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From that winter day in 1997 when L. Lin Wood Jr. first sued the Atlanta Journal-Constitution for libel on behalf of Richard Jewell, the attorney signaled that he intended to unveil the newspaper’s anonymous sources. Those sources — some implied without attribution, others identified as “investigators” — provided the basis for the newspaper’s 1996 stories naming Jewell, a security guard at Centennial Olympic Park during the 1996 Olympic Games, as an FBI suspect in the park bombing. Jewell was later cleared, and those newspaper stories became the basis of his libel allegations. The veracity, and, indeed, the very existence, of those anonymous sources quickly became a pivotal issue in Jewell’s suit. Earlier this month, as the Jewell litigation moved into its eighth year, Wood finally lost the battle to obtain them. Jewell v. Cox Enterprises (Fult. Super. June 1, 2004). Newspaper attorney Peter C. Canfield, managing partner of the Atlanta office of Dow, Lohnes & Albertson, suggested that the ruling by Fulton County State Court Judge John R. Mather sets the stage for consideration of the newspaper’s 5 1/2-year-old motion for summary judgment and dismissal. Wood said he has filed a motion asking Mather to reconsider the ruling, which he claimed gave “the newspaper the benefit of the doubt in every instance.” Wood said Mather “took clear conflicts in evidence and resolved them in favor of the newspaper.” A huge victory for the Journal-Constitution, the ruling had other implications. The judge may have undermined Georgia’s “fair report privilege,” the principle that newspapers are protected from libel when they faithfully report information that comes from government sources, even if it’s false. Wood also suggested that the ruling was a “gift” to defense lawyers for Eric Robert Rudolph, the man who authorities now believe planted the Olympic Park bomb and three others in Atlanta and Birmingham. That’s because the judge’s ruling supported the existence of an FBI profile of a “hero” bomber who planted the bomb so that he could rescue people. That profile clearly doesn’t fit Rudolph, who never tried to rescue anyone and spent years hiding from authorities. But it was Mather’s ruling on sources that provided the first part of a double-barreled victory for the Journal-Constitution, which, like most news media, guards the identities of confidential sources who give information that might not otherwise see the light of day. As a result of Mather’s ruling, not only are the newspaper’s sources safe from discovery, but the Journal-Constitution also has sidestepped the difficult decision it would face if Jewell were to prevail — reveal the names of sources whose identities its reporters had promised to shield, or face contempt of court. A contempt finding, which normally would remain in effect until the Journal-Constitution capitulated, could have resulted in hefty fines or the jailing of newspaper staff. Jewell’s attorney also would have been able to argue to a jury that the Journal-Constitution had refused to produce reporters’ sources because they either didn’t exist or wouldn’t verify the allegedly defamatory statements. TOUGH ROAD TO PROVING MALICE Without the newspaper’s sources, it will be difficult for Jewell to prove malice, which, as a public figure, he must do to prevail, according to former Georgia Attorney General Michael J. Bowers. Two years ago, Bowers, representing a Lowndes County deputy sheriff, won a rare victory against a South Georgia newspaper in a public figure libel suit. The Georgia Supreme Court upheld that verdict last November. “As a practical matter, it reflects the extreme difficulty of a public figure, or anyone, trying to sue the media where they must get to the sources of the media,” Bowers said. “If your defamation case depends on securing information from the media, you are in for a tough fight as a matter of law.” Mather dealt a second blow to the case when he essentially said the newspaper’s statements that Jewell fit the FBI’s then-profile of a bomber were true and therefore not libelous. Only two of the six allegedly libelous statements for which Jewell sought newspaper sources in the suit remain legally actionable, following Mather’s ruling. Mather has made no ruling on an additional 16 statements by the Journal-Constitution that Jewell has claimed also defamed him. The judge said that two statements claiming investigators believed Jewell placed the 911 call warning of the bomb are “potentially viable.” The call was traced to a pay phone about a five-to-eight-minute walk from the park. Because the Journal-Constitution initially reported that the call was made about the same time the security guard discovered the knapsack containing the bomb, Mather said it would be up to a jury to decide if it was “reckless to repeat an allegation that was physically impossible.” If Mather allows Jewell to go forward with allegations related to the phone call, his ruling could have troubling implications for Georgia media confronted with future defamation suits. Mather suggested that the newspaper may have had a duty to authenticate information that came from law enforcement authorities. “To allow secondary truth as a defense,” Mather wrote, “would permit a republisher of unsubstantiated rumor to insulate himself from liability so long as the gossip is faithfully repeated.” The judge’s order, according to Atlanta defamation attorney Randolph A. Mayer, “seems to accept that it’s actionable to report that law enforcement officials have certain beliefs” even if those beliefs are found to be false. If so, Mather’s order could undercut Georgia’s “fair report privilege,” Mayer said. That privilege shields Georgia media from liability for publishing information, even if false, that came directly from identified law enforcement or other government sources. Mayer won a libel case against the Journal-Constitution in 1996, but the jury didn’t award any damages because it found no negligence or malice. JUDGE RELIED ON BALANCING TEST Mather acknowledged at the outset of his latest order that he intended to apply the Georgia Court of Appeals 2001 balancing test to weigh the “strong public policy in favor of allowing journalists to shield the identity of their sources” against an opposing party’s need for the information to make his case. On an appeal from the Journal-Constitution, the state appellate court had reversed Mather’s earlier decisions compelling the newspaper to surrender