What the lawyers who sue the press think of the press, and media law

July 30, 2020

“Have a score to settle with the press? Charles Harder, the media lawyer who ground to dust, is your man.” 

That was the subhead of a GQ profile of Harder published in 2016, after he won a $140 million jury verdict for Hulk Hogan against Gawker (later settled for $31 million). The profile went on to say that Harder had established himself “as perhaps the greatest threat in the United States to journalists, the First Amendment, and the very notion of a free press.”

Whether or not that’s true, Harder has said it would be “awesome” if the Gawker case had “a chilling effect on irresponsible journalism,” and he has put that enthusiasm to use for a growing list of high-profile clients—including, most recently, for Robert Trump, to try to prevent publication of Mary Trump’s book; for the Trump campaign organization, in libel lawsuits against the New York Times, the Washington Post, and CNN (a lot of the campaign’s total legal costs have gone to Harder); and for Sean Hannity, to demand a retraction from the Times for a Kara Swisher column. Earlier, Harder defended the president against a libel action filed by Stormy Daniels, and he represented the first lady in one against the Daily Mail. He also threatened to sue the Times on behalf of Harvey Weinstein and New York magazine on behalf of the late Roger Ailes. The list goes on.

Harder has become something of a public figure himself, described by the Post as “[o]ne of the most feared libel lawyers in America” and by the Hollywood Reporter as “arguably the highest-profile media lawyer in America.” The irreverent legal news website Above the Law once wrote of him: “If you’re looking for a lawyer to bring a publication to its knees, Harder’s the leader in the clubhouse.”

But he has serious competition in that clubhouse: Lin Wood, who represented Richard Jewell and has been in the news lately as the lawyer for Nick Sandmann, the teenager who had a highly publicized encounter in 2019 with a Native American activist at the Lincoln Memorial; Tom Clare and Libby Locke, who practice together and have litigated against some of the biggest names in news, among them Rolling Stone (in the libel suit regarding the infamous campus gang-rape story) and the Times (in the libel suit for Sarah Palin over a 2011 editorial); Anthony Michael Glassman, who has experience as both a media defense and plaintiff lawyer, and who, in representing the Church of Scientology, has threatened to sue Vanity Fair, The New Yorker, and the Daily Beast; Neville Johnson, who has litigated against the Big Three (ABC, NBC, and CBS) and has deep expertise in the use of hidden cameras by news organizations (he once said using them is “a million-dollar decision”); and John Walsh, who is best known for a trio of cases in the eighties and nineties against the Post, Gannett, and Capital Cities (more recently, with his law partner Alan Lewis, Walsh represented the owners of a Russian bank in a libel lawsuit against BuzzFeed for publishing the Steele dossier).

They have significant experience with claims against news organizations for their publishing and newsgathering. Their perspectives about their work can contribute to a greater understanding of the news ecosystem. With that in mind, I conducted interviews in 2018 and 2019 with the eight lawyers identified above, for an academic article that I published recently in the Virginia Sports & Entertainment Law Journal.

Sparing all the methodological details, I selected Harder, Wood, Clare, et al. by asking fifteen prominent media defense lawyers to identify their common foes. That produced a list of ten, with a lot of overlap among them; these eight agreed to participate in interviews, with which my research assistant helped. Our goal was to better understand claims against the press by talking with the lawyers who most often bring them—to learn more about their personal perceptions of their work, the roles they believe they play in the news ecosystem, their views of the current state of American speech and press law, and whether their opinions of the press have changed because of their work. 

We did not set out to dispute their perceptions of any events or issues that differed from our own; rather, we wanted to try to see things through their eyes and to capture their impressions, views, and attitudes. At times that challenged me, because my own perceptions differed from theirs in some significant respects. For example, I don’t share their belief that the Sullivan case, discussed below, has gone too far or encourages bad journalism.

But, again, that’s beside the point. This is about their personal perceptions of their work, the law, and the news media—not mine. 


Roles in the news ecosystem

Generally, the lawyers said they’re providing a public service and, in their own way, advancing and safeguarding First Amendment interests. Glassman, for example, said his work has the effect of improving what the media produces, while Lewis said he tries to restore or maintain balance in the news around expressive and privacy or reputational interests. Similarly, Clare said, “What we do is offer a measure of accountability for the media, so the products that it’s producing are better and more accurate. Journalists should do their jobs with the same kind of accountability that they impose on the rest of the world.”


