LOS ANGELES – When I was in law school, I thought the press could do no wrong. I was a strong supporter of New York Times v. Sullivan, the Supreme Court decision granting the press extra protection from state libel and slander laws and providing that only where there was actual malice could the press be sued for destroying a person’s reputation.
Then I entered the public world, where I — or the candidates for whom I worked — were frequently the subjects of newspaper stories, and I discovered something very upsetting. In almost every case, in almost every story, there was always something, usually more than one thing, that was just plain factually wrong.
I’ve been asking the questions I’m about to ask you for years now, and the answers are always the same, only in recent years, more so:
Have you, or anyone you know, ever been the subject of a newspaper story? How often were there mistakes in the story? How often were they serious mistakes: mistakes that went to the heart of the story? Mistakes that could have been avoided had somebody — the author or the editor — just taken the time to check?
In every audience, when I ask these questions, hands go up. Lately, it’s at least half the room. What about you?
Rarely have I seen an instance that troubles me so much as what the Los Angeles Times did to one of my closest friends last Sunday. “The Rise and Fall of Bert Fields,” read the commentary piece by Garry Abrams, a columnist and reporter for the Daily Journal, given prominent placement in the Opinion section. Opinion pieces are supposed to reflect someone’s opinion, but they are, presumably, supposed to be based on fact.
As the piece pointed out, Fields is the most famous lawyer in Hollywood. He has occasionally employed the infamous Anthony Pellicano, the private investigator whose rogue wiretapping of celebrities has landed him in prison and triggered a much publicized investigation of everyone even remotely associated with him.
So far, one high-profile attorney and one-high profile director, as well as some other less well-known figures, have been indicted; this has not stopped the Los Angeles Times and other media outlets from seeming to devote more attention to the Pellicano wiretapping than the wiretapping by the National Security Agency under the direction of the newly nominated CIA director, a slightly more important story to most people, but put that aside for now.
There has emerged not one shred of evidence that Fields, widely considered the most ethical lawyer in this not always ethical town, knew or had anything to do with any aspect of the wiretapping.
Since the very beginning, Fields has maintained that he knew nothing of Pellicano’s illegal tactics; that he neither authorized nor knew of any wiretapping and never used any evidence that even remotely appeared to come from wiretapping; that there was no evidence that would support a charge against him and that no conscientious U.S. attorney would bring a charge against him.
The article in the Los Angeles Times, however, says just the opposite. The entire piece is based on a supposed statement to the contrary that is just flatly wrong. According to the author, Fields told him in November 2003 “that he could be charged in Pellicano’s alleged illicit wiretapping and spying.”
Fields' telling a reporter that he “could be charged” in the Pellicano matter? According to the piece, “the admission had a corrosive effect on Fields’ firm” leading to the departure of several partners and the hiring of a full-time lawyer to handle matters stemming from the wiretap
His statements “sparked a new wave of publicity about the Pellicano probe” ... and Fields was “stung by the backlash against him. Perhaps he failed to see how his statements might reverse perceptions of him.”
But wait. When did he make this critical statement that sparked the publicity, caused the backlash and reversed perceptions? I asked Fields, who I know talks to me more than he does to Garry Abrams and had always said exactly the opposite to me. Had he ever said any such thing to Garry Abrams? Never.
I called the Los Angeles Times. Where was the proof that Fields made such a statement? I spoke with the Op Ed page editor. Where was the tape recording? The published quote? We’ll have to get back to the writer, he said. Now? "Isn’t it a little late?" I asked.
It gets worse. How can you say that a statement that was never made has a corrosive effect on a law firm, without also mentioning that the law firm has already been cleared of all charges? More silence.
Abrams’ article never considers that Fields may be innocent. Instead, he argues that because of stories such as his, his reputation will be permanently tarnished. This is the true ugliness of the process.
Consider Abrams’ conclusion: “Whether or not Fields is named in another round of indictments, his once sterling image has been tarnished. If he is indicted, the charges against him also [also??] would highlight an ugly underbelly of L.A. law in which winning is everything.
"Some attorneys have told me that the scandal has the potential to taint every Hollywood lawyer as a suspected cheater. And then Tinseltown would be what everybody else already thinks it is — a place where nobody can be trusted.”
Taking this paragraph apart tells you everything that’s wrong not just with this story, but with the way journalism is done today. Abrams suggests there are some lawyers (and he presumably includes Mr. Fields) who would do anything to win. But so far only one lawyer has
Other than blind quotes from “some attorneys,” Abrams gives no reason for indicting either Fields or my profession as a whole.
Everyone who knows Fields, as I do, is standing by him and believes he is innocent. He is the brightest and most ethical lawyer I know. I believe that when all is said and done, Fields will not be charged, and he will remain what he has always been — as good a lawyer and a person as there is anywhere.
The same cannot be said of the Los Angeles Times and the journalism it practices. This is not the first time I have taken the paper to task, and I’m certain it will not be the last.
While I have written for my hometown paper, I have also been critical of its failure to adequately reflect the community and cover local issues. My colleague Bill O’Reilly is fighting his own war against the paper even as I write over its mean-spirited coverage of his ratings.
I waged a campaign last year to encourage the paper to include more women on its opinion pages, and Fields represented me when the paper responded by attacking me. The Times, I have discovered, is far better at dishing out criticism than it is at taking it. But I had hoped that new editors and new management would bring higher standards to bear. Perhaps they will.
The Los Angeles Times is not unique. I just happened to know the facts in this article, as you may in a particular case. That’s the scary part. We tend to believe the articles where we know no one, and find mistakes whenever we know the cast of characters. And yet, could it really be that mistakes occur only in articles involving us and our friends? I don’t think so.
How hard would it have been for Abrams to go back and check with Fields and ask him whether he had said that he “could be charged?”
How hard would it have been for an editor to demand some proof of the key statement before and not after running the piece? How difficult would it have been to insist that if you’re going to mention lawyers leaving the firm, you must also mention that the firm has been cleared?
The latest circulation numbers for America’s largest newspapers came out this week. Of the top 10 papers, the Los Angeles Times took a bigger hit than any of the others — a drop of 5.4 percent.
Maybe it’s just a coincidence, just a bookkeeping change, a drop in hotel distribution, as the publisher explains. Or maybe the market really works. In either case, to borrow from Abrams, some law professors I know have told me that the way the media has been hyping scandals lately has the potential to turn every newspaper into a suspected liar.
And then it would be the media that would be what everybody else already thinks it is — a place where nobody can be trusted. If that is so, then New York Times v. Sullivan will be a decision whose days are numbered.
Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission.
A woman of firsts, she was the first woman president of the Harvard Law Review and the first woman to head a national presidential campaign (Dukakis). Estrich is committed to paving the way for women to assume positions of leadership.
Books by Estrich include "Real Rape," "Getting Away with Murder: How Politics is Destroying the Criminal Justice System" and "Dealing with Dangerous Offenders." Her book "Making the Case for Yourself: A Diet Book for Smart Women," is a departure from her other works, encouraging women to take care of themselves by engaging the mind to fight for a healthy body. Her latest book, The Los Angeles Times bestseller, "Sex & Power," takes an impassioned look at the division of power between men and women in the American workforce, proving that the idea of gender equality is still just an idea.