Three Felonies a Day

by Harvey Silverglate

  Just ask former gossip columnist Jared Paul Stern. Now, it’s true that when one contemplates the grave importance of a free press, one usually has in mind the high purpose of national security reporting, say, or covering economic policy or legislative debates. We will get to the ways our access to that kind of information has been imperiled in short order, but Stern’s very different story is instructive. If the feds can and will go after him in the way they did, imagine what they could do with more serious fare.2

  The media-fed, media-implicated scandal that enveloped The New York Post’s Page Six gossip feature in late 2005 and early 2006 was broken in a big way by none other than The New York Times, and on its front page no less. The Times reported that a private investigative firm hired by supermarket magnate and high-level gadfly Ronald W. Burkle had captured Page Six contributing columnist Jared Paul Stern on surreptitiously recorded videotape in Burkle’s Tri-Be-Ca apartment in Manhattan. On the tape, Stern appears to be asking for a $100,000 initial payment plus $10,000 a month, ominously described by the Times as a “monthly stipend…in return for keeping negative information about [Burkle] out of the [Post].” Burkle, who had earlier claimed in letters to the Post that embarrassing Page Six stories about him were false, had arranged to meet Stern at a Manhattan hotel “after a friend suggested Mr. Stern could give him some insight into Page Six.” At that meeting, Burkle alleged, Stern asked Burkle to become a source for Stern’s gossip pieces. Burkle reportedly declined, but agreed to buy 60 shirts from Stern’s clothing line as a favor. (Stern had developed a line of designer men’s clothing and was in the process of trying to promote the brand.) Burkle’s lawyer, Martin D. Singer, then lodged a number of litigation threats against the paper, all to no avail. However, the Times story went on to report, “an employee of Mr. Burkle received an e-mail message from Mr. Stern, a contributor who worked two days a week for Page Six, suggesting that Mr. Burkle could change the column’s treatment of him.”

  The text of the email is crucial to understanding what transpired between Stern and Burkle. “I understand Ron is upset about the press he’s been getting,” the email states. “If he’s really concerned, he needs a strategy for dealing with it and regulating it rather than merely reacting. It’s not easy to accomplish, but he certainly has the means to do so.” It was at this point, the Times reports, that Burkle “suspected he was being extorted” and “reached out to his attorney, who then reached out to law enforcement.” What followed was right out of the Justice Department/FBI playbook. Stern agreed to meet Burkle at least twice in late March at Burkle’s loft, where Burkle’s security team, including a private investigations firm, video-recorded the meetings. A federal agent and a prosecutor joined Burkle’s security detail “to monitor the recording.”

  As told by the Times, the Stern story read like a fairly cut-and-dry case of blackmail (a run-of-the-mill state crime) but also the federal offense of “extortion” when facilities of interstate communications (mail, telephone, email, and the like) are used in an attempt to coerce someone into doing something he or she does not want to do. Lawyers for high-profile “victims” who report such attempts to the authorities frequently bring in the feds, in part because the federal definition of “extortion,” like many federal crimes, is notoriously broad and loose. As a result (and in keeping with the trends we’ve seen throughout this book), a wide variety of conduct, much of it lawful though often not very pretty, can be spun as criminal.

  Skepticism is naturally aroused by the fact that the Times’ sources turned over to the paper only six heavily edited minutes of roughly three hours of recordings. What’s more, it was Burkle, not Stern, who asked, “How much do you want?” Throughout the snippets reported in the Times, it is Burkle who tried to put into Stern’s mouth the magic words signifying extortion. But he never quite succeeded, since Stern was not threatening Burkle, but rather trying to enlist him as an investor in Stern’s clothing line and to convince the supermarket mogul to hire him as his media adviser. Stern did not threaten to retaliate should Burkle turn him down.

  It’s also important to note that Stern was only a twice-a-week contributor to Page Six, so it’s almost certain he did not have the power to deliver on any broad-ranging promises about Page Six coverage. More importantly, in additional transcript excerpts published by Post archrival The New York Daily News, Stern makes reasonably clear that he is not seeking to extort Burkle: “It is not a stickup,” Stern assures the mogul at one point. Stern’s attempt to become a media consultant to Burkle is suggested when he offers to “help you when it is needed.” When Burkle, obviously at the suggestion of the feds monitoring the conversation, tries to get Stern to adopt the description of “protection” for the service Stern is offering, Stern demurs, saying that he is offering “help,” not protection. “Protection,” Stern admonishes Burkle, “adds overtones.” When Burkle suggests that maybe he should pay the Page Six editor $100,000, Stern again demurs: “Well, I don’t think you want to do that.” Instead, he lectures the would-be media consultant, “you need a strategy,” not protection. Stern offers to show Burkle how to become “a friend of the paper” rather than a subject of its gossip pages. If Burkle can ingratiate himself with the Page Six editor, in particular, he could become an insider rather than an outsider. And what if Burkle refuses to pay Stern for these services, the mogul, obviously hoping to entrap his prey, inquires. “We can still be friends, but we’re not going to be as good friends,” Stern rejoins.

