Saturday, July 09, 2005

Not-so-plain dealing in Cleveland

The newspaper “is the court of last resort for anyone who's been backed into a corner,” the editor of the Cleveland Plain Dealer told his readers a few days ago. Doug Clifton knows about being backed in a corner, because that’s exactly where he is.

At the end of mildly discursive column arguing that journalists ought to be legally protected from being forced by courts to reveal their confidential sources, Doug casually mentioned his newspaper is sitting on “two stories of profound importance” that his company’s lawyers won’t let him print.

This appears to be the first official example of how the press is being chilled by the confounding prosecution of Judith Miller and Matthew Cooper for not identifying the sources they interviewed for stories they never wrote about a crime that evidently wasn’t committed and for which no one but Ms. Miller appears likely to do any time.

The Plain Dealer’s decision to sit on the two stories also clearly illustrates that media companies now, more than ever, will be forced to choose between protecting the public interest and, well, weaseldom.

Saying “the public would be well served to know” about the spiked stories, Doug described them only as being “based on documents leaked to us by people who would face deep trouble for having leaked them.”

The problem with such stories, as undoubtedly noted by the lawyers called upon to scrutinize them, is that the reporters, the Plain Dealer and its parent, Advance Publications, might be hauled into court and told to reveal the confidential sources -- or else. In the case of the reporters, “or else” means jail for contempt of court. In the case of the publishing companies, “or else” means many thousands of dollars in fines.

The attorneys said "this is a super, super high-risk endeavor, and you would, you know, you'd lose," Doug told Mark Fitzgerald of Editor and Publisher, who first brought national attention to the Plain Dealer’s less-than-plain dealing with its readers. "The reporters say, 'Well, we're willing to go to jail,’ and I'm willing to go to jail if it gets laid on me,” Clifton told E&P. "But the newspaper isn't willing to go to jail. That's what the lawyers have told us. So, this is a Time Inc. sort of situation."

Facing $270,000 in fines for contempt or court, Time Inc. chose the path of weaseldom last week when it turned over documents requested by the special prosecutor trying to learn who outed Valerie Plame, the former covert CIA operative. Although Time correspondent Cooper vowed to go to jail instead of naming the people he interviewed, he reversed course as the gavel was about to fall, saying his source had released him to testify.

In decided contrast, the New York Times and Judith Miller stuck by their sources and stuck by their guns. Which is how Ms. Miller landed in a federal lockup and the NYT is facing fines of $1,000 a day for as long as the grand jury sits. (A back-of-the-envelope calculation puts the potential fines for NYT at around $350k, plus considerably more for its army of attorneys.)

After battling for months alongside the New York Times to protect their respective confidential sources, Time Inc. surprisingly decided to give up Cooper’s notes when the U.S. Supreme Court rejected the final legal challenge to the lower court’s persistent insistence that the media start naming names.

“We believe that the Supreme Court has limited press freedom in ways that will have a chilling effect on our work and that may damage the free flow of information that is so necessary in a democratic society,” said top Time editor Norman Pearlstine when he announced the decision to identify the confidential sources. “The same Constitution that protects the freedom of the press requires obedience to final decisions of the courts and respect for their rulings and judgments. That Time Inc. strongly disagrees with the courts provides no immunity.’

The New York Times sharply, and wisely, disagreed.

“We do not see how a newspaper, magazine or television station can support a reporter's decision to protect confidential sources, even if the potential price is lost liberty, and then hand over the notes or documents that make the reporter's sacrifice meaningless,” said its must-read editorial. “The point of this struggle is to make sure that people with critical information can feel confident that if they speak to a reporter on the condition of anonymity, their identities will be protected. No journalist's promise will be worth much if the employer that stands behind him or her is prepared to undercut such a vow of secrecy.”

True to its word, the New York Times has a proud record of standing up to legal and political pressure in matters ranging from the successsful battle to publish of the Pentagon papers to the case of J.W. Simonton, an editorial writer jailed for 19 days in 1857 for refusing to tell who told him about bribery in Congress.

How could two leading news organizations facing an almost identical set of facts come to such different decisions? Reasonable men and women, of course, may differ. But perhaps Time feels more economically vulnerable than the NYT.

Even though both are publicly held corporations, Publisher Arthur Ochs Sulzberger Jr. and other members of the founding family happen to control enough NYT shares to comfortably operate the business as a public trust. Because they represent a significant percentage of the shareholders who ultimately govern the business, they can spend the money and run the risks they think are necessary.

Not so at Time Inc. As a large company owned by financial institutions managed by people with a variety of social, political and commercial agendas – not the least of which is getting the most bang for their bucks – Time Inc. and its individual executives face far more legal and economic exposure than the folks who run the NYT. Like, for instance, losing their lucrative jobs.

If the executives at Time Inc. have a reason, if not an excuse, for their behavior, what’s the story at Advance Publications, a private company owned by the wealthy Newhouse family?

Advance is a sprawling empire including 20 newspapers (Newark, New Orleans, Portland, OR), the 26 Conde Nast magazines (New Yorker, Vanity Fair, Wired, etc.), Parade Magazine, the Fairchild trade publications (Women’s Wear Daily and several more), American City Business Journals, the Golf Digest Companies and “extensive interests” in cable television.

If Doug Clifton and his colleagues are willing to put their personal freedom on the line to report their stories of "profound importance," isn't the Plain Dealer obliged to publish them in the interests of fulfilling and defending its role as a public trust? From a strictly commercial point of view, isn't the unique position of the newspaper as a public trust a major component of its formidable economic value?

As Judith Miller was packing a toothbrush for her extreme makeover as a federal prisoner, Doug wrote as fine a description of newspaper work as any you will see.

“All over this newspaper, phone calls, e-mails and letters pour in with their tales of bad things happening to good people, tales of gross governmental inefficiency or official misconduct,” he wrote. “It happens routinely in every newspaper in America, because, in the end, the newspaper, with its reporters, is the court of last resort for anyone who's been backed into a corner.”

Now, the editor has been backed into a corner, being forced, evidently, to suppress stories he believes to be of compelling public interest.

"Some people might argue that you're being chicken-shit," Clifton told E&P in discussing his dilemma. "Well, I, I can respect that."

But can he respect himself in the morning?


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