September/October 2000 | Contents

A NEWSROOM LAWYER'S LIFE:
Passion and Prevention

BY GEANNE ROSENBERG

The New York Daily News was fending off more than twenty libel cases in 1995, when Eve Burton was brought in, as she puts it, "to stop the blood."

Although the paper had had its share of in-house lawyers, Burton's role was to be different from that of any attorney who'd come before. She was to be a physical presence in the newsroom, someone who not only was available to respond to legal crises, but a lawyer who would actually sit in on news meetings and play a more visible and direct role in the editorial process than any attorney ever.

Call it a radical idea that grew out of ignorance of editorial protocol.

The notion of a lawyer's presence in the newsroom was dreamed up by the then new chief legal officer, Martin D. Krall, whose background was in corporate law, not the First Amendment. To him, the way the editorial department handled potential libel problems "just seemed ludicrous," he recalled in a recent interview. "Whenever editors had a problem, there was a list of lawyers they could call" at an outside law firm. But that way, says Krall, "you're not doing any preventative work. It's always reactive. So I said, why don't I hire somebody and get them involved directly in the newsroom."

Daily News editors were far from enthusiastic about the idea.

Arthur Browne, who left the Daily News in July after twenty-seven years, said he was "skeptical." He'd just been named managing editor and remembers his reaction to Burton's presence: " I didn't like the idea of a lawyer so close to the news operation. I didn't like the idea that she was invited to the news meetings." His perspective had been built on years of experiences with lawyers who never made good on their promises to "help you get things into the paper." Browne, who has a law degree, recalls being afraid that she'd turn out to be "an obstacle rather than a help."

He was wrong.

By the time Burton announced her resignation in June and her decision to join CNN as vice president and chief counsel, she had established herself not only as a fixture in the newsroom and a capable libel litigation repellent, but also as an award-winning crusader for media access to information and a staunch defender of the right to publish.

Browne says he and Burton built a strong partnership. "The libel bills dropped to almost nothing in less than a year. The paper wasn't being less aggressive. It was being more aggressive, but in a smarter way."

A defining moment in Burton's role came in November 1995, a few months after her arrival. Joe Calderone, now chief of investigations but then a Daily News investigative reporter, had acquired a purloined transcript of the Jeffrey Wigand interview that 60 Minutes had chosen not to run on its famous Brown & Williamson tobacco segment. The news people were eager to go with the story but, as Browne notes, "you had this very litigious, deep-pocketed legal adversary staring you in the face." A staffer recalls a night meeting with Burton and senior management during which she made strong arguments for publication.

Says Burton: "Neither the news side nor the business side knew how hard I was being squeezed. An editor's job is, 'let's put it in the paper'; the business perspective is to be more protective." Calderone credits Burton with helping get the Wigand information into the paper. Publisher Mortimer B. Zuckerman says he favored publication all along. But it was a turning point for Burton: reporters began seeing her as their champion, battling to get stories published.

The paper's libel problem began to wane as editors and reporters invited her input during the reporting phase of stories. Burton won dismissals of some of the cases brought before she arrived. And far fewer cases were coming in over the transom, in part because of her insistence that potentially damaging words not be published without some attribution or support.

With libel claims taking less of her time, Burton increasingly turned to helping reporters and editors gain access to information.

"Access is a use-it-or-lose-it proposition," she says; where news organizations don't insist on the right to obtain records, they're more likely to be shut out in the future.

Burton systematized Freedom of Information paperwork, setting up a process whereby FOIL and FOIA requests and their follow-up were tracked to ensure that the newspaper kept the pressure on government agencies to deliver information, and that nothing fell through the cracks.

"Unless you have some firepower on your side," the city and state agencies "delay, delay, delay," Calderone says. But with Burton's intervention and willingness to follow up requests for information with litigation, the paper obtained transit-crime data, Department of Investigations closing memos, and other information that has translated into important stories for the paper.

She also helped forge an important agreement with the New York Police Department. Complaints from reporters and photographers were pouring in to the newsroom about officers blocking access to street crime and accident scenes. Take the case of a woman who was trapped under a bus in December 1996. When photographer Mike Albans arrived at the scene, police officers forced him to stand farther back than the public. They shadowed him as he sought a clear view to the accident scene and obstructed his photo attempts. When he tried to take a photo, a police officer shoved him, he reported, and yanked off his press pass. Burton orchestrated an effort among the New York news media to document this and other conflicts between reporters and the NYPD. Ultimately, she collected more than 150 incident reports, and, under threat of litigation, the NYPD agreed to cooperate with the press and provide open access.

