By Michael Miner

Free Speech Rocks! (When Oprah Calls the Tune)

The Insider turns on the dilemma facing a tobacco-company scientist who wants to go on TV and reveal the industry’s lies. He finds out that trade secrets and a confidentiality agreement are more than a match for truth and the public interest.

A federal suit alleging that an orange juice producer had adulterated its product with a carcinogenic preservative was settled out of court several years ago, and the judge put the entire court file under seal. Believing that an attorney was trying to circumvent this decree, the judge found him in both civil and criminal contempt, fined him, and ordered him to pay defendants’ legal fees amounting to some $150,000.

An author I know was hired to write a biography that will never be published. The family that had hired him refused to accept the results–the author’s subject was a public icon, and I guess he scrutinized him more closely than they’d bargained for. Under the terms of the settlement, there’s no book and the writer can’t say a word about the experience–beyond lamenting the three years lost from his life.

These are the infuriating cases. If we’re tempted to think of the First Amendment as some sort of absolute entitlement, they set us straight. Freedom of speech can be bought and sold–and pretty much ripped from our hands.

The case Elizabeth Coady makes against Harpo, Inc., is paltry by comparison. There’s no public-health issue or anything like it at stake, no proprietary information that could bring down an industry. Coady is just somebody who had an interesting job working for a famous person, saw the experience end badly, and now wants to write about it. She denies that her motives are vindictive, but who’d be surprised if they were?

Lower courts have construed Coady’s suit as a tiff between an unknown writer with a book idea and a personage who claims the authority to control what that book says. Coady has lost at each turn. But now a new attorney has introduced a third interested party–the public. John Moran argues that if Coady can be muzzled on the subjects of Oprah Winfrey and the Oprah Winfrey Show, then secrecy has become a perk of power.

“It’s the small cases that make or break First Amendment law, not the big ones,” Moran says.

Last week Moran, who’s a friend, submitted a petition on Coady’s behalf to the Illinois Supreme Court. “Ms. Winfrey has been quoted as saying, ‘Free speech rocks!'” it asserted. “But she apparently does not practice what she preaches.” If the lower court decisions are allowed to stand, he warned the supreme court, “soon all employees will find themselves barred from speaking about anything learned on the job about anyone, certainly anyone in a position of importance, regardless of the lack of any business necessity.”

A journalist who’s worked at papers in Philadelphia and Atlanta, Coady began at Harpo in 1993 and rose to the six-figure job of senior associate producer. “I was producing shows,” she says, “conceiving shows, supervising a team of other associate producers, coming up with guest ideas, doing research on guests and topics.”

But things started going wrong. “Without cause or fault of plaintiff,” the suit she filed against Harpo 17 months ago asserts, “defendant engaged in a course of conduct designed to force plaintiff from her employment with defendant.” Harpo allegedly cut her bonus, demoted her, accused her of disloyalty, and eventually assigned her no work of any consequence. In March 1998 Coady “succumbed to defendant’s tactics” and resigned.

Her first lawyer wrote Harpo proposing terms, among them “a sum of not less than $325,000 as a result of her wrongful termination and her execution of a perpetual nondisclosure agreement.”

No way, responded general counsel Letty Tanchum. Her letter back declared that Coady had been “supported and encouraged,” not driven off, that she’d been given a chance to produce shows but “was not successful,” and that her boss valued her nonetheless and “carefully thought through a new assignment.”

A second letter from Tanchum warned Coady not to get any ideas. “Be reminded that Ms. Coady signed a Business Ethics, Objectivity and Confidentiality Agreement [in which she] agreed (among other things) to keep confidential, during her employment and thereafter, all information about the Company, Ms. Winfrey, her private life, and Harpo’s business activities which she acquired during or by virtue of her employment with Harpo. That Agreement further restricts Ms. Coady from giving or participating in interviews regarding Ms. Winfrey, Harpo, and/or her employment at Harpo. We expect Ms. Coady to strictly comply with her obligations under that Agreement, and will take any steps necessary to ensure compliance.”

