Libel City   

When Philadelphia judges and public officials are unhappy with the media, they're uick to take it to court. Why is the City of Brotherly Love so litigious? Is it something in the air?

Jim Beasley is irritated by the question: Are Philadelphia judges particularly thin-skinned, quick to haul reporters, editors and their employers into court by filing libel lawsuits? "I think it's very simple, but people don't want to accept it," retorts Beasley, one of the city's premier trial lawyers, the attorney responsible for a monumental libel award against the Philadelphia Inquirer and the go-to guy for Pennsylvania judges looking to file libel lawsuits. "They always talk about the public figures in Philadelphia being more litigious than any place else in the world. How about somebody saying, well, maybe the goddamn news reporting in Philadelphia is worse than any place in the world?"

For many journalists, Beasley's question has already been asked and answered. The city's dominant paper, the Inquirer, won 17 Pulitzers in 18 years under the leadership of Gene Roberts. And Philadelphia magazine has been a model for muckraking city magazines since the '60s. But what plays to the Pulitzer committee and what plays to a Philadelphia jury are two different things.

ýn 1990, former Philadelphia prosecutor Richard A. Sprague, represented by Beasley, won a $34 million award against the Inquirer, a stunning libel verdict that included $31.5 million in punitive damages. Even after one court reduced the verdict by $10 million in 1994, it remains the largest punitive libel award affirmed on appeal anywhere in the country. The 23-year-old Sprague case, which was finally settled out of court in April, was not just the longest, costliest libel suit in Philadelphia. It ushered in an era in which public officials – from police officers to Supreme Court justices – have filed at least 60 libel cases against the Philly media.

While it may be a stretch to call the city "the most dangerous place in America in which to practice journalism," as Philadelphia magazine did recently, it isn't far off. "We do see it as probably the highest exposure area in the country," says James T. Borelli, senior claims counsel for the Kansas City-based Media/Professional Insurance, the largest provider of media liability insurance in the country. "There's nothing that comes to mind that is as high risk as Philadelphia."

Over the past 25-odd years, libel plaintiffs have included three state Supreme Court justices, a Superior Court judge, nine Court of Common Pleas (trial) judges, a Municipal Court judge, a U.S. attorney, Philadelphia's district attorney, a first assistant district attorney, a chief of homicide, two other assistant district attorneys, two City Council members and three mayors (two from Philadelphia, including the late Frank Rizzo, who sued four times, and one from Atlantic City). Not to mention state legislators, a state lottery official, the dean of a law school, a ranking state police official, a sheriff and a local union leader. Most troubling to First Amendment experts is the number of libel suits filed by judges.

They cite the case of Judge Robert N.C. Nix Jr., the chief justice of the Pennsylvania Supreme Court and the nation's first African American to head a Supreme Court. In 1994, Nix sued the Philadelphia Daily News over an editorial that skewered the public for its apathy about the impeachment trial of Supreme Court Justice Rolf Larsen, Nix's arch-rival on the court. Larsen had earlier been convicted of conspiring to obtain prescription antidepressants through his court employees.

According to court documents, the editorial concluded: "An electorate that could watch the spectacle of impeachment proceedings against the Pennsylvania Supreme Court's pathetic pill-popping chief justice and remain unmoved deserves the sort of judicial reform it will inevitably get: None."

Neither Larsen's nor Nix's name was mentioned in the editorial, but the Daily News insists in court documents that the editorial clearly meant Larsen, who had been an associate justice on the court. The problem was that the editorial said "chief justice," Nix's title. To journalists, the mistake might sound like a slip of the pen. Not to Nix. And not to his lawyer, Beasley, whose voice gains an edge when he hears the editorial passed off as a simple glitch. The newspaper had extensively covered the troubles of Larsen, Beasley points out. The paper also was well aware that Nix was African American, a role model for blacks, and certainly was cognizant of the stereotype of blacks as drug users, Beasley says. The Daily News ran a correction, but it wasn't enough. "That's reckless disregard for the truth. And they don't want to admit it..," Beasley says. "Guy picks up a gun, doesn't know it's loaded, pulls the trigger, that's an innocent mistake too, isn't it?"

