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Atlanta lawyer Franklin R. Nix says that an article in The Atlanta Journal-Constitution unfairly placed him in the unsavory company of “rogue lawyers,” and that’s libelous. Now a Georgia state appeals court agrees that the context of the article is potentially libelous and that a jury should hear the case. If the ruling stands, it would create what the newspaper’s lawyers call “libel by association” and could hinder reporters’ ability to report on courtroom proceedings. Dow, Lohnes & Albertson lawyers Peter C. Canfield and Thomas M. Clyde, who represent the newspaper, have asked the high court to review a Jan. 25 decision from the Georgia Court of Appeals. Nix v. Cox Enterprises, No. A00A0070 (Ct. App. Ga. Jan. 25, 2001). In November, the state supreme court took up the case on a procedural issue, holding that Nix had consented to then-Chief State Court Judge Charles L. Carnes’ 1998 decision to convert Cox’s motion to dismiss into a motion for summary judgment. Cox Enterprises v. Nix, No. S00G1083 (Fult. St. Nov. 13, 2000). In granting Cox’s motion to dismiss, Carnes had considered documents outside the pleadings, converting the motion to a summary judgment action. The high court remanded the case to the appeals court to consider the libel issue. In his opinion, Judge Frank M. Eldridge noted that an article that focused on other lawyers’ criminal behavior included a reference to Nix’s non-criminal behavior. That “guilt by association,” said Eldridge, might seem libelous to a jury. The ruling by the panel, including Elizabeth E. Barnes and Alan G. Blackburn, was unanimous. In their petition, Canfield and Clyde ask for certiorari on three grounds. First, they argue that the appeals court has essentially recognized a new tort of libel by association, which would “make accurate reports about a plaintiff actionable based on what the reports said about others.” Second, they claim the appeals court overturned dismissal of Nix’s libel suit on the basis of claims Nix never raised in the lower court or on appeal. “[R]espondent had neither alleged in his complaint nor argued that the articles conveyed the innuendo found by the Court of Appeals — namely that respondent was a criminal. Rather, respondent had claimed that The Journal-Constitution‘s reporting suggested he had behaved ‘dishonestly’ and had acted like a ‘rogue.’ “ Last, they maintain the appeals court decision trashes the “Fair Report Privilege.” The privilege allows reporters to publish information gleaned from governmental proceedings without independently verifying that information, as long as the account is substantially accurate. “These holdings (of the appeals court) conflict with existing Georgia precedent and undermine the strict limitations that Georgia courts have imposed on the dangerously malleable doctrine of libel by innuendo,” wrote the newspaper’s lawyers. In his opinion, Eldridge noted that the newspaper’s account was accurate, but the thrust of the article still may have defamed Nix. UP TO JURY TO DECIDE “Although the report of the judicial proceeding was substantially accurate as to Levenson v. Nix, 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,” Eldridge wrote. Nix’s lawyer, Nelson O. Tyrone, of Garland, Samuel & Loeb, says he considers the ruling favorable, but expects this step to be just one of many future visits to the state’s higher courts. Nix says he agrees with his lawyer’s assessment. “Given what lies ahead, you can’t take much comfort from winning one appeal,” he says. The libel litigation stems from a March 9, 1997, Journal-Constitution story written by Charles Walston and Bill Rankin with the headline, “Rogue Lawyers: Who Polices Them?” The story outlines the state’s effort to impose tougher discipline procedures on lawyers and offers several examples of misconduct, including an attorney who forged a $250,000 check and another who bounced a check for $47,799 for the purchase of a motor home. TWO PARAGRAPHS ON NIX Assistant Editor Rochelle Bozman inserted two paragraphs about Nix into the story without the knowledge of the reporters, according to the newspaper’s response to the suit. The inserted paragraphs refer to a Dec. 12, 1996, hearing, in which Louis Levenson of Levenson & Associates accused Nix of soliciting his clients. Levenson was bringing a consolidated suit against the City of Atlanta on the behalf of disgruntled Olympic vendors. In his effort to assemble his own class action suit against the city, Nix sent a letter to one of Levenson’s clients. Levenson sued Nix, accusing him of tortious interference with his contracts and defamation. Nix said the letter was sent to Levenson’s client because of a clerical mistake and was not an effort to steal business. Nonetheless, Superior Court Judge Wendy L. Shoob issued a restraining order, barring Nix from soliciting Levenson’s clients. The newspaper story noted that Nix was “scolded publicly” by Shoob but didn’t mention that the judge also granted Levenson’s request for an injunction barring Nix from soliciting his client. That suit was dismissed without prejudice on June 10, 1999. Bozman had relied on a hearing transcript for the information inserted into the article, but Nix complained that the account didn’t include his explanation to the judge. He filed suit March 9, 1998, and Carnes granted Cox’s motion to dismiss that summer. The case has never reached a courtroom. Judge Carnes decided the motion to dismiss on briefs. Nix says he suspects it will be several more years before a jury ever hears the merits of his case. “The truth of the matter is that every libel case against Cox Enterprises is epic,” he says. “They’re just getting started in my case — it’s only a couple of years old.”

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