Whoa, Baby; Mutual Paranoia; Scary Columnist

Whoa, Baby

Too easy to blame the lawyer: I think Jim Schutze's article about Dan Peavy ("Big Man Bites Back," August 17) may have been too harsh on Paul Watler, Belo's outside lawyer, who has a long and distinguished career representing First Amendment interests. As you correctly note, the lynchpin of the Fifth Circuit's opinion was that the reporter, Robert Riggs, allegedly "participated" in the illegal wiretapping by giving instructions to Mr. Peavy's neighbor, Dan Harman. That "conduct" took place before Mr. Watler ever came on the scene. Watler's legal advice on the First Amendment necessarily assumed that Riggs was not participating in the illegal conduct. There was certainly a rational interpretation of Riggs' conduct which would hold that he was not giving instructions on how to wiretap but rather only to insure that Mr. Hartman was not editing Peavy and taking comments which, in context, were innocent and making them appear sinister. Riggs would say, I am sure, that his instructions to Harman were for the benefit of Peavy (to insure a complete conversation) and not to participate in an illegal wiretap.

If one assumes that Riggs' actions could be construed benignly and not as that of a co-conspirator, then Watler's advice was sound and reflected an interpretation of the law which the Dallas Observer benefited from in Peavy's wiretap case against your newspaper. As Judge [Jerry] Buchmeyer held in the Peavy vs. the Dallas Observer case, the wiretap statute could not be applied consistent with the First Amendment when the information is obtained legally, even though the original source of the information was derived from an illegal wiretap. That reading of the First Amendment makes sense particularly when one looks at it in terms of the Observer case. As you may recall, a transcript made from an illegal wiretap was read during a public meeting of the Dallas Independent School District board of trustees, and the transcript was later released by DISD pursuant to an Open Records Act request. Surely the newspaper or any other citizen could not be held criminally or civilly responsible under those circumstances for sharing this public document with other citizens.

The pivotal point of the Belo case was how one characterized Riggs' instruction to Harman. Two federal judges, the U.S. magistrate judge and the district judge, construed Riggs' action innocently, holding that the tapes had been lawfully obtained. Watler's advice was therefore vindicated. Unfortunately for Belo (and Watler), three judges on a higher court took a dimmer view of Riggs' participation, and the appellate court "trumps" the trial judges. But as one can see, reasonable minds, even reasonable judicial minds, could differ on this question.

As for initially and erroneously telling Belo it was legal to tape telephone conversations transmitted on a cordless phone, you are absolutely right: "Who hasn't made a bad mistake? We're human." Although Watler is certainly responsible for that mistake, I doubt very much that he made it. The routine checking of a statute at a firm like Jenkens & Gilchrist would have been done by a recent law school graduate both to save the time of the senior lawyer (Watler) and money for the client, as the routine checking would be done at a much lower billable rate. That's not an excuse, just reality.

This may sound like a First Amendment lawyer sticking up for another First Amendment lawyer, and in a way it is. But keep in mind that when things work out, reporters write that you are an aggressive First Amendment lawyer and it is a privilege to work with you. When things go south, it is easy to blame the lawyer. My point, I guess, is that this case casts unfair blame on Watler and should not, in any event, erase his almost 20 years of exemplary service to the cause of free speech and free press.

Thanks for listening.

Charles L. Babcock

Editor's note: Mr. Babcock represented the Observer in the Dan Peavy vs. the Dallas Observer case, which was dismissed.

Mutual Paranoia

As for the deafening silence: I read your last commentary about yours and Ms. [Valerie] Brogan's misunderstanding (Stage, September 28) with growing curiosity.

You are free to print this letter if you wish. I hope you will print it in its entirety lest it too be misinterpreted.

As for the deafening silence about Ms. Brogan: I, for one, immediately assumed that you had misread Ms. Brogan's letter. But since the letter was not printed and since only certain parts of it were restated, it did not seem proper to comment on your comments. Indeed, if Ms. Brogan had written a homophobic diatribe, then she deserved the "dissing."

Then again, as you so stated, this is a small theater community, and anyone who knows Valerie, however briefly, knows that she is not anti-gay.

So much of the written word can be confused because of one's perception or ignorance today. When I read that you and Ms. Brogan--two "white" people--had lamented the sad state of multiculturalism in theater, I was rather offended myself. But then I remembered two important facts: Ms. Brogan works for Teatro Dallas--a great theater company that celebrates different cultures at every opportunity, and I must assume that you have certainly felt the anger and disappointment when reading a straight person's laments about the state of the gay community. This is how I feel when a white person comments on the state of people of color/the multi-ethnic community today. Of course, you might have been talking about the multiculturalism of Irish and Polish theater. (My husband is Polish-American--a fact of which we are very proud!)

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