The nexus between the press and the law is as vivid, and at times vexing, as ever.
- Hulk Hogan topples Gawker.
- A meat producer exacts a huge settlement from ABC in the "pink slime" case.
- The Bill O'Reilly sexual harassment settlements.
- Growing questions about liability for claims on social media, notably Facebook, the latest prompting O'Reilly's own $5 million defamation suit.
And as the public and the courts grow more skeptical of the media, its legal defenses can appear less stout than in the past. There are not the same budgets to pay for lawyers, with some companies cutting down (even eliminating) in-house staffs.
As noted Sunday by Doreen Weisenhaus, a former New York Times city editor who's now a lawyer and media law and policy specialist at both Medill School of Journalism and Northwestern Pritzker School of Law, industry fragmentation means that more and more journalists are operating solo or as entrepreneurs in small enterprises. They may well not have the luxury of 24/7 legal counsel. Indeed, few media companies, except the most prominent ones, have this luxury, either. There is a crisis of capacity for journalists and media needing legal advice.
Yes, there are many great media defense lawyers and legal aid groups, as well as big-time firms that sometimes do pro bono work. But it remains a challenge for journalists and media companies to find regular and affordable options amid what she calls a "crisis of capacity."
New and old players, she adds, are seeking to fill a legal assistance gap. Those include the Reporters Committee for Freedom of the Press (RCFP). It has a legal hotline for both journalists and lawyers. The Society of Professional Journalists has a legal defense fund, and help can be had through several universities' media law clinics and digital rights groups. One also finds initiatives such as the Knight First Amendment Institute at Columbia University, which doesn't represent journalists per se but is doing strategic litigation for bigger issues and takes selected cases, as outlined here.
There's also the Media Law Resource Center, which held a daylong symposium on the press and law last week at the Chicago Tribune, and is one of those groups that Weisenhaus lauds. George Freeman, an attorney who worked at The New York Times for 31 years, leaving as vice president and assistant general counsel, runs it. At the Times, he was responsible for overseeing litigation and counseling the company's newsrooms (when it owned multiple papers). In the process, he served six executive editors. In 2014 he took over the nonprofit center, while still having positions at Columbia Journalism School and both the City University of New York Journalism School and New York University.
After I appeared on a panel at the symposium, I asked Freeman to expand on the group and a variety of issues touching the press, including President Donald Trump and O'Reilly's Friday defamation lawsuit against a onetime New Jersey politician as a result of a Facebook posting.
So what is the center?
The MLRC was founded as the Libel Defense Resource Center in 1980. At about the turn of the century, in recognition that its work entailed all media law, far more than just libel, it changed its name to what it is today. There are eight people on our staff, half lawyers. We are a non-profit trade association whose mission is to support its media company members and their law firms in legal matters. To that end, we put on numerous conferences, including one last month in London focusing on both American and European media law (for 240 lawyers, half from each side of the pond), an entertainment law conference in L.A., a digital law conference in San Francisco and so on. We distribute a daily newsletter about all things media law related, a monthly law letter, quarterly reports with longer articles and annual 50 state surveys of media law topics. We organize policy initiatives and have 18 substantive committees where members can discuss current developments of common interest and can network.
How are you different from other groups?
We are an organization of lawyers and we focus on media law. (Members cannot represent plaintiffs in defamation cases.) Although RCFP does a lot of great legal work, they are, at bottom, an organization of journalists. And the Committee to Protect Journalists' main focus is on journalists' freedoms abroad. I should emphasize that lately we are working very closely with those and other groups to head an effort to rebut the administration's offensive against the press and to better explain to the public how and why the media and the First Amendment protects all of us.
How does funding work and who are your members?
We are a membership organization. As such we are primarily funded by annual dues from our members. They include over 125 media companies from ABC to Yahoo! and about 200 law firms who work in the media law space. We are currently trying to grow our digital and international membership, though we already do count as members most of the larger digital platforms and digital news companies. Our secondary funding source is our annual dinner, which happens to be this month in New York City and will feature a program of Bush and Clinton press secretaries discussing Trump's relationship with the press. Last year our speakers were Dan Ellsberg and Edward Snowden (by Skype).
Who attended the Chicago gathering?
