Democracy requires a constant flow of information, and a society that turns against its journalism is suffering from a kind of autoimmune disorder. Symptoms of this disorder are easy to spot. Journalists do poorly in public opinion polls, the audience for the traditional print and broadcast media is dwindling, and courts are handing the media one defeat after another. You've read in Hot Type about the crumbling of the doctrines that allow journalists to protect their confidential sources. They're also losing battles over what they like to think is their basic right to cover public affairs.
Here's the story of one loss--perhaps more weird than significant. In 1995 a Pennsylvania newspaper reporting on the personal animosities that were poisoning the local government quoted a council member calling the mayor and the council president "queers" and "child molesters" and the borough solicitor a "shyster Jew." According to the U.S. Supreme Court, a public figure can win a libel action against a newspaper only if he demonstrates "actual malice"--the newspaper not only defamed him by publishing something untrue but either knew that what it published was false or didn't know and didn't care.
Did West Chester's Daily Local News believe the council member's hysterical accusations? Not likely. Some people would suppose it didn't give a damn if they were true so long as the sensationalism sold a few papers. I prefer to think the Daily Local News wanted to expose its readers to the character of someone holding public office. Sure enough, a month later this council member ran for reelection and was defeated.
But the officials he'd trashed filed a defamation suit--against not only the council member but the reporter and the owner of the paper he worked for. Instructed by the judge on Pennsylvania's "neutral reporting privilege," a jury ruled against the council member but in favor of the newspaper that had quoted him. Then things got strange. The state supreme court pointed out that a neutral reporting privilege doesn't exist in Pennsylvania and reinstated the suit against the journalists.
A neutral reporting privilege--reasonable though it might be--is recognized only in scattered jurisdictions in the U.S. It's a privilege that allows journalists to report even charges they doubt are true but consider newsworthy because of who's making them--such as the Audubon Society, which called some scientists "paid liars" in a 1977 New York Times article. The defamation suit against the Times was dismissed by a federal court that for the first time recognized a neutral reporting privilege.
In Pennsylvania one of the justices who supported reinstating the suit against the Daily Local News pointed out in a separate opinion what a hash the trial court had made of the case. "Although the neutral report privilege does not exist, the fair report privilege does," he wrote, hinting as broadly as a judge can what tack the newspaper should take at the second trial. The fair report privilege is a pillar of common law, and nowhere has it been sturdier than Illinois, where until just the other day it seemed virtually absolute.
The fair report privilege is the freedom to report what public officials say about public matters and to report anything that's in the public record. Reporters, libel lawyers, and surely 99 out of 100 Americans think of this freedom less as a privilege than as a basic right. But then the First District of the Illinois Appellate Court got ahold of it.
The defendant in the case was Start magazine, a monthly trade journal published in Carol Stream for manufacturing executives. In early 2002 Start began publishing a series of articles tagged "Chaos in Manufacturing." They told the story of how various competing companies agreed in 1996 on a common interface, owned by none of them, that would standardize the system by which central computers communicated with a factory's array of automated machinery. For a while the arrangement worked. But in 2001 a Chicago company called Solaia Technology began suing companies that were using the interface such as BMW, Clorox, and Konica, alleging that they were violating a Solaia patent. To quote from the appellate court decision, Solaia's "sole business involves the licensing and enforcement of its patent." Solaia had bought the patent from a French company called Schneider Electric for $1 and a cut of future settlements, and manufacturers apparently didn't know the patent existed until Solaia started saying it would see them in court. The Wall Street Journal reported last October that Solaia was asking manufacturers for as much as $300,000 to settle--the alternative being litigation that could cost a company more than $1.5 million.
"This is an amazing irresistible story," wrote Start in 2002. "It involves intrigue and lots of money. And the innocent companies who are being forced to defend themselves in this debacle--the victims whose fate is fueling the outrage--deserve a lot of sympathy."
In January 2003 Start published an article titled "Conspiracy of a Shakedown." It told the story of a company that was fighting back: Rockwell Automation, headquartered in Milwaukee, had filed an antitrust suit against Schneider, Solaia, and Solaia's law firm. Start reported that Rockwell alleged "the 'conspirators' have made 'baseless threats and allegations against manufacturing entities that those manufacturers are infringing the [patent] . . . have overstated in a reckless and misleading fashion the scope, applicability and importance of the [patent] . . . and have instituted repetitive, baseless, sham patent infringement litigation against those manufacturers.'"
Citing this article, earlier articles, and an anonymous letter published by Start that called Solaia's patent "essentially worthless," Solaia sued for defamation. Start invoked the fair report privilege in its defense, and Cook County circuit judge Paddy McNamara threw out the suit. Solaia appealed.
