Newsweek and the Law


 By Ed Smith


   Differences between Newsweek and Time were more than editorial. Each dealt differently with legal problems as well.

   I set up Newsweek’s law department when I came aboard in 1971. Unlike my predecessor, a Wall Street firm, I worked full-time with an office in the building. My door was always open.  No meter was running. That gave me a leg up; editors and writers did not hesitate to seek counsel.

   Avoiding libel: The first difference with Time was the procedure for screening stories for libel.  Lawyers there read every word in every issue.  This left Time’s editors and writers less responsible for flagging any problems in the articles they prepared.  When I arrived, Newsweek editor Oz Elliott, a Time alumnus, asked if I’d use the Time system.  I said flatly, No. Time had several lawyers; I was alone.  If I screened all the copy, I could spend no time on other legal matters.  Oz would simply have another editor, this one with a law degree.

   We adopted the system that I had used as libel lawyer at The New York Times.  It was impossible to screen everything in a major daily. I relied on the editors and writers to call me with any questions. The caliber and experience of Newsweek’s editorial staff certainly equalled that of The Times. Newsweek’s layered editorial process also assured that one or more people along the line – whether editor, writer or researcher – would flag me when needed.

   Applying the Law: Some libel lawyers are dictators. When in doubt leave it out, even if it ruins the story. (One attorney in Boston was called “Dr. No”). My attitude was borrowed from medicine:  Do no harm. Keep us out of court but, if at all possible, don’t change the story.

   Of course, no writer likes lawyers--or even editors—changing a well-crafted piece. But when I explained my changes, most acceded gracefully (Dwight Martin: “Whatever you say, counsellor”).  Others resented even the mildest tinkering.  Pete Axhelm was one.

   Pete, the  sports editor, was one of Newsweek’s best writers. Pete also liked writing crime stories.  He was tapped to write the Son of Sam cover story when police finally caught this lover’s lane killer after a spree lasting over a year.   Because it was Pete, I was called to review his story with him line by line. We were in a large room on the editorial floor where Pete’s well wishers watched the fun.

  No Joke: My suggested changes were minimal (Time’s story was far more cautious and hedged than ours).  But the very thought of any modification was enough to set Pete off. “Here’s a guy who murdered six people and he [me, that



   The Sam Yette lawsuit. Screening stories for libel and copyright was only part of my job. I was involved in defending Newsweek (specifically the Washington bureau) in a suit by Sam Yette for racial discrimination. Sam was the first Afro-American correspondent in the Washington bureau, His performance was marginal at best and after three years, bureau chief Mel Elfin, running a high pressure operation, had had enough. He wanted to transfer Sam to Detroit. Sam refused and was let go.

   Sam promptly sued before the D.C. Commission on Human Rights for race discrimination, claiming he was the victim of “incipient racism.”  Sam ‘s lawyer, Clifford Alexander, was a Washington heavyweight. As an Afro-American and a former Chairman of the U.S. Equal Employment Opportunities Commission, he was sure to overwhelm the five unsophisticated commission members hearing the case (each apparently representing a different minority). So we brought in our own heavyweight, Edward Bennett Williams (The Washington Post’s outside counsel), to defend Newsweek.

    Shack Job: The hearing was held in a nondescript government issue room with rinky-dink metal chairs for everyone but the commissioners.  Someone cracked that watching Alexander v. Williams was like watching two thoroughbreds racing on a rutted and weedy quarter mile track.

   The hearing took several days and Newsweek had its own editorial coterie on hand, as Mel, editor Ed Kosner and others testified as to Sam’s job performance. At one point Williams was reviewing Sam’s work with Mel as his witness.

   And did Mr. Yette cover sports?” Williams asked. Mel was ready and waiting for that one. “Well, Mr. Williams, [then a co-owner of the Washington Redskins football team], as you know, Washington isn’t much of a sports town.”  Even the commissioners roared with laughter.

   No one knew for sure how the commissioners would vote. Williams predicted that we would lose before the Commission (we did) but get a reversal on appeal (we did). Sam Yette, undeterred , promptly landed a position as a journalism professor at Howard University.


Ed Smith was Newsweek’s  counsel from 1971 to 1979

Copyright © 2014 by Edward L. Smith. All rights reserved.





is] wants to make him Martin Luther King,” he groused.

   At another point, someone called out: “Hey Pete, how’s it going?” Pete: “Just great,” said Pete.   “We’ve already got 15 allegedlys and 21 police saids.” To which I responded: “Yes, and we haven’t even finished the lead sentence yet.”

 Newsweek’s system worked far better than Time’s.  I once shared a panel with lawyers from Time and Penthouse at a seminar for publishing lawyers.  Someone asked how often we got sued. The Time lawyer said Time probably got sued for libel every two or three months. It was about the same at Penthouse. My response: In my [then] five years at Newsweek, we’ve had none.

   Source of Trouble: Probably the commonest libel problems involved questions of sourcing.  Was a statement attributable to someone and how reliable was he/she? One short item I reviewed was a truly scurrilous report about someone in Rome – without any attribution. When I cabled our bureau for the source, the response came back: “Well, everyone in Rome knows it’s true.” It didn’t get published.

    A year after President Nixon resigned. Newsweek did a “where is he now” cover.  It triggered a late-breaking copyright crisis.  I was in Denver for a libel trial (on an article published before I came to Newsweek).  On a Friday night, when I got back to my hotel from court I found a slew of desperate phone messages from all the top editors.  We had a cover story but, on deadline, we were without a sure photo for the cover.

    The Valet Did It: Newsweek had planned to use Nixon’s current favorite photograph – of him and Pat in their Rose Garden in San Clemente.  His valet, Manolo Sanchez, had taken it.   But we didn’t have the original transparency. It had mistakenly been mixed with a batch of photos that Nixon’s official photographer had shipped to Time.  With our deadline fast approaching, no one wanted to disclose our cover to Time by asking for the transparency.

   To me, the concern was whether we needed Time’s permission to publish it.  So my first question was: Did Manolo take the picture?  “Yes.” Are we buying the right to publish it from him? “Yes, we’re paying him (something like $1,000 if I recall).”  Do we need the transparency itself ? “ No, we have an acceptable copy.”  O.K., run it.  Time had the transparency but Manolo owned the copyright.We ran it, and never heard a word from Time.

  Editor in chief Oz Elliott put the best spin on the whole thing. He speculated: “Let’s just suppose we called San Clemente and we got Nixon instead of Manolo. So we tell him, ‘ Mr. President, we wantto pay Manolo a thousand dollars for his picture.’ ‘Oh, fine. I’ll tell him,’ says Nixon. Nixon calls Manolo. ‘Hello, Manolo, how’d you like to make a quick twenty five bucks?’ ”