Monday, April 27, 2009

Coughlin's coverup: Falsely tell the sources they'll be outed and sued

So if you've been following the story about Kevin Coughlin's extramartial affair which began while she was a student of his at the University of Akron, you've noticed the tendacies of anonymous commenters who have been suggesting all sorts of crazy things without any evidence, including things like Coughlin has "verified" with the paramour's former roommate that she did not tell the reporter she clearly overheard Coughlin have noisy sex with her roommate.

At 1:30 a.m. this morning, I had an apparent Coughlin loyalist explain that the reason his lawyers aren't coming after those of us who have actually published and promoted this story is because "we're not important" and that he's going after the sources in the story themselves.

Add to that, this unusual e-mail from State Senator Kevin Coughlin himself, dated March 9, 2009 that is now posted over at Blogger Interrupted:

Anticipating legal action, he has repeatedly reminded Scene Magazine of it’s obligations to save all records that will help lead us back to the source of the defamatory comments and allegations:

“As I communicated in October, please make sure that your company and all its employees preserve all information, electronic and otherwise, they have or will have in their possession pertaining to this or any related matter. We will want to trace very carefully how all information has been used for any story being planned, what information was not used or followed up, and what individuals have been interviewed or contacted. Information concerning all alleged confidential sources should be preserved, also. No electronic information should be overwritten.

All drafts should be saved. Backup tapes should be preserved. No paper or other hard information should be discarded.”

Again, I thank you for your assistance and regret the harassment. Know that, if needed, we will be prepared with guns blazing and a proper response. In the event that our action gives us insight into the sources of the defamatory information, I will share it with you.

Except one thing, it's one thing for an attorney to claim that if litigation ensues they're entitled to certain information-- it's quite another to say that they're legally entitled to learn the identity of such sources.

Ohio's courts, and indeed the very legislature State Senator Kevin Coughlin serves, have recognized that journalists have a legal privilege from disclosing the identity of confidential sources. Don't believe me (even though I'm a lawyer?), then how about this handy-dandy publication from the Ohio State Bar Association:

Reporter’s Privilege Allows Journalists to Keep Sources Confidential
Created: 11/28/2008 12:56:54 AM

Q: Do journalists have a right to keep their sources confidential?
A: Most states, including Ohio, recognize some form of a “reporter’s privilege” that allows journalists to refuse to disclose their confidential sources. The Ohio legislature has enacted statutes called “shield laws” that protect print and broadcast journalists from being compelled to disclose the identity of their confidential sources. Ohio courts also have recognized a constitutional protection for non-confidential notes, drafts, video outtakes and other non-published or non-broadcast materials.

Q: Who is covered by the privilege?
A: Journalists are covered by the privilege, but “journalist” is defined differently by different courts and state statutes. Ohio’s shield laws define a journalist as a person “engaged in the work of, or connected with, or employed by” a broadcast station (radio or television) or newspaper or press association for the purpose of gathering, editing and publishing or broadcasting news. Courts in other jurisdictions have more broadly defined a journalist as someone who is gathering news with the intent to disseminate it to the public.

Q: Is it true that news reporters never have to reveal their sources?
A: No; the privilege is generally not absolute in most states. Ohio’s shield laws may not protect a reporter who is asked to reveal confidential sources to a grand jury or in a criminal trial when the criminal defendant’s Sixth Amendment rights to a fair trial are in danger. In civil lawsuits in which a party seeks testimony or documents from a journalist concerning non-confidential sources, Ohio courts sometimes require the
journalist to disclose the information if the party seeking the information can
show it is relevant, it cannot be obtained from alternative sources, and there
is a compelling interest in obtaining the information.

In other words, under R.C. 2739.04, Coughlin's unlikely to get any information from Scene Magazine, or James Renner, as to the identity of Renner's sources. It's only been the law of the State of Ohio since 1977, so it's easy to see how Coughlin and his high-priced attorney could make such a glaring mistake. (Snark.)

Don't get me wrong, if I were Coughlin's lawyer, of course I'd be insisting on this information. But Scene magazine, if it has any journalistic credibility would assert the journalists' privilege from non-disclosure and Coughlin would be hard pressed to dent it.

So why send out the email suggesting that Coughlin is going to learn about who the anonymous sources are if he is unlikely to legally be able to do so? Four letters: STFU! He's broadcasting to the legally ignorant, those who cannot afford to go against Kevin Coughlin, his well-greased money machine and his high-priced lawyers, and threatening them that if they don't stop talking he's coming after them with guns blazing. He's sending it out to people he knows, or should know, won't realize that it's all a bluff. He's got nothing but blanks for his six-figure legal artillery.

It's a standard, "if you aren't with me, I'll find you out and expose you" and if you are with me, you'll be a loyal footsoldier and report all contacts by the "outsiders" so I can defend myself. It's downright cult-like. Veiled threats coupled with group-identity solidarity in the force of sinister, outside forces that only Coughlin will protect you against if you stay loyal to him.

This is what made those of us in the know on media law so shocked by the decision of Scene not to publish the story of Coughlin's apparent extramarital affair. If they were willing to kill a legally defensible piece of journalism to avoid litigation,would Scene be willing to waive its journalistic privileges and disclose confidential sources also in order to avoid litigation? Where is the line in the sand that Scene magazine has declared that it is not willing to compromise its journalistic integrity in order to avoid defending against a frivolous lawsuit?

Will State Senator Kevin Coughlin's campaign of legal bullying and intimidation actually work? And what social responsibility will Scene magazine bear in being complicit to Coughlin's legal strategy?

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