Johnnie Cochran’s Odd Libel Suit Hits Post Tough Gal Andrea Peyser

Johnnie Cochran has been on the receiving end of much harsher words than the ones that spewed from Andrea Peyser’s New York Post column on Aug. 29, in which she bemoaned his inclusion in the Abner Louima defense team.

Take, for instance, Mr. Cochran’s ex-wife, Barbara Cochran, who used her autobiography to accuse him of philandering and physical abuse. Or how about Joe Fitzgerald, a columnist at The Boston Herald , who called Mr. Cochran a “two-bit phony with the million-dollar wardrobe [who] dove into the sewer looking for the meanest card he could play, the race card, then proceeded to fan the flames of racial tension by slapping that card onto the table in shameless pursuit of victory, caring not a whit about the divisiveness he was sowing.” And who could forget Christopher Hitchens, the Vanity Fair contributor and Mother Teresa-basher, who painted Mr. Cochran as the villain in the O.J. Simpson trial? “As head of the defense team, Johnnie Cochran acted as a thug and a demagogue,” Mr. Hitchens wrote in London’s Evening Standard . He added: “In his frenzy to do anything to muddy the waters, and to lead attention away from the timing, the forensic evidence and the motivations established by the prosecution, Cochran has set back the cause of justice for many people who need it far more than his spoiled, sullen client.”

Mr. Cochran did not sue any of them. But the eloquent defender of civil rights is suing Ms. Peyser and the New York Post for libel, and seeking at least $10 million for the damage to his reputation and his general emotional well-being. And given the apparently slim legal chances he has of winning such a case in New York, he’s playing the California card. On Dec. 10, in United States District Court in Los Angeles, Mr. Cochran sued over the following words in her column entitled “Nightmare Team is taking over”: “Cochran has yet to speak up. But history reveals that he will say or do just about anything to win, typically at the expense of the truth.”

“The foregoing statement is false and defamatory and accuses Cochran of unethical conduct in his profession, especially when read in the context of the entire article,” the complaint states, “and the foregoing statement implies that Cochran has a record of lying and unethical conduct. Said statement exposes Cochran to contempt, ridicule, and obloquy, and defendants knew, at the time they made such statements, that the statements would expose Cochran to contempt, ridicule, and obloquy.”

(When Mr. Cochran mentions context, he’s referring to lines like, “The man who cynically turned West Coast justice on its ear in service of the guilty is now poised to do a similar number on the city of New York.”)

“I’m just astonished that in this country you can be sued for expressing an opinion, particularly one as widely held as the one expressed in the column,” Ms. Peyser said.

That sentiment was echoed by a number of First Amendment lawyers contacted by Off the Record. “I’m surprised Cochran would do that,” said David Korzenik, whose firm, Miller & Korzenik, has represented Vibe and Spy . “I thought he was more sophisticated.… I understand his reaction on a personal level, but libel is not about offense, it’s about an actual harm to reputation. And I don’t think a statement like that is understood the way he thinks.” In this case, meaning that it does not accuse him of committing perjury, just having a win-at-all-costs mentality, a statement likely protected by the First Amendment.

“I think it’s safe to say it will be dismissed,” said Laura Handman, a partner at Lankenau, Kovner, Kurtz & Outten, which has represented media outlets such as The Observer , NBC, The Economist and Harper’s Magazine . “It’s hyperbolic. It’s in a column.”

Mr. Cochran had nothing to say about his libel suit. But Barry Langberg, Mr. Cochran’s lawyer, who has won cases for Carol Burnett (against The National Enquirer ) and casino developer Steve Wynn (against Lyle Stuart’s Barricade Books), disagreed with the conventional wisdom. “Harshness isn’t the issue,” he said. “Going from legitimate expression of opinion to expressing purposed facts that aren’t true is the issue. She’s saying that he has a record of lying in court. That is provably false. That goes beyond opinion. It is fact.”

The Federal courts have long operated under the assumption that there is no such thing as a false idea. But in 1990, in Milkovich v. Lorain Journal Co., the United States Supreme Court trimmed the nearly complete protection in which the courts had blanketed opinion. The decision in that case, which involved a sports columnist calling a high school coach a liar, determined that opinions that imply defamatory facts can be libelous. But the more outrageous the opinion, and the context and style of how it’s delivered, the more likely it will be protected by the law. (Ms. Peyser’s assertion would fall into the latter category, said some of the First Amendment lawyers contacted by Off the Record. Mr. Langberg responded simply that he’s proven the experts wrong before.)

