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The Thurgood Marshall United States Courthouse, which hears cases from the U.S. District Court for the Southern District of New York and U.S. Court of Appeals for the Second Circuit, stands in lower Manhattan, New York City. Journalists in the U.S. and Canada say threats of lawsuits can affect every level of the reporting process. (Drew Angerer/Getty Images/AFP)

Legal threats prompt journalists to take creative approaches to investigative stories

By Erik Crouch and Avi Asher-Schapiro/CPJ Staff on October 23, 2019 2:30 PM ET

When BuzzFeed News reporters Jane Bradley and Katie J.M. Baker began investigating claims of sexual misconduct by self-help guru Tony Robbins in early 2018, they did what any journalist would do, and reached out to people who might know about the allegations.

But as their reporting began, so did a parallel process at Lavely & Singer, the law firm representing Robbins. The firm sent a letter to BuzzFeed News, which the outlet ultimately quoted in its report, denying the accusations on his behalf and threatening suits that could have a “devastating impact on the financial condition of BuzzFeed and its investors,” and to their alleged sources, demanding they recant their statements or face tens of millions in libel suits.

Sources who had previously gone on the record pleaded to have their names dropped, citing fear of legal threats, Bradley and Baker told CPJ. To continue reporting, the journalists needed to develop new tactics, eventually deciding to ask several sources to sign sworn witness statements, thereby limiting lawyers’ ability to demand they recant their testimonies.

“We’ve done lots of these types of stories before and we had never done something like this,” Bradley told CPJ.

“In retrospect, [the sworn statements] made our story stronger and I’m glad we have them,” said Baker.

Buzzfeed News published its first story on Robbins in May of this year, with sworn testimonies included. Lavely & Singer have not filed suit against the outlet or any of its sources, Baker and Bradley told CPJ. CPJ emailed Lavely & Singer for comment, but did not receive any reply.

Such affidavits are one tool that journalists have developed to minimize the risk that they and their outlets will be exposed to expensive and time-consuming litigation. Even as newsrooms shed jobs and see their budgets shrink, many journalists have taken aim at deep pocketed and litigious subjects—from #MeToo stories implicating wealthy men, to in-depth investigations of technology firms and religious groups.

CPJ spoke to reporters and editors in the United States and Canada who have worked on stories covering potentially litigious subjects, and they described an environment where the threats of lawsuits can affect every level of the reporting process.

For writers at established outlets, such pressure can be frustrating. But for smaller outlets or for freelancers, aggressive legal tactics can make a story feel like more work than it’s worth.

Julie Brown, a reporter at the Miami Herald who covered sexual abuse allegations against the now-deceased financier Jefferey Epstein and whose 2018 work was cited by federal prosecutors in Epstein’s July 2019 indictment on sex trafficking charges, told CPJ that covering Epstein required “triple the work” of an average story.

“I knew our lawyers would be reading [the stories] with a fine-tooth comb; they’d be saying ‘Where'd you get this? Where did you get that?’” Brown said. “I knew from the outset it had to be bulletproof because of the potential for them to sue.”

Lawrence Wright, a writer who faced legal threats while covering the Church of Scientology at the New Yorker and in the 2013 book and 2015 HBO series Going Clear, echoed that sentiment.

“I had to imagine defending every single word on the stand, and that’s one reason why you’ll find very few modifiers,” Wright said. “There are very few adjectives and adverbs, because I could imagine being on the stand and being asked, ‘Well, Mr. Wright, why did you say it was very severe? How do you define that?’”

Wright told CPJ that he involved five members of The New Yorker’s fact-checking team on his stories, and even took a checker with him to media appearances.

John Carreyrou, a former reporter at The Wall Street Journal, told CPJ that, when covering blood testing company Theranos in 2015 and 2016, he consulted with the newspaper’s lawyers much earlier in the reporting process than usual and included them in meetings with Theranos’ law firm, Boies Schiller, so the Journal’s lawyers “weren’t waiting until the 11th hour for a draft of a story they had to vet under deadline pressure.”

As noted in The Washington Post following Gawker’s 2016 loss in an invasion of privacy case that bankrupted the outlet, a decline in public trust in the media, coupled with several high-profile successful suits against media companies, means that “there’s never been a better time to sue a journalist.”

Wright told CPJ that he was less concerned that he would lose a case, and more that Scientology “would tie us up in court forever and it would cost me and my magazine, or publisher, or HBO innumerable millions of dollars just to defend ourselves,” as had happened with Time magazine, which Scientology sued for $416 million in defamation damages in the early 90s. A judge dismissed the case in 2001, but not before the magazine had spent millions in legal fees for its defense.

