OP-ED: Court Tosses Henderson Lawsuit

by

Christiaan A. Hart Nibbrig

It was disappointing to learn that a Chester County judge threw out the libel lawsuit filed by former Lancaster County Commissioner, Molly Henderson, against Lancaster Newspapers, and former Lancaster mayor, Arthur E. Morris.

My perspective on the Henderson saga is one of an ‘insider.’ I worked for Commissioner Henderson as campaign manager during the 2007 primary and general election campaigns. The suit was not discussed with me during or after the campaign; the focus being getting the commissioner re-elected.

Prior to working on the Henderson campaign, I worked for NewsLanc.com, mainly focusing on the then-white hot issue of the building (and financing) of the convention center and hotel project. What NewsLanc reported at the time was that there were a myriad of apparent problems regarding the project; from its fundamental feasibility, to the public financing, to, yes, the media coverage emanating from Lancaster Newspapers.

As a fifty-percent shareholder in the hotel portion of the project (which is linked in many ways to the ‘public’ convention center), Lancaster Newspapers had a unique and very sensitive role in its construction.

Lancaster Newspapers’ role was also a very powerful one, due to its monopoly status within the county. In publishing the morning and afternoon dailies, and the only Sunday paper, Lancaster Newspapers was reaching virtually every household in the county at this critical time in the project’s construction. This meant that the only news on the hotel and convention center project that the average Lancaster Countian received came from one of the sponsors of the project. To maintain its credibility as a news source, it was important for the reporting to be beyond reproach. Unfortunately, it was not.

As a Columbia-trained journalist, with years of professional experience, I felt something was very wrong with the newspaper coverage of the commissioners, particularly as it concerned Commissioner Henderson, who questioned the project.

One aspect of the sub-standard reporting was the inexplicable omission of so many critical elements of the project. For example, the sponsors repeated, and it was reported many times, that “feasibility” studies were performed on the project, when, in fact, none had been. Minimally professional journalistic coverage would have revealed this mis-characterization, and reported it to the public. But Lancaster Newspapers’ reporters and their editors said nothing.

Another example of bias by omission was that Lancaster Newspapers represented, in its three editions, that the larger Lancaster County public was mostly supportive of the project. According to a Fox43-TV poll, conducted by Opinion Dynamics, a firm of national repute, the overwhelming number of the Lancaster County public (78%) with an opinion opposed the project if financing relied on taxpayer financing, which it did. It took the publisher of NewsLanc, Robert E. Field, to pay for an advertisement to report the poll findings to the public!

[There are, literally, dozens of omissions and misrepresentations in convention center newspaper reports. Go to NewsLanc archives to read coverage during this period.]

Another important aspect of the deficient newspaper coverage as it concerned Henderson was the ‘saturation’ coverage of the Conestoga View issue. If the convention center issue was white hot; Conestoga View, to Lancaster Newspapers, was molten.

Day after day, month after month, from the summer of 2005 until the fall of 2007, usually on the front pages, above the fold, was some damning story about how “the commissioners” shadily sold the formerly county-owned nursing home, Conestoga View.

Lancaster Newspapers treated the legal sale of a county-owned asset like the bombing of Pearl Harbor. Often, pictures of “the commissioners” accompanied the highly critical front-page “articles.”

For about a year, the Sunday News even published a “countdown,” a weekly subtraction tally until the ends of Commissioner Henderson and Shellenberger’s terms. (The third commissioner, Pete Shaub, resigned before his term ended.) In my decades of reading periodicals of all shapes, sizes, and in many places, I have never personally seen a newspaper stoop to such a biased gimmick.

This was overkill. Conestoga View, as a story, where Commissioner Henderson was concerned, at most, amounted to a single, and trivial, Sunshine Act violation. It certainly did not merit the thousands of column inches that were devoted to it.

According to the Grand Jury report into Conestoga View, upon which so much of the reporting was based, Commissioner Henderson attended exactly one informational meeting that may (or not) have violated the letter of the Sunshine Act. Yet to read the newspaper reports, one would have thought Molly Henderson was a serial killer. This coverage was reprehensibly biased against her, in my opinion.

Lancaster Newspapers also continually depicted the board of commissioners as “dysfunctional” and inept. Before working for Henderson, as a reporter for NewsLanc, I attended virtually every weekly commissioners’ meeting, and not a single time did I observe Henderson (or Shellenberger) act in any way but professionally. Without exception, I saw Henderson work diligently on county business in a professional and competent manner. This was a challenge with the often erratic and flat-out weird Shaub flying off his hinges, and blindly attacking her and/or Shellenberger.

The meetings that I sat through every week, sometimes twice a week, were not the meetings I read about in the Lancaster Newspapers later that day or the next morning. In all frankness, I remember thinking at the time that the “reporters” – Jack Brubaker, Dave Pidgeon, Bernie Harris, PJ O’Reilly, Daniel Burke, Judy Strasbaugh – should have been embarrassed by those stories, so little did they represent what happened at these meetings. I would have flunked all of them in a high school journalism course for the terrible “reporting.”

It is my view that Lancaster Newspapers vilified Molly Henderson (and Dick Shellenberger) because she, by openly questioning the convention center and hotel, represented an existential threat to a project in which they stood to make many millions of dollars.

This is essentially what Molly Henderson was trying to prove in her lawsuit. That is very difficult to show.

At Columbia, my entire journalism class (about 125 students) was required to take a class at the Columbia Law School in the First Amendment. It was here, in a class co-taught by a leading First Amendment Columbia law professor and a Pulitzer Prize-winning journalist, that I learned the parameters of this Constitutional cornerstone of our national culture. I became aware of the limits, expanse, and majesty of this magnificent and inspired part of our country’s law. I also learned that while freedom of speech and press and religion were great, there were limits.

Molly Henderson had the difficult task of showing that the Lancaster Newspapers went beyond the vast limits of First Amendment protection. She had to prove, based on The New York Times vs Sullivan precedent of 1964, that Lancaster Newspapers published the ‘articles’ with “actual malice”; that is, she needed to show that Lancaster Newspapers either had “knowledge of falsity” or “reckless disregard for the truth” in publishing its stories.

By printing ‘back-of-the-book’ retractions and corrections, Lancaster Newspapers covered themselves from the “reckless” clause of Sullivan. And it is nearly impossible to show that, prior to filing their “articles,” Brubaker, Pidgeon, et al, knew what they were handing to their editors was “false.” That is a pretty high bar to clear.

Henderson’s case was always going to be challenging, if not nearly impossible to make. That is as it should be. She got an early victory by having the case reviewed in Chester County, rather than Lancaster County, an implicit acknowledgment by the Court that Lancaster wasn’t going to hear the case impartially.

But Molly Henderson should have had her day in a Chester County court. It was there that she could have brought out the stacks and stacks of newspapers, the ones that wrongly and unfairly depicted her as less than what she was – an honest public servant.

It was in the volume of the biased articles, not the six or seven with obvious, overt lies, where Molly Henderson was libeled. This was new ground for the courts, evidently, and they didn’t want to touch it.

I am saddened today, not only for Molly Henderson, whom I watched and worked around every day for a long time, but for my county and country. Molly Henderson was not a good commissioner; she was a great one. She had the courage and conscience that we, as Americans, say we want in a politician. I saw this up close, from the front row.

And she was burned at the stake by her community, led by her hometown newspaper, and now by the courts. She was wronged.

I want to say, on the record, that it was an honor to work for her, and it is blessing to consider her a friend.