Last Wednesday, we were in court for another case. Yet while awaiting that case, we stumbled upon the most intriguing Nevada lawsuit that you may not have heard about. That changes today.
What’s the deal with Las Vegas’ two daily newspapers? Why are they fighting each other in court instead of on the field, and what do their present legal woes say about the future of American journalism?
First off, why are these newspapers in trouble?
If you haven’t heard of freelance journalist William Barrett, bookmark his blog, New to Las Vegas, right now. He’s been explaining the Las Vegas Review-Journal v. Las Vegas Sun media meta war like no one else in this town.
Long story short: Circulation is way down for both papers. According to the most recent statistics Barrett obtained, both papers’ average daily circulation dropped 11.24% in just the last year. The paid circulation for the September 1, 2019, issue was just 82,627, a 32.15% drop from the 120,000 Sunday paper estimate given to CNN’s State magazine in July 2017, and a 52.06% drop from the likely average circulation of the Sunday paper in 2007.
Even though casino mogul and Republican mega-donor Sheldon Adelson has owned the R-J since December 2015, he’s shown no interest in playing the kind of “savior of prestige journalism” role for the R-J that Jeff Bezos has for The Washington Post and Patrick Soon-Shiong may be for the Los Angeles Times. While Adelson has beefed up R-J reporting staff, his paper typically makes headlines not for the news it breaks, but for the conduct inside its newsroom.
“The Sun must preserve a high standard of journalistic quality akin to other major metropolitan publications.”
– Randall Jones, attorney for the Las Vegas Review-Journal
While awaiting the latest and greatest Wolf Creek hearing, we listened to R-J lawyers explain to Judge Timothy Williams why they filed a counterclaim to terminate the joint operating agreement (JOA) that the R-J and the Sun have published under since 1989. As R-J attorney Randall Jones pleaded to Judge Williams, “Set the rhetoric aside that came from the Sun and look at the merit of our claim.”
Under the JOA, the R-J agreed to take on print publishing costs (including ad sales) for both papers. But in exchange, as Jones pointed out, “The Sun must preserve a high standard of journalistic quality akin to other major metropolitan publications.” Yet since their high water mark of winning a Pulitzer Prize for their reporting on Las Vegas Strip construction worker deaths in 2009, the Sun has fallen far, hard, and fast. While Publisher and Editor Brian Greenspun has stayed with the family business, other Greenspun family members wanted out of the Sun. And nearly a decade’s worth of newsroom cost-cutting has resulted in a steady exodus of journalists from the paper, with some landing at larger national papers like the Post and the LA Times, while others shave stayed closer to home at The Nevada Independent and the Nevada Current.
As a result, only five full-time journalists are left on the Sun’s staff to produce local content. And increasingly, the paper is filling its pages with Associated Press (AP) articles and New York Times hand-me-downs. As Jones sneered during last Wednesday’s hearing, “They could publish nothing but comics for the next 20 years, and we could do nothing about it,” unless they terminate the JOA.
“The R-J has attempted to starve the Sun out of existence.”
– James Pisanelli, attorney for the Las Vegas Sun
While last Wednesday’s hearing was initiated by the R-J’s claim against the Sun, it’s the Sun’s legal team who filed state and federal lawsuits against the R-J. In the federal lawsuit, the Sun alleges the R-J violated the JOA by shirking its duty to share ad revenue and promote both papers in their shared advertising. This suit is in federal court because JOA’s were authorized by Congress in the Newspaper Preservation Act of 1970 to preserve local media and ensure no one paper has a monopoly on any media market. Meanwhile in state court, the Sun is suing over the R-J refusing to share ad revenue as part of their JOA. An arbitrator requested by the R-J had ruled in favor of the Sun on the ad revenue claim, so the R-J filed this counterclaim to terminate the JOA in its entirety.
In court, Sun attorney James Pisanelli pleaded with Williams not to take on matters relating to the Newspaper Preservation Act that are supposed to be resolved in federal court (due to its place in federal antitrust law), and to instead consider the consequences of allowing one newspaper to snuff out its competition. “The R-J has attempted to starve the Sun out of existence,” Pisanelli claimed.
Pisanelli then warned Judge Williams that the R-J essentially wants him to serve as an “editor-in-chief” by judging the papers’ content rather than focusing on the law. Pisanelli then fired back against Jones’ mocking of the Sun as he proclaimed, “We can’t complain when you misspell your headline. You can’t complain when we purchase New York Times content from AP that your owner doesn’t like. That’s what the [two newspapers] agreed to a long time ago.”
“I’m not going to be the editor of any newspaper.”
– Nevada Eighth District Court Judge Timothy Williams
As the hearing continued, Pisanelli went through a (not so) brief history of the Newspaper Preservation Act and JOA’s, then warned that Sheldon Adelson will gain a Southern Nevada media monopoly if the courts allow the R-J to end their JOA. “What Sheldon Adelson wants is one voice in the community […] He wants to silence Brian Greenspun, silence voices that run counter to his. It’s our job to stop it,” Pisanelli exclaimed.
Jones later countered, “[Pisanelli] doesn’t have an argument on the merits, so he wants to argue on the character of our client.” Jones also argued that the JOA can legally be terminated over breach of contract, and that the Sun has breached their contract by failing to produce quality content. Jones then retorted, “They brought up the Pulitzer Prize they won in 2009. They were a different paper in 2009 than they are now.”
Finally, Judge Williams got his word in: “I’m not going to be the editor of any newspaper.” From there, he issued the kind of declaration that we’re accustomed to him giving to Wolf Creek and Virgin Valley Water District attorneys in their lawsuit: “I’m going to give everyone a full and fair opportunity. This is not the time for summary judgment.”
On one end, Williams granted the R-J the opportunity to pursue its counterclaim against the Sun. But on the other end, Williams stated that he will monitor the status of the Sun’s federal lawsuit and ensure that what happens in his court does not conflict with federal law that will be handled in federal court.
Why do “we matter”? And what really matters here?
The irony of last Wednesday’s hearing, as well as the larger picture of the two major newspapers dueling in court over matters like antitrust enforcement and “journalistic quality”, is that both papers are in dire financial straits and both papers are struggling to keep up with this state’s media landscape that’s become more vibrant with the birth and growth of the Indy and the Current. While the R-J and Sun lawyers were arguing in court, the Current was reporting on the systemic crisis of the state’s criminal justice system and how other judges in this very court have contributed to this systemic crisis. That same day, the Indy ran a story explaining why the fallout from an abandoned copper mine near Yerington continues to plague local communities.
And of course, we were in that very courtroom to report on a critical water story that few others are paying attention to. We’ve also ventured inside courtrooms others don’t know even exist to reveal how President Donald Trump’s policies hit home, and we’ve fact-checked Trump while in the very venue where he was speaking. You’re welcome.
Normally, we dive deep and go beyond the initial headlines in search of deeper meaning. But in this case, with these two papers, the supposedly deep arguments over the state of journalism really boil down to a simple contract dispute where both actors are arguing over money.
But then again, maybe this story of this lawsuit between two newspapers tells a larger story: That of an industry that’s largely been consolidated to a handful of owners controlling ever larger portfolios of TV and radio stations, newspapers, and websites, and this media consolidation is definitely having an impact on the state of the local media landscape here. Both papers have ultimately been left behind by the consolidation craze and the general shift of media dominance from print to broadcast (and now, from broadcast to digital), and ultimately the papers are quarreling over the division of spoils that itself may be spoiled to near-death.