Starr Struck  | American Journalism Review
From AJR,   April 1998

Starr Struck   

Continued. Once hailed as a savior of investigative reporting, Kenneth Starr is now seen by some as a threat to the First Amendment

By Florence George Graves
Florence George Graves, a resident scholar at Brandeis University, is the founding editor of Common Cause Magazine and one of the reporters who broke the Packwood story for the Washington Post. Her research for this story was supported in part by the Fund for Investigative Journalism. Amanda Elk, Bridget Gutierrez and Kathy Killeen provided research assistance.      

Related reading:
   » Protecting the Privilege
   » The Sound of Silence
   » Screening Packwood's Diaries
   » Enshrining Investigative Reporting

While the tradition of resisting subpoenas was already established in print journalism, it didn't start to develop in the budding broadcast news business until the turbulent late 1960s and early '70s.

When social unrest created by the civil rights movement and the Vietnam War began to boil over, the power of TV news came into sharp focus. The three networks joined the print media to protest the rash of subpoenas from President Nixon's Justice Department demanding journalists' records, pictures and TV outtakes.

In April of 1971, CBS received a congressional subpoena demanding that the network produce outtakes from ``The Selling of the Pentagon," a controversial documentary criticizing the Defense Department.

In his book ``Fighting for the First Amendment," Dunham, the former NBC general counsel, recounts CBS President Frank Stanton's refusal to comply at the risk of being held in contempt of Congress and going to jail. His stand was ``a defining moment for broadcast journalism," Dunham writes. Although a congressional subpoena and a grand jury subpoena are different, the principles are similar as far as journalists are concerned, he says.

Members of Congress had assumed that because TV stations were licensed by the government, it could probe TV news in a way it wouldn't dare with a newspaper, he says. Stanton was determined to establish that the same principle that applied to print journalists' notes should apply to TV reporters' outtakes. Congress eventually backed off. Had Stanton lost, says Dunham, ``television news would not have developed as it did." He adds, ``Sources would have been reluctant to talk to TV because they would have been afraid they would wind up before a congressional committee."

CBS pressed the principle again in 1978 when the House Select Assassinations Committee was investigating the death of President Kennedy. CBS officials said Congress formally requested--but did not subpoena--the network's outtakes from its extensive coverage. CBS had hundreds of hours of film that may have shed light on who killed Kennedy. Witnesses had been interviewed when their memories were fresh. In addition, some of those interviewed by CBS had died, making the outtakes especially crucial.

The head of the committee flatly denied to me that he had requested outtakes and other materials because he was sensitive to the First Amendment principle involved (see ``The Mysterious Kennedy Outtakes," WJR, September/ October 1978). But the late CBS News President Richard Salant acknowledged at the time that the committee had made both oral and written requests for everything CBS had on the assassinations of both Kennedy and Martin Luther King Jr. A congressional source told me because the committee was afraid of getting into a legal battle with the network, it decided to request rather than subpoena the materials.

Salant said he refused to supply the outtakes because he could not sacrifice the notion that outtakes were like reporters' notes and must be protected from government intrusion, no matter how noble the cause.

Given this storied tradition, it must have been very painful two decades later when two of the giants of CBS, Mike Wallace and Don Hewitt, along with producer Bob Anderson, testified before a grand jury. The panel was investigating former Agriculture Secretary Mike Espy for accepting gifts from agriculture firms he was supposed to be regulating, including from Arkansas tycoon Don Tyson of Tyson Foods, Inc.

In February 1997, the three men testified about a piece Wallace had done on Tyson in September 1994. There was little publicity about the ``60 Minutes" subpoena. A brief item in the Washington Post TV column noted that Wallace was ``uncustomarily speechless when he emerged" from court, saying, ``I am smart enough to follow the advice of counsel." His attorney, Kevin Baine, says Wallace could have talked about the episode if he wanted to, but he just wanted to go home.

Baine says independent counsel Smaltz subpoenaed notes, records and outtakes related to the broadcast. Their motion to quash was denied. Wallace says confidential sources were not at issue, and ``they got nothing of any consequence out of me." Baine says the journalists would either have had to comply or go to jail and they decided this was ``not worth going to jail" for. ``I don't think anyone has ever gone to jail except to protect confidential sources," he adds.

But CBS did not make a big issue about the subpoenas either. Baine acknowledges that there was no reason why Wallace and his colleagues could not have publicly expressed their outrage over the subpoenas.

As the '70s tuners into the '80s, an assault on press freedom intensified. But two Court of Appeals decisions written by Ken Starr helped reverse the trend. Many media lawyers agree that Starr's opinions supporting the press in the Tavoulareas vs. Washington Post and Ollman vs. Evans (and Novak) libel suits were important not just because of the substantive issues that were decided but also because of the climate in which they were considered.

It's tempting, after reading Starr's decision in the Tavoulareas case, to wonder whether his statements about the importance of hard-hitting reporting in uncovering wrongdoing foreshadow his own adversarial stance in the Whitewater probe and his aggressive use of every tool he has at his disposal to try to get to the truth.

To understand the significance of Starr's decisions it's important to look at them in the larger cultural and political context in which they were handed down.

During the '70s, tensions arose over investigative pieces on corporate misconduct. Business executives began trying to counter what they saw as liberal and anti-business bias. They created organizations to hold journalists accountable, conducted seminars to educate the press about the virtues of capitalism and established fellowships for journalists to study business. Much of the press felt under siege.

