I was living in La Jolla and this publication called The Reader wrote an unflattering item about me alleging I was involved in some kind of a conspiracy to defraud. It simply wasn’t true. I demanded a retraction, which they dutifully published. Then I got an idea, which essentially was they weren’t entitled to the benefit of the law about retractions, because it applies only to newspapers, and they weren’t a newspaper. Rather, they were more akin to a magazine. It came out weekly and didn’t have any news in it. Magazines aren’t subject to the same time pressure as newspapers because they have a more leisurely publication schedule. They have more opportunity to check things out and thoroughly investigate the facts. Because they’re so busy, newspapers should be excused from this process if they make honest mistakes (this latter proposition is somewhat dubious). Having admitted their article was false, The Reader was liable to pay damages. I owe this idea to Carol Burnett, who had filed a lawsuit against the National Enquirer after they published an article alleging she had gotten into an argument with Henry Kissinger, implying she was intoxicated. The Supreme Court recently had ruled on her case, upholding this theory. I saw a creative opportunity to deploy it, so I filed a lawsuit.
The Reader was owned by somebody named James Holman. It was edited by somebody named James Mullin. The offending article was written by somebody named Paul Kreuger. hey were, of course, as sore as a boiled owl about getting sued. hey had an insurance policy and the insurance company assumed defense of the case. hey hired an attorney named Steven B. Davis, then of the well-respected San Diego law firm of Higgs Fletcher & Mack. I hired a well-respected attorney named Paul R. Kennerson. Then everybody hit the mattresses.
The Reader’s defense was quixotic. They retained private investigators, took depositions, sent out stacks of interrogatories, requested the propounding of documents, etc. etc. They never were able, though, to articulate a coherent defense. They really couldn’t, given the Carol Burnett opinion from the Supreme Court. They hadn’t conducted any in-depth interviews (much less even call me to see what I had to say). They hadn’t done any thorough research. It was almost as if they’d made the whole thing up. Real newspapers, on the other hand, investigate their stories.
The Reader’s already difficult position was compounded by several serious unforced tactical errors. At one point they in effect admitted the article was defamatory and libelous per se, i.e. one didn’t have to do anything other than look at the article itself to discern it was problematic. Then, they in effect admitted their retraction was insufficient. So which does one believe – the original article, or the retraction? It’s a real-world illustration of the liar’s paradox. Kennerson and I had a hard time figuring out what they thought they were doing.
During the course of the case, The Reader filed not one but two motions for summary judgment, which is a legal proceeding terminating an action before trial on the grounds there are no factual disputes but instead the controversy solely involves an interpretation of the law. The best one was “even though we walk and talk like a magazine, we’re really a newspaper in disguise, so Carol Burnett doesn’t apply to us.”
Combating this motion was a lot of fun Posing as potential advertisers, we uncovered The Reader’s network of affiliated publications owned or controlled by a company called The Ruxton Group. We got all of their publicity and advertising materials. We found articles discussing their business model The late 1960s saw the origin of underground publications such as the Berkeley Barb. Gradually these evolved into publications like the L.A. Weekly and The Reader No longer espousing a principled alternative viewpoint, their business model basically was to give away the publication for free in the hopes that advertising revenue, entertainment listings, gossip and salacious personal classified advertising by people looking for sex would cover its costs. It was more like the National Enquirer than a legitimate newspaper. A lot of this seems pretty dated now because most of it has been displaced by web sites such as Craig’s List. So you have to imagine how people did things before the internet.
We found a bunch of expert witnesses, some famous, to analyze the differential characteristics of The Reader as opposed to genuine newspapers Examining back issues, they all opined The Reader was more like a magazine than a newspaper. Here they are. The links are to copies of the actual declarations they filed in the case, and they make for fine reading:
Robert E. Blackmon, then Chairman of the Department of Journalism at California State University, Los Angeles: Blackmon Declaration.
Daniel L. Brenner, formerly Director of the Communications Law Program at UCLA Law School and now a partner in the Communications, Media and Entertainment Group of a large Washington DC law firm: Brenner Declaration.
Jeffrey I. Cole, now Director of the Center for the Digital Future at the USC Annenberg School of Communications: Cole Declaration.
Kenneth S. Devol, now deceased, formerly Professor of Journalism at California State University at Northridge, President of various professional journalistic societies, textbook author: Devol Declaration.
James H. Hayes, then Chairman of the Journalism Department at California State University, San Luis Obispo: Hayes Declaration.
Carl Jensen, Professor Emeritus of Communications Studies at Sonoma State University and an expert on censorship: Jensen Declaration.
Robert G. Meadow, formerly a Professor at the Annenberg School of Communications at USC, now President of Decision Research, a national political polling and focus group research company: Meadow Declaration.
William L. Rivers, now deceased, formerly the Edwards Professor Emeritus of Communication at Stanford University, author of numerous books and articles about journalism and media law: Rivers Declaration.
Jeff Rowe, formerly a reporter for the Wall Street Journal and the Associated Press and a business reporter for the Orange County edition of the Los Angeles Times. Author of Broadcast News Writing for Professionals, still in the journalism business today: Rowe Declaration.
Matthew L. Spitzer, formerly Dean of the USC Law School and now a professor on the faculty of both the Law School and the Business School at the University of Texas: Spitzer Declaration.
As word of the case spread, at the end, I had to turn down several other well-known journalists who wanted to jump on the bandwagon and help establish some basic principles of sound journalism and media ethics. We also commissioned a study by the San Diego State University Journalism Department. It analyzed the time sensitivity of stories appearing in back issues of The Reader and compared them to stories appearing in parallel back issues of the San Diego Union and the San Diego Evening Tribune, at the time San Diego’s two daily newspapers. This was a hard-core, empirically-based research effort. They worked really hard and did an amazing job. Summarizing each article, they found the two newspapers had an average of 103 news stories per issue. Whereas The Reader predominately comprised classified advertising, display advertising and event listings. This was pretty persuasive (see the Declaration of Kate Linehan): Linehan Declaration.