Making Mr. Cochran’s legal gambit even trickier is the Post’ s location. New York State constitutional law is even stronger than Federal law, granting broad immunity for all sorts of opinion. Hence Mr. Cochran’s move to Los Angeles-where the Post sells an estimated 165 copies each weekday, according to the Audit Bureau of Circulations-even though he’s here much of the week filming Cochran & Company for Court TV and networking his way into Manhattan’s power circles. California law has shown more concern toward well-known figures and the license the media can take with their reputations. “There’s a notion that California juries are more sympathetic to celebrities than jaded New Yorkers,” said Ms. Handman.

Mr. Langberg said the sole reason Mr. Cochran filed in Los Angeles is that he has practiced law in the city for the past 30 years and that his friends and associates are based there.

New York Post editor Ken Chandler referred a call to a spokesman, who said, “The complaint has no merit and we are defending it vigorously.”

Harold Evans, soon to take office as the editorial director and vice chairman of Mortimer Zuckerman’s mini-empire of media outlets, visited the Freedom Forum on Dec. 10 and delivered a searing lament on the decline of journalistic standards and vigilance in the land of the First Amendment. But as he went about decrying the tabloidization and laziness of the media, he cleverly found the time to defend the family honor.

The target of his ire: New York Times Op-Ed columnist Maureen Dowd, who has written all sorts of unflattering things about Mr. Evans and his wife, New Yorker editor Tina Brown, and how they’ve succumbed to the culture of celebrity that Mr. Evans claims he so despises. Maybe it was Ms. Dowd’s labeling Mr. Evans an “expensive hustler” that so enraged him. Or her praying in print that the former president and publisher of Random House would “take a bath” on Dick Morris’ book. Or her cringing disbelief on discovering that Roseanne would be serving as a guest editor at The New Yorker . “Can this be?” Ms. Dowd wrote back in 1995. “The magazine of Dorothy Parker and Hannah Arendt joining forces with the boorish TV star who urges women to kill bad husbands and children to kill bad parents?”

Whatever the catalyst, Mr. Evans decided to make Ms. Dowd the poster girl for all the journalists who he thinks evince partisan tendencies and carry a visceral dislike of President Bill Clinton. The subject was “Gravegate,” or how an unsourced allegation of political donors buying their way into Arlington National Cemetery became a full-blown media controversy.

“That very funny columnist Maureen Dowd, who so ached for the story to be true, gave us an intriguing standard of journalism-the doctrine of implied guilt. It was right to run it, she said, because it was the kind of thing she expected of Clinton. It was plausible.

“It won’t do,” Mr. Evans continued. “A lot of rumors are plausible, especially if you happen not to like the subject. By that standard, someone might say it was plausible that Maureen, a renowned Clinton-hater, was in the pay of the Republican propaganda machine. Nonsense, of course. The fact that an idea is despicable does not make it plausible.”

Ms. Dowd declined to comment. But the column in question skewered Republicans as much as it did President Clinton, accusing the House Veterans’ Affairs Committee of sloppiness. “What you need to know about Bill Clinton is that the charge was plausible,” Ms. Dowd wrote on Nov. 22. “What you need to know about the Republicans is that the charge is despicable.”

Besides exacting revenge on Ms. Dowd during his lecture, Mr. Evans offered his soon-to-be-subjects at the Daily News and U.S. News & World Report some clues to his journalistic temperament. He frowns on the use of unattributed sources. “There should be a quota, a kind of tariff on blind quotes per issue in any newspaper,” Mr. Evans said. “Blind quotes may be defensible for whistle-blowing on a grave issue, but not for the personal vendettas one sees every day in the press.”

While Mr. Evans treasures the First Amendment, he’s not as fond of the second one; he bewailed the fact that there hasn’t been a thorough investigation of “the murk of the National Rifle Association.” He’s not a fan of Whitewater stories or giving the Paula Jones case such visibility. And page 1 stories about tempests such as Frank Gifford’s extramarital gropings are trivial and demeaning, no matter how much editors claim such stuff is about character. “This is no more than prurience on stilts,” he said. “It is as much about character as Joe McCarthy’s list of names had to do with state secrets.”

Mr. Evans, of course, made sure he jokingly toadied up to his new boss. “Any references to tabloid journalism which could be in any way construed as critical do not include publications owned now or possibly owned in the future by Mort Zuckerman-slash-Fred Drasner,” Mr. Evans said at the opening of his speech. “To borrow from my immediate trade past, any resemblance to persons, living or dead, in this lecture is purely coincidental.”

Wired Ventures Inc. finally has found a new editor to replace Louis Rossetto on a day-to-day basis, tapping editor-at-large Katrina Heron. But the search for a volunteer to take over Mr. Rossetto’s chief executive duties does not appear anywhere near culmination.

