In a matter where a former employee alleged employment discrimination and that she had been fired also for objecting to the cartoon, the editor of the New York Post would be required to answer questions on his discussions with Rupert Murdoch over the cartoon.
On June 29, U.S. Magistrate Judge Ronal Ellis said that Col Allan the editor of the NY Post had refused during a seven-hour deposition to answer several questions related to the cartoon and one question related to a photo of a nude man published in connection with former NJ Governor James McGreevy’s divorce. The deposition referred to had taken place in February.
The Manhattan federal judge has ordered Col Allan to submit to another two hours of deposition and said that the editor was seeking to improperly broaden the scope of journalistic privilege. Ellis said that such ‘editorial privilege’ typically applied to cases where protection of sources used in collecting news was concerned.
However, in the present case, the court ruled that the editor of NY Post would not be able to invoke ‘editorial privilege’ or refuse to answer questions posed by Sandra Guzman, a former associate editor who has sued the newspaper for employment discrimination and harassment. Questions posed by Guzman referred to such matters as to whether Col Allan told Murdoch that he disagreed with publishing the apology over the cartoon and whether Allan understood that Murdoch had believed making the apology was a mistake.
The judge held that in the context of employment discrimination, “the plaintiff may explore the motivations of decision makers, or individuals who influenced the decision maker or participated in the decision.”
Guzman, who is black and from Puerto Rico, had sued the Post and News Corp in November 2009.
The case is Guzman v News Corp et al, U.S. District Court, Southern District of New York, No. 09-09323.
The First Amendment protects the newspapers from paying; it does not protect them from us finding out whether they should pay. Those are two different things.
Yet the New York Post makes them one and the same in its efforts to block the discovery deposition of its owner. Deposing Rupert Murdoch does not amount to the chilling of free speech — though making the Post pay in a libel suit without proof of malice will.
But how can you prove malice without being allowed to ask the newspaper editors and their owners what they had in mind when they printed the falsehoods?
If the press wants to enjoy its ironclad license to print fiction against public figures, it has to at least allow litigants to inquire if this was done with malice.
The press can’t have it both ways — and it has it well enough already.