To Daily News lawyers, the lawsuit is a dangerous curiosity. Not only was the mistake inadvertent, they argue, but no reasonable reader would interpret the editorial as referring to anyone other than Larsen. Last October the case was settled out of court, and neither side will discuss the terms.

But Nix was not the first Supreme Court justice to sue the Philly media. Larsen – also convicted by the Pennsylvania Senate after an impeachment trial of having an improper private discussion with a lawyer who had business before the court – has a lawsuit pending against the Inquirer and the Pittsburgh Post-Gazette, which has languished for years. And just a few months after Sprague's $34 million hit in 1990, Justice James T. McDermott rang up the Inquirer for a $6 million jury award, which was overturned on appeal. (In April, the family of McDermott, who died in 1992, convinced the state Supreme Court to reinstate the verdict.)

And local judges also haven't been too shy to sue. Common Pleas Judge Lisa A. Richette sued Philadelphia magazine over a piece titled "Five Angry Men," which featured a group of retirees who shuttle between courtrooms to watch trials. According to court documents, two of them were quoted saying unflattering things about Richette ("She's an emotional wreck... She's always in a world of confusion"), remarks the judge's attorney says they denied making. Earlier this year, a judge dismissed all but one claim that Richette's privacy had been violated.

According to court documents, Traffic Court Judge Thomasine Tynes sued the Daily News after it quoted Tynes admonishing a man who wanted to plead guilty to reckless driving: "Never plead guilty to anything. Tell your story to a judge and see what happens." In her lawsuit, Tynes denied scolding anyone for pleading guilty and requested compensatory and punitive damages.

So what gives in the City of Brotherly Love, which appears to be anything but, when you consider the recent history of relations between press and public officials?

"I think it's gotten in the air," suggests Roberts, former executive editor of the Inquirer and a key figure in the Sprague case. He's only half kidding. To begin with, Philly holds a tight grip on its reputation as America's most litigious city. It has a skilled, aggressive plaintiff's bar. The city's culture seems to encourage an attitude that suing is the first option when something goes wrong. Add to that the admiration some Philadelphians harbor for a well-conceived scam – the city perennially ranks at or near the top in insurance fraud – including that age-old sport, "stick it to SEPTA," the transit agency that runs the buses, subways and commuter trains. Consider this often-repeated story. In 1984, a trolley car derailed, struck a car and killed a motorist. Federal prosecutors say there were two people in the trolley at the time of the crash; six others claimed, in lawsuits seeking more than $360,000 in damages, that they were also hurt onboard.

It may also be that Philadelphia is a town where holding a grudge approaches an art form. Eliot Kaplan, editor of Philadelphia magazine, recalls one reader telling him, " 'I've hated your magazine. You once said such-and-such about my brother-in-law's plumber.' So I look it up," Kaplan says, his face showing shock. "It was in 1978."

Factor in a judiciary that, to many in the state, is often an embarrassment. Former Supreme Court Justice Larsen's 1994 impeachment trial, the first such proceeding in 180 years, was the most dramatic indignity. Last May, a federal judge, ruling that Chief Justice Nix had improperly inserted himself in the middle of a 1985 murder trial by reversing a trial judge's decision, said he "cannot turn a blind eye to the fact that too often members of the Pennsylvania state appellate judiciary have shaken the confidence of the people in the fair and impartial administration of justice in this Commonwealth."

Several reporters and editors peg a big part of the libel problem to Pennsylvania's elected judiciary, a highly political system that requires judicial candidates to court political ward leaders and solicit campaign contributions. Since they ultimately answer to voters, they may feel more compelled to repair their reputations via lawsuits.

And the problem isn't just in Philadelphia. Reporters who incur the wrath of judges often are doing little more than reporting what they say unfolds before them. Paul Maryniak, the Daily News' city editor in charge of enterprise, once worked a court beat in Pittsburgh and immediately introduced himself to all the Common Pleas judges in the city. Within two years, he says, all but three refused to acknowledge him in the hallways and elevators. Why? As Maryniak tells it, he covered a murder trial to a bizarre crescendo: The judge, friendly with the defense attorney, climbed down from the bench after an acquittal and shook hands with the attorney and his jubilant client – in front of the jury, according to Maryniak's reports. After his account ran in the paper, Maryniak says, he got a tongue-lashing from the judge in his chambers. "It was like being summoned to the principal's office," he says.

