A KING COUNTY Superior Court ruling last week could spell trouble for one respected local journalist and press critic. Doug Underwood, a University of Washington>"/>
A KING COUNTY Superior Court ruling last week could spell trouble for one respected local journalist and press critic. Doug Underwood, a University of Washington communications professor and frequent writer on media ethics, is now seeing his own journalism placed under a microscope. King County Judge Sharon Armstrong ordered Underwood to turn over some of his unpublished files in order to help determine whether a quote included in one of his stories was accurately rendered.
Journalists' notes are typically shielded from disclosure by the First Amendment. But more and more exceptions have been made recently, as attorneys seek to use unpublished material to their advantage in court cases. The issue "is being debated in courtrooms around the country right now," says William Holt, a Tacoma attorney who represents The News Tribune newspaper.
The irony here is that the people seeking to invade Underwood's First Amendment protections are journalists themselves.
The case arose from an article that Underwood penned for the Columbia Journalism Review back in January 1998. The piece described the increasing influence of business interests on news coverage, a favorite Underwood topic. One former reporter at The Arizona Republic was quoted as saying 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 included a response from the Republic's then-managing editor Steve Knickmeyer, who maintained that the layoffs 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 Republic's owner, for libel. Underwood was not named in the suit, nor was the Columbia Journalism Review.
Last August, attorneys for the Phoenix reporters issued a subpoena to Underwood, demanding that he turn over every piece of written material he had gathered in connection with the story. Underwood refused, though he did agree to give a deposition.
But last week Judge Armstrong ordered Underwood to turn over his Knickmeyer notes to the plaintiffs. "The need for [the] notes outweighs the interests to be protected under the First Amendment," Armstrong said from the bench. Underwood must also turn over the rest of his files to the judge, who will review them to see if there are other relevant documents that should be shared.
"IT'S VERY RARE to have a reporter's unpublished notes ordered to be disclosed," says Stephen A. Smith of the law firm Preston Gates & Ellis, whose clients include the Seattle Post-Intelligencer and KIRO-TV. But, he says, "it most often happens in this type of case, where the notes are relevant to a substantive issue."
While Knickmeyer (the Arizona editor) has not denied that he made the quoted statement, he has suggested that it was taken out of context. He 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.
In a legal brief, Underwood's attorney, Bruce Johnson (whose clients also include Seattle Weekly), argues that "Mr. Underwood's notes cannot shed light on what Mr. Knickmeyer was thinking privately" during the interview.
The plaintiffs are no doubt hoping that Underwood's notes will strengthen their case by confirming Knickmeyer made slanderous statements about identifiable individuals. But if the notes, or other material, suggest that Knickmeyer was misquoted, that could help exonerate him and his employer. The Phoenix reporters might then direct their defamation claim toward Underwood and the Columbia Journalism Review.
Attorneys for the Phoenix plaintiffs refused to comment. Johnson says that the two-year statute of limitations has run out for any claim against his client.
Whether last week's ruling will have any long-term impact on First Amendment protections in Washington state remains unclear. At the moment, case law in Washington has only established a shield for journalists against having to reveal their confidential sources. Johnson, in his legal brief, predicts that, "if presented with the opportunity to extend the journalist's privilege to nonconfidential information, Washington appellate courts would likely do so."
However, as of last week, Johnson said he was unsure whether his client would appeal the decision. Underwood was in Norway and unavailable for comment.