Defame and fortune

In a Seattle court, freedom of the press is under attackby the press.

DOUG UNDERWOOD IS a respected University of Washington communications professor, a veteran journalist, and a frequent critic of media ethics. Now he finds himself under legal attack by a group of journalists, in a case that could erode First Amendment protections in this state.

At a hearing next week in King County court, a judge will decide whether to force Underwood to hand over all the notes, drafts, and other written material that he compiled in the course of reporting a magazine story published two years ago.

Journalists have typically been shielded from such demands by a Supreme Court-affirmed First Amendment privilege, designed to keep the Fourth Estate from becoming an arm of law enforcement.

However this privilege has come under continued attack by prosecutors and defense attorneys, who want to use unpublished material gathered in the course of news reporting to help win convictions or acquittals. In one highly-publicized case, a judge recently sentenced a Sacramento reporter to jail for refusing to disclose his confidential sources to a defendant in a criminal trial.

In the Underwood case, no murder suspect is looking to be exonerated. Rather, a group of individuals in Phoenix is seeking to boost their claim for damages in a civil lawsuit. Ironically, those individuals are reporters themselves.

The case arose from an article that Underwood penned for the Columbia Journalism Review back in January 1998. In the piece, which described the increasing influence of business interests on news coverage (a favorite Underwood topic), Underwood quoted a former reporter at The Arizona Republic, who asserted that recent layoffs at the paper included "a very strong core group of very aggressive reporters, people who stepped on the toes of people the newspaper did business with." Underwood also quoted the Republics then-managing editor Steve Knickmeyer, who maintained that the lay-offs were not "a conspiracy with the sacred cows and the power brokers," but that most of the laid-off reporters were "fat, lazy, incompetent, and slow."

Eighteen of those laid-off reporters then sued Knickmeyer, and Phoenix Newspapers, Inc., the Republics owner, for defamation. Underwood was not named in the suit.

Phoenix Newspapers tried and failed to get the case dismissed on summary judgment. An Arizona judge ruled that when a manager calls his employees "incompetent," its more a statement of fact than opinion, and so is not protected speech.

The case is now in the discovery phase. Last August, attorneys for the eighteen Phoenix reporters issued a subpoena to Underwood, asking him to turn over every piece of written material he had gathered in connection with the story, "including writings contained in any filedrafts of the article, and writings which relate to the article in any way."

Underwood refused, though he did agree to give a deposition in September.

Last month, the Phoenix plaintiffs filed a motion to compel him to comply. A judge will hear the motion on Wednesday.

"THERE ARE FIRST AMENDMENT cases throughout the court system which say a reporter cant be subpoenaed for unpublished notes," says Underwoods attorney, Bruce Johnson of Davis Wright Tremaine, a firm with a large media practice. (Seattle Weekly is also one of Johnsons clients.)

But attorneys for the Arizona reporters contend, in their legal brief, that Washington state law only protects journalists from having to disclose their confidential sources. No such sources are involved in this case. They also point to a Second Circuit ruling last year in Texas that said the journalists privilege can be overcome, even in a civil matter, if the materials sought "are of likely relevance to a significant issue in the case."

Knickmeyer has not denied that he made the quoted statement. But in a deposition taken last December, Knickmeyer contends that his comment did not refer to "most of the laid-off reporters," as Underwood wrote. Rather, Knickmeyer says he was characterizing a small group of reporters who had aired their grievances to Phoenix New Times, an alternative weekly.

Underwoods attorney, Bruce Johnson, says that Underwood has offered to review his notes and be deposed again. But in a legal brief, he points out, "Mr. Underwoods notes cannot shed light on what Mr. Knickmeyer was thinking privately" during the interview. "None of [the requested] material addresses whether the challenged quotation is defamatory," he writes. "The court should not acquiesce in this fishing expedition."

Indeed it remains unclear what relevance Underwoods notes might have to the underlying defamation suit, save perhaps for shifting culpability. Attorneys for the Phoenix plaintiffs declined to comment. Underwood, a onetime Seattle Times reporter, also did not return calls seeking comment.

Johnsons brief predicts, "If presented with the opportunity to extend the journalists privilege to non-confidential information, Washington appellate courts would likely do so." But if he is wrong, and the journalists privilege gets narrowed in this case, reporters will have only their own kind to blame.

Underwoods original story in the Columbia Journalism Review.

"Reporters facing greater pressure to reveal sources," the L.A. Times reports.

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