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The risks of reporting

FOI Alert Volume 3, Issue 5 (1997-98)

Kirsten Mitchell has had a conversion, of sorts.

A journalist for 10 years, she had taken her press freedom for granted. Now, she's an absolutist when it comes to the First Amendment.

In October, Mitchell, Raleigh, N.C. bureau chief for several newspapers published by the New York Times Co., ran an errand for a co-worker.

She picked up a court document for Corey Reiss.

Reiss wrote a story, based on those documents, about a $36 million settlement between Conoco Oil Company and 178 residents of a trailer park. Residents had filed a lawsuit alleging the oil company had contaminated their water supplies.

The settlement story was published Oct. 15, 1997, in The (Wilmington) Morning Star.

Mitchell, who received the document given to her mistakenly by a court clerk, and the newspaper were found guilty of civil contempt. Mitchell could have faced up to six months in jail and a $5,000 fine. The judge imposed a penalty of $1,000 against the reporter (for criminal contempt) and $500,000 against the newspaper and Mitchell (for civil contempt).

The penalties are being appealed on First Amendment grounds.

Mitchell spoke to Duke University students recently and was asked -- most seriously -- if she considered taking up a less dangerous profession.

Not hardly.

She's more entrenched than ever, noting that this is the second time in her career that she's been in legal trouble.

Four years ago, Mitchell tried to interview a man having a dispute with the government over building a home on a barrier island. She went to his house in order to "get his side of the story" and was arrested for second-degree trespassing, a charge that was later dropped.

"It amazes me that journalists are out there who are 65 years old and never had a brush with the law," said Mitchell, who is 32.

It's easy to forget that being a journalist in any country is a profession fraught with potential peril, especially to those who are aggressive in seeking the truth.

"If I had lived in another country, they would've had my hands cut off," said Mitchell of the Conoco story.

Mitchell went to court in February prepared for the worst, clutching a book to read in jail.

Visited by a federal probation officer after the conviction, she and her husband had to disclose five years of federal and state tax filings, mortgage information and pay stubs.

But she is also uncomfortable with the notoriety.

"Too much attention has been focused on me and not on the issue," she said.

And the case goes on.

Executive Editor Charles Anderson said Reiss is now being asked in Conoco interrogatories to reveal sources. Within the month, Reiss may have to make that decision and possibly face jail.

"Cory will hang tough," said Anderson. "But we won't be the ones going with him to jail." As Anderson knows, you can't be a reporter and "blab on people."

There also is no shield law in North Carolina. Anderson says there is only "inferred confidentiality" established by prior court cases.

Conoco is a defendant in a number of toxic tort cases across the country. By publicizing the secret settlement, the judge ruled that it will be harder for the company to settle other claims.

That's certainly an argument for a plaintiff's lawyer, but not one for the press. Secret settlements do nothing to protect the public from defective products or corporate malfeasance.

The ABA Journal, in an April article, writes in more detail on "the latest wave of secrecy" in court cases.

"While the U.S. Supreme Court has long held that the public has a nearly unqualified First Amendment right to attend all phases of criminal proceedings, it has issued no specific pronouncement regarding court files themselves or civil trials."

In the Conoco case, a jury had already decided that the company was liable for water pollution. Jurors were considering punitive damages when the settlement was accepted.

The Journal story is a stark reminder to journalists on the potential risks faced by disclosing information that often should be public.

As Journal author John Gibeaut noted: "Besides the hefty fine, (Mitchell) got little else for her trouble. Her information accounted for only a tiny portion of the published story. She didn't even get a byline."

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