Legally Speaking: The Power of the Pen

John G. Browning Jul. 17, 2008, 3:50am

Thomas Jefferson once said that he would rather have newspapers without a government than government without newspapers.

During the recent July 4th holiday, I paused amidst the parades, barbecues and fireworks displays to think of how fortunate we truly are to live in a country that cherishes the freedom of the press. All over the world, journalists are persecuted and even killed for being, well, journalists.

Whether it's the Chinese government imprisoning journalists for trying to report the truth, or Venezuela's socialist dictator Hugo Chavez shutting down television and radio stations that dare to air an opposing view of his regime, freedom of the press is an all-too-rare commodity.

Even the more "enlightened" Western nations haven't had the best track record of protecting the press. The most popular magazine in Canada, MacLean's, has been besieged with charges of violating Canadian hate-speech laws after publishing an article that criticized Islam. Although the National Human Rights Commission recently dismissed these charges (after a lengthy legal battle costing hundreds of thousands of dollars), the magazine still faces similar charges on the provincial level.

As journalist Mark Steyn (the author of the controversial piece) observed, "The First Amendment really does distinguish the U.S., not just from Canada but from the rest of the Western world."

But just because we have freedom of the press here in America doesn't mean people still don't try to keep information and freely expressed opinions from reaching the masses. They just do it the old-fashioned way – by stealing the newspapers!

Unfortunately, there have been all too many examples in recent years of individuals stealing newspapers in an effort to keep unfavorable information out of the public eye.

Sometimes, it's for political reasons. In 2002, for example, Tom Bates – then a candidate for mayor of Berkeley, Calif. – admitted stealing and throwing away about 1,000 copies of the UC-Berkeley student newspaper that endorsed his opponent. Bates later pleaded guilty to petty theft and paid a $100 fine; the controversy erupted too late to influence the election, which Bates won. Ironically, the incident occurred on Sproul Plaza, the birthplace of the Berkeley campus' 1964 Free Speech Movement.

Occasionally, those seeking to stifle free speech in this manner come from the ranks of those usually associated with the expansion of civil liberties. In 2004, for example, an administrator at the University of North Carolina was implicated in the theft of 1,500 copies of the Carolina Review, the only conservative newspaper on campus.

After being called on the carpet that year for de-recognizing a Christian student group, Curtis was outed for his participation in the 1996 theft of the newspapers in an effort to alter the outcome of a student election. The issue that was stolen featured a scathing profile of Aaron Nelson, a liberal student who was running for UNC's student body president.

In 2001, a coalition of ethnic and political student groups at Brown University stole 4,000 copies of the Brown Daily Herald. The reason? The newspaper had run a paid advertisement by a conservative author opposing the idea of paying reparations to African-Americans for slavery.

Rather than respond to ideas they found offensive with effective arguments, these student groups chose to abandon civil discourse in favor of suppressing free speech. Many liberal professors at Brown even defended the thieves.

Lewis Gordon, director of Brown's Afro-American Studies program, stated "If something is free, you can take as many copies as you like. This is not a free speech issued."

I hate to break it to you, Prof. Gordon, but legally you're wrong. Perhaps the next time you compile an assigned reading list, you could assign yourself a little document with which you've evidently unfamiliar – the U.S. Constitution.

Sometimes newspapers are stolen for baser reasons than political skullduggery or intellectual disagreement. In 2007, several students at Nicholls State University in Louisiana were charged with stealing large quantities of The Nicholls Worth, the campus newspaper. Most of those involved were Theta X fraternity members, and the issue in question featured a front page story on a fellow fraternity member who had been charged with the alleged rape of another student on campus.

And in Framingham, Mass., two female college students got in trouble for stealing large quantities of the Framingham State College newspaper. It seems the coeds had been part of a line of students attending a lacrosse game, each of whom had a letter painted on her bare midriff spelling out a player's name. When a photo of the stunt ran in the paper, the two girls thought they looked "fat," and decided to steal as many papers as possible to keep the unflattering photo from public viewing.

