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It’s not clear why Eve Burton resigned as vice president and chief legal counsel of CNN News Group, but her situation highlights the potential conflicts faced by in-house counsel to conglomerates. Potential conflicts may be especially acute for First Amendment lawyers in news organizations that are part of conglomerates like AOL Time Warner. Those lawyers are expected to have a particular allegiance to journalistic principles of free speech. On the other hand, a lawyer’s first allegiance is always to her client. “It comes down to whether or not a lawyer has to surrender all of her principles when she works for a certain company,” says L. Ray Patterson, the Pope Rock Professor of Law at the University of Georgia. Neither Burton nor the lawyer to whom she directly reported, Louise S. Sams, senior vice president and general counsel of Turner Broadcasting System Inc., could be reached for comment by press time. According to published reports in The New York Times and elsewhere, Burton’s abrupt departure from CNN was prompted by her signing CNN’s name on an amicus brief filed in a case challenging the publication of “The Wind Done Gone,” a parody of Margaret Mitchell’s “Gone With the Wind.” In subsequent filings, CNN’s name was removed. The Mitchell Estate tried to block publication, claiming copyright infringement. The publisher of “The Wind Done Gone,” Houghton Mifflin, CNN and other amici argued against prior restraint, claiming this was a First Amendment, not copyright, issue. Several prominent news organizations signed onto the amicus brief, but their support didn’t prompt much attention. After all, though the Mitchell heirs were asking for prior restraint, their target was a book publisher, not a news organization. From the standpoint of the media, the principle of prior restraint was at stake, but a ban on publishing the book wouldn’t have prevented the publication of any news stories. But unlike the other news organizations, Burton’s employer has financial interests that could be affected by what some see as the erosion of the “Gone With the Wind” copyright. Warner Books owns the copyright to “Scarlett,” a “Gone With the Wind” sequel authorized by the Mitchell Estate; Turner Entertainment owns the rights to the MGM movie “Gone With the Wind.” UGA law professor Patterson, who teaches ethics, says he sees no ethical problem with Burton’s amicus. But, he adds, “The … client holds the whip hand and as a practical business matter, few lawyers are going to do what this lawyer did because they can be fired.” Litigator L. Lin Wood Jr. says, “It’s indicative of the dilemma that I think is going to become a bigger problem with the passage of time, when you have such large conglomerates … involved in so many different aspects of news and entertainment.” Wood represented Richard Jewell, wrongly accused of being the 1996 Olympic bomber, in libel suits against various media outlets, including CNN. Emory School of Law ethics Professor A. James Elliott, speaking generally and not about the Burton-CNN situation, says, “A lawyer representing a company has the company as [his or her] client. Here, we’re talking about a subsidiary. The ultimate responsibility of the lawyer is to the shareholders, and in this situation, there’s only one shareholder, the parent. That doesn’t mean the lawyer becomes the lawyer for the other subsidiaries.” Under that rationale, he says, an attorney may take action in favor of the client-subsidiary and against the nonclient-subsidiary. Though it doesn’t raise disciplinary problems, it may raise internal business issues for the company and the lawyer, according to Elliott. “You may have brought into question your judgment,” he says of the hypothetical lawyer. “You may have brought into question your employment.” Andrew A. Merdek, vice president of legal affairs at Cox Enterprises Inc., the parent company of the Atlanta Journal-Constitution, says conflicts among subsidiaries of large companies are avoidable. “If you spend a lot of time with your business folk, you pretty much know what rights you have,” he says. “The first thing you do is make sure you spot the issue. You try to be thoughtful; you try to be responsive.” Cox also signed on to the amicus favoring publication of “The Wind Done Gone,” because the company thought the prior restraints were unacceptable, he says. But, he adds, “If you’re going to sign on to an amicus brief, you get it in draft, and you read it and you edit it. … You make clear when you sign on what you’re supporting.” FIRST AMENDMENT HISTORY This isn’t the first strident, pro-First Amendment move Burton has taken via an amicus brief. After CNN entered a confidential settlement with Richard Jewell, he continued to pursue almost identical litigation against the Atlanta Journal-Constitution. Burton, though she wasn’t involved in the CNN-Jewell settlement, filed an amicus brief in the Jewell- Atlanta Journal-Constitution case arguing in favor of protecting the confidentiality of news sources, but also, according to Wood, commenting on the merits of the case. That’s a problem, says Wood, because after signing a confidential settlement based in part on the case’s merits, CNN shouldn’t have been publicly commenting on those merits. “That’s way over the line,” says Wood. “It’s not a situation where CNN can hide behind some grandiose higher calling. … I do think it reflects poorly on CNN.” Though the amicus doesn’t violate the terms of the settlement, it does violate the spirit, according to Wood. As for Burton’s stance in “The Wind Done Gone” amicus, Wood says, “Obviously, her first loyalty as general counsel should be to her client, and her client is AOL-Time Warner — even if CNN’s a branch of that — not the First Amendment.” Burton’s career appears to have been focused on championing First Amendment rights. She’s won First Amendment awards from the Society of Professional Journalists, the National Press Club and the New York Press Club, and has served as an adjunct professor at Columbia University’s Graduate School of Journalism. Before coming to CNN, she served as vice president and deputy general counsel of the New York Daily News in what was a pioneering take on the job. According to an article in the September-October 2000 issue of the Columbia Journalism Review, Burton was the first lawyer for the paper to have a physical presence in the newsroom and to sit in on news meetings. Initially, according to the article, Daily News editors were less than enthusiastic, fearing she’d try to reduce libel risks by keeping stories out of the paper. But in 1995, she argued in favor of publication when an investigative reporter at the Daily News got a purloined transcript of the Jeffrey Wigand interview that “60 Minutes” had chosen not to use in its now-famous Brown & Williamson tobacco piece. Burton’s statement about the situation indicates that by the time she got to CNN, she wasn’t a newcomer to the conflicts between newsroom and fiscal interests. “Neither the news side nor the business side knew how hard I was being squeezed,” she told the Columbia Journalism Review. “An editor’s job is, ‘let’s put it in the paper’; the business perspective is to be more protective.” And a lawyer’s job? “Newsrooms, God bless them, want their lawyers to be champions of First Amendment rights, but they tend, at least the better organizations, to recognize that this is a business,” says Cox’s Merdek, who has worked both sides of the media aisle, serving as a reporter for Gannett Company newspapers and later as vice president and general manager of the Atlanta Journal-Constitution. “They don’t hire you to make a grand gesture,” he says. “They expect you to support the company and that’s why you’re their lawyer.”

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