Newsletter publishers, legal problems, and the role of NEPA. (The Law).

At the recent NEPA conference, Sid Goldstein of Pace Publications made a presentation critical to some degree of the association and the industry's record on First Amendment questions. In that regard, he complimented the work I did in that area during my tenure as executive director.

"I came to learn that to the extent this association became involved in First Amendment issues," Goldstein said, "it was probably because Fred Goss had led the board in that direction."

(Thanks, Sid. A first rule of association management is to take credit that may not be deserved because you certainly get blamed for things that aren't your fault.)

In my view, however, there are two distinct categories of First Amendment and publishing law controversies that affect newsletter publishers and define the priorities for both the industry and the association's involvement.

General publishing industry issues

First, there are what I term general publishing industry issues. The association has been involved when member publishers were directly affected. The Food Chemical News case involved definitions of who was a public figure and what was a public document. The Bowman Accounting Report case involved questions of prior restraint. Of course, the association became involved on behalf of its members to the extent its legal budget permitted.

But, in truth, there is a whole "First Amendment Bar" that includes publishers, associations, and law firms many times larger than NEPA who are able and willing to fight these battles, and perhaps in many cases the most appropriate role for the newsletter industry is to stand on the sidelines and cheer them on.

Newsletter publishing issues

Second, however, there have been cases in publishing that turned on the questions of what legal rights newsletter publishers did or did not have because they published "newsletters."

The case that led to the found-ing of the original Washington Independent Newsletter Association involve accreditation to the Congressional Press Galleries. Independent newsletters fought to establish that they and their reporters were similar to newspaper reporters, not house organ and trade association employees--and they won.

The newsletter association fought all the way to the Supreme Court on behalf of Lowe Publishing to successfully overturn 40 years of regulation of financial newsletter publishers based on the simple assertion of the Securities and Exchange Commission that newsletters were not entitled to the same First Amendment protections as newspapers and magazines "because they aren't really 'publications"' (basically "because we say they aren't").

No one else besides the association was going to fight that cause for the financial newsletter publishers.

Similarly, the association has been involved in a couple of Freedom of Information Act (FOIA) actions where government bodies wished to deny data to newsletter publishers simply because they were "newsletter publishers" or because they "only wished it for commercial purposes." The law contains no tests of "who" and "for what purpose" -- as if The Washington Post and Time magazine were eleemosynary organizations.

Copyright violations

Copyright issues have been a continuing concern of newsletter publishers and their association. Now, copyright is an issue for all publishers but in many cases involving newsletter publishers--like actions Washington Business Information brought against Fortune 500 companies and prominent law firms, and the long-running case of Warren Publishing against the United States Telephone Association--the response of the defendents appeared to be, "Of course we understand copyright and its importance to publishers, but it can't possibly apply to making a few photocopies of this little thing."

The association had to take the position that newsletters are entitled to the same protections as any other publication, regardless of how easily they fit onto the photocopying machine. (And this doesn't even include the situations where government agencies and education institutions appear to believe they are excempt from copyright laws.)

Could the newsletter association have done more over the years to represent the First Amendment rights of publishers? Perhaps, but I think NEPA has done as much as its resources would allow. It may have grown from the days when we worried about meeting payroll to a sevenfigure annual budget, but Washington legal costs are obscene.

In some of the cases above, what the association did do was only possible because larger members kicked into the association legal defense fund to help meet the costs. It was about ten years ago that a law firm involved in a dispute with Washington Business Information subpoenaed the association demanding every word we'd ever published on copyright in the association's newsletter and special reports, etc. Even with our law firm's newest intern spending his summer reading back issues of Hotline (and flirting with our summer intern), the bills got to about $12,000 quicker that I could say, "Torts R Us." Heaven knows what the cost would be today.

I'm doing some teaching these days so, with my newest hat on, I'd give NEPA a good solid "B" for its efforts on behalf of newsletter publishers.