Louisiana newspapers plan appeal to Supreme Court

Wednesday, May 5, 1999

As the publisher and editor of the weekly Avoyelles Journal in Marksville, La., Randy DeCuir knows all too well the stress of meeting editing, advertising and circulation deadlines.

But DeCuir admits that the past two years have been particularly difficult, for looming over the newspaper are hundreds of thousands dollars in possible damages from an invasion of privacy lawsuit.

Last month, the Louisiana Supreme Court said the Journal and the Alexandria Daily Town Talk could be sued for publishing the contents of a private telephone conversation that was played at a news conference. The two newspapers have decided to turn to the U.S. Supreme Court for relief.

“So far we're still” publishing, DeCuir said. “But if we lose, it could be devastating. We could stand to lose everything.”

Avoyelles Police Jury member McKinley Keller and former state District Judge Michael Johnson are suing the Journal and the Daily Town Talk, claiming the papers violated their privacy rights by publishing parts of a private telephone conversation.

At a November 1996 news conference, lawyer Carol Aymond Jr. of Bunkie, La., played a tape of the conversation. Aymond, who ran unsuccessfully against Johnson in a September 1996 election, claimed the conversation was evidence of corruption and possible vote-buying.

Keller and Johnson filed criminal charges against Aymond, claiming he violated the state's Electronic Surveillance Act. That law prohibits the recording of a telephone conversation, absent a court order, without the knowledge of at least one party.

A grand jury cleared Aymond because prosecutors could not prove he knowingly committed a crime.

The two men also sued the newspapers for civil damages. State District Judge William Bennett dismissed the lawsuit last year saying that newspapers had a right to report on matters that had entered the public domain. The state attorney general's office also found no criminal violation by the newspapers.

But a three-judge panel for the state's 3rd Circuit Court of Appeal reinstated the lawsuit in January. And in a 4-3 ruling issued April 1, the state Supreme Court let the appeals court decision stand without issuing an explanation.

Newspaper officials said the decision astounded them.

“Consider that we're talking about a transcript that was read at a press conference by a candidate for public office,” said Jim Butler, executive editor of the Daily Town Talk. “We did not intercept the message. The idea that it is privileged is ridiculous.

“We feel this is undue restraint upon us,” Butler said. “The extension of that can be quite chilling on the press. In fact this is an area of law that we think the (U.S.) Supreme Court needs to look at.”

While the U.S. Supreme Court hasn't ruled on taped conversations specifically, it has ruled that the press is protected when it legally receives information that was illegally obtained.

The court, in its 1979 decision in Smith v. Daily Mail, upheld the principle that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.”

In its 1989 decision in Florida Star v. B.J.F, the court cited Daily Mail when it ruled in favor of a newspaper that published the name of a rape victim found in police logs. The court's ruling overturned a jury verdict that had awarded the rape victim both compensatory and punitive damages.

But Keller and Johnson contend that the newspapers should be held liable not only because they invaded their privacy but because the information they published wasn't true.

Marksville lawyer Keith Manuel, who represents Keller and Johnson in the case, wrote in documents filed with the state Supreme Court that the two men's privacy rights were violated because the newspapers published parts of “inaccurate transcripts of intercepted private communications.”

DeCuir said the Journal, with about 16,500 subscribers, likely wouldn't survive if Keller and Johnson succeed with their lawsuit.

Butler said the Daily Town Talk, with a circulation of 38,000, already has drained its legal reserves for the year and has had to use funds from its corporate parent, the Phoenix, Ariz.-based Central Newspapers Inc.

“It's been a tremendous stress for us, but as the case wound its way to higher levels, we've been able to take advantage of corporate legal help,” Butler said. “For smaller newspapers and weekly newspapers … I can only image the terrible strain on that operation.”