  What one sees here is the kind of pitch PR men and women make every day in the Big Apple and elsewhere. The only difference is that Stern, by playing on both teams, arguably engaged in a nasty conflict of interest that perhaps should have gotten him fired (it did), but not indicted.

  To anyone experienced in criminal law, it is all too obvious what was going on. Burkle likely was coached to try to put certain key “buzz” words into the target’s mouth. Just as obviously, the sting failed to produce precisely what had been anticipated. Stern resisted the bait and stuck to his proposal rather than adopt Burkle’s suggestion of a “protection” arrangement. The real story here is the collaboration of the businessman, his private legal and investigatory henchmen, and their federal prosecutor and FBI allies to try to set up an arguably sleazy—but, crucially, not criminal—gossip columnist for a federal bust. They failed to snare Stern, but that did not mean the columnist was in the clear. Whether the feds were going to bring criminal charges would likely depend on whether they felt they could spin the encounters to a jury much as Burkle’s team spun the scenario to the Times.

  Why the leaks from the investigative camp to the Times? One likely aim was to put sufficient pressure on a ruined Stern to force him into a plea bargain so that a court would never be asked to rule on whether the tapes show an extortion or simply a sleazy gossip columnist making a fool of himself. Common sense might dictate that it would be a huge stretch to make an extortion case out of the almost comic scenario, but the federal extortion statute governing threats to injure reputation or property is not quite a paragon of clarity or of discernable limits.3

  Federal courts have held that not every threat to a person’s reputation rises to the level of extortion and that “the objective of the party employing fear of economic loss or damage to reputation will have a bearing on the lawfulness of its use.”4 If Stern’s objective was to get a consulting relationship with Burkle, any prosecution theory that he was seeking to extort $100,000 as a kind of protection racket weakens considerably. Since the extortion statute criminalizes speech, after all, care must be taken that the speech is in fact part of a criminal plan and not of ordinary daily commerce, even the tawdry commerce at the intersection of wealth, celebrity, gossip, and image building—in short, so much of modern American media. Besides, what could a two-days-a-week contributor to the Post’s gossip page deliver in terms of control of the paper’s coverage of Burkle, other than advice on how Burkle could position himself to gain the paper’s friendship? Could it reasonably be
said that Stern possessed an intent to threaten Burkle with fear of property or reputational harm in order to extract a payoff? Is this the stuff of an extortion prosecution? Common sense might say no, but it was hardly obvious that the feds would write off the case without exploring avenues to indict Stern.

  Of course, the feds did not have to rely solely on the federal reputational extortion statute. There was always the handy, infinitely malleable general wire fraud statute covering any seemingly off-color activity accomplished with the use of the phone or Internet.5 Don’t forget, too, wire fraud’s equally elastic ally: mail fraud.

  And in the event that not even mail or wire fraud charges could be brought against Stern, the feds could reach further into their virtually bottomless arsenal. Creative federal prosecutors in 1988 began to expand the definition of fraud to include “a scheme or artifice to deprive another of the intangible right of honest services.” Under such a theory, Stern could be charged with wire fraud committed not against Burkle, but against his employer, The New York Post.6 In other words, prosecutors had the option of claiming that Stern swindled his own newspaper out of his “honest services.” In this way, a reporter’s arguable ethical lapses, to the extent one can even say that tabloid gossip columnists are somehow bound by a commonly understood code of ethics, can readily be made into a federal felony that carries a lengthy prison term.

  It was not until January 23, 2007, that Jared Paul Stern learned that he would not be indicted.7 One may or may not be sympathetic to Stern, but it seems nearly indefensible that a gossip columnist should suffer the consequences (ranging from expense, humiliation, and aggravation to fear) of being a target in a sting simply because federal criminal laws against extortion and fraud can be interpreted to include such a wide and undefined variety of professional behaviors. Though Stern wasn’t indicted in the end, there had been a real possibility that he would be. In his case, such an outcome could have led to jail time. Moreover, the simple fact that Stern became a target and the subject of a major investigation carried with it a potentially substantial chilling effect for his and other reporters’ speech. If it can happen to Stern, it can happen to any reporter seeking to persuade a potential news source to cooperate with a story rather than become its subject, something reporters do regularly as part of their jobs.

  The application of extortion and fraud statutes against reporters to combat the tactics they use in reporting their stories can readily go well beyond gossip columnists. Consider a hypothetical situation where a reporter tells a potential source that if he discloses information to the reporter, on a confidential basis, the reporter will not publish his name, but that if the reporter is forced to seek and then finds the information elsewhere, the resulting newspaper story will attack the source and seek to sully his reputation. Would that be grounds to seek an indictment against the reporter for extortion? In a word, maybe—depending, perhaps, on what the federal prosecutor ate for breakfast.

  To be involved in the news media today—whether print or electronic, “new” media or old—is to find oneself in a precarious situation, operating at the whim of federal prosecutors and other bureaucrats. Possible sanctions, ranging from prison terms to crippling fines, constantly loom. The age-old tactic of sending a message in terrorem by randomly eliminating a few to instill fear in the many has been used with increasing and alarming regularity.

