Them vs. Us

Sources becoming quick to try to stop publication, broadcast of controversial stories

Richard M. Goehler

Attorney, Frost & Jacobs

At about 6 p.m. on Sept. 13, 1995, the general counsel of McGraw- Hill received by fax a copy of an order, isscontinued in Procter & Gamble Company vs. Bankers Trust by Judge John Feikens, which prohibited Business Week Magazine from any disclosure of documents filed under seal, or their contents, without prior consent of the Court.

The order had been isscontinued ex parte, without affording McGraw-Hill notice or any opportunity to be heard. Facing a publication deadline of 9 p.m., less than three hours following receipt of the faxed order, McGraw-Hill attempted ­ unsuccessfully ­ to locate Judge Feikens. Unable to reach the district judge, McGraw-Hill made an oral petition by telephone to a Sixth Circuit Court of Appeals judge, who declined to act on the oral petition at that time. Although the restraining order itself was not in full compliance with all of the requirements of the applicable Federal Rules of Civil Procedure, Business Week, nevertheless, voluntarily complied with the restraining order and pulled its story from publication. The next morning, Business Week began exhaustive efforts to overturn the district court's restraining order. (The Business Week appeal was heard by the Sixth Circuit on Dec. 6, 1995.)

Several weeks later, while the Business Week litigation was winding its way through various levels of federal court proceedings, CBS "60 Minutes" dropped an interview with former tobacco executive, Jeffrey Wigand, in the face of threats made by Brown & Williamson that CBS had tortiously interfered and wrongfully induced Wigand to break his confidentiality agreement with the company.

The Business Week prior restraint order and the CBS "60 Minutes" decision are just two of the recent examples of situations where companies or individual targets of news stories have aggressively attacked the way information is obtained by journalists, rather than focus on the merits of a particular story.

The January/February edition of American Journalism Review listed several other recent examples, including:

A Montana couple, unhappy with a CNN story, scontinued the network for trespass and intentional infliction of emotional distress. In that case, a CNN camera crew accompanied federal agents to a sheep ranch whose owners were suspected of poisoning eagles. One agent wore a wireless microphone and CNN later broadcast the agent's confrontation with the ranch owners.

Food Lion Inc. scontinued ABC when "Prime Time Live" used a hidden camera to expose allegedly unsanitary food practices. Food Lion did not sue for libel, rather, even before the broadcast aired, it purscontinued the network on fraud, misrepresentation, trespassing, and copyright infringement claims.

CBS "48 Hours" planned to air a segment on meat contamination at a meat packing plant in South Dakota. At the request of CBS, an employee of a Federal Beef Processors Inc. operated a hidden camera during his shift. The employee, who was not paid by CBS, then gave the tape to a CBS producer. A few weeks before broadcast, the company scontinued CBS seeking damages for trespass and invasion of privacy. The case went all the way to the U.S. Supreme Court in an unsuccessful attempt by the company to keep the video off the air.

In addition, most journalists will recall that in November 1992 "Dateline" NBC ran its now well known story on design defects of certain General Motors trucks. "Dateline" had rigged an explosion of a truck for purposes of its broadcast and GM filed suit, forcing the network to immediately settle and admit its deceptive behavior. As such, all of the public's attention was shifted away from alleged safety problems of the trucks to NBC's newsgathering misconduct.

Clearly, at least some of the reason for this recent trend has to do with the media newsgathering techniques themselves. The ever increasing use of hidden cameras, wireless microphones, misrepresentations and trespass to obtain information have certainly generated many of these "newsgathering tort" claims. Moreover, in many of these instances, corporations and/or individual targets either threatened or filed lawsuits in an attempt to shift the focus away from their own conduct to the journalists' conduct.

In fact, the attempt by corporations to shift the spotlight to the journalist's conduct has not been limited only to questionable newsgathering practices or misconduct. In the Business Week litigation, Bankers Trust and Procter & Gamble challenged the Business Week reporter who had simply asked for, and received, a document from a confidential source.

Nevertheless, even faced with threats or claims of litigation over newsgathering efforts, some news organizations are still taking the chance to print or publish reports ­ reports which are true and of significant public importance.

District court reverses Feikens decision

The United States Court of Appeals for the Sixth Circuit, in a two-to-one decision on March 5, reversed and vacated the restraining orders of Judge Feikens which had initially prevented Business Week from publishing certain information which had been filed under seal by the parties in The Procter & Gamble Co. v. Bankers Trust case.

In a case of widespread interest to the press, Judge Feikens had isscontinued an ex parte injunction prohibiting Business Week from publishing an article disclosing the contents of documents placed under the seal of secrecy by the parties to the lawsuit. In reversing and vacating the District Court's prior restraint, the Sixth Circuit found that even a temporary restraint on pure speech is improper "absent the most compelling circumstances."