The opinion of a panel of three appellate judges, written by Judge Anne Burke and returned March 31, echoed McNamara in almost every instance. The way to lose a privilege is to abuse it, and Burke found no abuse. Start had weighed every word it published; none of the language Solaia objected to was "defamatory per se," according to Burke--that is, none of it could support the company's suit--except the headline "Conspiracy of a Shakedown." But even that was "an accurate and fair abridgement of the Rockwell complaint."
Any other day that would have been the death of the suit. Solaia was alleging actual malice--that the charges Start had reported were false and that Start knew they were or didn't care--but if the journal was accurately reporting charges contained in the Rockwell suit the fair report privilege would protect it. But to the astonishment of libel lawyers who've read her opinion, Burke disagreed. Sifting through Illinois case law in a 50-page opinion--extraordinarily long for the appellate court--she came to the startling conclusion that Solaia's "allegations of actual malice defeat the privilege."
A second justice agreed with Burke; a third concurred on the more coherent grounds that the headline exaggerated the Rockwell suit and therefore violated the privilege. The appellate court reinstated the charge of defamation.
Start, of course, could win in the end. But it would be a hollow victory if it required years of litigation and hundreds of thousands of dollars in legal costs. And it would be a truly Pyrrhic victory if at the end of the battle the fair report privilege were gutted. That's why Start's petition for review of the appellate ruling to the state supreme court is being supported by the Illinois Press Association, the Chicago Reader, the Chicago Tribune, and Copley Press.
"The First District majority's opinion flies in the face of . . . established precedents," says the amicus brief these four organizations jointly filed on May 5. "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. As the First District has previously held--in a case [O'Donnell v. Field Enterprises, 1986] the majority inexplicably ignored--'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 reminds the supreme court that every state appellate court that has ruled on the fair report privilege in the past quarter century held that it couldn't be defeated by an allegation of actual malice. "In so holding, these courts took their signal from this Court"--that is, from the supreme court itself. The Reader and its copetitioners are urging the supreme court to stick to its guns.
A 1996 precedent is also quoted in the brief. It said, "The accuracy of the summary, not the truth or falsity of the information being summarized, is the benchmark of the privilege, because the one reporting on the proceeding or meeting is simply acting as the public eye."
The amicus brief asks the court "to clarify, once and for all, that the press in this State have an absolute right to perform the core function of their constitutionally protected job: To fairly and accurately report on the activities and processes of government."
By Anne Burke's own assessment, Start's reporting was painstakingly written to be fair to Solaia. No magazine's diligence can keep it from getting sued. A privilege that doesn't shield that magazine from the Hobson's choice of settling the suit or being plagued by it for years to come isn't of much use to serious journalism.
With Amici Like These . . .
The Reader was also asked recently to join in an amicus brief to the U.S. Supreme Court on behalf of Judith Miller of the New York Times and Matthew Cooper of Time. They're the two reporters who might soon be going to jail for refusing to tell a grand jury who in the federal government talked to them about Valerie Plame.
The Reader declined. This newspaper thinks appealing Miller and Cooper's contempt of court citations to the Supreme Court is a bad idea, one that's likely to cost the media dearly. An editorial in the May 1 Tribune did a good job of explaining why. The Tribune said that the journalists' right to protect their sources hangs tenuously from an equivocal 1972 ruling in Branzburg v. Hayes. "Today's court is far more likely to narrow that protection, or eliminate it altogether, than to expand it," said the Tribune. "The facts of this case could hardly be less favorable to reporters. Plame was identified [as a CIA operative] not because the disclosure served some urgent public interest, but apparently because someone in the administration wanted retribution against her husband." The Times and Time "would have done better to recognize the weakness of their case and simply complied with the original order, citing their obligation to obey the law. That would have left the ultimate decision on journalists' privilege for a more promising case."
This was remarkably blunt language from a paper that had joined in an amicus brief when Miller and Cooper approached the U.S. Court of Appeals. But that court handed them a resounding defeat, the three judges who heard the case disagreeing among themselves as to whether any sort of privilege exists but unanimously ruling against the two reporters. Perhaps a person's principles, like his or her home, must always be defended. But given the facts of the Plame case and its judicial history so far, trying to persuade the Supreme Court that reporters have an absolute right to protect sources looks more like betting one's home in a craps game. The best outcome journalists can reasonably hope for from the Supreme Court is that it will refuse to hear the case.
Art accompanying story in printed newspaper (not available in this archive): illustration/Paul Dolan; photo/Scott Olson--Getty Images.