Tennessee’s attorney general is supporting the right of two California reporters to use confidential sources, even though his office has previously denied the same right to WorldNetDaily in the landmark $165 million defamation lawsuit brought in Tennessee against the popular news website by a top fundraiser for Al Gore.
Tennessee Attorney General Robert E. Cooper, Jr., has joined an amicus brief in the California case that involves reporting by the San Francisco Chronicle and its two reporters, who quoted confidential sources in their stories about a grand jury investigation of allegations of steroid use by major league baseball players.
A filing by attorney Larry Parrish on behalf of WND earlier this month had suggested to the Tennessee Supreme Court regarding WND’s First Amendment case that a decision to let reporters use confidential sources would bring the state into alignment with pronouncements from the U.S. Supreme Court.
Sam Cole, a lawyer representing reporters Charles C. Thompson II and Tony Hays in the case, also has asked the court to rule on an apparent conflict between a state law that could be interpreted as “impeding” a free press and the U.S. Constitution ban on such limits.
The reporters are objecting to a lower court’s ruling that unless they reveal a confidential news source, they will not be allowed to use the truth of the statements as a defense.
Now comes Parrish’s new arguments about a potential conflict in the lawsuit that would be more than $100 million higher than any other libel judgment ever upheld in the U.S., and about $160 million higher than any such judgment ever involving an Internet news source.
The 2000 reports targeted by the libel action mostly documented allegations of corruption involving then-Vice President Al Gore and others in Gore’s home state. Some Tennessee observers believe the series had such impact that it was responsible for Gore losing the state ? and thus the presidential election. Had Gore won his home state, the disputed Florida vote in 2000 would have been meaningless and Gore would have had enough electoral votes to become president.
The reports included information about a Savannah, Tenn., auto dealer, friend of Gore and Democrat activist Clark Jones, who brought the action.
Jones, who raised more than $100,000 for Gore’s presidential campaign, alleges personal embarrassment and humiliation from the articles, which said he reportedly intervened in a Tennessee Bureau of Investigation probe into narcotics trafficking in Hardin County in 1999. The car dealer also alleges the articles implicated him in the 1980 arson of his own business, the Jones Motor Company, and also pegged him as a suspected drug dealer.
Parrish’s new documentation says this new conflict involves opposition from the attorney general’s office to the use of confidential sources in the WND case and the AG’s support of those sources in the California case where the Chronicle reported on the use of steroids by professional athletes.
In both cases, stories were based on confidential sources like “Deep Throat,” a confidential source who provided key information in one of the biggest stories ever reported, the work by Bob Woodward, Carl Bernstein and The Washington Post in the 1970s that revealed the Watergate conspiracy ? and ultimately brought down the presidency of Richard M. Nixon.
While Nixon resigned in 1974, and in the following years a number of his associates were convicted on various charges and even served prison time, it wasn’t until 2005 when W. Mark Felt, a ranking official in the FBI during Nixon’s presidency, identified himself as that source of information for the reporters.
Parrish noted that there are technical differences in the situations: the California case involves sources revealing grand jury testimony, and the WND case just involves a confidential source. And while Tennessee’s support in the California case was a voluntary decision, the defense of Tennessee’s law that deprives reporters of a truth defense if they don’t reveal their confidential sources in defamation lawsuits is part of the assigned responsibilities for that office.
Even so, confidential sources still are confidential sources.
“They’re splitting hairs that don’t split very easily,” Parrish said.
The endorsement of the use of such sources is clear in the state’s support of the Chronicle. But in the WND case, “what the AG is saying is, ‘No, it’s not unconstitutional for a reporter to be required to reveal sources in a civil defamation case,” Parrish said.
That leaves any protections for reporters useless, he said.
“Practically speaking, whether it is common law or it is by Constitution, if in a civil lawsuit a reporter has to divulge the identity of confidential sources, what difference does it make whether he does or doesn’t have to in front of a grand jury?” Parrish said. “The one whose ox is gored just sues him for defamation and gets him to divulge his source.”
In the California case, Tennessee and 23 other states, Puerto Rico, and three dozen news organizations including the New York Times, Los Angeles Times, Washington Post, NBC, CBS, ABC and NPR are asking the appellate court to reverse the lower court decision requiring the Chronicle and writers to divulge who leaked them transcripts of grand jury testimony about the investigation of steroids supplied to major-league baseball players.
The brief originated with New York Attorney General Eliot Spitzer, and the others signed on to the argument submitted to the 9th U.S. Circuit Court of Appeals in San Francisco.
The states say that state laws protecting reporters’ confidential sources are meaningless if a federal standard is lower. The brief suggests that before a federal court could force reporters to give up their sources, it must show that “the public interest in disclosure outweighs the public interest in confidentiality.”
The Chronicle and its reporters, Lance Williams and Mark Fainaru-Wada, are fighting the order from U.S. District Judge Jeffrey White.
In the new WND filing, a supplement to the arguments filed earlier, Parrish notes that Tennessee now believes that protecting reporters and their confidential sources “is vital to the workings of a healthy democracy; that journalists play a crucial role in gathering and reporting such information; that the most important information must often come from sources who need or prefer to remain confidential; and that without the confidentiality guaranteed by the reporter’s privilege, the sources will remain silent and their information secret.”
“Restrictions on the necessity for divulging identity of confidential sources before a grand jury are ? rendered meaningless, if the same reporter can be required, in a civil defamation case, to divulge the identity of the same confidential sources?” Parrish argued. “Appellees, respectfully, suggest ? that a privilege that is limited to divulging identity before a grand jury is tantamount to no privilege at all.”