its sources, holding two reporters in contempt and ordering them jailed after they refused. In remanding the case to Mather, the appellate panel established a highly specific test for the trial judge to apply: “To properly balance the requesting party’s specific need for material against the harm that would result by its disclosure in a libel case, the trial court must require the plaintiff to specifically identify each and every purported statement he asserts was libelous, determine whether the plaintiff can prove the statements were untrue, taking into account all the other available evidentiary sources, including the plaintiff’s own admissions, and determine whether the statements can be proven false through the use of other evidence, thus eliminating the plaintiff’s necessity for the requested discovery.” Confidential sources could be compelled only if “a specific allegation of libel is determined to be legally viable, or if it cannot be determined whether the allegation is legally viable given the current state of the record, and if the identity of the sources is either relevant and material … or is the only available avenue to other admissible evidence.” Presiding Judge Edward H. Johnson authored the opinion, which the Supreme Court of Georgia subsequently declined to consider on appeal. Atlanta Journal-Constitution v. Jewell (Ct. App. Ga. Oct. 10, 2001). Citing Johnson’s 2001 opinion, Mather determined, “The burden is on Jewell, not the Journal-Constitution, to “demonstrate, by clear and convincing evidence, that the matters alleged to be defamatory were both false and published with actual malice.” Mather determined that Journal-Constitution reports stating that Jewell fit “the profile of a lone bomber” and that unidentified investigators believed he “planted the bomb so he could then be a hero” were “not substantially false.” The existence of a profile, he wrote, was “a fact produced by the investigation.” And Jewell had admitted in a 1996 CNN interview, according to the judge, that there were “people in the FBI that still think I did it.” That’s been the basis of the newspaper’s defense from the beginning — that investigators believed Jewell fit the profile of the park bomber. According to Canfield, “[T]he Journal-Constitution contends that the record establishes — by official government records and often by Jewell’s own admissions — that the statements were entirely accurate.” In pleadings, Canfield has repeatedly cited a summary of a report by the U.S. Justice Department’s Office of Professional Responsibility that was released on July 29, 1997, a year after the bombing. The report references a discussion by two agents in the FBI’s profiling and behavior assessment unit who had watched televised interviews of Jewell. According to the report, the agents “concurred with [the Atlanta FBI office's] assessment that Jewell fit the profile of a person who might create an incident so he could emerge as a hero” and proposed that he be interviewed as a witness. The report also described Jewell as “the principal (though not the only) suspect” in the bombing. That report was the result of a federal internal affairs investigation into the circumstances surrounding the Atlanta FBI’s initial interview with Jewell on July 30, 1996. As a result of that investigation, two FBI supervisors received letters of censure. FBI agent Don Johnson — a member of the agency’s Atlanta bank robbery squad who interviewed Jewell the day the Journal-Constitution named him as a suspect — was suspended for five days without pay, the Journal-Constitution reported. Canfield also has repeatedly cited a sealed federal memorandum objecting to Jewell’s efforts to review search warrant affidavits the FBI used to search his apartment, pickup truck and storage unit after the bombing. Mather referenced the memorandum and the internal affairs report in his order. DEFENSE HOLDS FIRM ON PROFILE Despite the documents cited by Mather, Wood said he was baffled by the judge’s finding that there was an FBI profile. He has maintained there was no profile and he wanted a jury to decide the issue. “The truth is that there was no FBI profile of the lone bomber of Centennial Olympic Park, and it is incredible that this court has allowed a profile of Richard Jewell to be elevated inaccurately to that status,” he said. The judge relied “on a hearsay statement of unknown FBI agents who watched a CNN interview of Richard Jewell and basically did a psychological profile of Richard Jewell from that interview. Judge Mather, just like the AJC, took that psychological profile of Richard Jewell and converted it into the FBI profile of the bomber of Centennial Olympic Park,” Wood said. And if some investigators believed Jewell fit the bomber’s profile, the newspaper didn’t have the right to publish that information without disclosing who said it and why, Wood said. “That does not give you the right in public to express that opinion unless you are prepared to fully disclose the facts on which that opinion is based,” he insisted. “That’s Libel 101. If the newspaper republishes those opinions of guilt, it is libel for republication.” But Augusta attorney David E. Hudson, who represents the Georgia Press Association, said a reporter’s failure to investigate does not amount to actual malice. “To get the case to trial, a plaintiff has got to come up with some evidence that the reporter who wrote the story and the editor who edited it knew at the time they did so or suspected at the time they did so that there was something false in the article,” Hudson said. “You cannot get there by arguing that a reporter or an editor should have investigated further. … That’s a firmly established First Amendment principle.” For that reason, Hudson said he thinks the Jewell litigation eventually will be dismissed in favor of the Journal-Constitution. “A plaintiff cannot win by simply showing that the statement was false,” Hudson explained. “Plaintiff has to show not only was it false, but that the newspaper reporter knew it was false. Negligence, sloppiness, carelessness does not get you to actual malice. … The test was what was in the mind of the reporter, not what a reasonable or good reporter would have done.” The next step, according to the media attorney, is to determine whether “there is some reason the plaintiff can show that the reporter should not have accepted what the source gave them. Unless the plaintiff can do that, the plaintiff loses.”

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