Media score three wins in fight for press rights

Thursday, August 26, 1999

The Los Angeles Daily Journal, the Binghamton Press & Sun-Bulletin and WCCO-TV aren’t exactly nationally known news organizations. Last week, however, they made news by winning significant trial court victories.

In the Daily Journal case, a Los Angeles trial judge on Aug. 16 vacated an earlier order that had prohibited the newspaper from publishing a story about an insurance fraud lawsuit. Pursuant to California law, the lawsuit had been filed under seal. A court clerk, however, mistakenly included the file in public materials for a short time, during which a Daily Journal reporter discovered the lawsuit, interviewed a number of the parties and prepared a story.

At the parties’ request, a Superior Court judge prohibited the Daily Journal from publishing the story. A different Superior Court judge initially upheld the order but, after the Journal filed an appeal, he lifted the ban.

Even if the trial judge were motivated by fear of an appellate court reversal, the decision stands in stark contrast to a North Carolina case last year, in which a trial judge held a reporter in contempt for writing about a sealed settlement agreement that was mistakenly given her by a court clerk. The trial judge in that case refused on several occasions to reconsider his ruling, and that reporter’s fate now rests with a North Carolina appeals court.

The Binghamton Press & Sun-Bulletin case also involved a trial court judge who changed his mind. In this case, an Oswego, N.Y., judge banned the newspaper from covering pretrial proceedings in a murder prosecution. The judge based his ruling on concerns that pretrial publicity would prejudice the accused’s right to a fair trial.

On Aug. 18, however, the judge vacated his order, holding that the defendant had not offered sufficient evidence to support the ban. The newspaper will be allowed to cover the proceedings, the judge said, unless and until the defendant can prove that a blanket ban is the only way to ensure a fair trial.

While the law always has required the person seeking to restrict coverage of court proceedings to bear the burden of proof, the Oswego judge’s decision is significant because it follows both the letter and spirit of the law. Many other judges in recent years have presumed adverse effects of pretrial publicity and, by doing so, have shifted the burden to the news media to prove why proceedings should be open.

In the WCCO-TV case, a Minneapolis jury on Aug. 17 did something most media lawyers doubted was possible: It correctly applied the actual-malice standard. This standard prevents public officials, public figures and persons involved in high-profile issues from recovering in libel cases unless they can prove that the media entity published the statement either knowing that it was false or with “reckless disregard” for the statement’s truth.

Many juries ruling against media entities have either ignored or misunderstood the actual malice-test, but the jury in the WCCO-TV case correctly distinguished between the truth of the broadcast and the liability of the television station. The WCCO-TV broadcast quoted a local police officer as saying that he believed a wife had murdered her husband. The wife, however, never was charged, and the report stated that police had no proof of the wife’s guilt.

While some members of the jury believed that the broadcast falsely reported that the wife was the leading suspect in the investigation, the jurors unanimously concluded that the television station did not know that this statement was false and had not acted recklessly in preparing the report. The jury accordingly returned a verdict in favor of WCCO-TV.

These three wins are particularly noteworthy because trial judges and juries frequently have overlooked First Amendment freedoms in order to protect individuals’ reputations and privacy. In many cases, in fact, judges’ rulings and juries’ verdicts have been plainly punitive, designed to censor speech and change newsgathering practices.

Obviously, it would be foolish to think that these wins signal a dramatic reversal of this attitude. Nevertheless, journalists in Los Angeles, Oswego and Minneapolis are today freer to do their jobs than they were two weeks ago.

And in today’s anti-media legal environment, that’s progress.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.