When the Vampire pins the Warrior, or Tiger Ali mistreats the Macho Man, is it news? May the horrid affrays of professional wrestling properly be described as honest "sport"?
The questions are of such profundity that they reached the U.S. Court of Appeals for the 3rd Circuit in July. The court held, in effect, that professional wrestling is entertainment, best covered by critics of melodrama and ballet.To be sure, that is not exactly what Circuit Judge Richard L. Nygaard said. He was writing for a three-judge panel in the case of Titan Sports vs. TBS (Turner Broadcasting Systems). The question immediately before the court was whether Mark Madden is a reporter or a flack.
Nygaard set forth the facts. Titan's World Wrestling Federation competes with the World Championship Wrestling represented by TBS. They are the nation's most prominent promoters of professional wrestling. TBS challenged Titan to engage in interpromotional events, but Titan refused.
Tag-teams of lawyers climbed into the ring. Titan sued TBS for engaging in both unfair trade practices and copyright infringement. As part of the lawsuit Titan subpoenaed Mark Madden, a TBS employee.
Madden's job is to produce tape-recorded commentaries about the wrestlers who are stabled with World Championship Wrestling. He promotes upcoming events, announces the results of various matches and discusses the performers' personal lives and careers.
During a deposition, Madden refused to identify the sources of certain statements he had recorded. He invoked a Pennsylvania law according special privileges for journalists; he also invoked a "federal common law privilege" that protects journalists from revealing their confidential sources.
State and federal courts, Nygaard noted, have no enthusiasm for shield laws. Judges tend to believe that every litigant is entitled to every man's evidence. Nevertheless, "we have recognized that when a journalist in the course of gathering the news acquires facts that become a target of discovery, a qualified privilege against compelled disclosure appertains."
Very well, but who is a journalist? The Supreme Court has ducked the question, but lower courts have tried to get a hold on the issue. For example, documentary filmmakers are journalists. Technical writers and book authors may qualify. It wasn't until 1987, in the famous von Bulow case, that the Court of Appeals for the 2nd Circuit attempted a definition.
As matters now stand, true journalists and "legitimate" members of the press are people engaged in communicating information to the public. Such journalists may claim the privilege if they are "involved in activities traditionally associated with the gathering and dissemination of news." The test does not grant status "to any person with a manuscript, a Web page or a film but requires an intent at the inception of the newsgathering process to disseminate investigative news to the public."
Madden couldn't make the cut. "By his own admission, he is an entertainer, not a reporter, disseminating hype, not news." Madden proclaims himself "Pro-Wrestling's only real journalist," but "hyperbolic self-proclamation will not suffice." Madden uncovered no story on his own. He relied solely on information fed to him by WCW executives. In sum:
"Madden's work amounts to little more than creative fiction . . . about admittedly fictional wrestling characters who have dramatic and ferocious pseudonyms like `Razor Ramon' and `Diesel.' As a creative fiction author, Madden's primary goal is to provide advertisement and entertainment - not to gather news or disseminate information."
Nygaard, summarizing, put it this way: "Individuals claiming the protections of the journalist's privilege must demonstrate the concurrence of three elements: that they are engaged in investigative reporting; are gathering news; and possess the intent at the inception of the newsgathering process to disseminate this news to the public."
Speaking for myself alone, I abhor these shield laws because I detest the kind of "trust me" journalism that relies upon anonymous "sources." In criminal cases especially it is indefensible for a reporter to hide behind a shield and fail to give evidence sought by a defendant in the dock. But if there is to be a shield and a privilege, let a sign be posted on the courthouse door: No flacks need apply.