High court reaffirms faith in rule of shield law

I kept saying I never had any doubts how the case would turn out.

But I doubted. And I was afraid.

I knew that what John Bailey, the lawyer for ex-Gov. Kenny Guinn’s son, was trying to do was outrageous and unethical and wouldn’t be sanctioned in any other profession: Lying in court documents about a journalist’s integrity to smear her and chill her reporting.  And I firmly believed that the state Supreme Court had opted to consider Bailey’s petition for extraordinary relief mostly to squash his methods and perhaps bolster the state’s shield law that protects journalists.

I had faith. But I was not sure.

So when I learned the day before Thanksgiving that the high court had not just eviscerated Bailey and Guinn, but broadened one of the country’s strongest shield laws, I was ecstatic. And relieved.

This was professional, but it was also personal. Very personal.

You see, the journalist who was the victim of Bailey’s court calumny is Dana Gentry, one of the more passionate, aggressive reporters I have ever known who also happens to be the producer of “Ralston Reports,” my nightly program on NBC affiliates. Excuse me – our nightly program.

To say Gentry and I are close is an understatement. We are professional partners, and she might as well be part of my family. There is no separation; it is always “we.”

There seemed to always be an insinuation on the part of the Guinnites and their amen corner that this was “just Dana” pursuing a vendetta, that somehow I was not part of the story. Nothing could be further from the truth, and all of that truth must now be told.

Most of the coverage of the story, that of Guinn being accused of fraud by some of his hard-money lending clients, was on the program that bears my name. Does anyone seriously think I would have allowed Gentry’s reporting on the air if I didn’t believe in it? (Don’t get me started telling stories of some of our knockdown drag outs – it’s what makes us such a good team.)

When Gentry is on a story, she has a focus and tenacity that is unmatched. She, like all of us, may make mistakes, but they are never out of malice. I don’t even think she understood at the beginning of this ordeal what was at stake, not just for her but for all Nevada journalists, that the precedent that would be set would allow subjects of coverage to scotch reporting by making unsupported accusations and forcing reporters to prove a negative. It was shockingly insidious, and I still believe something no respectable attorney would agree to do for a client.

Gentry immediately wanted to produce the proof that the accusations were false. But I warned her that would only open the door to more obloquy disguised as questions about her relationships and reporting and that we had to fight this all the way. And so we did.

And at the end of that long journey, during which Gentry suffered having those unanswered allegations in the public domain, I learned a lot about some remarkable lawyers, our supportive Fourth Estate colleagues and the righteous justices.

With one glaring exception – Las Vegas Sun Editor Brian Greenspun and his officious toadies --  the media understood what was at stake here and either filed briefs or wrote pieces highlighting Bailey’s execrable conduct. And others with no stake in the matter, from political figures to guests on the program to regular folks, backed Gentry, sending encouraging words during the interminable wait for justice.

This is a story of an important legal victory for the business I love, but also one that has heroes who need to be properly recognized and villains who need to be properly vilified.

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Five years ago, Gentry began covering the story of how Guinn, while his father was governor, used connections at Metro Police in an attempt to smear his foes in civil litigation.  It was foreshadowing of what was to come for her.

The story metamorphosed into one of prominent Nevadans alleging that the governor's son had defrauded them. He portrayed their financial losses as part of the vicissitudes of The Great Recession; they saw something more sinister.

It was a great story: Son of former governor sued by big names, with allegations that the Guinn administration had gone soft on hard-money lending. Gentry pursued the story with her usual vigor, never failing to ask Bailey and/or Guinn for a comment before we went on the air.

They never would, nor did they ever challenge any of the facts. Then, suddenly, two and a half years ago, Bailey filed court documents, subpoenaing “information” from Gentry he claimed would prove she had been biased because she had received gifts and favors from plaintiffs suing Guinn.

Even after the high court has put an end to this, I refuse to print the allegations, which could have been easily disproved and would be libelous anywhere but court documents. To this day, I don’t know whether Bailey and Guinn knew they were false or simply didn’t care. Either way, I can’t believe the state Bar countenances such conduct.

Thus began the serpentine road that led to last week’s decision, with a District Court judge quashing the subpoena but making some odd statements and then Bailey asking the justices for their extraordinary writ.

Before I get to the decision and what it says and does, I must report that this saga was punctuated by several columns by journalists who realized what was happening. Elizabeth Crum, George Knapp, Steve Sebelius and John L. Smith all penned pieces excoriating Bailey and defending Gentry.

It was gratifying and helpful. We are eternally grateful.

The Sun also published an editorial, but it must be noted that Brian Greenspun, always eager to defend Harry Reid or one of his friends in the paper, never once in all of the years we were employed there (we left a year ago) wrote a column defending Gentry.

