Kabuki Dance

It's dangerous when media organizations risk their rights

Frank Talk

by Frank Cagle

You often hear about news organizations threatening to file a lawsuit against public officials over the issue of public records or sunshine law violations. Usually it's a Kabuki dance in which the newspaper talks big and politicians find a graceful way to back down.

You rarely see anyone go to court. Corporate media doesn't want to spend money on lawyers. It's usually more effective to hammer the politicians for a few days until they give in. But there is another reason you rarely see it. There is an axiom in the legal profession that bad cases make bad law. When it comes to public business and the press, the press has good arguments and, arguably, the law on its side. But the wrong case can upset that delicate balance.

For example: It is an open question whether a 911 tape is a public record. Media organizations assume it is, demand access to it, and public officials generally acquiesce. Sometimes the police need to withhold the tape for a few days to review a sensitive case before release. It is unlikely a news organization will actually sue to obtain a 911 tape. Their lawyer will tell them they certainly don't want a judge to rule that 911 tapes are not a public record. That's the danger of rushing into court waving the First Amendment. There might be a judge who forgets that the First Amendment is the only one that counts (to the media). They start thinking about due process, the rights of the accused, and the ability of police to conduct investigations.

Smart media lawyers do not want these cases getting to the appellate courts.

That's why it is so remarkable to see News Sentinel editor Jack McElroy's lawsuit against the Knox County Commission over alleged Sunshine Law violations. News Sentinel attorney Rick Hollow has vastly more experience fighting First Amendment cases than any lawyer in Knoxville. It is his specialty. I doubt Hollow would be taking this case to a jury if he didn't feel he was on firm legal ground.

But the case is a lot more important than making County Commission do a â“do-overâ” on filling vacant seats. The County Law Department is arguing that it is not a Sunshine Law violation for two commissioners to talk over pending business. They argue you have to have a quorum before a violation takes place. Should the case go to the appellate courts and the justices rule this doctrine to be valid it will be a death blow to the state's Sunshine Law. Hollow argues this loophole has been closed and is not valid. Chancellor Darryl Fansler seems to agree with him. Will a jury agree?

The News Sentinel is asking for a ruling that commissioners cannot talk to each other outside a Commission meeting. Each Commission district has at least two representatives. Are they not allowed to discuss strategy for passing legislation to help their districts? Are they not allowed to lobby their fellow commissioners about district projects? State legislators spend more time talking with each other outside session than in it. Imagine the Knoxville delegation being prohibited from meeting to discuss a strategy for reforming the Basic Education Program.

Will a jury think the prohibition against Commission conversations reasonable?

On the other hand, what is the upside of an outcome of a settlement or verdict in favor of the News Sentinel?

Eight commissioners were replaced because the Supreme Court ruled they were ineligible to serve. They resigned their offices. Under what authority or compulsion could you return these people to office for a â“do-over?â”

The News Sentinel lawsuit is an expression of the public outrage over the wrong people being appointed Jan. 31. It is understandable. But the question has to be asked, and it's unlikely anyone else will ask it: Is the do-over with the same result worth the risk to the sunshine law?

Frank Cagle is a political analyst and the editor of Knoxville magazine. You can reach him at frank@frankcagle.com .


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