Over the past two years, Chip Johnson has proven himself to
be a force to be reckoned with. The San Francisco Chronicle
columnist has repeatedly held Oakland Mayor Ron Dellums’ feet to
the fire, while demanding transparency in local government and an end
to political nepotism. He’s both made a lot of enemies and won
accolades for his bull-dog determination, and it’s safe to say he’s one
of the most feared journalists in the East Bay.
By contrast, Desley Brooks may be the hardest person to like
on the Oakland City Council. She fights relentlessly for her
constituents, but she’s also an abrasive, in-your-face politician who
absolutely abhors criticism. In fact, Full Disclosure has yet to meet a
journalist covering Oakland city government who hasn’t received an
irate phone call or e-mail from Brooks after writing a story about her.
She’s also notorious for demanding corrections and retractions for the
most minor of details. This newspaper and this journalist are no
exception. In fact, the Express printed a correction about
Brooks just last week. We also turned down a request from her to
correct a Full Disclosure column last year after the editor determined
her demand was unfounded.
So it should come as no surprise that when Brooks sued Johnson and
the Chronicle last year for libel, Bay Area journalists
responded with a collective, “ho, hum.” Brooks’ suit garnered some
initial headlines, but then was mostly forgotten. However, a closer
look at the case, which is currently at a critical juncture in Alameda
County Superior Court, reveals that the councilwoman might not have
cried wolf after all. In fact, Judge Jon Tigar last week
indicated that he was going to deny Johnson and the Chronicle’s
request to throw out the lawsuit, thereby allowing it to move forward.
If he does, Brooks’ lawyer says their first move will be to put Johnson
under oath and demand to know who his sources were.
Brooks v. San Francisco Chronicle centers on one passage in a
column that Johnson penned last summer. The June 24 piece, “Time to
Probe Corruption at Oakland City Hall,” focused mostly on
then-embattled City Administrator Deborah Edgerly, before
listing a run-down of alleged wrongdoing in Oakland government and
calling on Attorney General Jerry Brown to intervene. (It must
be pointed out that Johnson mostly stood on the sidelines during
Brown’s pay-to-play era at Oakland City Hall and thus it seemed
ridiculous last summer for him to call on the former mayor for help
when Brown had hired Edgerly in the first place. But that’s another
story).
Buried in the eighth paragraph of Johnson’s June 24 piece was a
startling allegation about Brooks — namely that police sources
said they had found evidence that the councilwoman received illegal
kickbacks of taxpayer funds. Brooks strongly maintains that the
statement was a lie and she immediately demanded a retraction. After
the Chronicle refused, she sued. It now appears that the
Chron should have given her what she wanted and written a
correction. Because it looks as if Johnson made a mistake that could
prove costly.
It’s obvious from court documents that Johnson was referring to
allegations about Brooks that first surfaced in 2005. The claim back
then was that she had hired her boyfriend’s daughter, Christen
Tucker, to work in her city council office and then illegally
received a portion of Tucker’s pay — a kickback. Both the Alameda
County District Attorney’s Office and the Oakland Public Ethics
Commission looked into the allegation, which first came from an
anonymous e-mail that had spread around city hall, but no charges were
ever filed.
The allegation itself was well-known at the time. Stories appeared
in the Chron, the Oakland Tribune, and the
Express, focusing particularly on the fact that while Tucker was
employed by Brooks, she also was enrolled in classes at Syracuse
University in upstate New York, according to university officials. But
none of the stories ever stated that authorities actually found
evidence Brooks received illegal kickbacks and thus committed a
felony.
That is, until Johnson’s June 24 column. His passage about Brooks
appeared in a list that began with “Police sources say: … Two years
ago, nothing was done when allegations of illegal kickbacks were raised
against District Six Councilwoman Desley Brooks, another of Edgerly’s
allies, after police investigators linked bank deposits made by the
mother of one of Brooks’ employees to several personal checks for
$1,200 written to Brooks (exactly half the employee’s paycheck).”
Although the sentence requires multiple readings to comprehend, it’s
seems that Johnson was claiming that anonymous police sources had told
him they were aware of actual proof of an illegal kickback scheme
involving Brooks. Namely, that they had discovered that Tucker’s mother
made bank deposits and that somehow some of that money was transferred
to Brooks in the form of personal checks. In short, they said there was
actual evidence that the East Oakland councilwoman committed a
felony.
The first thing that’s strange about this passage, if it’s true, is
why Johnson buried it in a column about Edgerly. If he had police
sources saying they knew of real evidence that an Oakland City
Councilwoman took illegal kickbacks, then it should have been a column
unto itself. In fact, it’s explosive enough that arguably it should
have been splashed across the front page (provided that Johnson could
come up with some corroborating details). Ask yourself, when was the
last time you read a story that police had uncovered actual proof of a
local politician committing a felony and they had specifics about
it?
The second strange thing is just how specific the passage was. Full
Disclosure could find no other story that mentioned the $1,200, or for
that matter, any specific dollar amount connected to Brooks, let alone
that it was “exactly half the employee’s paycheck.”
