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Following Suits/Shreds of Evidence

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By Michael Miner

Following Suits

Remember Stephen Glass? He's the guy whose reportage fell short of excellence in only one respect: he made it up. Among his works of fiction were pieces in the New Republic in March 1997 and Rolling Stone in March 1998 in which he pretended to have documented that the antidrug program D.A.R.E. was attempting to "silence critics, suppress scientific research and punish nonbelievers."

So D.A.R.E. sued Glass for $10 million. But then they worked something out. Last January Glass wrote D.A.R.E. a letter apologizing and retracting: "Contrary to statements in the articles, I did not ever learn...of any threats or other wrongful or criminal activity in which D.A.R.E. or any of its employees or supporters ever engaged." Furthermore, D.A.R.E. announced that Glass had agreed to "answer questions about the origins, preparation and editing of his work on D.A.R.E." This accomplished, Glass and D.A.R.E. settled out of court for much less than $10 million.

In February, with Glass saddled up as star witness, D.A.R.E. sued Rolling Stone for $50 million. The suit alleges that Rolling Stone limited its fact checking to comparing Glass's manuscript with his New Republic article, which D.A.R.E. had condemned on publication. When Glass was exposed 14 months ago, "the New Republic published an apology and retraction," says D.A.R.E. attorney Skip Miller, explaining why one magazine was sued but not the other.

In short, one of Glass's victims teamed up with him to put the hit on another. The exigencies of law now oblige Miller to speak gently of the writer who traduced his client. "I think he's a contrite young man trying to get his life together," says Miller.

Though both law and journalism are about getting at the truth, when their protocols collide they strew the landscape with paradox and irony. Or is it farce? The second most famous retraction of 1998 was by CNN and Time magazine, the Time Warner sisters that broke the sensational Tailwind story. Tailwind was the operation that allegedly had a Special Forces commando unit innocuously named the Studies and Operations Group (SOG) assassinating American defectors in Laos during the Vietnam war by dropping sarin nerve gas on them, taking out a village of civilians in the process. That was tear gas, not nerve gas, responded SOG alumni, and there were no defectors and there was no village. The CNN broadcast, "Valley of Death," and the Time article were so passionately condemned--by CNN's own military analyst, among others--that CNN hired prominent First Amendment attorney Floyd Abrams to find out what was what.

Abrams's collaborator in this inquiry was CNN counsel David Kohler, who could easily be seen as having a vested interest in limiting responsibility to dismissable employees. Abrams and Kohler concluded that the evidence at hand didn't come close to proving the nerve-gas scenario, though the show's producers "truly believed" it. (If they truly believed it they didn't recklessly disregard the truth--a handy argument in a libel suit.) CNN apologized and fired the producers, April Oliver and Jack Smith. Correspondent Peter Arnett got off with a reprimand, but CNN gave him so little to do thereafter that he finally quit.

It's not surprising that Oliver, who accuses her old network of caving in to protect its relationship with the Pentagon and Abrams and Kohler of a "corporate whitewash" (moreover, she says, Kohler had vetted and cleared "Valley of Death" before it ran), sued CNN and Time Warner in state and federal courts. It's not surprising that John Singlaub, a retired major general who at one time commanded SOG in Laos, sued parent Time Warner for defamation and named Oliver as codefendant. What's interesting is that Oliver named Singlaub as a "confidential source" and countersued. Her grounds are various--misrepresentation, breech of oral contract, defamation, fraud, destruction of Oliver's career--but boil down to chutzpah.

"What do you do when a source who confirms your story requests confidentiality and then states publicly that you never contacted him?" Editor & Publisher magazine quotes Oliver as saying. "I promised to go to jail to protect him. Then he sued me."

Suppose Singlaub was a confidential source. According to the protocols of journalism, a confidential source is never betrayed. But must a reporter go on protecting a source if he sues her for every last penny? On the other hand, is the source under some kind of ethical obligation to lay off the reporter if her story disgraced him?

Oliver says Singlaub talked to her confidentially. Singlaub says he didn't. Singlaub's lawyer, Keith Mitnik, tells me Singlaub did talk to Oliver--but for an earlier CNN report on SOG, not "Valley of Death"--and that afterward he wished he hadn't. Mitnik says CNN simply massaged old footage for the Tailwind story, not even bothering to note that by the time of Tailwind, Singlaub no longer commanded SOG.

Then there's the JonBenet Ramsey sideshow that has played out in the courthouse in Boulder, Colorado. The debt of a reporter to a secret source is central here too. In late 1997 the JonBenet-beat reporter resigned from Boulder's Daily Camera; the paper promptly accused her of theft and reported on its suit in its own pages. It seemed that Allison Krupski, 23, had bundled up her files and taken them with her. We need those files to keep covering the story, the publisher of the Daily Camera would testify, and they belong to us because we paid Krupski to get them.

Newspapers rarely raise a hand or shed a tear when a departing reporter cleans out his locker. That moldering scrap heap will matter to posterity just as soon as the reporter becomes a famous novelist, which means never. But in this case the Daily Camera valued Krupski's JonBenet documents at $15,000 and asked the court for three times that much in damages.