We had over 100 attendees, a combination of young people, even students, entering the profession and seeking journalistic jobs, freelancers and bloggers, and reporters and editors at small community newspapers and websites. Our idea was that these days fewer and fewer journalists work for large enterprises like the Tribune or Times, but more and more work on their own as freelancers or documentarians or on small websites, none of which have access to an in-house attorney or a lawyer on retainer. So we felt these folks could really use a day of basic legal training. Our expert faculty is MLRC staff and the top media lawyers in the city we're in. We've been aided by a grant from the MacArthur Foundation and sponsorship of the Mutual Insurance Company. Chicago was our seventh workshop. We had 200 attendees in New York and between 65-85 in Boston, D.C., Miami, L.A. and San Francisco.
What are the biggest changes in the press and the law in recent years?
There really have been two major revolutions in the media in the past decade, affecting media law in different ways. First, of course, is the internet and the growth of digital news platforms. That has led to a greater importance of copyright and intellectual property law and unique digital law issues. One consequence of digital growth has been the financial fragility of the traditional media, leading to a decrease in legal resources, among other frailties. In a sense our workshops are a response to both those trends.
But really, the biggest change in the media law environment since I started at the Times in 1981 is the strengthening of First Amendment law and greater protection of the media. In the 1980s I had to go to court once or twice a week to argue why a courtroom should not be closed to the press and public or why a filing should not be sealed; today that's no longer an issue — almost all judges recognize that the judicial process is presumptively open. Likewise, at least until this year, the number of libel suits filed against the mainstream media is way down since the '80s and '90s. So, in general, the media's legal position has gotten stronger through the past decades.
What tend to be the big issues at these gatherings?
I've found that, more than anything, our audiences are really appreciative of our presenting these workshops. They know that the business and the law have gotten more complex, that they are busier with the 24/7 news cycle, that there's less resources for lawyers and training, but, at the same time, that they need to know the law and how to keep out of legal trouble.
So while our evaluations show that our audiences find the workshops interesting and educational, their first response is how badly needed it is. And they also appreciate the price: $20 for breakfast, lunch and a full day of programs from top legal experts.
Different people get the most value out of different sessions, but everyone seems to realize the importance of the libel and invasion of privacy sessions to ensure avoiding getting sued; many like the session on FOIA which teaches them how to get government documents they are entitled to; and the internet folks value the sessions on copyright and digital law.
What's the biggest challenge today?
I think the biggest challenge — unprecedented, in my view — is the daily bashing and minimizing of the media by the president. Although almost all of it is — in his words — fake news, it has taken a toll. And if the credibility of the media is lessened, not only is that terrible for the media and for our democracy, but it has legal ramifications as well. Judges and juries certainly are influenced by public opinion.
The recent increase in libel filings and a few recent huge results in favor of plaintiffs against the media —such as the over $200 million settlement by ABC in the "pink slime" case — may well be affected by Trump's anti-media rants and offensive. That and the threat that this Administration, unlike any in our history, might prosecute a reporter or media organization for publishing national security information it legally obtains are the biggest challenges we face. And I don't see much affect or influence of the huge Hulk Hogan/Gawker result: It was a sex tape case and, as such, sui generis and without much impact on other more usual issues and situations.
Finally, this: Bill O'Reilly on Friday sued a former New Jersey politician whose Facebook posting detailed allegations made by the politician's ex-girlfriend against O'Reilly. The ex-girlfriend was seemingly bound by a non-disclosure agreement. What do you think?
I think it's extremely unlikely that O'Reilly can win — similar to my belief that Harvey Weinstein's threat to sue the Times for libel was downright laughable. A few points:
The fact that this was a Facebook post makes it no different than if it were a newspaper report. Libel law is the same online or in print. The NDA (non-disclosure agreement between the woman, a former Fox employee, and O'Reilly) doesn't matter. O'Reilly may have a good contract case against the ex- girlfriend who probably broke her nondisclosure agreement , but that shouldn't affect his defamation suit against (former politician Michael) Panter, who is not a party, I assume, to the NDA.
Assuming Panter learned of the harrassment from his ex, and there was no clear reason not to believe her, how can O'Reilly prove that Panter had "serious doubts as to the truth," the standard O'Reilly, as a public figure, must meet. Seems highly improbable.
Finally, why would O'Reilly want there to be a long public saga, with discovery and evidence in public, about what he did to this, and possibly other, women? Seems unwise.
