Are media lawyers enforcing or chilling free speech?

• Author: Goodman, Wes

Over the past 10 years, nearly 63% of newspapers have been forced to defend themselves against charges of libel.

A NEW WORD has entered the lexicon of American journalism: "lawyered." At many of the nation's top papers and networks, news is reviewed by attorneys--lawyered--before it is reported to the public.

Most major news organizations have in-house attorneys to handle legally sensitive stories. Faced with news that involves complex legal issues and the possibility of huge jury awards to libel plaintiffs, editors and lawyers often work together on prepublication review of the material.

As a case in point, when the Wall Street Journal undertook an investigation of an American Express smear campaign against a competitor, its staffers weren't the only ones who realized the story was a hot one. Two lawyers for American Express threatened to sue the paper if the article went to press.

The Journal had discovered that Harry L. Freeman, a top aide to American Express chairman and chief executive officer James D. Robinson III, was running a covert smear campaign against international banker Edmond Safra. Libel threats followed, including two from Arthur L. Liman, the renowned New York attorney.

Byron Calame, Journal senior editor, indicates that the possibility of a suit did not stop the story. "It certainly caused us to rededicate ourselves to be very careful,.but it strengthened our resolve to continue with the story as long as we were on solid ground." The paper double-checked the facts, called its own attorneys to review the article, and ran the story on Sept. 24, 1990. It started on the front page and was the longest piece ever published in the Journal.

"Lawyers do a great job of pointing out problems," Calame notes. "I don't think you can become so timid that you use lawyers to cover your ass. Our job is to decide what goes in the paper, and we appreciate and want our lawyers' input, but [they] can't make the decision about what we're supposed to run. They give us an assessment of the risk of various elements in a story, and it's up to us to make the final determinations."

News organizations hire attorneys as protection against the chilling effect caused by the threat of libel suits. Critics charge that lawyers edit out controversial information and stifle aggressive reporting to avoid lawsuits, and that also has a chilling effect on coverage.

Attorneys at the Journal read about nine pieces per week before publication. "We try to have our...