September/October 2000 | Contents

Q & A: CLIMATE OF CHANGE
'Everybody Is More Careful Than They Used to Be'

CJR EDITOR AT LARGE NEIL HICKEY INTERVIEWS LUCY DALGLISH, EXECUTIVE DIRECTOR OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, ABOUT CURRENT MEDIA LEGAL TRENDS

* How has the climate changed in the last five or ten years with regard to legal action brought against the press?

Police and courts are much less sympathetic to the newsgathering process. There's been an enormous increase in arrests of reporters and photographers who are just doing their jobs -- covering the World Trade Organization riots, for example. You'd think they were in Kosovo or Sierra Leone. Police used to say, "Okay, you have a press pass around your neck. Stand back please and give us some space." Now they're just arresting them.

* What's the reason for that?

I wish I knew. They're just less willing to give the media a break. The other trend I've noticed lately is the willingness of trial court judges to issue prior restraints against the media. They apparently have never heard of Near v. Minnesota or the Pentagon papers. It appalls me.

* Is there more lawyering going on in the newsroom than ever before?

There are more lawyers involved in prepublication review, particularly in television -- "Can we take hidden cameras here? Can we go undercover to get that story?" Across the board, there's more activity on the part of lawyers trying to navigate the law in ways to help journalists better cover a story. In recent years, it's more likely that lawyers will read a story or watch a tape ahead of time if they feel there's any chance at all of it being controversial. Everybody is more careful than they used to be.

* Why is that?

It's a combination of things: the threat of big verdicts, the public's distrust of the media, the media's desire to improve credibility with the public. Plus, laws relating to newsgathering differ so greatly from state to state that reporters often need assistance in navigating them.

* What's the trend in newsrooms being hit by subpoenas?

We track the number of subpoenas issued year by year. It's been pretty steady. In 1997, for example, our study showed that our newsroom participants received 2,725 subpoenas. That number has held fairly steady over the past decade. Florida implemented a shield law for the first time a few years ago. Texas is particularly bad if you're a journalist. And they've been doing some goofy things in California -- coming up with odd exceptions about whether a journalist can invoke the reporter's privilege under cross-examination. So the landscape has not improved. Just recently, journalist Timothy Crews, editor and publisher of the Sacramento Valley Mirror in Red Bluff, California, spent five days in jail for refusing to testify in a criminal case. We hadn't had anybody else actually sentenced to jail time for a couple of years, but jail sentences are pending against several journalists right now. We keep on our Web site a list of journalists who've been thrown in jail over the last thirty years.

* Are media lawyers still advising clients to resist subpoenas to the bitter end?

Definitely. We encourage them to take it as far as they possibly can. You should always challenge it -- go to court and move to quash the subpoena, understanding that in some states with weak or no shield law, there may be no protections for journalists. Still, the journalist has the option of refusing to comply and then living with the consequences.  

* What can we say about the value of shield laws, nationwide?

They insure greater independence for the media. They make it less likely that a newsroom or a journalist will be co-opted into being an agent either for the prosecution or defense -- or, in a civil case, an agent of the discovery process. For example, Minnesota had some peculiar court decisions in the early nineties that said essentially that if a newspaper had information about a civil case, like an unpublished photo of an accident, they had to turn it over. That turned journalists into the source of first resort for discovery, and it became incredibly burdensome for newsrooms to keep filling these discovery requests. Minnesota's media got organized in 1998 to push for changes in the state's shield law. Now, civil litigants are not entitled to reporters' notes, testimony, or outtakes at all. And the reporters' privilege was strengthened in criminal cases also.

* What's the trend in hidden cameras and microphones?

Right after the Food Lion case, we saw a precipitous decline in the number of newsrooms willing to do hidden-camera stories. That was not a bad thing because it brought a period of self-examination in which journalists decided they'd use hidden cameras and microphones only under exceptional circumstances. Now that the Food Lion verdict has been knocked down to a few dollars, I'm starting to see newsrooms increase their use of hidden cameras.

* Are judges issuing many gag orders, which make the job of journalists so much more difficult?

That continues to be a horrible problem. There has been an explosion in the number of gag orders, which prevent journalists from interviewing the contending parties, or the court, or anybody in the court house -- even for clarification of procedural matters. Judges are deciding that the only way to control their case is to make sure that no information at all gets out about it. We had a situation in Texas where a federal judge in more than 200 cases over the past two years just automatically issued gag orders on the parties, as part of his regular scheduling order. And some of those cases involved bench trials, where the judge hears the case and there's no jury! Gag orders are supposed to insure that you'll have an unbiased jury. It's stupid. I'm disturbed that more newsrooms don't challenge gag orders. They just live with it. It means that they are forced to base stories on rumors, innuendo, lies, and leaks. You can't argue that the public is served by that.

* Sealed documents in court cases are also a big hindrance to journalists.

