By Andy Van De Voorde
In a morning session marked by colorful exchanges and a game of musical chairs in the jury box, jury alternates were selected in the Bay Guardian’s predatory pricing lawsuit against the Weekly. The panel of twelve jurors and five alternates, three days in the making, will return to court tomorrow to hear long-awaited opening statements in the case.
Although it appeared that the twelve members of the regular jury had been chosen last week, two jurors already sworn in were excused from the panel on Monday. A woman who owns her own trucking company was excused for a personal hardship; the other, a lab technician, was sent home after he told the judge he had decided neither newspaper deserved to win because both support “prostitution” by printing explicit personal ads.
Another man was excused by Superior Court Judge Marla J. Miller after he offered his own critical interpretation of the proceedings. “I honestly think this is pretty damn ridiculous,” said the man, who did not remove his baseball cap during questioning by Miller. Last week, the man could be heard telling other prospective jurors in the gallery that if he were called to the jury box, “I'm gonna tell 'em. Straight up.”
He lived up to that promise, bluntly informing the court that he considered the proceedings a waste of his and the other jurors’ time. His defiant attitude led to an absurd interlude with Guardian attorney Ralph C. Alldredge. After the man told Alldredge he considered the lawsuit “immature,” Alldredge attempted to use a baseball analogy to make a point to the other jurors, but lost his way when he had to admit that he wasn’t a baseball fan and as a result wasn’t sure whether the “umpire is the one behind the plate.”
Judge Miller also excused three prospective alternates for cause, one of whom, a self-described aspiring journalist, said he was afraid to rule against either side for fear they might not hire him in the future. The other two were an advertising professional who said she knew people at the Guardian, and a woman who last week asked the court about “jury nullification” and noted that she ran her own “anti-big-media” Web site in her spare time.
Alternate jurors chosen for service Monday include an administrator at a community college, who told the court her husband once received a cease-and-desist letter from a media conglomerate after he made the fateful decision to name his own company “Clear Channel.” After receiving the letter, the woman told the court, he quickly abandoned the moniker. She said she felt it was important to reveal the anecdote because jurors have been told a witness representing Clear Channel might be called to testify in the case.
Clear Channel is at issue in the trial because both papers have done business with the company. However, after Clear Channel purchased a large chunk of advertising from the Weekly as part of a naming-rights deal at the Warfield Theater -- and simultaneously reduced ad spending with the Guardian -- executive editor Tim Redmond of the Guardian savaged the company in print, calling it “evil.”
Guardian owner Bruce Brugmann even ran aggressive anti-Clear Channel ads in his paper after the company increased its business with the Weekly.
Other alternates chosen include a retired building manager for the federal government who told the court he is suspicious of people who sue others in the belief they have “deep pockets”; a building inspector for the San Francisco Fire Department; a design engineer who told the court that if there were a “gray area” in the case, he would likely support the Guardian; and a woman who told the court she works for the county.
Two other alternates -- a woman who owns a food distribution company with her husband, and a woman who works in administrative support for a tech company -- were added to the regular jury after Miller excused the trucking company owner and the escort-averse lab technician. Their names were drawn from a spinning metal canister by the court clerk in a process not unlike a live Lotto drawing. However, the administrative support worker was quickly sent home after she told the judge she’d just learned her husband will have surgery next week.
That means another game of chance in the morning, when the name of the new twelfth juror will be drawn by the clerk. The legal Lotto is unlikely to take long, however, and the bulk of the morning will be given over to opening statements from the two sides.
Motions already filed in the case suggest that Brugmann’s attorneys will attempt to persuade the jury that, despite overwhelming evidence that print publications around the country are suffering from increased competition from the Internet, the Weekly alone is reponsible for the Guardian’s poor financial performance.
Interestingly, the Guardian’s surreal contention that it is the only alternative weekly in the U.S. whose suffering can be attributed to “predatory pricing” on the part of a rival -- as opposed to the bleak market conditions everyone else is suffering from -- was undermined this week by a story published in the journalism trade publication The Quill. The article, by Illinois freelance writer Ed Avis, noted that alternative weeklies in particular have been negatively affected by Internet competition, as Web sites have sprung up to offer readers a multitude of new choices.
A fundamental conceit of the Guardian’s case is its claim that it and the Weekly operate in a economic bubble known as an “alternative weekly market.” But Avis’ article, which is now prominently linked on the Web site of the Association of Alternative Newsweeklies (AAN), notes that a “generational shift” is taking place in the alt-weekly industry as older owners yield to more modern operators. It also makes the case that competition from “a flood of other print publications” has drawn “niche audiences” away from alternatives.
“We used to be the niche publication," Richard Karpel of AAN told Avis. "Now we’re being niched.”
All of those arguments fly in the face of the Guardian’s suit, and can be expected to be made by the Weekly's attorneys at trial.
After opening statements, the Guardian will present its case. It was widely assumed that Guardian attorneys would call Brugmann, the longtime public face of the newspaper, as their first witness. However, it now appears they instead will lead with Brugmann’s wife, Jean Dibble, the paper’s associate publisher, followed by the ponytailed Redmond.
Redmond is expected to testify about how the Weekly’s alleged misdeeds took money from the Guardian that the paper otherwise would have spent on producing high-quality journalism. It is unclear how Redmond intends to address the Guardian’s longtime practice of paying its journalists lower wages and hiring large numbers of unpaid interns, apparently in violation of state labor laws. Also unclear is how he will entertain the question of why so many young writers at the Weekly have won or been named as finalists for national journalism awards, while so few Guardian writers have achieved the same distinction.
That disparity in professional accomplishments was driven home again recently when Weekly staff writer Lauren Smiley was named a finalist for the annual GLAAD Awards, which are handed out by the Gay and Lesbian Alliance Against Defamation. The article, “Girl/Boy Interrupted,” was her first long-form feature for the paper after completing a six-month fellowship with the Weekly. Other finalists include The New York Times, the Los Angeles Times, and the St. Petersburg Times.