But what about stealing newspapers in an attempt to influence a jury's verdict? That, too, has happened, and a recent incident struck a personal chord with me.

During a six week trial that began in February and ended March 25, 2008, prominent Beaumont plaintiffs' attorney Glen Morgan sought to persuade jurors that DuPont was negligent in exposing the late Willis Whisnant Jr. to asbestos that allegedly caused mesothelioma. According to the lawsuit Morgan filed, this lung condition claimed Whisnant's life in 1999.

Over the course of the trial, eyewitnesses observed a man named Jerry Little removing large quantities of the Southeast Texas Record from the news rack in front of the Jefferson County Courthouse. The Southeast Texas Record, which is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce, and published in Beaumont, features legal news and editorials – including "Legally Speaking." As the trial progressed, the newspaper regularly covered it.

After observing and confronting Mr. Little (who admitted taking the papers), staff members of the Southeast Texas Record reported a startling discovery: Little was an employee of Glen Morgan's law firm, Reaud, Morgan & Quinn. While his employer was trying a lawsuit with millions of dollars potentially at stake, Little was doing his best to ensure a slanted playing field of information by depriving the public of legal news and information.

On May 9, the Record submitted a sworn affidavit to the Jefferson County District Attorney's office and the Jefferson County Sheriff's Department accusing Little of theft. The affidavit pointed out that while the Record is distributed free of charge, the theft deprived the newspaper of income from sales of additional copies (only the first copy is free) and adversely impacted those who had paid for advertisements in the weekly publication.

Despite the thefts, on March 25, 2008, the jury found against Mr. Morgan's client, holding that DuPont was not negligent and awarding the plaintiff nothing. Stunned, Morgan filed a motion for new trial, asking the court to set aside the verdict reached by the jury. Morgan claimed that the jury's failure to find DuPont negligent was "contrary to the overwhelming weight and preponderance of the evidence."

Among other arguments, Morgan also maintained that "outside influence" must have been behind the defense verdict, and that "that outside influence was almost certainly the Southeast Texas Record." Morgan accused the newspaper of "biased reporting" and disseminating "anti-plaintiff propaganda," and even saw a nefarious connection in the fact that the jury foreman Jerry Plaia is married to the executive director of the Port Neches Chamber of Commerce.

While Morgan's accusations stopped short of involving a grassy knoll, the Freemasons, or other conspiracy theorist staples, he did overlook the fact that the Port Neches Chamber of Commerce is not a member of the U.S. Chamber, nor are it or its executive director listed as subscribers to the Southeast Texas Record.

Morgan's request for a new trial didn't cite any case law, or address the court's attention to any procedural flaws that would've justified a new trial (like improperly excluded evidence). It was, in the words of defense counsel M.C. Carrington, the legal equivalent of a playground request for a do-over: "[T]he plaintiff is just arbitrarily asking the court to set aside because it didn't go their way," he said.

But apparently this was good enough for Judge Donald Floyd, who on May 28 granted Morgan's motion for new trial in a terse two paragraph order that gave no reason for the judge's decision. Although motions for new trial are not granted very often, when they are it's not unusual for a judge to have the reasons for his decision remain a mystery.

That way, an appellate court will likely give the trial judge the benefit of the doubt and assume that he had some justifiable basis for such a ruling. Never mind the fact that in doing so, a judge is substituting his wisdom for that of 12 people who heard six weeks' worth of evidence and testimony before arriving at their decision, and never mind the fact that in a new trial the evidence will be exactly the same.

I rejoice in the First Amendment and in the freedom of the press. But while we Americans may not have dictators arresting journalists or shutting down television stations that dare to air an unfavorable or opposing view, we do face threats to our First Amendment freedoms.

As this disgraceful episode in Beaumont demonstrates, those who feel threatened by the free flow of information think they can simply keep such facts away from the public by stealing newspapers in which they appear.

And when that doesn't work, and both the evidence and a trial lawyer's powers of persuasion are found lacking, simply blame the media and hope for a judge with a sympathetic ear.

John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at:

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