I think that even journalists don't recognize how often documents get sealed. Having been a litigator, I know that it happens even in libel cases. I find that to be offensive. In the trial that convicted former Louisiana Governor Edwin Edwards of twenty-eight counts of racketeering, Judge Frank Polozola sealed virtually every document relating to the case. That's ridiculous! Reporters covering the trial started calling him Ayatollah Polozola.

* Some courts are insisting on having anonymous juries, with the identities of jurors being kept secret from the press and everybody else.

I find this to be a very disturbing trend. In an extreme case, where you have some mobster on trial, then you might argue that jurors could be in some physical danger. That's the only circumstance where anonymous juries make sense, but a lot of judges are imposing anonymous juries where there's absolutely no risk that a juror is going to be harmed. That's especially true in civil cases. What's the risk? The press and the public are entitled to know who are making these decisions on our behalf. I can't believe that more defense attorneys don't object because I think it involves their clients' Sixth Amendment right to a fair trial, part of which is to be tried by a jury of your peers. You are entitled to know that they are your peers. Also, what message does that send to a jury? "This defendant is so dangerous we can't let him know who you are." A lot of good reporting can be done after verdicts, when a reporter can go back and interview the jury. You can find out what they were thinking and a lot about how a verdict was arrived at.  

* How is the Supreme Court behaving with regard to media cases?

It's been a while since they've taken one. They don't take very many. Last term, they took two cases with implications for the media. They upheld Congress's right to tell states that drivers' license records must be closed, and they upheld a California statute that shut down access to public records by companies that wanted to make money from the information. We strongly opposed both of the laws.

* What's the effect of media consolidations on the will and capacity of those big corporations to go to court and defend strenuously the news organizations they own? Are they more inclined to settle, for p.r. reasons, than stand-alone journalism companies?

I haven't noticed that. I've defended cases for both Disney/ABC and Gannett, and there's no big difference in strategy between them and the small independent media. If word gets out that you're willing to settle these media cases, or cave in, you're just inviting a flood of lawsuits. You have to fight them aggressively. While there might be a handful of anomalous cases out there, I don't know that conglomerates' owning media is any more dangerous than having some good-old-boy local newspaper owner making sure that the names of his golf buddies don't appear in the DWI column.

* Media lawyers as a class -- what are they like? One gets the impression that they revel in the tumult and trench warfare of fighting for these journalism issues.

It's very flashy. There are people who would do almost anything to be media lawyers. Your clients are colorful, committed people and the constitutional issues are fascinating. You feel that you're doing this noble thing every day. You're standing up and saying: "We know that journalists can be offensive and discomforting, but by God don't we have a great system that embraces and protects this type of free speech? And unless we uphold this story and give this news organization the freedom to report it, the entire American system of justice will crumble to the ground." You're out there representing the only entity, the press, that is specifically mentioned in the Constitution. It's heady stuff.

* On the other hand, there are plaintiff lawyers who specialize in hauling the press into court for libel, defamation, illegal newsgathering techniques, fraud, trespass.

Most of them are solo practitioners at small firms. They work on contingency. They kind of roll the dice. The good ones are very good. If you're a plaintiff's lawyer working on, let's say, a defamation case, you need to really have mastered the law because there are a lot of defense tactics the media can invoke. And there's a well-organized media defense bar. Besides, if a media organization makes a mistake, most are very agreeable to running a correction, and apologizing. So if you think you're going to get rich bringing cases against the media, think again. Of course, big companies like Food Lion and Chiquita hire big firms. Individuals tend to hire lone operators.

* But can't any good lawyer argue either side of a media case?

Not usually. I don't know that many people understand this. Here's the way it works. If you are going to represent one of the big media companies like CBS or Gannett, you usually have to agree that no one at your entire law firm will represent a defamation plaintiff against a media company. That is something that the libel insurance companies generally insist upon. When I was at Dorsey & Whitney, for example, a major airline was a client. Suppose they came to us and said, "We are going to go after the Los Angeles Times because they said this terrible thing about us and by God we are going to get them." We would not take that case because we also represented Gannett. That's why you have either libel defense attorneys or libel plaintiff's attorneys. Almost never do the twain meet because if you're a media company your insurance may not pay for your defense if you use a lawyer known for bringing plaintiff defamation claims.

* But isn't there a kind of cat-dog tension between journalists and lawyers overall?

Most media lawyers have some sort of journalism background and understand that the goal is to get the story published. They will work very, very hard with the journalist and almost never kill a story. They say: "I don't think we can do it this way, how about going about it this other way instead?" Most media lawyers really enjoy being in newsrooms -- the energy of journalism is thrilling. Lawyers and journalists have a lot in common. Their personalities are similar. They both gather information and process it -- either arguing it in a courtroom or putting it out to the public. They're both information junkies, sucking up all kinds of facts and impressions, and either telling the public or the court all about it.