In a statement emailed to CPJ, Karin Pouw, the public affairs director of the Church of Scientology, disputed the accuracy of Wright’s book and described the church’s suit against Time as an attempt to “ensure that portrayals of the Church in the press do not open the door to bigotry and persecution.”

“Consider the reduced circumstances of most regional outlets to handle major litigation,” said Lowell Bergman, a former 60 Minutes journalist who faced legal pressure while reporting in the early 1990s on the Brown and Williamson Tobacco Company. Even if an outlet wins, “they may also go out of business because of the amount of time and energy it takes,” he said.

CPJ emailed mid-sized news outlets throughout the U.S. to discuss their processes for dealing with legal threats; all but a few declined to comment, with several outlets citing a desire to keep such deliberations private.

“I find myself regularly recommending to anybody who’s doing anything more than publishing a homeowners’ newsletter: look into libel insurance,” Alison Steele, a lawyer who works with the Tampa Bay Times and the Poynter Institute, told CPJ. Such policies are available at many insurance firms. Organizations like the Reporters Committee for Freedom of the Press also provide pro bono legal services to journalists and newsrooms in need.

Jesse Brown, the founder of Canadaland, an independent Toronto-based news website and podcast network that has faced legal threats for its coverage of Canadian charitable organization WE, told CPJ that the outlet purchased insurance that included pre-publication advice.

“We are in a high stakes chess game with an organization that just dwarfs ours,” Brown said. In a report published on its website, Canadaland said that lawyers representing WE sent libel notices to the outlet and indicated that it intended to file personal suits against Brown, news editor Jonathan Goldsbie, and former Canadaland reporter Jaren Kerr.

When CPJ emailed WE to request comment, a spokesperson directed CPJ to Mark Bourrie, a Canadian lawyer and journalist who is not formally affiliated with WE, but who has written about Canadaland’s allegations and whom the organization said could respond on its behalf. Bourrie sent a letter acknowledging that WE had filed libel notices but noting it had not filed any suits in court. The letter also disputed Canadaland’s allegations that WE is a “cult” and cited several instances in Canadaland’s coverage that it disputed.

The situation can be even more precarious for freelancers. Irin Carmon, who exposed allegations of sexual misconduct against Charlie Rose in 2017 as a freelance reporter working at The Washington Post with staff reporter Amy Brittain, told CPJ she requested the Post add an indemnity clause to her freelancer’s contract to protect her against potential litigation, and said the newspaper complied.

Following the publication of her exposé, Rose was fired from CBS and apologized for his “inappropriate behavior,” but added that he “[did] not believe that all of these allegations are accurate.”

As reported in the Columbia Journalism Review last year, the use of indemnity clauses is on the rise: but in the opposite direction. CJR noted that many news outlets include indemnity clauses that place the burden of a libel or defamation suit on the freelance writer, and indemnify the publication.

Legal pressure against outlets does not always come as a formal lawsuit or defamation notice. Harvard law professor emeritus Alan Dershowitz, who represented Jeffrey Epstein, told NPR that he called two producers and a lawyer at ABC after learning that the network was preparing to broadcast an interview with Epstein accuser Virginia Roberts Giuffre in 2015. The story never ran.

Dershowitz told CPJ that he gave ABC information detailing Giuffre’s alleged “long history of lying.” (According to news reports, Giuffre has also accused Dershowitz of sexual misconduct, which he denies).

"At the time, not all of our reporting met our standards to air, but we never stopped investigating the story," ABC News spokeswoman Heather Riley said in a statement sent to NPR.

Dershowitz told CPJ he would “continue to challenge biased journalists.”

“Throwing ones’ weight around is expected to quash important news stories,” Steele told CPJ. “People who send [letters threatening litigation] do expect to be effective at stopping whatever publication they think is coming.”

“There are many examples of stories getting crushed [under legal pressure],” Carmon said. “People should talk about it; otherwise, the bad guys win.”

“The purpose is to intimidate and bully the journalist. It’s good to remember that’s what they’re trying to do to you; they’re trying to get in your head,” said Baker, who noted that, since BuzzFeed News’ first piece on Robbins was published, several more women have come forward with allegations.

“Showing that you can fight back against this kind of legal power sends a strong message to whistleblowers,” she said.

Erik Crouch is CPJ's news editor. He has worked as an editor at the Council on Foreign Relations and as an editor and reporter in China. Avi Asher-Schapiro is CPJ's research associate for North America. A former staffer at VICE News, International Business Times, and Tribune Media, Avi has also published independent investigative pieces in outlets including The Atlantic, The Intercept, and The New York Times.

[Editor's Note: This article has been corrected in its 21st paragraph to accurately reflect the services offered by RCFP.]

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