The sixth Circuit found that such circumstances were not present. In this case, the court found that the documents in question were standard litigation filings and that the private litigants' interest in protecting their "vanity or their commercial self interest" simply did not qualify as grounds for imposing an unconstitutional prior restraint. Moreover, the Sixth Circuit found that there was not even sufficient grounds for keeping the information filed under seal in the underlying case.

Press Notes

Convention theme, track programs

"New Times, New Skills" will be the theme of SPJ's 1996 National Convention in Crystal City, Va., Sept. 19-21.

Steve Geimann, SPJ's president-elect, and Scott Johnson, SPJ's professional development committee chair, have also announced the track program themes for 1996:

* "Dateline D.C." will cover interviewing, sourcing and writing from a Washington perspective. Sessions will also offer tips on writing for specialized audiences and mining story ideas in the nation's capital.

* "The Complete Journalist" will help members and attendees remain competitive with hands-on training in communication and computer-assisted reporting.

In addition to these pre- convention programs, a special track of sessions for student journalists will run during the convention and be included it the normal registration fee. A convention schedule and registration information will be available through SPJ's fax-on-demand service beginning Feb 1. After calling (317) 653-2070 and pressing "1" for the fax-on-demand service, callers should press "403."

IRE meeting in providence

The IRE conference is June 13-16 at the Rhode Island Convention Center. The cost is $125 for members (add $40 for a membership if you don't belong already to IRE). The optional day on Thursday is another $50. The Westin Hotel or the Biltmore are attached to or across the street respectively from the convention center and they charge about $100 a night depending on the room you get. The Holiday Inn down the corner (a one-block walk) is much cheaper and they still has rooms.

Also, if you have Internet access check out the convention stuff on the IRE homepage ­ http://www.ire.org
Rosemary Armao IRE Executive Director

Shrine planned for journalists

Ernie Pyle, Elijah Parrish Lovejoy and Don Bolles are among 912 slain journalists selected Thursday by The Freedom Forum to be enshrined at the Journalists Memorial scheduled to be dedicated in May in Arlington, Va.

The Journalists Memorial is part of The Freedom Forum's Newseum. The spiral-shaped memorial, made of dichroic glass that changes colors with the light, will be situated in Freedom Park adjoining the Newseum, which opens next year.

First name on the list is James M. Lingan, part owner of the Federal Republican, who died in 1812 after he was trampled by a mob in Baltimore following a battle over the newspaper's content. The most recent victim is Vadim Alferyev, a crime reporter in Krasnoyarsk, Russia, beaten to death Dec. 27 in the entrance to his apartment building.

Other names: Elijah Parish Lovejoy, an abolitionist editor and publisher in Alton, Ill,. shot and killed in 1837 by a pro-slavery mob; Ernie Pyle, a Scripps-Howard war columnist killed by a sniper's bullet on the Pacific island of Ie Shima in 1945; Don Bolles, a reporter for The Arizona Republic, murdered in 1976 by a car bomb planted to silence his investigative reporting; Mutual Broadcasting's Elsie Dick, first woman on the list, killed in India in 1949; and Manuel de Dios Unanue, a crusading New York magazine editor who was murdered by drug gangsters in 1992.

Charles Overby, president and chief executive of The Freedom Forum, said the release of the names begins a year of activities around the globe to highlight the dangers faced by journalists, beginning with a Hong Kong program Feb. 1-2 on "Media Under Siege."

Good news, bad news

A new poll indicates American voters say most news organizations fairly cover the presidential campaign, but the overall impact is still negative because politicians court the cameras more than their constituents. The Roper survey said 83 percent of those surveyed agreed with the statement, "media coverage leads candidates to perform for cameras rather than focus on the issues."

The study also found that voters feel the media have too much influence over what issues and candidates are discussed:

* 77 percent agreed that "media have too much control in defining issues in the campaign."

* 76 percent agreed that "media give undue advantage to front-runners."

* 70 percent agreed that "media coverage often confusing and unclear."

* 67 percent agreed that "media coverage discourages good people from running."

* 67 percent of those surveyed said they rely mostly on news reports to learn about the candidates, while 33 percent use other sources; 57 percent rely on television and 43 percent use other media, including newspapers.

On the question of bias, 48 percent said overall media coverage was evenly balanced, 29 percent found it too liberal, 13 percent too conservative, and 10 percent didn't know.

In ranking media outlets for bias, stories on CNN were considered the most fair by 76 percent of those questioned followed by C-Span at 71 percent.

The least fair were local talk radio shows.

Overall, a large majority of national and local television programs and newspapers were considered fair and unbiased.

The telephone survey of 2,007 voters was taken from Jan. 19 to Feb. 10. It has a margin of error of plus or minus 2 percentage points.

The entry forms for the 1995 Awards for Excellence in Journalism are enclosed in the newsletters this month. The deadline for entries will be 5 p.m. on Friday, April 26. There are several changes to the contest this year including student categories in writing, broadcast and art. The enterprise reporting category has been changed to enterprise/database reporting. For more information about the contest or to get an entry form, please call Sacha DeVroomen at 513-598-8348.