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Are media lawyers enforcing or chilling free speech?

Over the past 10 years, nearly 63% of newspapers have been forced to defend themselves against charges of libel.

A NEW WORD has entered the lexicon of American journalism: "lawyered." At many of the nation's top papers and networks, news is reviewed by attorneys--lawyered--before it is reported to the public.

Most major news organizations have in-house attorneys to handle legally sensitive stories. Faced with news that involves complex legal issues and the possibility of huge jury awards to libel plaintiffs, editors and lawyers often work together on prepublication review of the material.

As a case in point, when the Wall Street Journal undertook an investigation of an American Express smear campaign against a competitor, its staffers weren't the only ones who realized the story was a hot one. Two lawyers for American Express threatened to sue the paper if the article went to press.

The Journal had discovered that Harry L. Freeman, a top aide to American Express chairman and chief executive officer James D. Robinson III, was running a covert smear campaign against international banker Edmond Safra. Libel threats followed, including two from Arthur L. Liman, the renowned New York attorney.

Byron Calame, Journal senior editor, indicates that the possibility of a suit did not stop the story. "It certainly caused us to rededicate ourselves to be very careful,.but it strengthened our resolve to continue with the story as long as we were on solid ground." The paper double-checked the facts, called its own attorneys to review the article, and ran the story on Sept. 24, 1990. It started on the front page and was the longest piece ever published in the Journal.

"Lawyers do a great job of pointing out problems," Calame notes. "I don't think you can become so timid that you use lawyers to cover your ass. Our job is to decide what goes in the paper, and we appreciate and want our lawyers' input, but [they] can't make the decision about what we're supposed to run. They give us an assessment of the risk of various elements in a story, and it's up to us to make the final determinations."

News organizations hire attorneys as protection against the chilling effect caused by the threat of libel suits. Critics charge that lawyers edit out controversial information and stifle aggressive reporting to avoid lawsuits, and that also has a chilling effect on coverage.

Attorneys at the Journal read about nine pieces per week before publication. "We try to have our editors feel free to consult with lawyers or to run stories by lawyers any time they feel it would be helpful," Calame explains. "There are a number of [articles], many of them page-one stories, that have been lawyered."

Deborah Linfield, senior attorney at The New York Times, says the paper's lawyers review approximately one story a day and help draft corrections about once a week. However, they only advise editors what to publish. "That ultimate decision is the editor's to make. Nobody here tells the reporters what to write. I will tell the editor what my concern is. My experience is that legal and journalistic requirements do not diverge, but generally converge.

"We do not carry libel insurance on the theory that we don't want an insurance company to tell us to settle because it's cheaper to settle. If you're going to sue The New York Times, you're going to fight with us for a very long time."

The Associated Press does not have in-house attorneys, but each reporter gets a copy of the AP libel manual that they are expected to read, indicates Managing Editor Marty Thompson. The organization does not usually consult lawyers. "At AP, with a staff this size, there's a great resource of experienced editors who deal with day-to-day issues themselves. I think the primary concerns are accuracy and fairness, and that if we work hard to achieve those two goals, there's less problems in dealing with libel."

A broadcast attorney at a major network, who requested anonymity, admits pre-broadcast suggestions often are incorporated in the news. "If a story may be sensitive, then they discuss it and review it with the lawyers beforehand. There's some news organizations where probably every word is reviewed beforehand. I think people are concerned about lawsuits. They're concerned about accuracy in any event, but you have to be aware there's an awful lot of litigation out there."

Warning signals

Susan P. Shapiro, who published a study of media lawyers in 1989 in Law & Policy journal, reports that attorneys ask two threshold questions when they evaluate a news story: First, is it potentially defamatory? Would it offend, shock, anger, or hurt someone? Second, does anything suggest invasion of privacy?

The Libel Defense Resource Center found media lawyers most frequently encountered the following "red flags" during prepublication review: reports of immoral behavior, statements injurious to trade or business, and derogatory and/or defamatory language.

According to Shapiro, media lawyers, in pursuing constitutional protections of free speech, have come to enforce responsible journalism, but also subtly are chilling and shaping the news. When she asked attorneys about their effect on the news, "One respondent unabashedly argued that prepublication review, because it is a form of censorship, necessarily makes a story worse (and more vapid and insipid). Most others, however, modestly suggested that their impact was rather small and that, although lawyerly advice tends to make stories slightly more boring and convoluted, it also leaves them tighter, more balanced, better corroborated, and less inflammatory."

Tina Ravitz, vice president and chief counsel for Newsweek, points out reporters sometimes say a lawyer's input improves the articles. "I'm very happy when one of our reporters says that to me. I don't think they particularly view it as censorship. It's an opportunity to make a story stronger, and I view it as a collective effort."

Stephen D. Isaacs, associate dean, Columbia University Graduate School of Journalism, and a former reporter and editor at the Washington Post, is against having attorneys work with journalists. "I think it's a terrible notion. A cloud descends on a newsroom when there's a lawyer in there. When you have them sitting in the newsroom, you're giving the reporters the impression that the lawyers are making the decisions and not the journalists.

"The smart publisher, the good publisher knows the presence of an attorney has every reporter worrying, censoring themselves in advance. Instead of publishing stories that are aggressive and go to the core of an issue, these publishers, reporters, and editors decide not to publish [them], not to name names, and they protect people who shouldn't be protected."

Despite efforts by attorneys to ensure that stories are not libelous, juries usually side with the person who claims he or she was defamed or wronged by a news agency. "Juries award hundreds of millions of dollars [in judgments] because they feel sorry for people even if there's been no legal wrong committed," Linfield maintains. "Maybe what the jury is saying is |We don't think what you did was so nice.'"

Libel expert Rodney A. Smolla says the "thinning of the American skin" has resulted in juries that tend to see libel plaintiffs as victims. As he pointed out in Suing the Press, "This pattern is more likely to reflect the growing sense among juries that |it is only fair' that the media pay for the damages it causes, not less than Ford or Union Carbide, and the First Amendment be damned. As a culture, we have grown more sensitive to the harm that words can do to individuals' emotional and mental tranquility, and this increased sensitivity has translated into a willingness to use the court system against the media, which is perceived by many as one of the principal invaders of, if you will, |psychic space.'"

Given the litigious climate, many people feel that lawyers are necessary--even if they are not always successful--to help battle the chilling effect of libel suits. "Despite the recent slight improvement in trial success, the media's over-all trial win rate ... since 1980 remains at only 28% or barely in excess of one win out of every four libel trials--still an unacceptably poor showing," states Henry R. Kaufman, general counsel for the Libel Defense Resource Center. "Although lower in relative terms, an average damage award approaching a half-million dollars ... remains in absolute terms an unacceptably high tariff on free expression."
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Article Details
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Author:Goodman, Wes
Publication:USA Today (Magazine)
Date:May 1, 1993
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