Like April Oliver, Krupski countersued, accusing her old employer of defamation. She was no thief, she asserted; she'd always copied important documents for her editors, and now she needed those files to defend herself in case her reporting was ever challenged. What's more, she'd taken some of those papers to shred them, thereby keeping faith with the confidants who'd slipped them to her.

If an employee walks off with crucial documents she's acquired on the job and destroys them, is she guilty of destruction of stolen property? And if a reporter who has promised to guard crucial documents with her life dumps them on somebody else's desk and washes her hands of them, is she abusing the trust that investigative journalism is built on?

In this case, a Boulder judge made a preliminary finding that Krupski could keep her files, so long as she gave the Daily Camera copies of the papers she'd hung on to. Claiming satisfaction, the newspaper then tried to drop its suit. But the judge refused to permit that. The Daily Camera had accused Krupski publicly of theft. Now the chips would fall where they may.

This spring another judge threw out the theft charge, and then a jury awarded Krupski $115,000 in damages. The Daily Camera had argued that it was within its rights to accuse Krupski of theft in its pages because it was merely exercising its privilege to report on lawsuits--including its own. But the judge ruled that as plaintiff, the newspaper lost that privilege. Otherwise, he reasoned, a paper could say whatever it wanted in a lawsuit and then publish it with impunity.

"He doesn't understand the First Amendment," said the Daily Camera's publisher. "I think it is a pretty dark day for journalists."

Shreds of Evidence

When the rotting old roof of our house came off, remnants of a Chicago Daily Tribune dated June 29, 1909, tumbled out of the eaves. We laid the pieces of 90-year-old newsprint across a table and studied them. No article of any length was complete. One fragment informed us that "a little earlier Orville had come to Washington to meet his father, Bishop Milton Wright of Dayton, and his brother, Reuchlin of Kansas, who never has seen his brothers 'fly.'

"Then a brisk wind sprang up from the west and a few scattering drops of rain began to fall. The officers of the signal corps, the balloon detachment, and the cavalry guard were the only persons permitted on the field. Wilbur Wright, in looking for the operator of a moving picture machine, the use of which he desired to prevent, neared the impatient crowd. In his peculiar, jocund manner he remarked he usually put his machine away when the crowds in France were fretful."

A sidebar reported that the University of Paris had just received two donations totaling $240,000 to support the study of aviation.

Many items retrieved a vanished past: "Senator Elkins of West Virginia appeared in the senate chamber today without a collar, much to the envy of the other senators, who acted as if they would have been happier if they also had nerve enough to shed their neck coverings. Mr. Elkins is not thin and 100 in the shade does not agree with him." Other events could have happened yesterday. "A Chicago and Northwestern express train struck and instantly killed Dr. William M. Tomlinson yesterday as he was crossing the railroad tracks at Wilmette Avenue in Wilmette," announced a brief that could have led last night's ten o'clock news. "The train was going at high speed and the body of the physician was caught upon the pilot beam and carried about a mile to the Central street passenger depot in Evanston before the train was brought to a halt."

Under the headline "Sole Aim to Clear Name," the Tribune described a legal battle by three former members of the Illinois Athletic Club seeking reinstatement. "According to a statement made in the evening by Henry Horner, attorney for Mr. Eichberg, the trouble occurred last fall. Eichberg, Brown, and C.G. Seasinghaus were expelled by the board of directors on the ground that they were guilty of conduct unbecoming members....

They had made charges of bad faith against some of the officials who had refused to permit the books of the club to be examined."

There wasn't a byline to be seen. In that day reporters worked in anonymity. Only one ego mattered--the newspaper's. "The Tribune readers are mentally nourished on facts--not fads or fancies," boasted the legend at the bottom of a page. Back in 1909 the print was smaller, illustrations fewer, and articles ranged in length from columns to a line or two. A newspaper didn't set out its wares like a boutique manager, praying one would catch your eye. It piled up stories like a Salvation Army thrift store clerk, expecting the public to wade in. Newspapers, after all, offered the only news there was. They had no competition but one another.

Here's a sports story in its entirety: "Boston made it four out of five in the series by defeating Washington today, 6 to 5. Each team used three pitchers. O'Loughlin's decisions failed to please the spectators and he had to be escorted to the cars by the police."

Scanning the shards of brown, brittle newsprint was like channel surfing. We felt immersed in that vanished age, though we learned next to nothing about it.

News Bite

Still haunted by its brief, distant Murdoch past, the Sun-Times can be remarkably prudish. Last Friday's paper--the one with the elegant page-one photo of a mime illustrating the debate over street performers--carried a big inside story on Del Close's skull. Close had willed his skull to the Goodman Theatre, and a picture of the skull ran in the Tribune. That was too much for the Sun-Times, which settled for an old head shot of Close in the flesh. On Tuesday the editorial page reflected, "If actors wish to bequeath parts of themselves to other actors, that is their right. If outsiders find the practice tasteless, they can avert their eyes." Which the Sun-Times did.

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