Burton's efforts also helped reporters gain access to New York City crime statistics, investigative reports on corruption in city agencies, the names of New Yorkers who hold gun permits, family courts, and death penalty documents. Her work garnered awards from the National and New York Press clubs and the New York Chapter of the Society of Professional Journalists.

Did her access efforts open up city government? Not completely. "It's more open to the Daily News," she says. "It's not more open to the public. The city doesn't want to litigate with us over every issue."

Burton was willing to summon her counterparts at other news organizations and solicit their solidarity, assistance, and signatures in her various access campaigns, even, she said, if she risked gaining a reputation for being "a little wacky."

However, while Burton is inarguably enthusiastic, "wacky" is not on the list of adjectives media lawyers use to describe her.

"Eve is one of the finest First Amendment litigators of her generation," says Adam Liptak, senior counsel at The New York Times and, like Burton, a strong advocate for media access. Floyd Abrams describes her as a "superb, deeply committed lawyer who's had enormously positive impact at the Daily News and, as a result, for the press generally."

Burton, who turns forty-two in October, envisioned herself as a First Amendment advocate long before her work at the Daily News. Following her graduation from Hampshire College in 1982, she worked for several international human rights organizations before studying law at Columbia, where her father was dean of the Graduate School of Business. She became committed to the idea of a career as a First Amendment lawyer while serving as a teaching assistant in a Columbia Graduate School of Journalism course taught by Vincent Blasi, a law professor and leading First Amendment scholar, and the New York Times columnist Anthony Lewis. By the time she completed a clerkship with United States District Judge Leonard Sand, she was determined to specialize in First Amendment law.

Calling Burton a "superstar," Judge Sand says, "I think what's unique about Eve is that her passion from law school onward was First Amendment law." Following her clerkship, Burton joined Weil, Gotshal & Manges, then one of the Daily News's outside law firms, concentrating in white-collar criminal and First Amendment law before joining the Daily News in June 1995 as vice president and assistant general counsel. She was later promoted to vice president and deputy general counsel.

In June, seated in her Daily News office just off the newsroom, she was dressed more like a reporter than a lawyer, trading pumps for comfortable flats -- a good thing, because she often walks at a breakneck pace -- and, instead of a conservative suit, trousers and a simple cotton shirt. She never seemed to stay in her office very long. Instead, she was making the rounds in the newsroom, consulting with reporters and the photo editor and buttonholing news editors to provide advice and exchange information about stories in the works. She was not above shouting across the newsroom to catch up with an editor or reporter on the go.

In addition to checking on the status of freedom of information requests, consulting with editors and reporters, and attending news meetings, a typical day's work included refusing to comply with subpoenas demanding unpublished information; confronting the mayor's office about delays in access to information; vetting news stories and gossip items, which she does in a non-edit mode to avoid putting in any editorial changes; and consulting with outside counsel about intellectual property law questions such as whether publication of a videotaped still lifted from a television news clip might violate copyright law. Any one of these tasks, of course, could be derailed by an emergency in court.

Burton never played any role at the Daily News that could be construed as adverse to the interests of the newsroom, such as involvement in labor and employment issues.

"Most times I'm not glad to see lawyers come down the hallway to the newsroom," Calderone says. "Eve is the first lawyer I was happy to see coming in my direction."

Burton sometimes acted as a personal lawyer for the newsroom staff. Once, an off-duty reporter landed in jail after intervening when he thought a police officer was unfairly ticketing parked cars. He called Burton and she spent the evening rounding up witnesses and accelerating his release.

Burton says she could not have provided such support to the Daily News editorial department without her own support on the home front. Her husband, John A. Finck, a free-lance journalist, is the primary caregiver for the couple's two children.

As Finck was making arrangements for the family to relocate to Atlanta, word of Burton's resignation was circulating at the paper. A reporter, Russ Buettner, announced wryly to the newsroom: "There will be no more access to information from the Giuliani administration."

Zuckerman credits Burton with taking "the lead in dealing with a lot of the legal issues that came up when information was kept from us," but says the "hallmark of her stay at the paper" was her ability to engender trust.

No tears were shed at city hall. Daniel Connolly, special counsel with the New York City Law Department who has repeatedly fought Burton and backed Mayor Giuliani's attempts to limit access to information, reacted to her decision to move to CNN: "Let's just say I'm very thrilled CNN is located in Atlanta."

Geanne Rosenberg, a graduate of Columbia University's journalism and law schools, is a columnist at the National Law Journal and an assistant professor of journalism at Baruch College.