Uncowed, Coady went to court.

The document now standing between her reminiscences and the marketplace is the “confidentiality agreement” she signed with Harpo in 1995. Among other things it dictates:

That while employed at Harpo “and thereafter,” she must “never disclose, use, misappropriate, or confirm or deny the veracity of, any statement or comment” concerning Winfrey or Harpo–and that includes both business and private life.

That while employed or thereafter, she must refuse all requests for interviews about Winfrey or Harpo. “You should immediately reject the request, issue a ‘no comment’ statement and immediately advise either Tim Bennett [president of Harpo Productions] or Jeffrey Jacobs [president of the Harpo Entertainment Group] of the request and the details and circumstances surrounding the request.”

Those are pretty repressive orders. A company might not want to see how much it can get away with, but it would be a good day for free speech if the courts read Harpo’s agreement as a bluff.

They haven’t. Circuit judge Thomas Hett was first to rule that Coady is bound by the confidentiality agreement, and last September the Illinois appellate court upheld Hett’s decision. “We find unpersuasive plaintiff’s argument that the confidentiality agreement is too broad because it remains effective for all time and with no geographical boundaries,” wrote the appeals court. “Whether for better or for worse, interest in a celebrity figure and his or her attendant business and personal ventures somehow seems to continue endlessly, even long after death, and often, as in the present case, extends over an international domain.”

That public interest is beyond doubt. But it brings us to the question Moran now asks: Why should it cut in favor of the celebrity and not the public? The mistake the lower courts made, says Moran’s petition to the supreme court, was “in placing property rights above [Coady’s] and the public’s First Amendment rights.”

Could it be possible, Moran hints, that lower courts were so bowled over by Oprah Winfrey’s fame they lost sight of the Constitution? “First Amendment interests are involved here,” he wrote, “because Ms. Winfrey is a celebrity of such magnitude. But it is precisely that public status that requires the First Amendment interests of [Coady] and of society at large to be considered in determining the enforceability of confidentiality agreements such as the one here.”

Moran asks the supreme court to strike a “proper balance” between, on the one hand, “the public’s need for ‘public discourse’ [and] a former employee’s rights to freedom of speech” and, on the other, “the ability of private employers to restrain both public discourse and the former employee’s freedom of speech by virtue of a confidentiality agreement that defines ‘Confidential Information’ in the broadest terms possible.”

What the lower courts have done, he argues, “is nothing less than immunization of rich and powerful ‘public persons’ from comment or criticism by present or former employees, violating the fundamental theme of the Supreme Court’s First Amendment jurisprudence for the last 30 years.”

For the moment, Coady is watching her words. “Behind the scenes at Harpo is a great untold story,” she asserts–and leaves it at that. She calls Winfrey “an icon of this century and decade” and claims for herself “a better perspective on the real person because of having worked there than some other biographer who’d come along to do the story.” She adds, “I will say this–no one wants to tangle with Oprah. No one.”

She insists the confidentiality agreement she signed was not a contract but merely an “understanding you don’t talk” guaranteed by “good faith” on both sides. She points out that in 1996 the identical language was added to the “Harpo Employee Manual,” which contained this preface: “This manual is not a contract. It is solely intended to give you a brief description of the policies and procedures of the Company.”

Furthermore, Harpo broke faith with her, says Coady. How? “I can’t go into that,” she replied, but told me to read her suit.

Neither Tanchen, Jeffrey Jacobs, nor anyone else I tried to reach at Harpo would discuss Coady’s litigation. But two lower courts have taken Harpo’s side, and Tanchen’s letters speak for the company. So, of course, does the confidentiality agreement.

