Southeast Texas Record editor Marilyn Tennissen and reporter David Yates are not journalists and the Record is not a newspaper, Beaumont, Texas attorney Brent Coon said at a hearing before Texas District Judge Donald Floyd on April 26.
Coon, who filed more than 150 asbestos and silicosis lawsuits in Madison County in 2005, asked Floyd to hold Tennissen and Yates in contempt for their failure to appear for depositions April 20.
"Ms. Tennissen and Mr. Yates are not credible newspersons doing the good work of the press," Coon said.
That, he said, limited their First Amendment protection.
The Southeast Texas Record is a sister publication of the Madison/St. Clair Record. Its first edition was published April 2.
Coon waved the paper above his head and said, "This is not a newspaper. This is a propaganda sheet."
He asked Floyd to order Tennissen and Yates to perform 40 hours of community service in the cancer ward of a Veterans Administration hospital, to "sensitize" them. He also asked Floyd to send them back to school, for a college course in journalism ethics.
Coon seeks to depose Tennissen and Yates to discover whether they tampered with potential jurors in an asbestos trial. The case, however, settled before it reached trial.
He had alleged that they gave newspapers to potential jurors April 2.
"They try to contaminate public opinion," Coon said. "That is what this newspaper has done. That is the mission of this propaganda sheet."
Coon asked Floyd to draw a line between free speech and invasion of the jury province.
He said the Record could put newspapers at a 7-11 across town but not at the courthouse.
The newspaper's attorney Greg Coleman of Houston told Floyd, "Picking and choosing among First Amendment speakers is not a legitimate undertaking."
Coleman said the contempt motion was driven by Coon's animosity toward the U.S. Chamber of Commerce, indirect owner of the Record.
"All newspapers have owners," Coleman said. "All newspapers have editorials bents. This is personal."
Coleman argued that allegations against Tennissen and Yates, such as milling and mingling around the courthouse, trying to gain access to the court and trying to endear themselves to staff by writing personal stories about them, are protected.
He also said Coon's motion alleged that Tennissen and Yates eavesdropped on confidential communications.
"There is no conduct alleged that they snuck up on a private conversation," he said.
Coleman said the motion alleged that the Record covered asbestos cases. He said that's what newspapers do.
"There is no indication what words were improper to read," Coleman said.
Coleman said there was no allegation that they tried to persuade anyone, let alone discuss anything.
He said there was no allegation that the newspaper mentioned Coon, his plaintiff, or the suit.
"If it had it would still be protected by the First Amendment," Coleman said.
He said he understood that Coon doesn't like what the owners stand for.
"That does not justify a campaign of harassment and intimidation that begins the first day this newspaper arrives in the city of Beaumont," Coleman said.
He said that in 99.99 percent of cases of improper communication, someone moves for mistrial or new trial.
He said the plaintiffs had no jurisdictional interest and no basis to ask for an order.
"This is a law firm expressing personal outrage," Coleman said.
"Calling it a criminal act doesn't give a private lawyer jurisdiction to conduct discovery," he said. "If he wants to talk to the district attorney he can do that but I feel pretty good about how far that would go."
Coon said lawyers have a duty to report improper conduct toward potential jurors.
He said the Chamber acknowledged that they attacked the civil justice system.
"They get sued a lot," Coon said. "They don't like it."
He said the Record does not indicate that the Chamber owns and operates it.
A Record editorial, "Stop the Screening," accused attorneys of using fake doctors to file fake lawsuits, Coon said.
"They castigate Provost & Umphrey," he said.
Coon used to work for that firm.
Coon said Stanton Anderson, general counsel of the Chamber, is president of the Madison County Record.
"He was in Nixon Administration," Coon said.
He said representatives of the Madison County Record talked to his clients.
"They can't go talk to my clients," Coon said.
"They will do the same thing here, asking questions defendants can't ask on behalf of defendants."
Skipping back to his contempt charge, Coon said, "I am not saying they did anything wrong, but there are appearances."
"All we are trying to find out is, what were you doing here?" Coon said.
On a screen Coon displayed "cannons" of journalism.
No one in his group of attorneys and supporters had told him he misspelled "canons."
Coon displayed standards from the American Society of Newspaper Editors on a screen.
"These are the articles that journalists are charged with," Coon said.
The canons prohibited conflicts of interest and required newspapers to be free of bias, Coon said.
He said Record publisher Brian Timpone told the Washington Post he was Republican.
Coleman told Floyd that Coon wanted to exclude the Record alone because it is not real journalism even when real journalism writes on the same topics.
He said the depositions were part of Coon's opposition to the Chamber and the papers it indirectly owns.
Floyd said he would take under advisement the motion for contempt, a motion by Coon to compel depositions, and a motion by the Record to quash the depositions.
Coon said he wanted to ascertain the intentions of Tennissen and Yates.
"Did they come down here with intent and effort to pollute the jury pool?" Coon asked. "Maybe they didn't, maybe they did. There is certainly a perception that they did."
"We know what their agenda is – to go after lawyers and malign them," he said.
Floyd said he would try to rule in a week.
The Madison County Record is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.