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Bring in the Big Guns/The Supreme Court's Gift to Journalists

The Kane County Chronicle, or rather its insurance company, calls in First Amendment hotshot Bruce Sanford to appeal the $7 million libel judgment against Bill Page.



Bruce Sanford, one of the nation's best-known First Amendment lawyers, has joined the legal team appealing the $7 million libel verdict for Robert Thomas, chief justice of the Illinois Supreme Court. A former Wall Street Journal reporter, Sanford is a partner at Baker Hostetler in Washington, D.C., and the author of the 1999 book Don't Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us.

Last month a jury decided that former columnist Bill Page and the Kane County Chronicle had libeled Thomas in three 2003 columns. A gallant thing for Thomas to do at that point would have been to declare his reputation restored, the money secondary, and the dignity of the Illinois judiciary uppermost in his thoughts. Indeed, Thomas did offer the losers terms if they'd drop their appeal, but Page says the offer was a churlish $6 million plus a retraction. Page and the Chronicle didn't even respond.

Or should I say that Media/Professional Insurance of Kansas City didn't respond? As the Chronicle's insurer it's calling the shots, and it brought in Sanford as lead appellate counsel. Sanford's clients over the decades have ranged from the Tribune Company to John Grisham, but this case will show him something new. The case has been pursued in state courts that the plaintiff oversees, and the Illinois Supreme Court, where an appeal would normally wind up, is occupied by Thomas himself and a lot of justices who testified for him during the November trial. What sort of change of venue could be arranged? Some other state's supreme court? A federal court?

Page's columns accused Thomas of playing politics in a 2003 disciplinary case before the Illinois Supreme Court that involved Meg Gorecki, at the time the Kane County state's attorney. Page wrote that Thomas got the court to go easy on Gorecki, and in return her political supporters endorsed a judicial candidate Thomas favored. But Page couldn't produce any sources. Joseph Power, Thomas's attorney, says that's because he never had any. Page says he relied on tried-and-true sources who want to stay hidden, and he couldn't change their minds.

In the pretrial maneuvering the defense focused on motions that underscored the case's weirdness. At one point it was asking the state supreme court to overrule the state appellate court on a question of judicial privilege--and asking the supreme court to disqualify itself because it couldn't possibly rule disinterestedly on its own privilege.

After the trial Page pointed me to an Illinois government Web site showing that in 2000 Power's law firm donated some $20,000 to the election campaign of supreme court justice Thomas Fitzgerald and $15,000 to the reelection campaign of justice Charles Freeman. Both justices testified at Thomas's trial.

Power cleaned Page's clock at trial, but libel suits don't really get started until the appeal phase, when legal technicalities dominate and generous jury awards are frequently reduced. I called Power to see if he was impressed by the stature of Sanford, his new adversary, and Power, one of Chicago's best-known personal-injury attorneys ("a formidable foe [with] unique talents and dedication," according to the Web site of Power Rogers & Smith), said he'd never heard of him. "This is my first defamation case."

The Supreme Court's Gift to Journalists

The U.S. Supreme Court just did the ungrateful press another favor. It refused to review an appellate decision giving U.S. attorney Patrick Fitzgerald the right to examine the New York Times's phone records.

In 2001 Times reporters got a tip that the Justice Department intended to raid a couple of Muslim charities and seize their assets, one of the charities being the Global Relief Foundation in Bridgeview. The Times called the charities for comment--which, in the view of the government, compromised the raid. A grand jury investigation was launched in Chicago to identify the Times's sources.

The grand jury subpoenaed the Times's phone records, and this August an appellate panel in New York ruled two to one that the paper had to turn them over. The ruling showed some sympathy for the Times's argument that a reporter's privilege allowed it to protect its sources, but concluded that in this case it was a privilege Fitzgerald's needs overcame. "No grand jury can make an informed decision to pursue the investigation further, much less to indict or not indict, without the reporters' evidence," the appellate court declared. "We see no danger to a free press in so holding. Learning of imminent law enforcement asset freezes/searches and informing targets of them is not an activity essential, or even common, to journalism."

Newspapers do what they think they've got to do. The Times went to the Supreme Court with an emergency plea asking it to review the appellate decision. In a one-line announcement issued November 28 the court refused to step in.

The next day the editorial page of the Times denounced this outcome. "Rather than drag the reporters into court, where they could have protected their sources by refusing to testify, the prosecutor subpoenaed their phone records for 11 days in 2001," it said. "Now the Supreme Court, in refusing to intervene, has effectively allowed the prosecutor to search through the records....This is a bad outcome for the press and for the public. The phone records reveal the identities of lots of sources having nothing to do with the leaks."

Here's what the Times could have said instead:

"Rather than drag our reporters into court, where they could have refused to testify and then been jailed for contempt of court, the prosecutor chose to leave them alone. That is also troublesome, as we believe our phone records should be nobody's business but our own. But our decision to turn to the Supreme Court reflected more pique than common sense, and we thank the court for letting us cut our losses. We recognize that since 2003, when Chicago appellate judge Richard Posner said in McKevitt v. Pallasch that no reporter's privilege exists in federal courts, this conclusion has taken root in the judiciary.

"Given the drift of the federal judiciary and given the makeup of the current Supreme Court, we have no reason to believe that this court, if it chose to declare itself on the subject of a reporter's privilege, would do anything but say there is none. Fortunately, it has not so chosen. It refused to hear Miller's appeal, and now it's refused to hear this one. This means that federal courts that still choose to discern a reporter's privilege--the appellate court in New York being one of them--may continue to do so.

"Thank God for small favors."

News Bites

aLarry Green was publisher of the Pioneer Press chain of mostly suburban weeklies from 2000 until early this year, when he was moved into the downtown headquarters of the Sun-Times News Group. No one expected him back.

Pioneer Press's editor in chief, John Ambrosia, added some publishing duties and began reporting to Michael Cooke, who'd been overseeing the News Group's secondary properties. Even though Ambrosia was making changes in the operation that not everyone was happy with, he was extremely well liked as a person, even by the newspaper guild, which had never gotten along with Green. But in September three things happened: Cooke was named editor in chief of the Sun-Times and turned his attention there. To the astonishment of the staff, Green returned to Pioneer Press's headquarters in Glenview. And Ambrosia quit.

Ambrosia, who'd been editor since January 2005, will remain on the payroll, working on "projects" until the end of the year. He won't talk about why he left, but a perception among the staff is that circulation has gone down and he's the one taking the fall. Last month Jeff Wisser, who'd been senior editor for features, was named editor in chief and hailed by Green as a "true leader" in an announcement that made no mention of Ambrosia.

aClear days at Halas Hall. From the Tribune, December 5: "[Lovie] Smith lectured the media about the difference between perception and reality. What he did not address was his failing to even acknowledge that the possibility that success--a good team might not be great unless its quarterback improves--shapes the perception that Smith lives in a state of denial."

Art accompanying story in printed newspaper (not available in this archive): photo/A. Jackson.

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