There was also concern that the Supreme Court was hostile to the press. It was in this climate, Baron recalls, that the Libel Defense Resource Center was created in 1980 to help protect press freedoms. There was fear, she says, that the famed New York Times vs. Sullivan case--which expanded press freedom by making it more difficult for public officials to win libel cases--was being targeted.

The next year ``Absence of Malice," a movie in which Sally Field played a reporter who irresponsibly discredited a character played by Paul Newman, captured the public's imagination. Then life seemed to imitate art. In 1982 Gen. William Westmoreland sued CBS for libel. The following year former Israeli Defense Minister Ariel Sharon sued Time magazine for libel. Journalists worried the libel suit was becoming a powerful weapon in a campaign to curtail the press.

It was against this backdrop that the legal battle over the Post's controversial Tavoulareas story was waged. In 1979 the paper reported that Mobil President William Tavoulareas had ``set up" his son Peter in a company that did millions of dollars of business with Mobil. Tavoulareas demanded a retraction. When he didn't get one he sued the Post for libel.

Tavoulareas argued that he was not a public figure and therefore did not have to prove actual malice--that the reporter knew the story was false or showed a reckless disregard for the truth--to win his case. But the judge ruled that he was a public figure. To establish actual malice on the part of the Post, his attorneys tried to show in part that the story grew out of a culture that placed a premium on what one of the story's editors, Bob Woodward, called ``holy shit" stories as opposed to careful, measured reporting.

A jury shocked the journalism world when it ruled against the Post and awarded Tavoulareas more than $2 million. A three-judge appeals court panel upheld the verdict. But by a 7-1 vote, the full Court of Appeals reversed the decision.

In that epic legal battle two men who are adversaries today ended up on the same side. David Kendall--Clinton's attorney who has lashed out at Starr for allegedly leaking grand jury testimony to the media--was one of the lawyers representing the Post. Starr, who was appointed to the bench by President Reagan, cowrote the majority opinion overturning the guilty verdict and is widely regarded as its primary author.

Post pressure for ``holy shit" stories didn't mean the paper wanted false stories or would knowingly publish them, the decision said. ``We agree with the Post that the First Amendment forbids penalizing the press for encouraging its reporters to expose wrongdoing by public corporations and public figures. Rather, such managerial pressure is designed to produce stories that serve, as the panel majority rightly stated, `one of the highest functions of the press in our society.' "

Post reporter Patrick Tyler, who wrote the story, had remarked to a colleague that ``it is not every day you knock off one of the seven sisters [oil companies]." But even if Tyler had wanted to ``get" Tavoulareas, Starr and Judge Skelly Wright wrote, ``an adversarial stance is fully consistent with professional investigative reporting," especially when the reporter ``conducted a detailed investigation" and the story is ``substantially true."

``It is settled," they wrote, ``that ill will toward the plaintiff or bad motives are not elements of actual malice and that such evidence is insufficient by itself to support a finding of actual malice."

The case dragged on for seven years, demoralizing journalists and, some argue, curtailing investigative reporting on corporations. Starr's articulation (and embrace) of the role of the investigative reporter, his concurrence that as the head of a global oil company Tavoulareas was a public figure (although a limited one), his conclusion that you can't equate a reporter's ``adversarial" mindset with the legal definition of malice--all of these made an enormous contribution to a free press from journalists' point of view (see "Enshrining Investigative Reporting").

Former Washington Post Executive Editor Ben Bradlee says despite the happy ending, the case created a little ``chill." He says he can't remember a time when he said about a hot story, ``If I run that, it will cost me a million and a half" in legal fees alone. But, he says, the financial consequences of a story can become part of the calculation, even if it is on an unconscious level.

As for the outcome, Bradlee says he felt ``tremendous relief that finally we'd been exonerated." He adds, ``In a primitive way, I felt my own integrity was at stake." (For the record, says Walsh, William Tavoulareas ``went to his grave believing that a jury of 12 ordinary people vindicated him.")

Three years earlier, in another libel case that unsettled the press, Starr also came down on the side of the media, articulating a four-factor test for determining whether a statement is fact or opinion, which is protected speech under the First Amendment.

Bertell Ollman, a Marxist professor of political science, sued columnists Rowland Evans and Robert Novak for $6 million. At issue was a column that quoted an unnamed ``liberal" professor stating that Ollman ``has no status within the profession, but is a pure and simple activist."

Was this a statement of fact or opinion? When the U.S. Court of Appeals decision written by Starr was announced, Floyd Abrams described it as ``a very major opinion" that provides ``one of the most sophisticated analyses on all parts of what is opinion, fact, hyperbole."

The Tavoulareas and Ollman decisions created a huge reservoir of goodwill toward Starr. Although he has never met Starr, Bradlee says with a laugh, ``until recently, he's been on an enormous pedestal in my house."

This high regard in media circles undoubtedly helped Starr as he tried to position himself as a strong candidate for the Supreme Court, a job his friends say he coveted. Starr's decisions also may have played a role in the great press he later received when he became President Bush's solicitor general, as the arbiter who reviewed Sen. Bob Packwood's diaries (see "Screening Packwood's Diaries") and when he was named independent counsel (``safe and nonpartisan," the New York Times opined).

But now, more than a decade after those decisions upholding the First Amendment, Starr is seriously undermining the rights of the news media, several media attorneys believe. As for the press? ``The fight has gone out of the tiger," Goodale says.

And when the media do not adequately defend their First Amendment rights, Dunham says, the biggest loser is not the press but the American people, ``because the First Amendment belongs to the public."

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