"I think you have to pay special attention to the creature that is a Pennsylvania judge," says Maryniak. "At its worst, that creature is most political and sensitive and bristles at the most innocuous criticism." Some judges reserve a dark corner in their hearts for the Inquirer. "There's been an intense hatred that goes beyond normal bounds by lawyers and judges for the Philadelphia Inquirer," says H.G. Bissinger, a former Inquirer reporter who helped the paper win a Pulitzer for a series on the Court of Common Pleas called "Disorder in the Court."

It wasn't always that way. Thirty years ýgo, Philadelphia wasn't known for aggressive newspapers. In 1967, Philadelphia magazine accused the Inquirer's star investigative reporter, Harry J. Karafin, of running his own public relations firm on the side. What's worse, the magazine said, Karafin approached businesses and executives and suggested they pay his firm hefty fees or risk unfavorable coverage in the Inquirer. The next year, Karafin was sent to jail after he was convicted of blackmail and corrupt solicitation. His prosecutor? Richard Sprague.

In 1969, owner Walter Annenberg sold the Inquirer and the Daily News to the Knight Newspaper Co. After the first Knight editor, John McMullan, weeded out much of the paper's deadwood, Roberts, then a national editor for the New York Times, was brought in to finish the turnaround and push aside the Evening Bulletin, then the city's dominant paper. Roberts hired talent from around the country and established a tradition of investigative journalism that allowed reporters to take months and, in some cases, years on projects. It got results.

Consider the meticulously reported projects of Don Barlett and James Steele, who have won two Pulitzers for the paper. After chasing police scandals in the early '70s, which indirectly led to the Sprague lawsuit, the paper turned to the judiciary, starting with a series by Barlett and Steele on the disparity in criminal sentencing.

Over a period of years, the paper launched three major series on the courts, two of them on the Supreme Court, entitled "The Supreme Disgrace" and "Above the Law" (which prompted McDermott's libel suit). "The courts and judges had been sacred cows, and the judges are shocked when Roberts comes in," says Bissinger, who is currently writing a book. "And the paper was right. Look at the roofers scandal."

In one of the biggest scandals in the city's history, the FBI bugged the local roofers' union headquarters. It discovered the union's business agent was arranging to deliver envelopes, each containing a few hundred dollars in cash for a select group of judges, according to reports. When the dust cleared, two judges went to federal prison and another 13 judges implicated in the investigation resigned or were removed from the bench.

Some journalists say the judges were unprepared for public scrutiny. "What they see as arrogance," says Maxwell E.P. King, editor of the Inquirer, "we see as appropriate and aggressive coverage of public officials on public matters." But privately some jýdges fume that ever since the roofers scandal they have been unfairly stained with the same printer's ink. Judges also complain they are demeaned as they parade through editorial board meetings convened to consider candidate endorsements at the two daily newspapers.

"It's as though the king is summoning [them] to his doorstep and saying, 'Come in and tell me who you are and what you stand for and then I'm going to give my opinion to the rest of the world as to who they should vote for," says Beasley. "I don't know where they get the balls to do that. What makes their perception any greater than yours or mine?"

There have been just enough cases ýor judges and other public officials to point to as examples of the media's irresponsibility. In 1982, former Philadelphia Mayor William Green won a settlement, reportedly for $250,000, from local station WCAU-TV that erroneously reported he was under investigation for allegedly taking a bribe in exchange for a city contract. In 1987 two Common Pleas judges won hefty settlements for Daily News stories erroneously suggesting they were targeted in an investigation for allegedly taking bribes.

Cases the media have taken to trial have met with mixed results. On the positive side of its ledger, the Inquirer was cleared in 1993 of a libel claim brought by John Street, now president of the Philadelphia City Council. According to court documents, Street claimed he was libeled when columnist W. Russell G. Byers compared him to a judge convicted of accepting bribes, because Street owed $5,623 to the Philadelphia Gas Works while sitting as a member of a panel that sets policy for the gas company.