  How on earth did we get here? To understand the mounting peril today’s journalists face, a bit of legal history is in order. Central to part of that history is the doctrine of “prior restraint,” which refers to the government’s power to prevent publication of material before it is actually published, by means of a statute, ordinance, or a court-issued injunction. Prior restraint orders are especially repugnant to press freedoms because they stop a story from ever getting to the public in the first place. Since the Supreme Court’s landmark 1931 opinion in Near v. Minnesota,8 the federal courts have been loath to prevent contentious material from being published. But even when a court denies the government’s request for prepublication restraint, it does not insulate the publisher from post-publication liability, either civil or criminal. In the hypothetical case of a defamatory book or article, even where the offended party could not convince a court to enjoin publication, that party still has the ability to sue the newspaper or book publisher civilly for post-publication money damages. Publication of government secrets, on the other hand, opens the publisher to potential indictment.

  The prior restraint doctrine harkens back to colonial days, when British authorities licensed printers and publishers and could therefore cut off publication before the public learned what the author wished to convey—and what the British government didn’t want them to hear. After the American Revolution the First Amendment sought to temper that power, of course, but that didn’t stop early federal authorities from trying to punish writers and publishers after publication of damning material. On July 14, 1798, while the United States was engaged in an undeclared war with France, Congress passed the infamous Sedition Act, which criminalized the publication of “false, scandalous, and malicious writing” critical of the government or public officials. John Adams’s Federalist Party created the statute to silence criticism from Thomas Jefferson’s Democratic-Republicans. Remarkably, the statute criminalized speech critical of the government, the Congress, and the president—all notwithstanding the protections of the First Amendment. Twenty-five men, mostly prominent Republican newspaper editors, were arrested and their papers closed down. Vermont Congressman Matthew Lyon was arrested, along with Benjamin Franklin’s grandson, Benjamin Franklin Bache, on charges that he had libeled President Adams. A public outcry against the statute ensued. Some historians assume that it was this development that sent Jefferson, a staunch free speech advocate, to the White House. Once he took office, President Jefferson pardoned all those convicted under the Sedition Act, which was allowed to expire in 1802.

  Still, another post-publication criminal threat to the news media looms: the Espionage Act, which has been with us, with occasional amendments, since its initial passage in 1917 to quell dissent against U.S. entry into World War I. It is not exactly a model of clarity.9 The typical image of someone engaged in espionage is the foreign agent seeking to learn classified national secrets for transmission to an unfriendly government (what might be dubbed “James Bond” activity). But the act is broader (and vaguer) than that, covering the transmission of any classified information by any means, including by one who “publishes” in a manner that is prejudicial to American security. There is a tremendous amount of legal flexibility in open-ended terms like “publishes.” Journalists, trying to discern the limits beyond which they cannot go without undue risk, need guidance to do their jobs without unknowable and unquantifiable, almost paralyzing, risk.

  In the famous Pentagon Papers case, the U.S. Supreme Court raised the specter of just such a risk. In that suit, two dailies, The New York Times and The Washington Post, won a heralded victory over Richard Nixon’s Department of Justice in 1971. The papers convinced the Supreme Court that the First Amendment prohibited prior restraint of the press’s right to publish the Pentagon Papers, a classified government study of the events between 1945 and 1967 that led to America’s deep involvement in the Vietnam War. (The Boston Globe also had a set of the Papers that it proceeded to publish, but its litigation lagged behind and was mooted when the Supreme Court ruled for the Times and Post.) It was leaked to the press by Daniel Ellsberg, who at the time worked for the Rand Corporation, a private think tank that conducted the highly classified project. Nixon and members of his administration were furious about the publication, which began its run one morning in what was described as a multi-part series, and was seen by administration press critics as more a demonstration of media power and hubris than a public-spirited revelation meant to enlighten citizens and history. After all, the Papers cast prior presidencies in a far poorer light than the Nixon administration, which had inherited what was by then widely re
ferred to as the Vietnam “quagmire.”

  The newspapers that published the Pentagon Papers and sought to avoid a prior restraint order kept in mind the example, laid out by the Supreme Court in Near, of the type of information that might appropriately trigger a court injunction. In a footnote in Near, the Court suggested that prior restraint might be appropriate to prevent a newspaper from the “publication of the sailing dates of transports or the number and location of troops” during wartime. While the Court ultimately would not find that anything in the Pentagon Papers quite rose to the level of what has become known in the law as “the troop ship exception,” it was telling that the Near court saw national security as a likely area in which prior restraint orders might sometimes be justified.

  The Supreme Court’s decision in the Pentagon Papers case10 is widely viewed as a high-water mark in the history of press freedom. And in many ways it was. It set a high standard for the government to get a court to issue an injunction against publication on grounds that it would harm important governmental interests, including national security. Indeed, even some of the justices in the majority opined that publication was likely to be injurious to the nation’s security interests, but they felt that the argument for such harm was neither sufficiently powerful to justify an injunction, nor clearly proven. In a number of daily installments, the newspapers resumed their publication of some of the nation’s more closely guarded (and embarrassing) diplomatic and military history secrets.