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Lawyers for The Atlanta Journal-Constitution asked the Georgia Supreme Court Tuesday to reaffirm the fair report privilege that allows newspapers to publish governmental proceedings without fear of liability. Atlanta-based Dow, Lohnes & Albertson partner Peter C. Canfield made his request during arguments on Atlanta lawyer Franklin R. Nix’s libel suit, which claims a 1997 article in the newspaper unfairly tarred him as a “rogue lawyer.” Too often, Canfield told the court, people sue newspapers not because of false reporting, but because of accurate reporting on events the plaintiff “wishes had never happened.” Cox Enterprises v. Nix, No. S01G0743 (Sup. Ct. Ga. arg’d Nov. 20, 2001). “This is a case that should have been summarily dismissed from the outset,” he said. But Nix’s lawyer, Nelson O. Tyrone III of Garland, Samuel & Loeb in Atlanta, told the court that the issue isn’t the newspaper’s privilege to report accurately on governmental proceedings. Rather, the issue is whether a jury should decide if the newspaper damaged his client’s reputation by placing him in the company of murderous, thieving, arrogant, inept lawyers who “need policing,” he said. “You are not virtuous just because you are a newspaper, clothed in the First Amendment,” he said. “You must act virtuously.” At stake in the case is the possible establishment of what the newspaper’s lawyers called “libel by association” in their briefs to the court. Setting up this kind of complaint would damage reporters’ ability to report accurately on proceedings during which some participants might not tell the truth, the newspaper’s lawyers argued. As it stands, this “fair report privilege” allows newspapers to publish accurate reports about official governmental proceedings without fear of liability. ‘ROGUE LAWYERS’ STORY Nix’s complaint was prompted by a story by reporters Charles Walston and Bill Rankin in the March 9, 1997, edition of The Journal-Constitution. The story discussed the State Bar’s initiative to adopt tougher standards for lawyer conduct, and ran under the headline, “Rogue Lawyers: Who Polices Them?” The reporting touched on several examples of lawyer misconduct, including one attorney who bounced a check for $47,799 when trying to buy a motor home and another who forged a $250,000 check. According to the newspaper’s response to Nix’s complaint, then-assistant editor Rochelle Bozman inserted two paragraphs about Nix into the story without telling Rankin or Walston. The two paragraphs recounted a hearing in Fulton County, Ga., Superior Court that took place Dec. 12, 1996. At that hearing, Louis Levenson, of Levenson & Associates, asked Judge Wendy L. Shoob to issue a restraining order barring Nix from contacting his clients. Levenson was trying to assemble a class action suit against the city of Atlanta on behalf of a group of vendors during the Olympic Games. In trying to put together his own suit, Nix sent a letter to one of Levenson’s clients. Levenson then sued Nix, accusing him of defamation and tortious interference with his contracts. Shoob scolded Nix during the hearing, then issued the restraining order, barring Nix from communicating with any of Levenson’s clients in his suit. Levenson’s suit was dismissed without prejudice in 1999. According to the pleadings, Bozman relied on a court transcript for the paragraphs about Nix. But Nix complained that the account didn’t include his explanation to the judge. Nix had maintained that he only sent the letter to Levenson’s client because of a clerical error. LONG JOURNEY IN COURTS Nix sued the newspaper March 9, 1998, but his case has never made it to a courtroom. Fulton State Court Senior Judge Charles L. Carnes granted a motion by Cox Enterprises, the parent company of The Journal-Constitution, to dismiss on the briefs in the summer of 1998. Since then the case has been a frequent visitor to Georgia’s higher courts. The Georgia Supreme Court has seen it once before on a procedural issue in November 2000, when it held that Nix had consented to Carnes’ decision to convert Cox’s motion to dismiss into a motion for summary judgment. The justices sent the case back to the state Court of Appeals for findings on the libel issue. Cox Enterprises v. Nix, No. S00G1083 (Sup. Ct. Ga. Nov. 13, 2000). The appeals court then overturned Carnes’ order granting summary judgment to The Journal-Constitution. In his opinion for a unanimous appeals court panel, Judge Frank M. Eldridge wrote that the paper may have damaged Nix’s reputation by including a reference to his noncriminal behavior in an article that recounted the criminal behavior of several other lawyers. Nix v. Cox Enterprises, No. A00A0070 (Ct. App. Ga. Jan. 25, 2001). Eldridge wrote that The Journal-Constitution‘s reporting was “substantially accurate” in regard to the courtroom proceedings, but added that “the question of whether the article was fair and honest was for the jury to determine in that the additional material did not come out in the reported judicial hearing, and invidiously compared Nix’s conduct to lawyers who had committed criminal conduct against their clients; this leads the reader to reasonably infer that Nix’s conduct had been criminal from the context of the entire article.” Appeals Court Judges Anne E. Barnes and G. Alan Blackburn joined in the opinion overturning Carnes’ order. RULING CHALLENGED But in the newspaper’s petition for certiorari, Canfield and Dow Lohnes’ Thomas M. Clyde challenged the panel’s ruling on three grounds. First, they argued, the account was protected under the fair report privilege. Second, the account was true; and third, they argued, the appeals panel overturned Carnes’ order on issues Nix never raised either on the trial or appeals court level. At arguments Tuesday, Canfield called one aspect of the panel’s decision “especially troubling,” — the implied notion that libel complaints are an opportunity for the courts to determine what constitutes fair and accurate reporting. The best arena to test such standards is in “the rough and tumble of public debate,” not in deliberations among government officials. “The courts and juries in this state should not treat libel cases as some kind of journalism review seminar,” he said. Canfield called publishing the piece in The Journal-Constitution “an admirable thing to do,” a report on a topic the media probably doesn’t cover often enough. In order for Nix’s complaint to stand, he said, the court would have to accept that the average reader would have to believe that every lawyer the article names is guilty of the worst offense that the article recounts. “Whether or not it was fair or appropriate or in good taste to include the plaintiff’s conduct in the article is a matter we can all debate,” Canfield said. But it is not a valid claim for libel. The justices fired questions at both lawyers, returning often to the proper standard the court should adopt at the trial and appeals levels, and to the specific protections for reporters under the fair report privilege. “If the publication is a publication of what was said, and what was said was false, then the privilege applies?” asked Justice P. Harris Hines. Yes, said Canfield, and in this case the account was true. But the court doesn’t even need to reach that issue, he said, because the privilege would protect the reporters even if the information they gleaned from the transcript were false. During his time, Tyrone said the courts should determine libel by looking at “things that impact what the average ordinary reader would take from reading the article.” Genuine issues of material fact remain, Tyrone said. If there is any question that the piece, taken in its entirety, defamed Nix, then a jury is the best agent to decide the issue. “The article itself had to do with crooked, inept, criminal lawyers, and it named Mr. Nix specifically,” he said. The reporters certainly enjoyed a privilege in its reporting on the courtroom arguments, Tyrone said, but that privilege “does not bathe them in Communion water.”

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