In 1988 the newspapers won a pair of decisions. One jury found that the Daily News had not libeled City Council President Joseph Coleman for a 1983 editorial and column that said he had "hired" his entire family for city jobs. Coleman wrote to the paper saying he had nothing to do with the hiring of his wife for a teaching job and his daughter for a job in the courts. In the other case, a jury rejected former District Attorney F. Emmett Fitzpatrick's claim he had been defamed by an Inquirer article headlined "D.A. Gets Ex-Client Off Light."

If 1988 was a good year for the newspapers, 1990 was a boffo year for libel plaintiffs whose cases came to trial – specifically for James T. McDermott and Richard Sprague.

McDermott, an associate Supreme Court Justice, sued the Inquirer over its 1983 series by Daniel Biddle called "Above the Law: The Questionable Conduct of the Supreme Court." Biddle's 18-month investigation concluded that the court "engaged in politicking, influence-peddling and favoritism and exhibits a head-in-the-sand attitude toward policing themselves and the rest of the state court system."

McDermott's lawsuit focused on portions that examined his voting on two cases in which his good friend's law firm, a major contributor to McDermott's election campaign, was involved. It also looked at judges using their influence to get jobs for relatives, saying McDermott asked Philadelphia's D.A., whose office had cases before the judge, to hire his son if there was an opening.

McDermott said he felt the series made him look like a "crook," although he could not point to specific language that said as much. The jury found that McDermott had not established that the series was false. But it then found that a tabloid reprint of týe series (with an editorial and a couple of Tony Auth cartoons added, which Beasley claims put a sharper edge to the series' defamation) was false. The jurors awarded McDermott $6 million – half of it in compensatory damages, half punitive. McDermott died 18 months later, but the case continued on.

A year after McDermott's death, a trial judge ruled that the verdicts offended "law, logic and plain common sense" and ordered a new trial. Then, in April, the state's highest court reinstated the verdict in a 3-1 decision. Even the dissenting justice, who said the Inquirer deserved a new trial, fired a shot across the paper's bow. Justice Ralph Cappy wrote that, while he disagreed with the majority's decision, "I carry in my heart a deep felt realization that what was once an unblemished reputation forÊcompetence and integrity was unfairly and unnecessarily sullied by careless, unprofessional and vicious reporting." The Inquirer says it will appeal the case to the U.S. Supreme Court, if necessary.

And then there is the Sprague case, which finally ground to an abrupt – and secretive – end this April, just days before the McDermott decision. Faced with little hope that the U.S. Supreme Court would review the case, the Inquirer decided to settle out of court for an undisclosed amount. Most observers believe the final payment was at least several million dollars. For reporters and editors, the sheer size of the jury's earlier verdict is testament to the horrifying possibilities of a libel suit.

In 1973, Greg Walter was considered one of Philadelphia's most respected and relentless investigative journalists. He had set his sights on police corruption in Philadelphia as a Bulletin reporter when he was arrested for illegally recording his own telephone calls without the consent of the other party. It was a misdemeanor, never before brought against a reporter, but Walter was investigating police in the administration of Mayor Rizzo, and there was some suspicion among reporters and editors that Walter's arrest was intended to send a message. District Attorney Arlen Specter assigned the case to Sprague, who got a conviction. The Bulletin then let Walter go, and the Inquirer, sympathetic to his plight, hired him.

The Inquirer saw Walter as a tenacious investigative reporter, but he arrived there with overstuffed personal baggage, including emotional problems, a history of alcoholism and an apparent desire for revenge against Sprague.

In 1973, Walter set about reporting stories that tried to link Sprague to the state police's bugging of other police assigned to investigate the Philadelphia police. Those stories became part of Sprague's lawsuit. But the centerpiece of the suit was a story suggesting Sprague quashed a criminal case 10 years earlier as a favor to Rocco Urella Sr., who later became state police commissioner and was also enmeshed in the bugging controversy. In 1963, Urella's son and a friend, both students at La Salle College, were questioned in connection with the death of a man they had met in a bar. They had gone with him to his apartment and Urella's buddy struck the man, John Applegate, after he made a homosexual advance, they told police. The two students fled the apartment, but read in the newspaper that the man had died.

