The Next Battles
Constitutional rights can be dismantled behind walls that continue to stand. First Amendment lawyers don't worry that the amendment itself will fall anytime soon, but protections that build out from the principle of a free press are in easy reach of the wrecking ball.
Right now that ball threatens two long-lived legal doctrines in Illinois. A ruling is awaited from the state supreme court on a case that has put the state's fair-report privilege in jeopardy, and in May it will hear a case that threatens the state's innocent-construction rule. Journalists in Illinois have relied on both doctrines for decades, and members of the mainstream media, the Reader included, have submitted friend-of-the-court briefs to defend them.
It's an inauspicious time for journalism to ask the state supreme court to be its friend. Improbable as it sounds, the chief justice, Robert Thomas, is pursuing a defamation suit against a columnist with the Kane County Chronicle, though when the fair-report case came before the court in March, Thomas appropriately recused himself.
The fair-report privilege protects journalists who cover contentious issues argued on the public record, such as in a city council meeting or in the courts. In the case at hand, Start, a Carol Stream-based trade magazine for manufacturers, reported on an antitrust suit Rockwell Automation had filed against Solaia Technology of Chicago over a patent. When Start published an article in 2003 headlined "Conspiracy of a Shakedown," Solaia sued for defamation. A Cook County circuit judge threw out the suit on the grounds that the Start article had fairly reported the antitrust suit and therefore Solaia had no case.
Solaia appealed, and in March of last year a panel of three appellate judges reinstated the suit. It would have been one thing if the panel had decided that Start both misrepresented the Rockwell suit and defamed Solaia. One judge, in fact, believed the headline had gone too far. But the majority opinion written by appellate judge Anne Burke asserted that even the headline was "an accurate and fair abridgement of the Rockwell complaint."
Yet in Burke's view, Start's accuracy and fairness weren't the last word because "allegations of actual malice defeat the privilege." That idea sent First Amendment lawyers reeling. If it stands it means cases such as this one will linger in court, so plaintiffs like Solaia can try to show they were recklessly defamed--despite the fair-report privilege and even when, as in this case, the court itself sees no sign of reckless defamation. Burke's message to Start was effectively this: you'll probably win this lawsuit, but you'll have to spend a lot more time and money fighting it. The message tells magazines that next time they should stick to Britney Spears. The media's amicus brief argues that the issue at stake here is the press's "core function": "to fairly and accurately report on the activities and processes of government."
The challenge to the innocent-construction rule comes from criminal attorney Patrick Tuite. He's protesting the way he was portrayed in the 2003 book Double Deal, the story of a mobbed-up cop, written by the cop, Michael Corbitt, and Sam Giancana, the godson of one of Chicago's most famous mafiosi. Corbitt recalls the desperate days in 1985 when ailing mob boss Joey Aiuppa, 77, was facing federal charges and "didn't want to die in prison." Aiuppa wanted to hire Tuite, "who'd represented mob cases in the past," but the "big-shot lawyer" supposedly demanded a million dollars up front.
According to Double Deal, Corbitt was sent to Salt Lake City to pick up two duffel bags. They held a million dollars "in hundred-dollar bills, bundled into ten-thousand-dollar packages. There were casino wrappers around all the packages. And not just one casino, either--there were nine or ten different casinos' bands." Corbitt figured this was Tuite's "retainer."
The story continues: "After Tuite was on the case, all the guys were sort of semijubilant. Everybody figured Tuite had it all handled. To Aiuppa and his codefendants, it was like it was a done deal, like they were all going to be acquitted. So you can imagine their reaction when they were all found guilty the following January...
"And what about Tuite? What kind of explanation could he possibly have given for this result? I can't think of one that would've satisfied me--not after advancing him a million bucks for his legal fees. And I guess that's why, for the life of me, I've never understood why Pat Tuite didn't get whacked. Go figure."
Tuite says in his suit that nobody paid him a million in cash, that he didn't represent Aiuppa, and that he did nothing criminal to try to get Aiuppa off. The suit was dismissed on the grounds that the Double Deal narrative could be, and therefore must be, given an innocent construction--that is, read in the way that's most favorable to the authors. The appellate court agreed. "The statements can be reasonably read to indicate that Aiuppa wanted 'better representation' to beat the criminal charges as 'guys [were] flipping left and right' and the plaintiff had 'represented mob cases in the past' and, that better representation came at a price," reasoned Justice Rodolfo Garcia. Dissenting justice Warren Wolfson didn't buy it. "The clear message is that Tuite was ready and able to fix the case, that he was paid to fix it, and that he did not deliver," he wrote. Finding an innocent construction "takes a gyration of Olympian proportions."
