The Year Of The Gag Order p. 43

By: Debra Gersh Hernandez Another issue of concern is the growing tendency of plaintiffs
to subpoena parties other than the press ? telephone records,
credit card companies ? in an attempt to uncover sources

ONE OBSERVER characterized 1994 as the year of the gag order.
"If you look back over the last year, what we've seen is really an explosion of gag orders," commented Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press.
"For me, this year, my court access and gag order files have expanded exponentially," she said. "This is the new frontier in media case law for the next few years.
"There will still be libel cases, but trends for the future are court access and gag orders. That's where the litigation will be," she said.
Among the cases she cited were a legal attempt by actress Elizabeth Taylor to stop a television movie about her life, which failed; a gag order against CBS prohibiting it from showing on "48 Hours" a videotape from a meatpacking plant, which was overturned by Supreme Court Justice Harry Blackmun; Paula Jones' failed attempt to stop Penthouse magazine from publishing revealing photographs of her; and the recent Dow Jones & Co. effort to get a sealed Whitewater report that resulted in a sealed appeals court decision.
"I'm very disturbed by this," Kirtley added. "I foolishly thought that, after Justice Blackmun acted so quickly in the CBS case, it would send the word that this is something you don't do."
Kirtley said this tendency toward gag orders, particularly from plaintiffs' alleging economic harm, is a relatively new trend.
"We're not talking about gag orders issued in the context of a trial, like the O.J. Simpson case," she said. "None of them had anything to do with court proceedings. All were filed by someone who didn't like what was going to be written or broadcast about them."
The growing number of gag orders at all judicial levels partially can be attributed to the fact that many judges are unaware of the existing precedent, some of which dates back about 10 years, Kirtley said. They simply have not had to deal with these issues before.
"It's unfortunate that the trouble and expense of educating them falls to the news media," she added. "We really need to promote bench-bar-media conferences.
"The reality is, what happened to CBS could happen to any news outlet of any size. Let's not delude ourselves that it only happens to '60 Minutes.' It could happen to anyone," she said.
Another issue of concern is the growing tendency of plaintiffs to subpoena parties other than the press ? such as telephone records and credit card companies ? in an attempt to uncover sources.
"This gets me back to the Uniform Correction or Clarification of Defamation Act," Kirtley said. "I was concerned that this would be used by people who would file libel suits as a method of getting to sources. People will threaten lawsuits to do an end run around shield laws.
"I would point out that what Philip Morris and Brown & Williamson [who have used subpoenas this way] are doing is akin to that," she said. "It's the same kind of ploy."
"For those who thought my thinking was too Machiavellian," Kirtley added, "the creativity of plaintiff lawyers is never to be underestimated."
One bright spot is that some companies subpoenaed ? other than a few local phone carriers ? are competitive businesses.
"A number of companies, in response to concerns about people's records, have been issuing new policy statements about how to handle customer records," Kirtley said.
For example, she said American Express' policy is to notify the customer that his records have been subpoenaed and not to release the information before the customer has a chance to fight it.
"American Express and other companies are competitive. The benefit that we may be getting [is the fact that] these companies may be prepared to take if not more aggressive stances to protect [the documents], at least . . . give you the courtesy to notify you.
"But this will not solve the problem," Kirtley added. "The best thing is for the courts to say [to plaintiffs], 'You can't do this.' "
There was little activity regarding the press in the Supreme Court.
"It does seem that the court is not particularly interested in taking the old garden-variety libel cases," Kirtley pointed out. "Because of this proliferation of gag orders, it would be good to see the court take a position against it. It might get the attention of the lower court judges."
However, she added, having no cases before the court "certainly is better than taking the chance of tinkering around with existing law."
In 1993, commercial speech was a big issue, but there was less interest last year.
One commercial speech case pending, however, is an attempt by the Florida Bar Association to give states more authority to restrict attorney advertising, by reversing a 1977 Arizona case in which the court held that attorney advertising performs "an indispensable role in the allocation of resources in a free enterprise-system."
A number of advertising associations joined in a friend-of- the-court brief against the Florida bar.
"We oppose the efforts of the Florida Bar Association to turn back the clock," said Association of National Advertisers president John Sarsen Jr. "Broad restrictions on lawyer advertising could set a very dangerous precedent."
A libel case in which the Supreme Court let stand without comment the lower court ruling was the suit against the New York Times in 1994 over a book review.
The book's author, Dan Moldea, argued that the reviewer's conclusions were based on issues of fact, but that the facts were wrongly presented.
The Times countered that reviews are protected opinion and it prevailed in the lower courts, which eventually dismissed Moldea's claim.
That case, Kirtley said, "could have had a profound impact on news organizations to publish reviews of anything . . . . [The appeals court] took a very generous view of what opinion is when in the context of a review."
The court also found unconstitutional an ordinance in Ladue, Mo., that barred a woman from posting an anti-war sign in her window.
Cable television also got a boost from the Supreme Court in 1994, when the justices sent back to the lower court for scrutiny the "must-carry" rules requiring cable carriers to devote a portion of their channels to local broadcasters.
"There can be no disagreement on an initial premise: Cable programmers and cable operators engage in a transmission of speech, and they are entitled to the protection of the speech and press provisions of the First Amendment," the court said.
Former Associated Press newsman Terry Anderson filed suit in federal court in 1994 after being frustrated in his Freedom of Information Act attempts to gain access to files about himself during his years as a hostage in Lebanon.
Although the Justice Department ruled that it would no longer claim privacy exemptions for Anderson's abductors, it did not rule out withholding documents on national security grounds. No action had been taken, however, as the year came to a close.