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A New Twist; The New Transparency; News Bite

How will the state supreme court rule on the fair-report privilege Anne Burke wants to kill now that it's ushered Burke into its ranks?



A New Twist

Even reformers who believe judges in Illinois should be chosen by a blue-ribbon committee instead of party hacks and ignorant voters didn't have this particular blue-ribbon committee in mind: the state supreme court itself, doing retiring justice Mary Ann McMorrow a favor by picking her dear friend Anne Burke to replace her. "Done in the dark. Behind closed doors. Within the club," wrote Sun-Times columnist Carol Marin. "And so it automatically gives rise to the inevitable Illinois assumption that the fix was in."

The fix clearly was. Not that there's anything wrong with Burke personally, editorial-page writers grumbled. Marin made it clear she admires Burke. So did a lawyer friend I ran into on the el this morning--someone with no use for Burke's powerful husband, Alderman Edward Burke. She's fearless, my friend said, and she cares about children.

But does she care about journalists? That's what those editorialists have to be wondering, even if they didn't say so. Solaia Technology v. Specialty Publishing is a defamation case Burke weighed in on last year as an appellate judge, and unless the state supreme court overturns the opinion she handed down the rules by which journalists conduct their business in Illinois will change dramatically.

I wrote about this case last week. Here it is again in more detail. A common-law doctrine known as the fair-report privilege protects journalists who accurately report what's said and written in a public forum. If on the floor of the city council Alderman Doe calls Alderman Smith a drunken, adulterous embezzler, the Daily Reflux can report the accusation without worrying about how true it is. If Alderman Smith sues the Daily Reflux for defamation, the only burden on the Reflux is to demonstrate that it accurately reported Alderman Doe's language. If it did, the judge will toss out the suit. The paper would also be protected if it repeated what Doe said about Smith in a lawsuit.

But in a whopping 50-page opinion, Burke said not so fast. As she read Illinois law, a plaintiff who accuses a journal of actual malice--that is, of publishing a statement "made with knowledge of its falsity or in reckless disregard of whether it was false or true"--must get a chance to make his case. In 2003 Specialty Publishing's Start magazine had carried an article, "Conspiracy of a Shakedown," that reported on a lawsuit accusing Solaia Technology of a "shakedown scheme" involving a patent it had bought for $1. Solaia sued Specialty, a circuit judge threw out the suit, and Solaia appealed. Though Burke concluded that the article and headline were an "accurate and fair abridgment" of the complaint, she reinstated the suit because "allegations of actual malice defeat the fair report privilege." Specialty Publishing appealed to the supreme court.

First Amendment lawyers were thunderstruck by Burke's conclusion. Her opinion grafted an "untenable, ill-advised limitation on the privilege that has been consistently rejected by every other Illinois court that has actually examined and ruled on the issue," says an amicus brief filed last year by the Reader, the Tribune Company, Copley Press, and the Illinois Press Association. "Its radical decision strikes at the heart of the Fair Report Privilege and upsets settled doctrine that Illinois journalists have long relied upon in doing their work."

The brief quotes from a 1971 appellate court opinion in O'Donnell v. Field Enterprises, a precedent Burke ignored: "If reports in governmental and public proceedings dealing with matters of public concern are false, the news media must nevertheless be able to report to the people what it sees and hears, the news media's belief or knowledge as to the truth notwithstanding. If the news media cannot report what it sees and hears at governmental and public proceedings merely because it believes or knows that the information is false, then self-censorship by the news media would result."

The brief continues, with emphasis added by its authors: "As O'Donnell makes clear, actual malice, or the absence of actual malice, has no application to the Fair Report Privilege."

Will the supreme court agree? It heard oral arguments in Solaia on March 21, and two weeks later it invited Anne Burke to join the club. What's up with that? Would the court invite Burke to join the club and then insult her by overturning her? Does the court intend to welcome her by affirming her opinion? Even if the court decides Solaia before Burke formally joins in July, it knows she's coming.

The court, naturally, says none of this matters. "My response," says spokesman Joseph Tybor, "is that justices base their decision on the law as it is applied to the facts of the case, not on the identity of a judge who renders the decision below."

It's pretty to think so. Samuel Fifer, whose name's on the amicus brief as an attorney for Copley and Tribune Company, said, "I have no problem with it at all" when I asked him about Burke's appointment. Because he could tell I was skeptical he added, "I could be living in a fool's paradise."

Fifer's more tolerant than I am of how this looks. Burke wasn't foisted on the court by executive appointment. Her appointment wasn't sanitized by the kind of blue-ribbon review committee that McMorrow helped set up to vet appointments to the appellate court--a committee Marin applauded in her column. Certain of its virtue, the court chose Burke entirely on its own, without even bothering to put Solaia behind it first. McMorrow declined my request for an interview.

If the Solaia case isn't settled before Burke joins the court in July, it will be decided by only five justices. Chief justice Robert Thomas has already recused himself because he has his own defamation suit going on against the Kane County Chronicle. Justice Burke would have to recuse herself because she wrote the opinion the court is passing judgment on. Freedom of the press in Illinois would be redefined by a quorum.

The New Transparency

From recent pages of the New York Times, trailblazer in the movement to never use unnamed sources--except when you do:

"The independent legislator spoke on the condition of anonymity because of the sensitivity of the political struggle over Mr. Jaafari."

"The associate spoke on condition of anonymity because, he said, Mr. DeLay had insisted that friends not talk to reporters about his legal troubles."

"They were guaranteed anonymity to encourage candor."

"Friends, colleagues and others directly involved in Ms. Couric's decision-making described her discussions and experiences on the basis of anonymity because of the confidentiality of the negotiations."

"'We had no doubt that they were guilty,' said Juror No. 12, a building-safety official from Long Island in his 50's who spoke on the condition of anonymity because he did not want the world to know what he had been up to for the last month."

"Some of those people, who were granted anonymity to describe conversations with the former mayor, say they have told him not to give up his comfortable new way of life for a campaign that might end in failure."

"These Democrats, who spoke on the condition of anonymity because both men wanted to keep the meeting private, said there were no eruptions like the conflict at the last meeting."

"The buyer was Stephen A. Wynn, the Las Vegas casino owner and collector, confirmed two people familiar with the transaction, speaking on condition of anonymity for fear of being accused of betraying confidences."

"The official refused to be named because he was not authorized to discuss the issue."

To come:

The spokesman insisted on anonymity because he could tell from the expression on the reporter's face that he sounded like an idiot.

The senator's friend requested anonymity because she didn't want the senator to find out who turned him in.

The delegate spoke on condition of anonymity because his wife thought he'd spent that evening in Philadelphia.

The diplomat requested anonymity because the press was always spelling her name wrong anyway.

The society matron spoke on condition of strict anonymity because she really wanted to dish.

The congressional aide refused to be named because he didn't see why it was anybody's business.

The party insider spoke on condition of anonymity so he could get away with telling another reporter something completely different.

News Bite

8 Issue one of The Chicago Lifestyle Magazine offers a note from the publisher explaining that it's the "first and only magazine in the city that curtails to Generation X/Y and Boomers, alike, all of which are Chicago citizens that make our city thrive." A troubling launch, but it doesn't spell curtains.

Art accompanying story in printed newspaper (not available in this archive): photo/AP Photo/Tom Strickland.

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