Tuite's appeal to the supreme court calls Garcia's opinion a "naive and erroneous" exercise in teasing a benign interpretation out of a malign and false account. Tuite doesn't stop there. He says Illinois' inno-cent-construction rule is an "anachronism," obsolete since 1964, when the U.S. Supreme Court, in New York Times v. Sullivan, laid out the hurdles public figures must get over to win defamation suits.
Today, says Tuite, "the innocent construction rule is an unnecessary and complicating overlay that unfairly imposes a Sisyphean burden on defamation plaintiffs who have suffered real injury." Almost all other states have rejected such a rule, he argues.
To which the Reader, the Tribune, the Sun-Times, ABC, CBS, WLS, Crain Communications, the Copley Press, the Illinois Broadcasters Association, and Simon & Schuster reply in one voice: keep the rule. Tuite's suggestion to abandon it "is profoundly ill-advised," the amicus brief tells the state supreme court. "That sometimes the rule is misapplied does not mean you throw it out; that is what appellate review is for." According to the brief, since the state supreme court reaffirmed the innocent-construction rule in 1982 state courts have upheld an innocent-construction defense in 33 cases and denied it in 25 others. These numbers belie Tuite's suggestion to the court "that it has caused countless meritorious suits to be dismissed." On the contrary, "the rule preserves writers, publishers and broadcasters from the chilling effect of hav-ing to mount a lengthy and expensive defense of marginal and abusive cases."
In 1970, six years after Times v. Sullivan was decided, delegates to the Illinois constitutional convention chose to write "free press and speech guarantees . . . broader than those afforded by the Federal Constitution," the amicus brief tells the court. "Illinois has long been a leader, not a follower, in protecting speech." And because federal protections "have in fact been curtailed in recent years," the court has all the more reason to rise to the occasion and defend Illinois' higher standards.
The supreme court could find for Tuite without dumping the innocent-construction rule. The media watching this case are a lot more worried about the baby than the bathwater.
What a Newspaper Does
As conspiracy theories sprouted like daffodils, the Tribune explained itself: it was simply laying the groundwork for routine postmortem interviews with the Ryan jury when it came across evidence that two jurors had concealed criminal histories. Then the Tribune acted promptly and responsibly, taking the evidence to Chief Judge Charles Kocoras--who told the presiding judge, Rebecca Pallmeyer, who dropped the two jurors. And the Ryan trial nearly went off the tracks.
A March 28 Tribune story quoted editor Ann Marie Lipinski. "The paper took extraordinary precaution by alerting the chief judge of its findings in advance of any publication so that the court might address matters as it saw fit," she said. "Once we had this knowledge, it would have been irresponsible for us to keep it to ourselves."
It sure would have been. The question the Tribune didn't publicly face is whether it should have done what Lipinski sounds pleased it didn't do: published what it learned as soon as it learned it, letting Kocoras and Pallmeyer find out the facts at the same time as every other reader. Managing editor James O'Shea told me this wasn't even considered. I don't understand why it wasn't.
Ray Gibson, the reporter who nailed down the jurors' secret histories, says time was of the essence: if the jury came back with a verdict before the Tribune published its story, a mistrial would have been inevitable. That's clearly true. But the Tribune could have put the story online at once and then called Kocoras. Or it could have decided to let the chips fall where they may.
That's what the Reader's attorney, David Andich, probably would have advised us to do. "I guess where I fall out a bit with the Tribune's actions begins with the fundamental principle that the press is not an agent of the court," he e-mailed me, "and has good reason not to be perceived as an agent or helper in any case, including this very high profile one."
He wondered, "Having established this precedent now, what will the Tribune and its attorneys do the next time a similar situation arises? What will the consequence be if in that instance they come to the opposite conclusion and publish first without having disclosed the information to the court, and the Tribune errs in what it publishes?" Will the Tribune one day have to answer for not doing twice something no one would have guessed it would do even once?
Andich doesn't think there's a "definite answer" to these questions. "As an attorney," he observed, "you make the recommendation you feel is best and go forward. Sometimes media law is more of an 'art' than a 'science.'"
But newspapers are in the business of publishing, not helping the courts run their business. The Tribune found out what the lawyers could have. As Andich observed, a mistrial wouldn't have been the end of the world.
For a treat, visit www.theweekbehind.com, a Web site run by Scott Jacobs, to see an 11-minute video of Mike Royko talking about 16-inch softball. Jacobs and Lilly Ollinger shot it at the original Billy Goat Tavern in July 1982. Royko's sitting at a table with teammates drinking beer and he's as happy as he ever was.