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A libel battle that revolves around unnamed sources has drawn Atlanta attorneys Peter C. Canfield and L. Lin Wood Jr. into another courtroom battle. The two lawyers, who have become rancorous foes in a libel suit brought by Richard Jewell against the Atlanta Journal-Constitution in connection with the 1996 Olympic Park bombing, are facing off in U.S. District Court in Atlanta in another libel action. This one is brought against The Cleveland Plain Dealer by AirTran Airlines. The case is Airtran Airlines v. Plain Dealer Publishing Co., No. 1:98-cv-1750 (N.D. Ga. June 22, 1998). Canfield and partner Sean R. Smith are defending The Plain Dealer. Wood represents AirTran. The suit was filed in Atlanta because, Wood says, the Cleveland newspaper sells copies here and also reaches readers in the city via the Internet. Like the Jewell case, the suit raises questions about the use of confidential, unnamed sources. The practice of stating information from anonymous sources as an unattributed fact was described in court records associated with the Jewell case as using “the voice of God.” It also renews the debate on whether confidentiality granted to sources by reporters can be breached when someone sues for libel. But the AirTran libel suit goes beyond the Jewell case by also raising questions about how the media should report on nonpublic government documents that are incomplete, preliminary and obtained through anonymous sources. AirTran alleges in its suit that The Cleveland Plain Dealer mischaracterized the FAA’s preliminary findings of a 1997 inspection of the airline. That inspection was made more than a year after a ValuJet airliner caught fire in flight and plunged into the Florida Everglades, killing everyone on board. Four months after the crash, ValuJet merged with a Florida airline and changed its name. FRONT-PAGE STORY On Jan. 11, 1998, the Plain Dealer published a Sunday front-page story by Elizabeth A. Marchak headlined “New name, old problems for ValuJet. FAA finds faults at AirTran. Safety violations continue to plague airline, documents show.” The story was based on a preliminary draft report by the FAA that was not intended to be made public and was delivered to Marchak by an unknown source. The article embodied “the worst possible thing you can publish about an airline — that it’s not safe,” Wood says. The article said a preliminary draft of the FAA’s 1997 AirTran inspection uncovered “serious safety violations.” However, the federal agency’s final report, released more than two months after Marchak’s article was published, said nothing about violations serious enough to affect safety, U.S. Senior District Judge Charles A. Moye Jr. noted in a court order last year. Actually, the preliminary report didn’t use the term “serious safety violations,” according to AirTran pleadings. That interpretation of the information in the report has been attacked by Wood. Plain Dealer attorneys argued in their pleadings that the newspaper’s reporting is protected by a qualified fair reporting privilege that allows the media to report the details of proceedings by governments or the courts and affords them protection if information obtained from those reports or proceedings later proves inaccurate. The Plain Dealer defends Marchak’s article as a fair and accurate report of an official, although preliminary, government document. But Moye seems to doubt the veracity of the report. In a Sept. 14, 1999 court order denying summary judgment, Moye disagreed that the article was either a fair or honest summation of the FAA’s draft report. According to Moye, “To be protected by the privilege, the facts must not be misstated, distorted or arranged so as to convey a false or defamatory meaning.” A reporter, Moye noted, has no privilege in a newspaper article to publish his or her own conclusions in the context of reporting on the contents of a government document. But Canfield notes that Moye’s order was entered prior to any discovery and was based solely on a copy of the draft report. He has since submitted affidavits from two FAA inspectors that bolster the conclusions reached in Marchak’s article. One of them was Kenneth Johnson, team leader of the National Aviation Safety Inspection Program who led the AirTran inspection that was the focus of Marchak’s article. He wrote that “the majority” of 106 findings of violations outlined in the draft report “involved safety issues and several reflected serious safety problems that existed at ValuJet.” “I know nothing in the article that is not an accurate reflection of the facts known to me,” Johnson stated. ARE WITNESSES THE SOURCES? Wood would like to know whether any defense witnesses were the anonymous sources the newspaper relied on for understanding the report. Wood wants to ask witnesses under oath during discovery or the trial if they are those sources. Since then, a special master appointed to mediate pre-trial discovery issues has barred AirTran from obtaining the identities of the five sources who The Plain Dealer claims confirms Marchak’s interpretation of the draft report. But Special Master C.B. Rogers has also barred The Plain Dealer from relying on confidential sources to defend the contested article’s credibility. The question of who anonymously discussed the draft report with Marchak has not been permanently foreclosed, however. Rogers has left it to Moye to decide whether AirTran lawyers may question each defense witness outside the presence of the jury as to whether he or she was a confidential source. Wood says there are valid reasons for learning who a reporter’s sources are in a critical article. Marchak’s critical characterizations of the FAA draft report were presented as statements of fact, he says. Wood says that if he were able to learn who the sources were that allegedly confirmed Marchak’s interpretation, he also could