Finally, from a journalism ethics perspective, it’s surprising that
the Chronicle editors let the passage into print. After all,
Johnson was allowing anonymous sources to essentially allege that
Brooks had committed a serious crime and nothing was done about it. The
use of anonymous sources is not what’s problematic. Journalists
sometimes rely on them when information can be revealed no other way.
But it’s a different case entirely to allow anonymous sources to accuse
someone of criminal activity in print. It’s only done rarely; in fact,
some newspapers don’t allow it at all. And it’s virtually never allowed
in what amounts to a throw-away line in a story about someone else.
Brooks thinks that either Johnson or his sources made up the
allegation. “It’s an absolute lie,” she told Full Disclosure. “It’s an
impossibility.” Is that typical Desley Brooks bluster? It doesn’t look
like it. You see, it really would have been impossible for
Tucker’s mom to have made bank deposits in a felony kickback scheme.
Why? Because she died in June 2001 — more than eighteen months
before Brooks became a city councilwoman. Brooks even got the woman’s
death certificate from Illinois and presented it to the court. That’s
pretty damning evidence that either Johnson’s sources were lying or
wrong or that he got it wrong.
Johnson declined to comment for this story, as did one of his
attorneys, Thomas Burke of San Francisco. Jonathan
Donnellan and Kristina Findikyan, two New York attorneys who
are also working on the case and are employed by the Hearst
Corporation, the Chronicle’s parent company, did not return a
phone call seeking comment. In court documents, Johnson has denied any
wrongdoing and said in a sworn statement that he stands by his
story.
So if the Chron isn’t talking, how do we know for sure that
Johnson was actually referring to Tucker’s dead mother in his column
when he doesn’t specifically mention her or her mother by name? The
short answer is we don’t. But court documents filed by Chronicle
lawyers strongly indicate that Johnson was doing exactly that. In court
papers, they state that Johnson was referring to allegations that
appeared previously in the Chronicle, and were investigated by
the district attorney and the ethics commission. In other words, the
Christen Tucker affair.
So did Johnson bury a major scoop? It doesn’t look like it. In fact,
it looks as if Johnson was merely trying to recite information that he
thought was already in the public record, but wasn’t. In fact, in court
papers, Chronicle lawyers are now arguing that his assertion
that police said they had actual evidence of a Brooks’ kickback scheme
was merely “background details.” They also referred to the information
as “peripheral details.”
The Chron lawyers are making those arguments in their attempt
to get the case thrown out of court. They’ve filed what’s called an
anti-SLAPP motion. It’s legal lingo that refers to a California law
that allows courts to dismiss weak libel cases. But last week Judge
Tigar issued a tentative ruling against Chip Johnson and the
Chron, saying the Brooks case may have merit and can go forward
so that the councilwoman’s attorney, Wayne Johnson (no relation
to Chip), may depose the columnist and ask him under oath where he got
his information. The judge, however, has yet to issue his final ruling
on the matter. He’s expected to do it soon.
At a hearing last week, the Chronicle’s attorneys urged the
judge to reconsider their argument. They contend that Johnson’s column
represents protected speech for several reasons. First, they maintain
that since Johnson is a columnist, his story merely represents his
opinion, and thus is protected by the First Amendment. Second, they
argue that the “gist” of Johnson’s column “is substantially true” and
thus protected by court precedent. And finally, they say the case
should be tossed because Brooks has failed to prove that Johnson’s
column was false and that he acted with “actual malice.” The actual
malice standard doesn’t mean that Johnson was out to get her. It simply
means he either knew the statement was false or that he consciously
disregarded whether it was true or not.
Of the three, the opinion argument is probably the weakest. Chip
Johnson obviously wasn’t expressing an opinion when he quoted his
anonymous sources. He was stating a fact — that there was actual
evidence of a kickback scheme. In truth, Johnson only expresses an
opinion in the column when he says that Jerry Brown should come to the
rescue.
The “gist” argument appears stronger, but it’s got holes too. As
Wayne Johnson points out in court papers, the Chronicle lawyers
are essentially claiming that it’s okay for a journalist to libel a
public figure as long as the libelous statement is surrounded by facts.
In this case, the Chron lawyers argue that Chip Johnson’s
statement about bank deposits and $1,200 in checks are unimportant,
background details that don’t change the gist of what he said about
Brooks.
They even appear to admit that Johnson made a mistake, arguing that
he shouldn’t be punished for it. Referring to the landmark libel case
New York Times v. Sullivan, they said that “speech about public
officials must be afforded appropriate ‘breathing space,’ or allowance
of error.” But that argument appears to be absurd on its face. If it
were true, then journalists and authors could slip false statements
about public figures into stories and books all the time, and then just
argue that they’re “background details.”
The toughest hurdle for Brooks to overcome may be proving Johnson’s
assertion about her was false and that he committed actual malice. Yes,
she provided the death certificate, and she submitted a sworn statement
saying she has never taken a kickback. But will that be enough? The
Chronicle lawyers say it isn’t. If they’re right, then how
exactly is Brooks supposed to prove her case? The truth is only Chip
Johnson knows whether what he was writing about her was false, or that
he didn’t care if it was or not. And it’s nearly impossible for Brooks
to prove anything without getting the columnist to answer questions
under oath.