After talking to Urella's father, Sprague, then chief of homicide for the D.A.'s office, met the two students at the police station. At a hearing, Sprague told the magistrate that charges should be dismissed against Urella's friend for reasons of self-defense. (The younger Urella was never charged.) The magistrate agreed.

Walter went to great extremes to report the Urella story, and his methods were often unethical. According to one ruling in the case, Walter changed his notes from an interview with a key witness to say that it was young Urella, not his buddy, who had struck Applegate. There was evidence that Walter had told several people he was out to "get" Sprague. And while secretly taping an interview, Walter assured a key witness that the conversation was "all off the record." When the story ran, the source was quoted by name.

The Sprague case came to trial 10 years later, in 1983, and Sprague, an accomplished trial lawyer who himself has represented several libel plaintiffs, won a $4.5 million jury award. (It was reversed on appeal because reporters had been prohibited from testifying about information from their confidential sources.) In 1990, the case came to trial again. By then, Walter had died. Roberts spent 17 days on the witness stand defending the paper. Jurors were not convinced – they later criticized the editor's testimony as evasive and not credible – and, after just two hours of deliberation, awarded Sprague $34 million, including $31.5 million in punitive damages.

Roberts says now he was new to the paper and had not yet installed his own people in key positions, which may have helped head off problems earlier in the reporting process. And although court records indicate the Inquirer was aware of some of Walter's personal problems, Roberts suggests he would not have left him on the story had he known more. (Roberts, now managing editor of the New York Times, was a senior editor of AJR and is on leave from the faculty of the University of Maryland College of Journalism, which publishes AJR.)

In 1994, the punitive damages were reduced to $21.5 million by an appeals court. Inquirer lawyers say that amount is unequaled in any other case. No appellate court has affirmed a punitive award in a libel case that even approached the size of the Sprague award. In fact, it was a state record for any kind of tort award.

"Yet, this was not a death action, nor a case concerning a horrible disfiguring injury," the Inquirer said in court documents. "To the contrary, the plaintiff was unable to prove a single dollar of economic harm and remains one of the most respected and prosperous attorneys in the state." (Sprague did not respond to several requests for an interview.)

The case is one that many in Philly felt the Inquirer would have had a tough time winning in front of a jury. According to one veteran newspaper reporter: "There's a cultural element in this. We are viewed as elitist, having different values from jurors. So when we get caught, or perceived as caught, they [jurors] are willing to beat the shit out of us. That cultural gap inclines them to believe the worst in us."

Several Philadelphia journalists call the Sprague case a throwback to another time, one that is unlikely to occur today given the conflict-of-interest standards now in place and the extensive prepublication lawyering performed on sensitive stories.

"It's possible that it has had a positive impact because it has forced us to look at innuendo, examine things we didn't know, small leaps when we don't have things nailed down," says
L. Stuart Ditzen, a veteran Inquirer reporter. "I think we have been disciplined for a long time. I think the flaws that you see in the Greg Walter story is an aberration."

Journalists and media lawyers warn that huge punitive damages can send a chilling message. "The dismaying thing about the conclusion of this case," says Bruce W. Sanford, a Washington lawyer who represents a number of media organizations, "...is it says to public officials: [if] you're tenacious and determined, at the end of 20 years you can collect big money."

Adds Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press: "I feel as though, once again, the case has gotten away from what is the fundamental purpose of libel law, which is to give recompense for damage of reputation. I find it very difficult to accept that [Sprague] has been damaged, even if assuming for purposes of argument that the story was inaccurate."

In his Philadelphia office surrounded by stained glass windows, Beasley has a small metal sculpture on his desk of a Sisyphean figure pushing a large rock. After 23 years, the rock reached the top of the slope for his client, Dick Sprague. Just a few days before the settlement was announced, Beasley laid out what he felt are the lessons of Sprague.

"You don't use your job as a reporter as a weapon to get back at people who have treated you unfairly," he says. "The press, as I have said before and has been repeatedly said, is the Fourth Estate. It is the only commercial enterprise in this country that has constitutional protection, and they repeatedly abuse it."

But it may also be that in Philadelphia, reputation assumes greater importance – some would say disproportionate importance – than in any other place. l