The Judge denied The Reader’s motion. He said there “is an overwhelming question of fact” about what constitutes a newspaper. He said we had compiled a “magnificent” list of “interesting and high-powered experts.” He said there were numerous factual issues about the case (like what exactly The Reader was), precluding entering judgment before trial. All of this took the fellows at The Reader completely by surprise. I have to admit it was pretty entertaining watching them squirm around, not knowing what to do next.
Some time passed and the case was getting close to trial. Around this time Davis shall we say disaffiliated with Higgs Fletcher. Then The Reader’s insurance company kicked them off the case and substituted in the well-known libel lawyer Rex S. Heinke of the venerable Los Angeles law firm of Gibson Dunn & Crutcher. Ironically, I used to work there! Kennerson told me Davis had lied about the scope of The Reader’s insurance coverage (I’m just reporting what he said to me and I don’t know if this is true or not). I have a theory, which is that legal cases don’t really get in a position to be settled until the trial date is imminent, because only then do the parties confront the reality of their position. A corollary to this is that no case will settle until the lawyers on both sides have extracted the maximum amount of fees possible from their hapless clients. I do know that within about two weeks after he came on the case, Heinke made a very attractive offer to settle, which we accepted.
The case got a lot of publicity at the time. Not surprisingly, most newspapers took an editorial stance against it, seeing as how they were newspapers. I can see why they were worried: what about stories that regular newspapers publish that aren’t time sensitive? Should Carol Burnett’s theory be extended to them? The Los Angeles Times: “If a publication looks like a newspaper, it’s a newspaper.” Maybe they meant its physical appearance, like if it’s printed on newsprint? If so, that’s a pretty limp criterion. In a lengthy and insightful article, The San Francisco Bay Guardian: my case was “shaping up as one of the most important First Amendment cases in California in years – and potentially one of the most serious threats to non-daily newspapers nationwide.” Whew! That’s a lot of responsibility! The San Diego Evening Tribune: my case was a “legal and ethical controversy” that focused on “one of the most significant legal issues to confront the California newspaper industry.” In another Evening Tribune article: If I won, “papers will be more circumspect about publishing controversial stories and affordable libel insurance will become more difficult to obtain … The public could be denied aggressive reporting. Papers will say it’s not worth getting involved in difficult stories.” In yet a third Evening Tribune article (I guess they had a lot of time on their hands, or Mullin/Krueger were pals with somebody on their staff): “Hundreds of weekly newspapers may also be in danger. If these smaller, but no less legitimate news organs fear they, too, could be ruled magazines subject to punitive damages, they’re likely to feel intimidated … Publications like The Reader must be freed from their legal identity crisis.” In other words, if I won, most likely the sky would fall in. The San Diego Daily Transcript (a local legal publication): quoting Davis, we “came out with six guns firing and (the case) assumed a significance I almost never would have envisioned. It’s almost taken on a life of its own. He upped the ante … That’s how it became notorious.” Quoting Mullin: “I’ve grown to resent this entire incident to the extent we’re on the defensive. Somehow the tables have been turned.” Poor Jim … complaining about his own sloppy and unethical practices. He should go back to journalism class to learn a thing or two about media ethics and what’s involved in being a good editor. I basically come from the school that there’s no such thing as bad publicity. So it was very gratifying to have all of these fine publications tut-tutting about my little case.
I’m proud to have made a positive contribution towards advancing California law. In response to my case, bills were introduced in the legislature to abolish the Carol Burnett doctrine. These matured into something called the “anti-SLAPP” law, which stands for Strategic Lawsuit Against Public Participation. The way this works is something like this. Public figures like politicians or entertainers always have had a hard time suing for libel, because they have voluntarily interjected themselves into the public eye. Private persons, though, haven’t gone out and sought publicity. So they were subject to a lesser burden of proof in order to recover. Now, however, the media can publish anything it wants, even if it’s false and libelous, on the grounds it’s in the “public interest.” Since they’re publicly participating, their business practices should be exempt from review. The concept of public interest is self-referential. It seems to be pretty much anything they choose to write about, because they wouldn’t write about it if it wasn’t in the public interest, and having written about it, it automatically becomes in the public interest, if only because they wrote about it. If this seems pretty biased, unfair and convoluted, it’s because it is. For sure my case would not be possible, today.
One of the things I found out about myself during the course of the case was that I had the tenacity and perseverance to pursue it to the end. Also, I was more amused than annoyed by their aggressive efforts to subject me to all kinds of psychological distress, emotional trauma and mental turmoil. I can imagine them rubbing their hands together gleefully, saying, “look at this nuclear bomb we’ve launched in his direction.” They grew quite frustrated when it turned out I was impervious to these initiatives. The more impervious I became, the harder they tried to do something to provoke a reaction, which didn’t work, so they just got more and more frustrated. Their clients: “work harder, be meaner, what you’re doing isn’t working!” This switch isn’t hard to accomplish: just flip the polarities of your conceptual frame of reference. Rather than becoming agitated or irritated by actions intended to agitate or irritate, derive pleasure and satisfaction from not doing so. In fact, positively ingratiate yourself to your ostensible opponents. Their resulting bewilderment and confusion is far more satisfying than the short-lived jolt from a quick shot of adrenalin that comes from something more retaliatory. Maybe my limbic system is depressed so now I inhibit fear response and my dopamanergic rewards system peculiarly activated, so I actually experience this back-and-forth as pleasurable. his characterological trait would hold me in good stead throughout the rest of my professional career.