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Edghill v. Philadelphia Magazine, revisitedBY: Dan Rottenberg 03.13.2012
When publisher Herb Lipson settled a libel suit for millions and issued a retraction in 1989, he thought he was ending a personal nightmare. But he seems to have been paying a price ever since— not legal or financial, but psychological.
Legal truth and real truth:
More than 40 years ago, when Philadelphia Magazine represented the cutting edge of local investigative journalism, the magazine published an exposé of corruption in Atlantic City that identified a nightclub owner as a big-time cocaine dealer. The alleged culprit, Reginald Edghill, sued for libel.
In such a situation a publisher confronts two basic choices. If the article was mistaken, you apologize publicly, set the record straight and do whatever else is necessary to make amends for the damages the victim may have suffered.
But if you believe the article was correct, you fight the suit. If the court ultimately rules against you but fails to persuade you that you’re wrong, you pay the judgment amount. But you don’t apologize or retract. To do so is to accept legal truth (which is the court’s business) as real truth (which is your business), when in fact the two are very different.
The theory is simple: A court of law holds the power to deprive you of your property, your liberty or even your life. To justify such serious penalties it must meet a much higher standard of proof than applies to journalists, who lack a court’s coercive power. (For all our alleged might, we journalists can’t compel anyone to pay attention to us, much less act on our ideas.) But a court has no right to make you say something you don’t believe, and it shouldn’t— because society as a whole suffers when people are forced to say things they don’t believe.
If necessary, you go to jail over that principle (as indeed the publishers of the New York Times and the Washington Post pledged to do over their publication of the Pentagon Papers in 1970). Or you shut down your publication altogether. It’s the price you pay for the First Amendment’s protection from government meddling in your product, which the Constitution extends to publishing but to no other business.
Philadelphia Magazine’s owner and publisher, D. Herbert Lipson, believed the Atlantic City article was correct, and apparently still does, to judge from his January “Off the Cuff” column in the magazine. But at the time the article appeared, the magazine lacked insurance against libel suits— an astonishing oversight for an investigative journal, comparable to failing to insure your home against fire. So the magazine’s considerable legal expenses in the Edghill suit were being paid not by an insurance company, as is usually the case, but by Lipson himself.
Dragging out the trial
The speed of modern justice being what it is, the case didn’t come to trial until 1982, more than a decade after the article appeared. And at that point it dragged on for months more as Edghill’s attorney, the late M. Mark Mendel of Philadelphia, summoned a seemingly endless parade of witnesses, allegedly to establish malice on the author’s part but more likely to drag out the proceedings in the hope of driving Lipson’s legal costs so high that he would settle the case on Mendel’s terms. Amid these maneuvers, the truth or falseness of the article that prompted the suit became a minor issue.
Shortly before the trial ended, Lipson’s lawyers filed a motion asking that Judge Bernard Snyder disqualify himself from the case because of his alleged bias in favor of Mendel. The motion included an affidavit from Lipson claiming that a lawyer had told him that the case was “fixed all the way to the Supreme Court.” The lawyer claimed inside knowledge because, he allegedly told Lipson, he was a fixer himself.
Of course, the lawyer denied in court that he’d said any such thing. Nor did Lipson, who has always been overly impressed by the trappings of power, inquire as to how it is possible to fix a case all the way to the Supreme Court when the case is still being heard at the lowest level. And in any case this allegation amounted to mere hearsay: Lawyers— who possess no stock in trade other than their perceived abilities— are forever claiming powers and connections that they don’t really possess.
‘A third-rate city’
Ultimately, Judge Snyder— who had provided other alarming evidence of his bias in favor of Mendel— denied Lipson’s motion and delivered a $7 million judgment in favor of Mendel’s client, Edghill. The magazine appealed the verdict, but in 1989, exhausted by what he has called “the nightmare,” Lipson settled the case and published a retraction. “The ordeal had cost millions of dollars and risked this magazine’s very survival,” he explained.
