The future of investigative journalism in the United States is scheduled for trial starting March 10, according to a Tennessee lawyer who is defending WND in a lawsuit brought by a major supporter of Al Gore’s 2000 campaign for the presidency.
“If what WorldNetDaily did is subject to being the basis for a libel judgment, investigative reporting will just come to a complete halt,” Larry Parrish said. “It’s just that simple. It doesn’t matter if you’re liberal, conservative or anything else.”
The Savannah, Tenn., trial is to be in the landmark $165 million claim against WND in which a Tennessee appeals court banned WND from defending itself based on the truth of a series of articles during the 2000 campaign, because they included information from a confidential source to which WND didn’t have access.
Parrish earlier suggested to the Tennessee Supreme Court that allowing reporters to use confidential sources would bring the state into alignment with pronouncements from the U.S. Supreme Court.
And Sam Cole, a lawyer for free-lance reporters Charles C. Thompson II and Tony Hays, who researched and wrote the articles under the sponsorship of the Center for Public Integrity, suggested the Tennessee state law in question could be interpreted as “impeding” a free press and violating the U.S. Constitution ban on such limits.
But the Tennessee Supreme Court refused even to hear the case, and left standing a lower court decision that requires reporters to reveal their confidential news source or abdicate their right to use the truth of the statements as a defense in the lawsuit. WND’s situation is complicated by the same requirement because the news agency does not even know the identity of confidential sources used by the reporters.
The 2000 reports by the free-lance writers 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 done by the free-lance reporters and posted on the WND site included information about a Savannah, Tenn., auto dealer, friend of Gore and Democrat activist Clark Jones, who brought the action and has been determined by the courts to be a public figure.
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 said the results of the case could be disastrous for the news industry. Virtually every story that gets reported these days at some point reaches the Internet, he said.
“It’s very improbable, or almost impossible, these days to publish something in print or on the Internet that doesn’t go into multiple states,” he suggested.
He said that puts every story and every article under the jurisdiction of the state “with the most restrictive rules of law,” because as in the WND case, those stories can be downloaded in the state of Tennessee.
Since Tennessee law as it is being applied gives reporters the same opportunity for withholding a confidential source in a civil defamation case as they have before a grand jury ? none, he said, that very well could become the standard nationwide.
The biggest difference is that in a typical grand jury setting, the investigation including its testimony is by law secret, while in civil defamation cases, testimony is wide open.
“Investigative reporting has been able to exist and continues with the requirement that names be divulged in a grand jury. You transport that same requirement into a civil defamation case against reporters and you will shut down the information from confidential sources,” Parrish said.
“There will be no such thing as a confidential source,” he said. “If this is the law of the land, no reporter can ever give any source of information an assurance of confidentiality. It will dry up all the information that comes to reporters only on an assurance of confidentiality.
“[Previously] when a reporter took information from a confidential source, if they’re thorough and careful, they need to say, ‘This is subject to me having to divulge your name in a grand jury behind closed doors ? under confidential requirements,'” Parrish said. “Now they will have to say, ‘I receive your information in confidence unless I get sued.’ Who’s going to give information? It’s just not going to happen.”
The limitation on reporters and news distributors also bans them from using the truth of an article as a defense in any defamation case, because they cannot express their belief or confidence in the accuracy of any report without involving the source, he said.
“Not asserting a truth defense in a defamation case is real close to admitting liability,” Parrish said. “At that point it’s very close to an admission that the information is not true, even if it is.”
WND reported earlier that such a standard apparently applies only to WND, too, since the state of Tennessee has argued in a separate case that confidential sources should be allowed.
WND earlier had asked to be treated as other news organizations, highlighting the fact that Tennessee Attorney General Robert E. Cooper, Jr., has joined an amicus brief in a California case that involves reporting by the San Francisco Chronicle and two reporters, who quoted confidential sources in their stories about a grand jury investigation of allegations of steroid use by Major League Baseball players.
In contradiction to its position in the WND lawsuit, Tennessee argued in that case that the California reporters have the right to use confidential sources.
Parrish explained under the circumstances outlined thus far by the courts in Tennessee, Richard Nixon could have completed his presidency without interference from Washington Post reporters Bob Woodward and Carl Bernstein.
“All President Nixon [would have] needed to do in order to retain his presidency is sue Woodward and Bernstein for defamation, force them into this Hobson’s Choice and, by presumption, establish that the information attributed to the confidential source was false,” Parrish said. “The alternative for Woodward and Bernstein would have been to disclose the name of Deep Throat and suffer a breach of confidence judgment in favor of Deep Throat.”
WND’s court filings have defined the issue closely: “Unless there is protection, under the First Amendment, that is universally applicable in the United States, investigative reporting by every newsgatherer in the United States can be controlled by any state acting unilaterally and, even, in complete discord with every other state.”
The documents say, “The [Tennessee] ruling ? requires zero proof to overcome or to weigh against the newsgatherer’s First Amendment privilege of nondisclosure. Rather, the court of appeals flatly rules that no such privilege exists in a civil defamation case.”
In the Watergate case, which ultimately brought down the Nixon presidency, the Post stories by Woodward and Bernstein revealed enough of Nixon’s antics so that on Aug. 9, 1974, he resigned, becoming the first president ever to leave office in that manner. Deep Throat, the secret source of insider information vital to the Post’s coverage, was secret for three decades, until a former pillar of the FBI named W. Mark Felt identified himself as Deep Throat in 2005.
He was the FBI’s second-ranking official during a period of the Nixon presidency, and had the means and motive to help the newspaper uncover the spies, tricks, coverups and surveillance that led to Nixon’s resignation and prison terms for some of Nixon’s highest-ranking aides.
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.
“It’s remarkable that so many of my colleagues and media enterprises are interceding in that case and failing even to report our much bigger lawsuit,” said Joseph Farah, editor and chief executive officer of WND. “So, far, the largest defamation case in the history of the United States has not been reported anywhere outside of the news agency involved.”
The free-lance reporters who generated the 2000 WND reports both are experienced journalists. Hays 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.
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.”