Perhaps the prospective candidates are shying away from the “organizational culture” delineated in the “specs” document that the headhunting firm Heidrick & Struggles is sending around to the publishing and new-media industries. It’s a description full of cyberlibertarian corporatespeak-grandiose, trite, contradictory and redundant-that would not be out of place in a Dilbert strip. And the writing begs for an editor. To wit:

“These values or ‘heuristics’ are the company’s cultural aspirations and are based on proactive ethical leadership, collaboration, independent and creative thinking, and high standards of excellence,” reads one of the opening sentences describing Wired Venture’s organizational culture.

Then comes a list of talking points:

“The organization is driven by the motto of ‘Smart Media for smart people around the world,’ and by its mission to connect people to the technological future. The company most admires strategic, intellectual, creative and editorial talent.”

“Entrepreneurial drive and fanatical commitment to the business are keys to success internally.”

“It is a highly intense, fast-paced, efficient and energized gestalt.”

“The accepted term for the environment is ‘office-home’ environment, which translates as ‘you can wear what you want and be yourself, but we’re here to make great media and a great company, and build wealth and assets, and that’s where the focus must be.’”

If Wired Ventures can find a candidate willing to immerse him or herself in this Digital Citizen ethos, the chief executive will be expected to take the company from $45 million in revenue to $250 million, make it profitable and prepare it for another try at an initial public offering. Wired Ventures struck out twice before in its public-market entreaties, and recently laid off 20 percent of its on-line unit’s staff. But the job as chief executive could become a very lucrative gig. According to people approached for the job, the incoming executive team will get 10 percent of the company.

Urinating Santas and Christmas expletives won’t be greeting readers of The New York Times Book Review this holiday season, thanks to the watchdogs in the newspaper’s advertising department.

Little, Brown & Company had planned on advertising David Sedaris’ cheerfully misanthropic collection of Christmas stories, Holidays on Ice, in the Dec. 21 issue of The New York Times Book Review opposite the table of contents. The publishing house’s ad agency, Dweck & Campbell Inc., dispatched the ad materials and did not anticipate any problems. After all, the ad had already passed muster with the gatekeepers at The New Yorker and Harper’s Magazine . But at The Times , the ad–a “Merry #!@*ing Christmas!” banner accompanied by the book’s jacket-cover photo of Santa relieving himself at a public urinal-was deemed unacceptable.

“We just find it to be in questionable taste and not suitable for The New York Times ,” said Steph Jespersen, copy chief of something called the advertising acceptability department at the newspaper.

The folks at Little Brown were stunned that The Times was turning down their $4,492. “They’ll put half-naked women in lingerie all throughout the paper,” said one miffed executive at Little Brown. “But Santa urinating? Santa drinks a lot of eggnog. The man has to take a leak sometime.”

In a very even tone, Mr. Jespersen told Off the Record that the three-person department evaluates each ad separately, and that comparisons cannot be made between lingerie and Christmas blasphemy. “This ad had two things working against it.” he said. “One was the urinal, and the other was the copy.”

When asked if The Times might have accepted the ad if it had contained just one of the offending elements, Mr. Jespersen declined to deal in hypotheticals. “We take each one on its own,” he said.

Back in the early days of Saturday Night Live , Chevy Chase often used to open the “Weekend Update” segment with the line, “Generalissimo Francisco Franco is still dead.” The brass at The New Yorker could take a tip from Mr. Chase and adopt it to a motto that might run: ” The New Yorker is still not profitable.”

Nineteen ninety-seven was supposed to be the year the magazine’s financial messiah arrived. Indeed, New Yorker president Tom Florio told The New York Times on Oct. 14, 1996, that the magazine would move into the black in the following year. And S.I. Newhouse Jr., who shelled out $168 million of his family’s money to buy the magazine back in 1985, told the New York Post on Sept. 27, 1996, that he expected 1997 to be a profitable year for the magazine.

The losses, however, are still piling up, said sources at the magazine. But the deficit is apparently down into the single-digits-in the millions, that is.

The editorial side places the blame for this financial state of affairs on the business side, and editor Tina Brown is not as enamored of Mr. Florio as she once was, said sources in the Newhouse empire. “There should be more ads in the magazine,” said one editorial type. Losing one of the magazine’s top ad salespeople, Will Lippincott, to The New Republic , won’t help matters, either.

But Mr. Florio remains upbeat. He told Off the Record that the magazine “is having the best year it’s had in 10 years,” selling nearly 102 more ad pages this year than in 1996. The nine special theme issues brought in 38 percent of the magazine’s total ad pages, he said. So, look for the “California” issue this coming February, and a “Private Lives” issue later in the year.

Mr. Florio, perhaps learning from his past mistakes, declined to tell Off the Record when the magazine will become profitable. But Advertising Age reported him saying that the magazine may break even or turn a profit in 1998. Old habits just won’t die.