Lipson has remained bitter about the case and about Philadelphia lawyers in general ever since, as any regular reader of his “Off the Cuff” column can attest. This past January he was at it again— revisiting the Edghill suit and the “fix” allegation, and declaring that “the stranglehold of our legal system is one of the reasons why Philadelphia will always be a third-rate city.”
This time, however, Lipson’s generalized rant against Philadelphia lawyers and judges provoked a remarkable response. Laura Feldman, president of the Philadelphia Trial Lawyers Association, dug out Lipson’s 1989 retraction and called him to account for contradicting it at this late date. If Lipson was tired of being persecuted by Philadelphia lawyers, Feldman was equally tired of seeing her fellow Philadelphia lawyers pilloried by Lipson from his privileged print pulpit.
‘You propagate the lies’
“The simple truth,” Feldman wrote in a letter published in Philadelphia‘s March issue, “is that approximately 40 years ago, you published a defamatory lie about a successful Atlantic City businessman, falsely accusing him of being a drug dealer.… You chose to litigate that case for years despite knowing that the claims published by your magazine were not true.… Now, over 40 years later, when you know the other parties are either deceased or too aged to defend themselves, you again propagate all of the lies that you previously recanted in writing.”
“I’m not belittling his bad experience,” Feldman told me when I phoned her. “But we’ve turned the other cheek to this for too long. It just gets very old when everyone calls you a crook just because you’re a lawyer.”
(Full disclosure: I worked at Philadelphia Magazine in the 1970s, although I arrived there after the Edghill story appeared. And Laura Feldman is my wife’s third cousin, although I don’t believe I’ve ever met her.)
Lipson apologizes, again
In an unusually contrite reply to Feldman’s letter, an editor’s note announced that “Mr. Lipson regrets the disparaging remarks … about the Philadelphia court system, its judges and the lawyers who practice here.” The “very unpleasant” Edghill case, said the note, “colored his views of the city’s legal system…. He apologizes to the court and all those offended by his statements.”
Ah, but was the truth really as simple as Feldman contends? And does Lipson really regret his remarks? Did he really know, as Feldman contends, that “the claims published by [his] magazine were not true”?
By agreeing to print that retraction in 1989, Lipson effectively constrained himself from saying what he really knows, thinks and feels, rightly or wrongly, about the Edghill case. What gnaws at him now, I suspect, is not the loss of money but the natural human frustration of having thoughts inside of you that, by court order, can’t come out. That’s the sort of thing you can’t put behind you, no matter how much time may have passed.
Me, I would have gone to prison and/or shut down the magazine rather than submit to such an infringement. Of course, I have much less at stake materially than Lipson, so that’s easy for me to say. “It is not the rich who are powerful,” the French actress Jeanne Moreau once observed. “It is the people who feel themselves free.”
The Paterno analogy
For transforming a pedestrian Chamber of Commerce house organ into America’s first sophisticated city magazine and then sustaining it for 50 years through good times and bad, Lipson deserves the thanks of both his city and his profession. But as I suggested recently about Joe Paterno, the true test of an individual isn’t what he does over a lifetime of everyday situations but how he responds to a crisis. Lipson failed this moment of truth, and consequently he deserved his verbal spanking from Feldman.
But the fact is that Feldman (who was in junior high school when Philadelphia’s Edghill article first appeared) can’t tell us whether Reginald Edghill was a drug dealer. All she can tell us is that it wasn’t proven in court, and that Lipson retracted the accusation.
Nor can I say whether Edghill was or wasn’t dealing drugs. But unlike Laura Feldman, in the quest for real truth I would hesitate before placing much credence in a retraction coerced from Herb Lipson at the risk of losing most of his worldly wealth.
There is legal truth (by which standard, say, Al Capone never committed any crime more serious than tax evasion), and there is journalistic truth. Each serves a purpose, but neither is infallible, and it’s important to distinguish between them. In this case, as in so many, the real answers may have to await what novelists like to call “the higher truth of good fiction.”♦
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