News and Jews
Even though the journalism profession suffers from a low public opinion, there are advantages to the business. Reporters, for instance, enjoy more legal rights than the average person: Thanks to so-called shield laws, they generally are not required to reveal their sources of information--even in the course of a lawsuit.
But who, exactly, qualifies as a journalist and is thus deserving of such legal protection? Certainly writers for the New York Times. But what about book authors? Or the editors of the coal slag association newsletter? Or the proprietor of an Internet gossip site?
Or the Anti-Defamation League, the organization founded at the turn of the century to protect Jews?
The last question has popped up in the most unlikely of spots: The still-humming legal snarl involving two hostile Evergreen neighbors, the Quigley and Aronson families. Although it is a small part of a local dispute, the question of whether the ADL is a journalism organization has elicited concern from the organization's New York headquarters. Its resolution could have crucial First Amendment implications here and nationally.
That anything of significance could come out of the Quigley/Aronson mess is remarkable. It all began five years ago, when William Quigley, an executive with United Artists, and his wife and three children moved to a pricey foothills subdivision in Evergreen called The Ridge. A year later, the Aronsons--Mitchell, Candice and their four children--moved onto their block.
The families got along at first, but relations rapidly deteriorated. In disagreements first over each other's dogs, then children, and then between the adults, the neighborhood dispute festered and grew in intensity. At some point during the fall of 1994, the Aronsons discovered that, using a scanner, they could intercept the Quigleys' cellular phone conversations.
Between October and December of that year, the Aronsons intercepted and recorded literally hundreds of their neighbors' conversations. Much of the banter was the stuff of dull, day-to-day communications that families and friends discuss among themselves. But buried in the background noise of conversations about dry-cleaning, elementary school and landscaping, the Aronsons overheard the Quigleys making what sounded like anti-Semitic slurs.
Armed with their tapes, the Aronsons approached the Jefferson County Sheriff's Department and the local chapter of the Anti-Defamation League. On December 6, 1994, the Aronsons filed a civil lawsuit against the Quigleys, accusing them of masterminding a campaign to drive the Aronsons from the tony neighborhood because they are Jewish. Three days later, Jeffco District Attorney Dave Thomas filed a dozen ethnic-intimidation charges against the Quigleys and against one of their neighbors, who was also overheard on the Aronsons' tapes allegedly making derogatory remarks about Jews.
The Quigleys were quickly vilified in newspapers and on television. But eleven months later, they retaliated. The family filed its own lawsuit against the Aronsons, their lawyers, the ADL and its local president, Saul Rosenthal. It claimed that the Aronsons, with the illegal assistance of their advisors, had violated federal wiretapping laws when they intercepted the Quigleys' phone chats.
So far, the multiple legal actions have all been settled in favor of the Quigleys, who claim that any overheard anti-Semitic remarks were private, taken out of context and, if anything, part of a series of admittedly sick jokes. The first to admit he'd acted in haste was District Attorney Thomas, who in December 1995 apologized for filing the criminal charges and settled with the Quigleys by agreeing to have the taxpayers give them $75,000.
Then, early this year, the Aronsons' attorneys, Stuart Kritzer and Gary Lozow, settled the claims against them by paying the Quigleys $350,000. As part of that deal, the Quigleys and the Aronsons (the latter have since divorced and moved away from Evergreen) also dropped their lawsuits against each other.
As a result, what remains of what U.S. District Court Judge Edward Nottingham has termed "a quagmire" is the Quigleys' lawsuit against the Anti-Defamation League. Central to that claim is a December 1994 press conference organized by Rosenthal, at which the ADL president declared that the Quigleys' behavior toward their neighbors constituted the worst instance of anti-Semitism since the notorious murder of Denver Jewish talk-show host Alan Berg in 1984.
Jay Horowitz, the Quigleys' attorney, says Rosenthal's accusation was exaggerated at the expense of his clients' reputation. "Does he know that, really?" he asks. "Was it truthful to compare the Quigleys' private conversation with other anti-Semitic remarks?"
To find out, Horowitz has demanded that the Mountain States chapter of the ADL turn over all the reports of anti-Semitic activities it has received since 1990 and that the league name its sources for the reports. An alarmed ADL has responded that releasing such information would compromise its mission so drastically as to make it ineffectual.
"ADL relies on confidential sources, some of whom operate undercover within the target organizations," a recent court filing points out. "ADL also relies on information shared confidentially with the agency regarding incidents of discrimination, racism and bigotry. Because ADL sources frequently investigate groups whose members engage in violence and terror, confidentiality is of the utmost importance. If their identities, or even the fact of their existence, became known, the sources could be put in danger."
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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