learn whether they had any bias that might have influenced her article. “I want to find these people with hidden agendas either against the FAA or ValuJet/AirTran,” he says. “I wanted to challenge them on their objectivity, their lack of bias, what information was provided to them, what they really said and whether it was accurately reported.” Nor is Wood convinced that Marchak even had confidential sources. “There is no attribution to confidential sources,” he says. “It becomes like in Jewell — the voice of God. It is published without attribution, even though — after the lawsuit is filed — attribution is claimed by the reporter.” Wood also questioned whether the qualified fair report privilege applies to a leaked draft of a preliminary report. “I’m not sure the fair report privilege was designed to protect journalists in that situation,” he says. “We’re talking about a preliminary report still in draft form that somehow finds its way onto her doorstep. You’d better carefully check that out. You don’t overstate, or misstate what’s in the document.” In relying on a draft document that changed considerably before it was finally released, Marchak “wrote about the prosecution’s side of the case as if it was the verdict, even though she was aware the verdict was not in and knew there was a tremendous amount of evidence on the defense side,” Wood says. Wood insists he is not suggesting reporters refrain from writing about issues examined by government authorities until the final report is released. “I’m going to let you all solve Watergate,” he says. “I don’t have any problems with you making a decision that information is not only newsworthy but solid in terms of accuracy, based on everything you know about it at the time.” ‘STICK TO THE PRECISE LANGUAGE’ But, he says, “You better stick to the precise language in that document. … If you have got any information that contradicts what’s in that report, you better make sure all of that is accurately stated in that article.” In the AirTran suit, Wood also raises questions about a reporter’s qualifications when interpreting government reports for the public and Marchak’s use of the term “serious safety violations.” “I have a lot of problems with the idea that a reporter who writes about aviation issues is, by virtue of that experience, qualified to make determinations on what constitutes serious safety issues or serious safety findings in an FAA inspection,” he says. “Aviation issues only constituted one part of her multi-faceted career at the Plain Dealer. � I don’t think she is allowed to draw that conclusion.” CANFIELD DEFENDS REPORTING Canfield defends Marchak’s reporting as a fair and accurate representation of the FAA’s draft report. “In its continuing effort to undermine the nature of newsgathering and reporting,” he said, AirTran ‘seeks to eviscerate the fair report privilege so that only the publication of a verbatim transcript of a government report will qualify.” Canfield says, “The fact of the matter is the press regularly reports on preliminary findings with respect to aviation safety issues and aviation crashes. And the reason is there is obviously intense public interest in those issues, and there should be. � The remedy for the airline is to deal with the problem, not attempt to censor the media for reporting on it.” Canfield says that Wood is setting the bar for publication “at an unprecedented height.” “AirTran’s position is that you can’t report those findings until they have bubbled up all the way through the bureaucracy. That position, as the courts have recognized, would shortchange the public. The public deserves to know if there is a safety problem the government is investigating,” he says. “If AirTran’s position were the law, we might not know there were suspected problems with Firestone tires until Congress or some other federal agency had concluded an investigation.” Marchak, Canfield says, is “an experienced reporter on aviation issues and FAA safety issues.” A reporter for nearly 25 years, Marchak has worked for the Cleveland Plain Dealer Washington bureau since 1993. She has won numerous awards — among them a George Polk Award for national reporting, and garnered national recognition for her reporting on the FAA and on ValuJet. Canfield acknowledges “You may need the expertise to do the investigation.” But, he insists, “You don’t need expertise to understand the investigation results are significant.” “What journalists do is expose concerns and look at whether government is taking those concerns seriously, whether regulators or airlines are taking those concerns seriously. It’s asking questions, and that’s a healthy process. It’s one that provides the public with information that is useful. AirTran’s position appears to be that the process should not take place; that, instead, we should wait until the conclusion of any government process before we report on the issues being considered. “That ignores the fact that government sometimes makes mistakes. It ignores the fact that public scrutiny or the knowledge of government that it is being scrutinized as it goes through the process helps produce a better result. It’s why we have open courtrooms, why we have a public records law. It’s why, in this country, we have a tradition that we operate in the open.” Wood acknowledges that a common theme runs through his ongoing libel suits — including the Plain Dealer suit, the suit against The Atlanta Journal-Constitution on behalf of Jewell, whom the FBI erroneously targeted as a suspect in the 1996 Olympic Park bombing, and suits against several media outlets on behalf of Jon-Benet Ramsey’s older brother, Burke. The stories that are the target of the suits, he says, “are judgmental. � That common thread runs through these cases. It’s a judgment by a journalist that works its way into being the gist of the story.”

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