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Dog Bites Back

Nick Welsh explains why The Independent is being sued by the News-Press


Friday, October 27, 2006
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I was busy doing nothing when I was interrupted Thursday evening by a reporter from UCSB’s Daily Nexus, informing me that The Independent had just been sued in federal court by News-Press owner Wendy P. McCaw.

In her lawsuit, McCaw alleges that The Independent had infringed upon her copyright, ripped off her trade secrets, engaged in “intentional and negligent interference with her prospective economic advantage and contract.” Translated into the English language, McCaw claims that two news articles written by News-Press reporters had somehow been leaked to me and that I was in their possession illegally. Secondly, she was upset that I had posted one of the articles on the Independent’s website (Independent.com) in its entirety without the News-Press’ consent. And somehow because of this, her lawsuit charged, McCaw and her newspaper have suffered economic damages.

I have to admit that I was initially flabbergasted. For one newspaper to sue another because it had received leaked documents left me speechless. It’s a newspaper’s job to release information that those in power wish to suppress. It’s what justifies our existence. Leaked documents play a huge part in that mission. But I shouldn’t have been surprised. McCaw’s hostility to what journalists do and what journalism is all about is intuitively obvious to anyone literate enough to parse the syllables of a Family Circus comic strip.

Not having seen the actual text of the lawsuit, I can’t comment with any specificity on what promises to be a violently contorted and delusional document. But being the man in the middle on this, I can speak to certain facts of the case.

First, I was in possession of just one document, not two. The News-Press has been apprised of this fact for eight weeks now. But their decision to make legal claims contrary to the known facts is nothing new for McCaw and associates. Secondly, to the extent that Ms. McCaw has suffered any damage, either to her reputation or to her pocket book, has nothing to do with anything The Independent posted on its website. Any and all damages Ms. McCaw has endured are strictly at her own hand. If she, her friends, or her legal advisors had any concern about Ms. McCaw’s reputation or the paper’s financial well-being, they would have filed a restraining order against Ms. McCaw, barring her any contact or communication with the newspaper she owns, let alone allowing her to exert any direct control or influence in its day-to-day operation.

Here are the facts: In the middle of the summer, executive editor Jerry Roberts and several other high ranking editors of the News-Press resigned, charging McCaw for several breaches of journalistic ethics. It was a dramatic moment, and an intensely emotional one. It also happened to have huge implications for anyone in the community that relied upon the daily paper for news, views, and information. Those factors combined made the mass resignations the biggest story in town.

Accordingly, News-Press reporter Scott Hadly—who later resigned—took notes on what he saw and heard. He sought to interview the principals afterwards. In some instances he succeeded; in others he did not. Hadly explained later that he recognized that this was a major news event. He also said that for the News-Press to retain a glimmer of journalistic credibility—which was the issue promoting the resignations in the first place—he thought the newspaper should cover what was happening within its four walls. So, as a news reporter, he produced a news article. That story never saw the light of day at the News-Press.

Instead, McCaw had Travis Armstrong—the acting publisher while she and Arthur Von Weisenberger, her fiancée and co-publisher, were whiling away the hours on her yacht in the south of France—write front page “letters to our readers.” In one, Armstrong blithely dismissed the turmoil within the News-Press as an unfortunate family squabble, and pledged the paper’s continued dedication to journalistic excellence. Subsequently, McCaw herself wrote a note to News-Press readers, blaming the uproar on a few disgruntled reporters and editors upset that they would no longer be allowed to use the news pages as a vehicle for their personal political agendas. In the meantime, Hadly’s article never ran. And no other news article exploring the nature of the dispute roiling the News-Press ever ran either.

For those concerned that McCaw was doctoring the news to fit her own personal agenda of comforting herself and her rich and famous pals, the fate of Hadly’s article was troubling in the extreme. In fact, the decision to spike Hadly’s piece constituted Exhibit A in the festering public indictment then accumulating against McCaw.

In an online posting under The Poodle byline, I reflected on the Hadly piece and its significance. I made many of the same points I just have. I also included a link allowing readers to read Haldy’s piece—which had been leaked to me—in its entirety. That way, I figured, the readers could better judge for themselves what was happening.

A few days later, we received a cease-and-desist letter from McCaw’s attorney David Millstein, notifying us that the article we posted was the copyrighted property of the News-Press, that we had come into its possession without News-Press consent, and that we had posted it likewise. (Click here for more on that.)

Initially, we had no interest in complying. The letter link provided what we thought was documentary evidence underscoring our criticism of the News-Press’ bad faith attitude towards the community, its workers, and the practice of journalism. But after consulting with not one, but two attorneys, we were told our position was not legally defensible. Based on that, we withdrew the link. But we maintained the article and have never backed away from the criticism it underscored.

That, we figured, was the end of it. But the sad tale of the News-Press has played out to the tune of countless legal threats. The clear intent is to silence and intimidate people with information from speaking critically of McCaw and her minions.

For those who can remember, contrast this with the behavior of former publisher B. Dale Davis, whose knee-jerk pro-business and pro-oil sympathies alienated and angered large segments of the News-Press readership back in the late '80s. However wed to his opinions he was, Davis was astute enough to recognize that a newspaper without readers is a losing proposition. David responded by conducting a series of town hall forums, inviting readers to show up and speak their minds. More often than not, it was a painful exchange for Davis. But I was impressed that he did it. Under the current regime, efforts by community activists, readers, and workers have all been rudely rebuffed.

To some extent, the legal threats have worked. They worked well enough to scare sources who I thought might actually possess the second document I’m accused of illegally possessing. This was an unpublished news article written by Vladimir Kogan detailing how McCaw had filed a $500,000 claim against former editor Jerry Roberts. But because the information was not publicly available in courthouse legal documents, there was a question how Kogan got that information. Roberts has claimed that Kogan got the information from McCaw’s attorney David Millstein, thus violating the spirit, if not the letter, of the arbitration agreement binding Roberts and McCaw. I never got a copy of the Kogan article, and have made this known. That hasn’t stopped McCaw from asserting otherwise in her lawsuit.

The legal threats were not enough, however, to stop newsroom workers from successfully voting to be represented by the Teamsters in accordance with the National Labor Relations Act. Throughout that campaign, McCaw filed at least two unfair labor practice complaints against the union, alleging threatening and coercive campaign tactics. In instances, the NLRBoard—hardly sympathetic to the union cause under the Bush administration—investigated the allegations and found there was nothing to substantiate them. Nothing. And that’s exactly what the federal courts will conclude if and when they investigate McCaw’s claim against The Independent.

To the extent that we posted trademarked material on our website without the News-Press consent, they suffered no damages from it. But they have suffered enormously by McCaw’s adamant refusal to address the News-Press’ on-going ethics dispute. Readers by the thousands have not cancelled their subscriptions by anything we wrote. They cancelled their subscriptions because of what the News-Press will not write.

If Wendy were to sue herself, I think she’d find that she has a really good case. And while she may not be a billionaire anymore, I heard a rumor that she still has lots of money.

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