by Irvin Muchnick
Of all the media players who have been missing in action in coverage of Lehigh County district attorney James Martin’s SLAPP (Strategic Lawsuit Against Public Participation) defamation lawsuit against local critic Bill Villa, culminating in its recently announced pallid resolution, none is more perplexing than a publication called The Legal Intelligencer. It is part of the Law.com platform of legal industry publications under American Law Media.
As I’ve written, the Allentown Morning Call had poor, skewed coverage of the piddling $57,500 settlement Martin reached with Villa’s insurer, Erie Insurance – against the insured’s will – weeks before a scheduled trial. That is plenty bad enough.
Yet The Legal Intelligencer somehow has found a way to be worse: they chose not to write about the settlement at all. And this from a publisher whose explicit mission is to inform about the nitty-gritty of the legal system.
Max Mitchell, Pennsylvania bureau chief for The Legal Intelligencer and Law.com, did not respond to an email requesting comment.
There are several egregious elements in Mitchell and his publication’s abstention from this story. That the story is, intuitively, their very stock-in-trade is only the first of them.
Interestingly (or perversely), The Legal Intelligencer did write about Martin v. Villa nearly eight years ago – before it was even filed in the Court of Common Pleas. In an article on September 16, 2014, Mitchell reported on Martin’s notice to Villa, via the Sprague & Sprague law firm, to preserve records related to his series of controversial interviews on radio station WAEB. Ever since, Law.com seems to have chosen not to close a loop that it had opened itself. On a basic level, that is just bad faith with their readers.
The 2014 article hit some decent marks about whether a vaguely crafted defamation action by a public official over broadcast criticisms of the work of his office fits under the term of art “SLAPP.” Concussion Inc.’s own and uncomplicated answer to that question is “yes.” Reporter Mitchell’s answer included quoting an expert, Temple University law professor David Kairys, to the effect that DA Martin’s impending suit or threat of same could “be compared” to a SLAPP. The distinction is simply that the Commonwealth of Pennsylvania doesn’t have a strong anti-SLAPP statute, and the law there applies to protected speech around environmental issues. But unlike in Kairys’ quote in a piece five years later in the Philadelphia Inquirer (which I criticized as weak and unfocused), the expert here was clear on the narrative implications:
“… Kairys said elected officials have a ready rebuttal to public criticism. ‘If people don’t think you’re doing a good job in the area, if you think that’s not true, go to the media and give the statistics on how tough you’ve been. … Or say he points out a good problem, and we’re going to try to fix it,’ he said. ‘You’re supposed to have a thicker skin.’”
There’s more in The Daily Intelligencer’s journalistic malpractice.
Just this year the law watchdog publication went through the motions of diligently filing a public records request (known in Pennsylvania as a Right to Know request) for documents shedding light on the district attorney office’s expenditures of funds and resources in Martin’s civil lawsuit against Villa. This initiative demonstrated Mitchell’s unique – or at least uniquely assertive – understanding of the core issue of the case, whether or not you want to label it a SLAPP.
That issue is abuse of process by a powerful public official. Many SLAPP’s are by well-funded corporations, or by rich individual plaintiffs who enjoy surplus resources for grinding down whistleblowers and dissidents. What desperately needs to be pinned down is how in the world Martin found the dough to pay the steep hourly fees of the Sprague & Sprague firm across the better part of a decade. The $57,500 settlement figure accepted by Erie Insurance (to forestall its own projected costs through a defense at trial and open-ended appeals) cannot possibly have come anywhere close to covering Sprague & Sprague’s tab.
So, was Martin’s legal team working for free – which would be an effective in-kind donation to an elected official? Was Sprague & Sprague getting paid on the side, out of an unaccountable slush fund of Martin political cronies? And what about the DA office’s own preparation and filing of a side motion in an interlocutory evidentiary dispute in the course of Martin v. Villa?
The Right to Know request by Mitchell and his legal journal was denied, and they neither appealed the denial nor – again – so much as shared the news of their futile efforts with the reading public. We can speculate that they only wanted to make a gesture, and only a behind-the-scenes one at that, that they were doing “something.” Like, you know, real journalists.
And let me just say that this harsh characterization of their possible motive is legitimized by their own refusal to explain or comment.
See “There’s a Smoking Gun in ‘Private Citizen’ Pennsylvania District Attorney James Martin’s Harassment Suit Against a Critic – If Only the Regional News Media Would Cover It,” https://concussioninc.net/?p=14959, March 16.
In Inherit the Wind, the 1955 play by Jerome Lawrence and Robert Edwin Lee dramatizing the Scopes Monkey Trial that had prosecuted a high school teacher in Tennessee for teaching evolution 30 years earlier, there is the following exchange between Matthew Harrison Brady and Henry Drummond – the respective fictionalizations of prosecutor William Jennings Bryan and defense attorney Clarence Darrow.
Brady: “I do not think about … things I do not think about!”
Drummond: “Do you ever think about things that you do think about?”
In deciding that the resolution of Martin v. Villa didn’t make the cut for The Legal Intelligencer, reporter Mitchell and Law.com are telling anyone interested in developments in courts and the law that they do not even think about the things they claim to be thinking about.