Not Another Word
Born and raised on St. Paul's East Side, Wally Wakefield graduated from high school in 1948, worked on the Great Northern Railroad for a decade, and spent a year fighting in the Korean War before attending the University of Minnesota on the GI Bill. He was an elementary-school teacher for 29 years, and after raising five kids and retiring, he decided it would be fun to work part-time for a community newspaper, writing human-interest stories and tallying high school sports scores.
Mark Anfinson has been practicing law for 20 years, and in that time he has made a million motions, filed countless briefs, and tried dozens of libel cases for clients such as the Minnesota Newspaper Association and City Pages. He has a brain crammed with legal minutiae and spends most of his time trying to squeeze every last inch out of the First Amendment.
At first glance, these two men from different generations and with divergent professional passions seem poles apart. And yet Anfinson says that one of the most memorable moments of his career came just a few minutes after 2:00 p.m. on Friday, November 3, when he looked up from his legal pad to watch his 71-year-old client address Ramsey County District Court Judge Dale Lindman.
Lindman asked Wakefield if he planned to comply with a court order requiring him to name anonymous sources quoted in a 1997 investigative story published in the Maplewood Review about a former high school football coach named Richard Weinberger. If the answer was yes, Wakefield could go home and Weinberger could go forward with a defamation suit against his school district and four of its employees. If the answer was no, Wakefield would be held in contempt of court and fined $200 a day. The answer was no.
"When Wally came in front of the judge, I was gripped by the notion that this was one of the exceptional moments of my legal career," Anfinson says. "I was watching a courageous act by an improbable character. I'll remember it when I'm sitting on the rocking chair on the porch at the rest home."
Not everyone in the courtroom--or in the local journalism community, as it turns out--is so moved. Some Twin Cities reporters say there is a lot of room for gray in what, at face value, might seem like a black and white issue: whether or not reporters should ever be compelled to reveal their sources. And what Anfinson sees as a righteous fight for the First Amendment, Stephen Cooper--Weinberger's attorney and the former head of the Minnesota Department of Human Rights--sees as grandstanding.
"Procedurally they know they're wrong and legally they know they're wrong," Cooper argues. "Mark is very skilled at making up arguments and blowing things out of proportion."
"I think there is a real confusion here on the plaintiff's part," Anfinson retorts. "I don't think they understand what the law requires."
That the two attorneys have been going at each other like this for years would be less startling if Wakefield were actually a defendant in Cooper's case. But neither Wakefield, nor his newspaper, nor its corporate owner are named in Weinberger v. Independent School District 622 (North St. Paul Area Schools), a fact that both Anfinson and Cooper say is key, for entirely different reasons.
The saga began on January 27, 1997, when the Maplewood Review, a weekly owned by Lillie Suburban Newspapers, Inc., published a front-page story reporting that Weinberger, an earth sciences teacher, would no longer be employed as the head football coach at Tartan High School in the St. Paul suburb of Oakdale. The article was written by Jason Tarasek, but contained a number of anonymous quotes gathered by Wakefield. According to court records, the piece asserted that school officials had decided not to renew Weinberger's contract for an 11th year because they'd had enough of his "temper, inappropriate comments, and foul language," which people claimed he uses to intimidate parents, teachers, and players.
In October 1998, Weinberger filed suit against District 622 and employees Barbara Halbrehder, Tim Hickey, Cletus Lipetzky, and Mark Klingsporn, alleging breach of contract and defamation, and arguing that the defendants used the Maplewood Review to spread false rumors about the coach. Judge Lindman rejected the defendants' request to dismiss the case and in July 2000, Cooper served a subpoena on Wakefield. (A subpoena was also prepared for Tarasek, whose byline appears on the piece, but he had since moved to California and was never served.) Anfinson objected on the grounds that the subpoena violated both the First Amendment and the Minnesota Free Flow of Information Act, which in most cases shields journalists from having to reveal confidential sources. Cooper filed another motion arguing that the defendants were undoubtedly the primary sources in Wakefield's article. At that point, the judge concluded that it was reasonable to ask Wakefield to tell the court which defendants said what.
