targets of more and more lawsuits. ‘Hit Man’ and ‘Jenny Jones,’ two cases that surfaced in 1999, are examples of this chilling trend. Those cases resulted in media companies having to pay millions of dollars to victims’ families, under the theory that an incendiary book or TV show is legally accountable when it incites a third party to kill.

But the media is not just getting blamed for murder; in pending cases, newspapers are getting sued for lesser sins, too. For example, Richard Jewell has sued the Atlanta Journal and Constitution for reporting that he was a suspect in the bombing at the 1996 Summer Olympics. Jewell claims he was libeled, not only because it wasn’t true, but also because the paper allegedly got its information from unreliable sources. Last month, a judge ordered the reporters to disclose their sources, and the paper is appealing that decision. Jewell is looking for a $1 million settlement.

Meanwhile, Ralph Cipriano has sued The Philadelphia Inquirer for libel. That case started in 1998, when the Inquirer refused to publish an exposé of the Philadelphia archdiocese by the paper’s then reporter Cipriano. The piece ran in the National Catholic Reporter instead, prompting The Washington Post‘s Howard Kurtz to ask what had happened. Inquirer editor Robert Rosenthal told Kurtz, “There were things we didn’t publish that Ralph wrote that we didn’t think were truthful,” a statement he has since amended. Cipriano wasted no time suing the Inquirer, which wasted no time firing him. But the lawsuit has dragged out, and is now reportedly headed for trial, because the Inquirer refuses to settle. (Lawyers for both parties declined to comment.)

At least those are traditional libel claims. But the new trend in media law is to accuse the company of a “trash tort,” such as breach of contract or invasion of privacy. That’s what Brown & Williamson did to CBS, and it’s what Chiquita Brands International did to the Cincinnati Enquirer.

In 1998, after the Enquirer published an exposé of Chiquita’s business practices, Chiquita discovered that reporter Michael Gallagher had tapped into the company’s voice mail, a no-no that didn’t have to do with the facts of the story and that would be easier to prove than libel. Under threat of a lawsuit, the Enquirer and its parent, Gannett, renounced the exposé, fired Gallagher, and paid Chiquita more than $10 million.

That’s when one lawsuit became many: Chiquita threw the book at Gallagher, and under threat of imprisonment, he gave up a confidential source, George Ventura. Both Gallagher and Ventura eventually pleaded to wiretap violations, whereupon Ventura sued the Enquirer. The Enquirer says it can’t be responsible for Gallagher’s actions after he was fired, which no doubt means that Ventura and Gallagher will be left to fight it out like scorpions in a bottle. What a pity. In the old days, Ventura would have remained anonymous and Gallagher would have been championed for using unsavory means to arrive at a higher truth.

Another group of cases may make it possible to sue a news company for publishing the contents of an illegal recording—whether or not the reporter knew the tape was illegal or encouraged it to be made. The most high-profile of these, “Boehner,” is now pending in Washington, D.C.

That case started in December 1996, when Representative John Boehner was driving in Florida while talking on a cell phone to a group of fellow Republicans, including Newt Gingrich. Unbeknownst to Boehner, a Florida couple intercepted the call with a police scanner, taped it, and gave the tape to Representative James McDermott, who apparently gave it to The New York Times and two other papers. The Florida couple pleaded guilty to wiretapping, which is typical in these cases. But Boehner couldn’t leave it at that. He sued McDermott, charging him with receiving and disclosing ill-gotten goods.

The problem is that McDermott didn’t make the illegal tape—he merely received it and passed it along. But according to this argument, McDermott can be punished for “laundering” the goods, and so can every newspaper that published the contents of the tape. This notion, advanced by Boehner’s attorneys, poses so much potential damage to news gathering that The New York Times, The Washington Post, and The Wall Street Journal all joined an amicus brief in support of McDermott.

“If suddenly there’s a new rule that the First Amendment permits you to be punished simply because the source of the information has done something wrong, then we’re in grave danger,” says Theodore Boutrous Jr., the lawyer who wrote the newspapers’ brief. Boutrous predicts that a verdict against McDermott could create a chilling effect on leaks and leakers, but might also lead to unlimited punitive damages against the reporters that publish those leaks. The most recent ruling on the case came from the D.C. Circuit Court of Appeals, which found that the First Amendment does not protect McDermott from prosecution. McDermott requested a rehearing.

In another pending case, Dan Peavy, a former trustee of the Dallas school board, is trying to add local WFAA-TV to the list of media scapegoats. That case started when Peavy was talking trash on a cell phone and got taped by his neighbor. In 1995, WFAA quoted the tape in an investigative report about Peavy, and Peavy started to sue.

In the meantime, the neighbor has pleaded to wiretap violations, and Peavy lost a suit against New Times, which obtained its transcript of Peavy’s call from school board records. But Peavy is still trying to nail WFAA for violating federal wiretap law. A lower court ruled that WFAA was protected by the First Amendment; the case is now pending in the 5th Circuit Court of Appeals.

There is something ominous going on here: The Justice Department has filed supporting briefs in Boehner, Peavy, and others, arguing that the First Amendment does not protect any third party who receives and discloses an illegal tape. Maybe the feds just want to give themselves broad power to enforce the wiretap law. But in the sacred name of privacy, it seems, they are willing to remove the protections offered to journalists, even if the substance of the reporting clearly serves the public interest.

At least one news organization is prepared to defend its free speech rights:, which was recently barred from requesting financial disclosure forms filed by federal judges. The decision, issued by a committee representing the federal judiciary, has been called “audacious” and “laughable” by The Washington Post. And APB is determined to get those forms posted online, because it believes the people are the best judge of proper judiciary conduct. On December 22, APB sued in federal court in New York, charging that its First and Fifth Amendment rights are being violated. Check the site for detailed updates.