When the editors at cjr approached us about creating a column dealing with First Amendment issues that would combine a journalistic and a legal perspective, we were intrigued. We were also hesitant. After all, if there is one subject that receives quite a bit of press coverage, it is the press itself. But as we thought about it more, we saw an opportunity to discuss issues that may otherwise be lost in the public debate about the press.

As lawyers who have written two books that deal with the effect of the First Amendment on the lives of "ordinary" Americans, we feel we may have a different point of view to add. Having reported on the small cases as well as the landmark ones, we know the importance of issues that put journalists in court, if not in the headlines. Access to public records, restraints on news gathering (as opposed to publishing), renewed calls for privacy protection, and fears about the information age are just a few of the areas reshaping First Amendment protection.

 Our work also highlighted for us one of the thorniest issues for the press, and one of the primary reasons for the public's often negative view of the media. At times, there seems to be a gap between what is legal under the First Amendment and what is the ethical or "right" thing for a journalist to do. Talking to people in the news stories about what happens after a piece hits the newsstand or airwaves informed this issue for us.

 Today, when the press seems dominated by wealthy media conglomerates, it is helpful to remember that sometimes journalists are still the underdog and the First Amendment their only shield.

 A case in point is taking place in Wisconsin: Briggs &AMP Stratton v. National Catholic Reporter. In December 1994, the National Catholic Reporter (NCR), an independent weekly newspaper with a circulation of approximately 50,000 (which receives no funding from the Catholic Church), published an article titled "Adios, American Dream." It chronicled the downsizing of Briggs &AMP Stratton (B&AMPS), one of Milwaukee's largest industrial employers, which has manufactured lawnmower engines and garden equipment for more than eighty-five years. The article included several interviews with long-term B&AMPS workers who expressed fear of losing their jobs and concern about the exploitation of workers in B&AMPS's Mexican factory. Tom Fox, editor of NCR, claims that B&AMPS officials refused several requests for interviews for the article.

 Reporting on union dissatisfaction and employee fears was one thing. But according to Fox, NCR also "looks at moral issues." Its reporters and editors "bring their own values as Catholics to reporting on the public issues."

 The article on B&AMPS identified two leading company officials and an outside lawyer retained by the company as Catholics who had graduated from Catholic universities. It quoted a union activist as saying that these executives had "strayed from the social teachings of the Church" and disregarded the tenets of the 1986 Catholic Bishops' pastoral letter, which outlines moral principles that should be incorporated into economic decisionmaking. In his accompanying editor's letter, Tom Fox described the article as showing "with stunning clarity how corporate decisions hurt ordinary people and what they reveal about decisionmakers who live in either denial or moral blindness."

 In January, NCR received a seven-page letter from B&AMPS officials who said that they had not agreed to be interviewed for the article because they had believed, and were proven right in believing, that the story would be slanted against them. "We refused to participate in our own lynching," the officials wrote. They defended the company's actions as consistent with ethical business practices and with the Catholic Bishops' approach. The company requested that its letter be printed in full. NCR refused, but agreed to print an edited version of the letter.

 In May 1996, B&AMPS and its officials filed suit against NCR for libel and invasion of privacy, demanding $30 million in damages. The libel claim was based on the accusations that the executives had strayed from the teachings of their church and were exploiting workers in Mexico. The privacy claim was based on the revelation that company executives were Catholic.

 The suit has been called the first involving the "moral behavior of a corporation" and its officials. As such, it has alarmed many who believe the press is a vital watchdog on big business as well as the government. However, in the end, the B&AMPS lawsuit is likely to matter more as the signal of a new trend than as a viable case against the National Catholic Reporter.

 The privacy claim has the least chance of success. To prevail, B&AMPS officials have to prove that the newspaper revealed a private fact about them that was "highly offensive to a reasonable person." Even if the executives' religious affiliation is deemed to be a private fact, it is unlikely that the revelation that one is Catholic will be considered "highly offensive."

 The B&AMPS claim for libel is more complex. One interesting question the lawsuit raises is whether B&AMPS officials are "public figures." If so, then the newspaper would by protected by New York Times v. Sullivan's "actual malice" standard, which would require that B&AMPS prove NCR acted with reckless disregard for the truth. If the executives are not public figures, as B&AMPS lawyer Robert Sutton claims, B&AMPS need only prove that the newspaper was negligent in its reporting, a much easier standard to meet.

 Regardless of what standard is applied, in order to be actionable the allegedly libelous statements must be specific statements of fact, not mere expressions of opinion. Saying someone has "strayed from the teachings of the Church," calling someone a "bad Catholic," or even a "sinner," appear to be statements of opinion protected by the First Amendment.

 "This kind of suit over this kind of story shows why we need bulwark protections for free speech," says Vincent A. Blasi, Corliss Lamont Professor of Civil Liberties at Columbia Law School. "The harm to the company is a function of the hostile opinions being portrayed, not a function of factual error. It is a pretext for punishing opinion."

 Not surprisingly, Robert Sutton disagrees. "Milwaukee is a high-intensity Catholic community," he says. "People are very sensitive to being called bad Catholics." Indeed, Sutton describes his client as the underdog in the case, facing an adversary with more than the law on its side. "It's like suing Mother Teresa wrapped in the First Amendment," he says. But Sutton predicts that the country is ready for a rollback in First Amendment law because "people are fed up with the libel in our society." However, barring such a rollback in the law, B&AMPS is unlikely to prevail.

 Still, the lawsuit has already exacted a price. Tom Fox says his small newspaper has so far spent $30,000 and faces a legal bill in the hundreds of thousands of dollars if the case goes to trial. The paper is covered by libel insurance, but NCR must first absorb a hefty deductible and, even if the case is dismissed, will likely face higher premiums in the future.

 On a larger scale, it remains to be seen whether religious principles will play a greater role in press coverage, provoking more of these kinds of lawsuits. If so, then the real concern would become the "chilling effect" on future reporting. "Facing hundreds of thousands of dollars in legal fees does sharpen the mind," says John Seigenthaler, the veteran newspaper editor and chairman of the Freedom Forum's First Amendment Center, who has been sued some forty times. "Real courage is required when an editor is faced with the decision to print the same type of thing again."

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