Anfinson took his objections to the Minnesota Court of Appeals. He acknowledged that there is a "defamation exception" in the law that compels a journalist to reveal his sources when it can be shown that the information is relevant and cannot be obtained through other means, but only when a journalist or news organization is a direct defendant in the case. Otherwise, attorneys without enough evidence to name a news organization in a lawsuit could still use reporters and their notes as a way to go on a fishing expedition for damning evidence--an interpretation that Anfinson argues is dangerously broad.
"The reason they didn't sue the newspaper is that they didn't have a snowball's chance in hell of winning," Anfinson insists. "So instead, they sued the school district, went to a reporter to get their evidence, and argued that the judge and a jury should decide later whether or not the source was lying. So what happens if they conclude the source was telling the truth? His identity is already blown and the newspaper's newsgathering ability is forever compromised."
What's more, Anfinson argued in his appeal, even if the law's defamation exception were applicable, Cooper had not jumped through the necessary procedural hoops. He had not shown that there weren't other ways to figure out what the defendants did or did not say. And he had never proven that the defendants were the only people who could have possibly uttered the confidential statements in question.
Ultimately, the appeals court rejected Anfinson's philosophical arguments and sided with Cooper, who argued that Weinberger deserved protection from false and malicious attack in print, regardless of whether the newspaper was named as a defendant. The magistrates did decide, however, that Anfinson's procedural objections had merit. Cooper still needed to prove to Judge Lindman that the only way to find out what the defendants said was to subpoena Wakefield.
But there was a loophole. Cooper could interview the four defendants again to determine what they did or didn't say to Wakefield. Those interviews are riddled with a lot of "I don't remembers" and "maybes," but at a July 2, 2001, hearing, Lindman concluded that the four defendants had talked to the Maplewood Review, that they had been quoted in the article, and that Cooper could not find out who said what without Wakefield. Lindman, believing that the demands of the appeals court had been satisfied, again ordered Wakefield to give up his sources. Wakefield again refused, and in early November he was held in contempt. "The names of the speakers are actually already known, so they won't be harmed any further," Cooper contends. "All we want and all we will get is what defendants made what statements."
Not surprisingly, Anfinson isn't buying Cooper's analysis or sitting still for Lindman's latest edict. On the day before Thanksgiving, he filed what figures to be a final plea to the court of appeals. "There is still no evidence to support that the only sources in Wakefield's article are the defendants," he says. "I don't know who they are myself. And if they were, it's still a secondary issue. Our concern is what kind of chill identifying anonymous sources could put on the newsgathering process."
Both attorneys do agree on one thing: Ultimately, the issue is whose privileges should take precedence. Anfinson argues that Weinberger's right to sue is superseded by the public's need to know that sources can speak to reporters confidentially. Cooper believes that the right to anonymity should not protect potentially dishonest parties.
And in this case, the line is so thin that even the Minnesota chapter of the Society of Professional Journalists has chosen to stay out of the game. "We have been monitoring and will continue to watch the case," says Star Tribune reporter James Walsh, president-elect of the local SPJ. "But the issues are murky enough that we're not going to go charging in there."
In the meantime Wakefield will once again have to hurry up and await his fate. "What will I do if it comes down to identifying my sources or paying that fine? I don't know. We'll cross that bridge when we come to it." Wakefield says, occasionally rubbing his hands together nervously. "I never would've believed I'd have been involved in something like this. I still don't believe it. It's really raised my anxiety level. I've lost sleep, almost felt threatened. You know, when you're my age, it's just tough to deal with the physical limitations. Now there's mental stress on top of it.
"I'm obviously in contempt of court. But I don't feel like a criminal. I don't know, maybe most criminals don't. The thing is, I made a promise to certain people and they expected me to be honorable. I just don't know how I can go back on that."
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