News Bites

Anguished basketball star Leon Smith showed up in Chicago last week, and the dailies quickly had to decide how to cover him. A ward of the state most of his life, Smith was drafted out of King High into the NBA last spring, and nothing’s gone right since. He alienated the management of the Dallas Mavericks, refused to polish his game by playing a season in the minors, and last month covered his face with war paint and swallowed about 250 aspirin. Back in town, he allegedly approached his ex-girlfriend and flashed a revolver at her, then smashed the windows of her mother’s car.

The Chicago police were looking for Smith when the story broke. Though the papers don’t normally name suspects who haven’t been charged with anything, this time they made an exception. But what about the former girlfriend? She was 16, accused of nothing, and possibly in danger. Did her name also belong in the story?

As both the Tribune and Sun-Times had warmly reported on earlier, happier occasions, the old girlfriend was Cappie Pondexter, as big a star as he was, a Marshall High junior who’s one of the top girls’ basketball players in the nation. When Smith was drafted by Dallas she was photographed at his side. Anyone who knew much of anything about Smith knew they’d been an item.

The Tribune and Sun-Times considered the circumstances, and each made a sound, sensible decision. The Sun-Times decided to go with her name. “The final consideration,” says executive sports editor Bill Adee, “was when we talked to [Pondexter’s] mother, who was quoted in Friday’s story. If she’d raised any apprehension about our naming her child in the story it would have been at that point.” Given his paper’s previous coverage of Smith and Pondexter as a couple, and the presumed intelligence of its readers, “I thought it was more strange not to name her than to name her.”

Strangeness wasn’t the Tribune’s yardstick. “Because she’s a minor we afforded her a little more protection than if she were an adult,” says John Cherwa, associate managing editor for sports. “We felt we wanted to give her some additional protection. We felt her right of privacy was greater than the public’s right to know.”

Protection from what–the public?

“Yeah, pretty much,” says Cherwa. “If she was 18 we would have named her. We just thought that people out there have some rights and you should always be especially careful when someone’s a minor. On the other side of the coin, probably almost everybody knows who his girlfriend was.”

Both papers covered the Marshall girls’ Friday game against Evanston in the Marshall gym, which, with Smith at large, teemed with security. The Tribune stubbornly refused to connect the dots. “Those were the kind of precautions in place after a 16-year-old member of the Marshall girls team told police she had been threatened Wednesday by her former boyfriend…Leon Smith,” the Tribune reported. “But while things were different off the court, the news on it was much the same for the defending Class AA champions. Cappie Pondexter, considered one of the nation’s best juniors, scored 30 points to lead the second-ranked Commandos.”

Readers surely blinked at such circumspection. Adding to the surrealism was the mention of Lekisha Smith–Leon Smith’s sister, Pondexter’s teammate, and a star for Marshall in the Evanston game. Both papers identified her by name and relationship, though she’s only a sophomore and even less implicated in Leon Smith’s behavior than Pondexter. But presumably Lekisha Smith was in no danger.

Some readers might find it absurd to withhold information they already have. Still, there are worse things than getting to gloat that you know more about what’s going on than your newspaper dares tell you.

There was a time when the public interacted with a magazine by reading it. That day is over. Even the New Yorker has obviously concluded that the way to win over the public is to let it in on the action. An initiative that began reasonably with a letters page and proceeded tackily with a back-of-the-book puzzle (now vanished, thank God) has flared out of control. Recent issues have offered a “cartoon caption contest” (“Here’s your chance to be a cartoonist–or, at least, half of one–and a shot at being published in The New Yorker”) and the first-ever New Yorker book awards (“There are all kinds of book prizes….But this is the only prize we know of that lets the reader decide the winner. So please vote”).

I was recently invited by a telephone solicitor to join a focus group discussing the New Yorker. As soon as the caller found out I was a journalist the invitation was withdrawn. Too bad. If we’d been asked what we considered unworthy of the New Yorker, I was going to say desperate measures–like this focus group.

Art accompanying story in printed newspaper (not available in this archive): illustration/Russ Ando.