In WND’s case, Parrish noted, the attorney general when the case was filed, Paul G. Summers, had argued that state law, even if it denies any news gatherer a privilege to keep sources confidential in a defamation case, still “passes constitutional muster.”
“Appellees, respectfully, contend that Tennessee’s Attorney General and Reporter, to all appearances, is asserting inconsistent positions, or potentially inconsistent positions before the Ninth Circuit and before this Court,” Parrish argues.
“What is the fine line the Tennessee Attorney General and Reporter is drawing by arguing that the Ninth Circuit should judicially create common law (enforceable by whom is doubtful) in order to protect the overwhelming right of the public in Tennessee to the free flow of information that would be cut off if news gatherers are required to reveal confidential sources, if, at the same time, the Tennessee Attorney General and Reporter is arguing that the General Assembly of Tennessee constitutionally, has already taken that common law right away?”
WND, the two reporters and others were sued over a series of 18 investigative stories the reporters completed during the 2000 presidential campaign, and which then were posted on the WND website.
Hays also completed a 20-part series on drug trafficking in west Tennessee that primarily was responsible for the Courier of Savannah winning the 2000 Public Service Award from the Tennessee Press Association. He has published two novels, numerous magazine and newspaper articles on Tennessee political corruption, and a history of the Savannah area, the last through a grant from the Tennessee Historical Commission.
Thompson, who started his journalism career in print media, soon moved to television, where he captured an Emmy for his investigative reporting as well as the Headliner’s Award. He worked for a number of years as Mike Wallace’s producer at CBS’ 60 Minutes and was a founding producer of ABC’s 20/20. His investigation into the explosion of “gun turret two” on the U.S.S. Iowa in 1989 resulted in a book, published by W.W. Norton in 1999 and a movie starring James Caan.
Joseph Farah, founder and editor of WND, is appalled at the court rulings thus far in Tennessee ? as well as the lack of attention by First Amendment activists, journalistic colleagues and the national media establishment to what is arguably the biggest defamation case in the country’s history.
“It’s not WorldNetDaily on trial in Tennessee, it’s the First Amendment,” said Farah. “Where in heaven’s name have the American Civil Liberties Union and the big media been for the last six years as our little company carries the full load of responsibility for defending something as basic to our country’s founding principles as freedom of the press?”
Farah continued: “Not only is this a huge defamation case in terms of possible judgments, it is also huge because it involves critical reporting about the 2000 presidential election. Politically protected speech and reporting doesn’t get much more basic than that.”
Also named in the suit were five John Does and five Jane Does, as well as the Center for Public Integrity in Washington, D.C., WSIB-AM in Selmer, Tenn., the Decatur County Chronicle, WTVF Newschannel 5 in Nashville, the Savannah Snitch, the Savannah Journal, Larry Brinton, a commentator for WTVF, H.J. Maxedon of Selmer and Rebecca Hagelin, at the time WND’s vice president for communication.
Help WND fight landmark 1st Amendment legal battle
WorldNetDaily?s only recourse in this lawsuit is to fight every step of the way in its pursuit of truth. If you would like to help offset the enormous legal costs involved in defending against this attack on the First Amendment, you may make a donation online to WND’s Legal Defense Fund, or by calling WND toll-free at 1-800-4WNDCOM (1-800-496-3266), or by mailing a check ? made payable to WorldNetDaily Legal Defense Fund ? to:
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MEMPHIS, Tenn. – An 8-year-old, $165 million defamation case against WND springing from a series of stories about then-presidential candidate Al Gore has been settled.
The terms of the out-of-court agreement with auto dealer Clark Jones are confidential. The settlement averts the need for a trial in Tennessee that was scheduled for next month.
Below is the text of the settlement statement jointly drafted by all parties in the lawsuit. Both sides agreed to limit comment on the lawsuit to this statement:
“A lawsuit for libel, defamation, false light and conspiracy was filed by Clark Jones of Savannah, Tennessee against WorldNetDaily.com, Tony Hays and Charles H. Thompson II arising out of a press release issued by WorldNetDaily.com on September 18, 2000, and articles dated September 20, October 8, November 24 and December 5, 2000, written by Tony Hays and Charles H. Thompson, II, posted on WorldNetDaily.com’s website.
“The original news release by WorldNetDaily.com of September 18, 2000, and the article by Hays and Thompson of September 20, 2000, contained statements attributed to named sources, which statements cast Clark Jones in a light which, if untrue, defamed him by asserting that the named persons said that he had interfered with a criminal investigation, had been a ‘subject’ of a criminal investigation, was listed on law enforcement computers as a ‘dope dealer,’ and implied that he had ties to others involved in alleged criminal activity. These statements were repeated in the subsequently written articles and funds solicitations posted on WorldNetDaily.com’s website. Clark Jones emphatically denied the truth of these statements, denied any criminal activity and called upon the publisher and authors to retract them.
“Discovery has revealed to WorldNetDaily.com that no witness verifies the truth of what the witnesses are reported by authors to have stated. Additionally, no document has been discovered that provides any verification that the statements written were true.
“Factual discovery in the litigation and response from Freedom of Information Act requests to law enforcement agencies confirm Clark Jones’ assertion that his name has never been on law enforcement computers, that he has not been the subject of any criminal investigation nor has he interfered with any investigation as stated in the articles. Discovery has also revealed that the sources named in the publications have stated under oath that statements attributed to them in the articles were either not made by them, were misquoted by the authors, were misconstrued, or the statements were taken out of context.
“WorldNetDaily.com and its editors never intended any harm to Clark Jones and regret whatever harm occurred. WorldNetDaily.com has no verified information by which to question Mr. Jones’ honesty and integrity, and having met him, has no claim or reason to question his honesty and integrity. WorldNetDaily.com wishes him well.”