But it’s much worse than that.

Greenspun, during a conversation I had with him last year in which I asked him to pitch in for the court case, repeatedly told me that he did not understand the principle that was at stake. Indeed, he revealed 15 minutes into the conversation, his attorney was none other than John Bailey and he thought he could get Bailey to provide him questions for Gentry to answer, she could answer them and this would be over.

I was flabbergasted and tried to explain that was out of the question, that it would just open the door to more mischief. Not only did he refuse to write anything helpful or provide any financial backing, but a few months later, Greenspun, aided by his compliant subordinates, yanked Gentry from the story, saying she had a conflict of interest.

In other words, Greenspun did exactly what Bailey, who happened to be his lawyer, and Guinn aimed to do through the courts. Orwell could not have imagined it.

Gentry, of course, was apoplectic and quit soon thereafter. I followed a short time later, after Greenspun killed a column critical of Harry Reid and told me he wanted to still run my column, but wanted KSNV to be my employer. I told him no on the former but happily accepted the latter.

As difficult as that moment was for us, we got past it and Gentry continued to cover the story on her blog and on “Ralston Reports.” There was never any question of the station being a backstop, especially with the legendary Bob Stoldal as our boss. No one could ask for a better mentor and defender than Stoldal, who is everything Greenspun was not – loyal, unswerving, tough.

And now the Supreme Court, in that unanimous decision, not only had made it all seem worthwhile but has struck a blow for journalism here that will be long remembered and sets an important precedent. Make no mistake: This decision creates a chilling effect all right, but not what Bailey had hoped it would do to Gentry.

The decision, written by Justice Michael Douglas, should freeze any attempts by lawyers to try to go around the shield law by making frivolous accusations about a journalist without a scintilla of evidence, using the courts to deter aggressive investigative reporting. It is monumentally important.

First, the court dismissed Bailey’s contention that a journalist needs an affidavit to prove the shield law applies. That is a patently ridiculous burden of proof, which the court shredded.

Second, and more important, the court exposed what Guinn and Bailey were doing and declared it unacceptable. This is the critical part of the decision:

The statute broadly protects any information that is gathered in the course of preparing a news story, as well as the sources of such information. While Aspen (Guinn’s company) asserts that it has only sought information relating to Gentry in her personal capacity, the record demonstrates that this is not accurate. In particular, Aspen's claims in the action below allege that the investors improperly influenced Gentry to produce news stories favorable to them and unfavorable to Aspen. Thus, it appears from the face of the subpoena that, when read in the context of Aspen's claims, Aspen has requested the information sought in order to affirm its suspicions about Gentry's motivation for producing those news stories.  Indeed, Aspen's arguments in the opposition to the motion to quash and in its writ petition confirm that this is its reason for serving Gentry with the subpoena. In other words, although Aspen claims that it is not seeking Gentry's sources because it already knows whom those sources are, the circumstances of this case demonstrate that Aspen actually is effectively seeking to confirm the identities of Gentry's sources. As the identity of a reporter's source is information that is protected under the plain language of the news shield statute, see NRS 49.275 (protecting from disclosure "the source of any information procured or obtained by" a reporter), we conclude that the information sought was facially protected under the news shield statute.

I have only one word: Bravo.

There was a footnote, too, that is crucial here: To the extent that this is not Aspen's purpose, Aspen has not explained how the information sought might be relevant or lead to relevant information regarding its claims or defenses in the action below.

Exactly. No evidence. Not a whit.

And so we have a decision that likely will gain resonance in national media law circles as Nevada’s shield law, already potent, grows more so. This would not have happened without the tremendous talents of Don Campbell, my lawyer for two and a half decades who immediately saw the importance of Gentry’s case and took it on with his usual fervor. His briefs were brilliant, his argument before the justices earlier this year compelling.

Campbell had help, too, from his associates at his law firm, including Colby Williams and Hunter Campbell, and from two other attorneys who deserve kudos: Mark Hinueber, who despite being the counsel for a rival news organization was as supportive as anyone in this matter and rallied people to the cause; and Maggie McLetchie, the former ACLU attorney and one of the best in the state who leant her talents to the case.

All of Nevada’s journalists now and in the future are in their debt.

I am thrilled for my friend and colleague that those who manipulated the legal process to try to destroy her reputation have instead been exposed for what I always said they were: Leeches sucking a vindictive client for all they could in pursuit of a case no lawyer with any character would have taken on.

And I am heartened that I live in a state that, for all of its problems, has a journalistic community that comes together for one of its own, a group of lawyers who are willing to sacrifice for what they believe is an important cause and a high court that should make everyone proud.

I thank you. Excuse me: We thank you.

 

(Credit to RJ and prlog.com for images)