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After 6 1/2 years and detours to three appellate courts, including the U.S. Supreme Court, former Olympics security guard Richard Jewell’s libel suit against The Atlanta Journal-Constitution was back where it began: in the courtroom of Fulton State Court Judge John R. Mather. On Thursday, opposing counsel Peter C. Canfield and L. Lin Wood also were back in Mather’s courtroom, as was Jewell. The attorneys argued an issue quite familiar to Mather: whether The Journal-Constitution must reveal confidential sources used when its reporters wrote about the FBI’s investigation of Jewell in connection with the 1996 Centennial Olympic Park bombing. The Journal-Constitution sources are at issue because Jewell has alleged that he needs them to pursue his libel claims against the newspaper. Mather, several years ago, ordered the paper to name its sources, but was reversed on appeal. He is now taking a second look at the source question under a different analysis, laid out by the Georgia Court of Appeals in a 2001 opinion. Jewell’s attorney, Wood, told Mather that he could prove The Journal-Constitution‘s statements false, but needed every piece of evidence to build his case. SECOND ‘BURDEN’ CLAIMED “You can’t handicap this man in his efforts to address the attacks on his reputation,” Wood argued, adding that Jewell had been hampered already by a ruling that he was a public figure and must prove actual malice to recover against the paper. “You can’t give him that burden, then take away discovery,” Wood said. But Canfield, the newspaper’s lawyer and a partner at Dow, Lohnes & Albertson, countered that each and every statement printed in The Journal-Constitution for which Wood sought confidential source information was true and could not support a viable libel claim. “The plaintiff cannot prove the falsity of any statements for which he seeks confidential sources,” Canfield said, adding that under the appellate analysis, that should end the matter. Jewell, the guard who moved spectators away from the bomb before the explosion and saved the lives of many, was eventually cleared by the FBI of any involvement in the bombing. Eric Robert Rudolph, captured earlier this year and awaiting trial, is charged with setting the bomb. Mather, in 1998 and 1999, ordered Journal-Constitution reporters Kathy Scruggs, who is now deceased, and Ron Martz to reveal their confidential sources. When they refused, he found them in contempt and ordered them to jail. But his ruling went up on appeal before the reporters were jailed. A Georgia Court of Appeals panel reversed Mather’s ruling, shortly after Scruggs died. The panel said Mather should balance Jewell’s need for the information with the public policy that favors protecting journalists’ confidential sources by scrutinizing each specific allegation of libel. If the alleged libelous statement cannot succeed as a matter of law or if Jewell could prove it using alternate means, then the court should rule against disclosure of confidential sources. But if a particular libel allegation was legally viable, and the identity of the sources was relevant, material and the only means to obtain other admissible evidence, Mather should order disclosure. Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808 (2001). Jewell, who also is represented by Wayne Grant and G. Watson Bryant, attended the hearing, as did Journal-Constitution Publisher Roger S. Kintzel. The Journal-Constitution also was represented by Thomas M. Clyde and Christopher Reilly, both of Dow Lohnes. CANFIELD, WOOD SPAR EARLY Canfield and Wood, who have exchanged their share of sharp words over the course of the litigation, spent the first 25 minutes of the hearing arguing about who had the burden of proof and should go first in the arguments. Two minutes into the hearing, both were standing at the same time, on occasion breaking into each other’s arguments. Canfield cited a comment Wood had made to the Fulton County Daily Report almost two years ago that the appellate ruling made it “almost impossible” to get confidential source information. Wood countered that he wouldn’t respond to “this silliness about what I said to the Daily Report.” Mather shook his head with a smile. “Nothing about this case is ever easy,” he said, directing Wood to go first because he had the burden of proof on his motion to compel sources. “When Mr. Canfield cries out freedom of the press,” Wood argued, “what your honor also has to consider is a right entitled to no less consideration.” That right, he added, “is for Richard Jewell to be able to address attacks on his reputation.” Wood said there was a “mountain of evidence” supporting what he called false statements published in The Journal-Constitution that Jewell fit an FBI profile of a lone bomber, that authorities believed he planted the bomb, and police believed he placed the 911 call that warned authorities the bomb would explode in 30 minutes. ‘TALE BEARERS’ CRITICIZED Wood said there was no such profile at the time, and that using the words “authorities believe” or “police believe” did not change what he alleges is the libelous nature of the paper’s statements about Jewell. “Tale bearers are as bad as tale makers,” he said. “You can take judicial notice that Richard Jewell did not plant the bomb,” he told Mather. “If Mr. Canfield can give evidence that he did … Mr. Rudolph’s lawyer’s going to be mighty happy.” Canfield, using computer and projection equipment, took Mather through a series of newspaper articles and official statements about the investigation of Jewell. He showed clips from several other papers that reported that the FBI was working on a profile of the bomber during the time at issue. He also displayed a Justice Department report to Congress that said federal authorities, after watching Jewell give a television interview, thought Jewell fit the profile of someone who might create an incident in order to be hailed as a hero. All the statements for which Jewell sought reporters’ sources were true, Canfield said, adding that the inquiry should end there. Mather said he would take the matter under advisement. He added he suspected that, no matter how he ruled, there would be another round or rounds of appeals. But he urged both sides to consider resolving the case to prevent another four or five years of litigation.

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