LAWYERS, GUNS, AND MONEY: To steal a line from Mark Twain, recent news of my demise has been greatly exaggerated. By that, I’m referring to the report appearing in the News-Press early last week detailing how lawyers for that paper pulled a Shaquille O’Neal on The Independent in federal court and slam-dunked our sorry asses over allegations that we were guilty of copyright infringement, trade secret violations, and a host of other unfair business practices designed to mess up their hair, economically speaking. People who should have known better called up wanting to know just how much we would have to pay the News-Press. Even Pat McKinley, the best assistant district attorney practicing on the Pacific Rim, left a message on my answering machine accusing me of being “a damned copyright infringer.”
The facts, needless to say, are not quite what the News-Press would have you believe. The Independent tried to get the lawsuit, which the daily filed last November, tossed out of court before it had to go to trial by arguing the News-Press had no case even if everything it said was true. It’s a standard legal procedure. Federal Judge Edward Rafeedie examined the kitchen sink the paper threw at us, and, last week, tossed out most of its causes of action against The Independent. But he also ruled that one-and-a-half of the News-Press’s causes of action should stand. And these could wind up being very significant. Translated into simple English, this means The Independent will have to hash out these complaints in front of a jury.
Like most of you, I’ve contracted a bad case of News-Press fatigue and have a hard time keeping up with the incessant nastiness and pettiness that’s become that paper’s stock in trade. But given that it was I who put The Independent in its current pickle, I don’t have the luxury of turning the page or changing the station. Given that the daily is threatening to use this case to launch a full-frontal assault on the confidentiality of reporters’ sources, I don’t think you should turn away either. That’s because legal safeguards protecting the confidentiality of anonymous sources are essential. Without them, the so-called Fourth Estate will be unable to effectively afflict the comfortable and comfort the afflicted.
The whole thing started last summer when I wrote an online column for The Indy Web page chastising the News-Press for not leveling with its readers about the meltdown that was then consuming the paper. I pointed out how the News-Press refused to publish an article by reporter Scott Hadly-who has since quit-that gave an eyewitness description of the mass resignations by editor-in-chief Jerry Roberts and several other high-ranking editors over ethical differences with owner Wendy P. McCaw. To underscore my point, I included an online link that would enable people to read Hadly’s account in its entirety. We pulled the link a few days later when the News-Press squawked that Hadly’s article was part of its copyrighted property and we weren’t entitled to run it. It has since sued for copyright infringement. We have cited something called the fair use doctrine in our defense, which holds that if you use someone else’s copyrighted material to make a satiric or critical point-not merely to beat them to the punch-you’re legally exempt from civil sanctions. The judge didn’t see it that way, so we’re going to trial.
That’s only part of the story. The News-Press is also claiming I got my hands on another unpublished news article, this one written by former reporter Vlad Kogan, detailing how McCaw had sued former editor Roberts for $25 million within the confines of their ongoing arbitration dispute. To me, this is the weirdest aspect of the News-Press complaint against this paper. The fact is, I never got a copy of the article. I never published it. I never saw it. And I have said so repeatedly. It’s true I told Kogan at the time I could get my hands on it, but I never did. Nevertheless, my non-possession of their non-published article is somehow the basis of their trade-secret infringement claim. Since filing the case a year ago, News-Press attorneys have failed to uncover a micron of evidence that contradicts my version of events.
Kogan himself has signed sworn documents stating he knew for a fact I did not have the article in question. And he never believed I could get it. Judge Rafeedie acknowledged the utter emptiness of the News-Press complaint in his ruling but, mysteriously, let it stand anyway. He did so, he explained, because I had refused to reveal my sources when I was deposed earlier this summer by News-Press attorney Stanton “Larry” Stein. Trade secret infringement is a state law; California is one state that actually has a shield law affording reporters at least a fig leaf of protection when it comes to confidential sources. And, for the record, I think all reporters should wave that fig leaf for all it’s worth. If not, many sources with information vital to the public interest will clam up without such protections. And for good reason. Whistle blowers don’t last long once they’re exposed.
In addition, Judge Rafeedie all but invited the News-Press to file further legal actions to obtain a court order compelling me to give up my sources. All this for an article I never saw, never obtained, and that the News-Press itself never saw fit to publish. If this bears an uncanny resemblance to the topsy-turvy world of Alice in Wonderland, I guess that’s appropriate. Certainly McCaw has turned everything upside down since taking over the News-Press, and her performance as the Queen of Hearts-whose battle cry was “off with their heads!”-has been so good it’s scary. After all, who ever heard of a newspaper owner suing another newspaper with the objective of exposing that paper’s confidential sources? No one. It’s never been done. Ever. Should McCaw persuade a federal magistrate to order me to testify, she will have inflicted great violence to every single reporter and every single news-gathering organization in this country.
And should that occur, it would become impossible to exaggerate any news of my demise. All reporters would be toast. Fortunately, as long as there are pockets of sanity left in the world, McCaw doesn’t stand a chance. But if you attempt to find these in her paper, you’ll go blind trying.