September/October 2000 | Contents

FIRST PERSON:
Finding A Way to Say 'Yes'

BY JEFFREY S. KLEIN

I was the newsroom lawyer for the Los Angeles Times for four years, through 1987. It may have been the most fun I've ever had at a job. My experience may help journalists know what to look for in a First Amendment lawyer, how to best use one's lawyer, and when to listen to or ignore him or her.

Usually, newsroom lawyers venture into several common troublespots: subpoenas of reporter's notes, defamation suits, privacy concerns, access to courts and government files, gag orders, and prior restraints

The latter provided one of my more interesting few days on the job. I was eating dinner at a Santa Monica restaurant with my wife-to-be when I was summoned to the phone for a call from our editor in San Diego. A federal court judge had ordered him not to publish a certain story in the next day's paper: a sealed grand jury report in a high-profile bankruptcy proceeding had been mistakenly given to reporters from the Los Angeles Times and the San Diego Union. There was very little interesting stuff in it. But in the mind of that federal court judge, the information was confidential and shouldn't be published.

My phone call was transferred directly into the court chambers where an ad hoc hearing had already begun, with lawyers for the bankruptcy trustee and the San Diego Union already in heated debate. This was blatantly unconstitutional stuff; didn't the judge know that? He and I argued for about two hours on the phone while the dinner hour passed.

Without any written briefs at hand and no time for the judge to review the case law, he simply wanted us to agree "voluntarily" not to publish the story so that he wouldn't have to issue a potentially unconstitutional order. We'd have a fully argued hearing the next day, he said, giving him time to review the law. The editor of the Times wasn't going to let him off so easily, and refused the request, although the Union was agreeable. One important lesson: the editors made those decisions, not the lawyers.

The judge issued the "prior restraint" order. Once it was real, we had to decide whether to comply. There was, at the time, a question about whether one could violate a patently unconstitutional order and then not be subject to sanctions later on. Bill Thomas, the Times editor, decided to comply with the formal order--at least for the night -- with specific instructions to his legal team to fight it in court. The next day, I flew down to San Diego and helped persuade the judge to reverse his order, thus avoiding an appeal process.

San Diego was a hotbed of Times legal activity back then. Later the same year, two Times reporters were instructed by a federal court judge to leave a courtroom after he ordered an aspect of the case closed to the public. The journalists, both experienced investigative types, weren't too happy. They stood outside the courtroom where they couldn't quite hear what was going on inside. So they did what any self-respecting investigative reporter would do. They leaned their ears against the door and tried to eavesdrop. Unfortunately for them, a federal marshall happened by. They were taken into custody, and ordered held by the angry judge, who found them in contempt.

There is an old adage in law school: if the facts are not on your side, pound on the law, if the law is not on your side, pound on the table. But in this case, better advice would be: beg for forgiveness. And that's about what we did. The reporters, of course, wanted to proclaim the First Amendment in defense of their blatant breach of the spirit of a valid court order. I convinced them that a polite mea culpa would probably be much more likely to keep them out of jail. It worked.

That was before several landmark Supreme Court decisions that protected the rights of the public and the press to observe preliminary criminal proceedings in action. The vagueness in the law kept me quite busy, with many judges often deciding at a moment's notice to kick everyone out of their courtrooms. This happened in one high-profile case, the McMartin Preschool child-molesting case. The defense attorneys wanted the proceeding closed because of the extensive publicity. They argued, over five days of hearings, that their clients would not receive a fair trial if the press were allowed to cover the pretrial hearing. Although I had some personal misgivings about it because of the potential impact on the child witnesses, the Times joined other media in successfully opposing the closure request.

The preliminary hearing lasted more than a year. When a jury eventually acquitted the defendants, there was no doubt that the open preliminary hearing had contributed to the public's understanding.

Most of a newsroom lawyer's time is spent worrying about libel and privacy lawsuits. Many journalists mistakenly assume that the lawyer is there to make the story "safe," to keep them from being sued. But I always told my clients that I could not prevent them from being sued. People sue for silly and unpredictable reasons. What I could do, however, was to make it more likely that we would win any lawsuit, preferably quickly before getting in front of a jury.

The lawyer is in a very powerful position in this role. Indeed, sometimes with more timid editors, I felt I could kill a story simply by raising an eyebrow. That's why it is so crucial that the lawyer and journalist-client clearly understand their respective roles. The lawyer is there to give advice and counsel, not copy edit, rewrite, make guarantees, or, indeed, make decisions. On the other hand, what sometimes seemed like an editing suggestion was really a legal concern: a point needed clarification so that the story didn't inadvertently accuse someone of horrible deeds. There is nothing worse than a libel suit from someone you didn't even intend to criticize.

I've always said that the lousy lawyers are the ones who always say "no," and good lawyers are the ones who figure out how to say "yes." I felt my job was to try to get stories into the paper, not keep them out. But I did want to make sure that the stories were well documented, factually supported, and could stand the scrutiny of a judge or jury.

After four years as a newsroom lawyer, Klein held numerous positions at the Los Angeles Times and Times Mirror. He left the company at the end of 1998 as a senior vice president. Klein is currently president and chief operating officer of 101communications, a Los Angeles-based trade publisher.