When Judges Pick Newspaper Editors

February 18, 1994|By JAMES J. KILPATRICK

It's too early to say whether Hausch vs. Donrey will become a landmark of constitutional law. Maybe yes, maybe no. It is not too early to discuss an astonishing opinion by a U.S. district judge in Nevada.

The judge held, in effect, that he may control the editorial content of the Las Vegas Review-Journal. If his grotesque view of the First Amendment should be upheld, the federal courts will have seized unprecedented power.

These are the circumstances. Mary E. Hausch joined the Review-Journal as a reporter in 1971. Subsequently she moved up to assistant city editor, to city editor, and finally to managing editor in 1978. In that position she occasionally wrote editorials, and she filled in for the editor when he was out of town or ill.

With the editor's death in 1988, the top slot became open. Ms. Hausch applied for the editorship. The Donrey newspaper chain, publishers of the Review-Journal, hired Sherman Frederick instead. She felt that she had better credentials than Mr. Frederick. His appointment rankled.

One thing led to another. In February 1989 the Donrey management replaced her as managing editor. The following month Ms. Hausch filed a formal complaint with state and federal agencies, charging that she had suffered unlawful discrimination on account of sex. Relations became increasingly strained. In November 1990 she was fired.

So much for the chronology. Ms. Hausch contends that Title VII of the Civil Rights Act prohibits a publisher from hiring the editor of his choice -- if his choice is affected by race, religion, sex, and so forth. The Review-Journal contends that a publisher has an absolute right to name his top editors for any reason whatever.

Four months ago District Judge Philip M. Pro held, in effect, that publishers have no absolute First Amendment right to hire and fire their own top editors. Their choice, he ruled, is subject to the supremacy of civil rights laws.

I say that Judge Pro made these decisions ''in effect.'' What Judge Pro actually did was to deny the newspaper's motion for summary judgment. Some months from now he will hear the case, not as a matter of constitutional law, but as a matter of statutory law: Was Mary Hausch denied the editorship because she was a woman? Was she finally dismissed as an act of retaliation? Is she entitled to damages?

Judge Pro denies that his opinion would lead to judicial control of the ''content'' of a newspaper, but this is sophistry. Mind you, he does not assert power to control editorial content directly. What he asserts is judicial power to control the naming of top editors who control the content. He is like Polonius in ''Hamlet,'' who would by indirections find directions out.

The important element, which Judge Pro seemed wholly unable to grasp, is that this case involves only a newspaper's top editors. The Review-Journal does not contend that it is altogether exempt from civil rights laws, or labor laws, or safety laws, or any other laws of general application.

Thus, I suppose a man could make a case of discrimination if a newspaper hired only women to take classified ads. A paper's policy of hiring only men to drive trucks might be contested under Title VII. If a driver were arrested for speeding, freedom of the press would be no defense.

In his opinion of Sept. 20, Judge Pro brushed aside Donrey's effort to equate freedom of press with freedom of religion. He found such an equation ''inapplicable.'' Cases involving free speech and free exercise, he said, ''arise from a different constitutional rubric.''

With deference to the judge, the judge was here propounding rubbish. The constitutional rubrics are identical. They are embedded in the same sentence; they stem from the same subject and verb. It would be unthinkable for a federal judge to rule that the Catholic Church could not require celibacy of its priests. It is inconceivable that a court could effectively compel Fordham to hire a heretic to teach theology.

At the top level of newspapering, the top editors ultimately bear responsibility for everything in the news and editorial columns. They function as a team. The analogy fits. No team has room for someone who sues the coach. Life doesn't work that way.

In its present status, the Hausch case is on hold. Eventually the constitutional issues that Judge Pro disdained will have to be faced by a higher court. The issues can't be left in limbo.

James J. Kilpatrick is a syndicated columnist.

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