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Moreover, the league's attorneys argue, the ADL shouldn't have to disclose its sources and their findings because the agency enjoys the same legal protection as the New York Times: The Anti-Defamation League is, at its core, a journalism organization.
So far, the judge hasn't bought it. Yet while it may seem a stretch at first blush, the question of who, legally, is a journalist is not so simple. "The usual standard under federal law is 'people gathering information for dissemination to others,'" explains Floyd Abrams, a noted First Amendment attorney in New York City. He adds that such a broad definition could include organizations as diverse as the Harvard alumni newsletter and Matt Drudge, the gossip-scattering editor of the Internet's Drudge Report.
And the Anti-Defamation League. "I don't think of the ADL as a group of journalists," Abrams says. "But they are a group devoted to the dissemination of information to the public."
Exactly, say the ADL's attorneys. "Much of ADL's activities [through its Research and Evaluation and Fact Finding Departments of its Civil Rights Division] involve conducting investigations, gathering information, analyzing that information and publishing reports based on its investigation and analysis," the organization's lawyers wrote in an August 3 court filing. "This is journalism in its classic sense, fully protected by the First Amendment."
They also point out that many other organizations nationwide that are perhaps less deserving than the ADL have enjoyed legal protection from revealing their sources. These have included a petroleum trade publication, a photography association newsletter and a biweekly newsletter with a distribution list of only 87 people.
Colorado courts, too, have been generous when defining who a journalist is for the purposes of protecting sources in a lawsuit. In a 1994 case, for instance, the Colorado Supreme Court bestowed journalistic privilege on a television-news helicopter pilot. "ADL certainly engages in activities that are more classically considered newsgathering activities than flying a helicopter," the league's attorneys huffed in a recent motion.
Despite such prior judicial leniency, however, attorney Horowitz still disagrees that the ADL has earned the designation. "If you call any organization that puts out a newsletter a journalist, you will have a total revolution in the law," he argues. He adds that the ADL doesn't reach the standard of being a journalist because it doesn't do much original news-gathering, relying instead on already published news accounts to compile its annual survey of anti-Semitic incidents.
Horowitz further points out that the ADL's information-gathering techniques have gotten the organization in hot water. The reference is to a series of incidents five years ago in California that gave the league the appearance more of a clandestine spy agency than of a traditional journalism organization.
In April 1993, a probe into a Bay Area art dealer named Roy Bullock, who'd worked for three decades as an "intelligence gatherer" for the ADL, culminated in a police raid on the ADL's San Francisco and Los Angeles offices. The cops left with boxes of files crammed with personal information on thousands of local political activists, much of which had been compiled by Bullock.
Bullock's self-labeled targets of investigation included "Right," "Arabs," "Pinkos" and "Skins." Included in the files were confidential police reports, suggesting that Bullock had actively exchanged intelligence information with local law-enforcement agencies and the FBI.
The ADL claimed that Bullock was conducting freelance snooping without its authority.
In any case, First Amendment attorney Abrams argues that an organization's news-gathering techniques and biases are beside the point when it comes to legally defining what journalists do.
"The one thing I am absolutely sure of is that the courts cannot make 'quality' distinctions--that a 'good' newspaper gets to protect its sources but a 'bad' one does not," he says.
To date, the ADL has not had any luck convincing the judge in the case that it is an organization of reporters. On July 23, Nottingham decided that the ADL didn't qualify as a journalist..."no matter how many times you tell me and no matter how many ways you say it," he said.
The Anti-Defamation League has vigorously appealed that decision--and not just for the sake of the Quigley case, says one of the league's attorneys, Walter Houghtaling.
"It is of more importance on a national level to the ADL than it is to this case," he says. "The outcome will have ramifications not only for this litigation, but also for ADL's national journalistic efforts."
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