Facing the news media

The majority of the lawyers discussed the media defense bar as a challenge because of its cohesiveness. “They’re extremely well organized,” Wood said. “You won’t find a plaintiff defamation bar because we have never banded together to promote changes in the law or support one another. The defense bar sticks together.” He said that means he typically goes up against not one defendant but a community of them in any case. Walsh sees things the same way. He called the defense bar a “collegial body” that keeps in touch through bar committees on media law, with the networking support of nonprofits. “All of these groups,” Walsh said, “are generally working to expand doctrines that are protective of the media.”

Johnson agreed, calling the defense bar “well established,” but he protested the common practice of referring exclusively to defense bar members as First Amendment lawyers. “I also consider myself a First Amendment lawyer,” Johnson said. “I protect individual rights in speech and press cases. In today’s society, that’s important. The right of privacy is as valuable as the right of free speech, and they are related.”

All but one lawyer discussed the resources of media companies as a major challenge for their clients. Locke put it this way: “Media companies are well funded and typically owned by major corporations. They have big legal budgets to spend in defense costs, and they are well insured. When you pick a fight with the media, you have to be ready to go the distance.” Harder echoed that, saying, “Most people don’t have the capacity to take on a billion-dollar media company backed by a billion-dollar insurance company.”


American speech and press law

The lawyers generally spoke at length about the current state of American speech and press law, and the 1964 Supreme Court case New York Times Co. v. Sullivan occupied most of their time. It brought state libel laws into the First Amendment’s orbit and set out a new fault standard (highly protective of speech) for a public official to meet to win. The justices later extended it to public figures.

Most of the lawyers said the lower courts have taken Sullivan and its progeny too far, and some took issue with what they characterized as the decision’s unintended consequences. Wood said the Sullivan standard, which requires proof that the defendant published a statement knowing it was false or did so in reckless disregard for its truth or falsity, has the effect of encouraging bad reporting. “And what does that do for the standards of journalists?” Wood said. “It dumbs them down. They need to be elevated, and there needs to be more accountability.” Clare said basically the same thing, adding, “What other profession has the benefit of a standard like that to establish liability?”

Harder said Sullivan’s outcome, apart from the fault standard, was “spot on.” But he struggled to capture the facts underlying the outcome:

You have a civil rights organization putting out information about a sheriff or governor or attorney general, in the South, and that information was inaccurate. So the organization is sued for defamation, and it loses. The case goes to the appeals court and then the state supreme court, where the organization loses again. I think this was in Mississippi or one of those states. And then the case goes to the Supreme Court, and by a unanimous verdict, the justices reverse. This outcome I agree with.

(The basic facts: In 1960, the Times published a paid ad from a group supporting Dr. Martin Luther King Jr. that solicited financial contributions and accused authorities in Montgomery, Alabama, of abusing protesters and violating the Constitution. Although the ad didn’t name any local officials, the Montgomery city commissioner who ran the police department, L.B. Sullivan, sued for libel. A jury in state court ruled for Sullivan, and the state supreme court affirmed. Then the US Supreme Court reversed and ruled for the Times in a unanimous opinion.)

Harder said the Sullivan standard is “very, very, very high” and difficult for a person who is any kind of public figure, a concept he said is ever expanding, to satisfy. But he said he did not know with what standard he would replace it. Notably, the other lawyers who criticized Sullivan and its progeny said the same.

For his part, Glassman called Sullivan a “wonderful decision and totally appropriate.” And he said it is especially important now, in our current cultural and political moment. “We hear daily from the administration that the press is the enemy of the people,” he said. “That’s outrageous, and it has no place in our democracy.”


Views of the media

All of the lawyers said their work has changed how they view and consume the media. Walsh said he believes in the value of the First Amendment but has come to be a close examiner of the news. “I never question the right of the media to report on any subject,” Walsh said, “but I retain the right to claim that they said something false and that it has damaged someone.”

Johnson said he has become more cynical about the editorial integrity of journalists, and Clare said his work has given him unique insights into how news stories are built, exposing what he said were flawed processes and biases. “There are a lot of terrific reporters and responsible media organizations,” Clare said, “but by the time a matter reaches my desk, it has serious problems. It casts a different light across the media than I had growing up, when I tended to accept at face value what was written and that it was being told to me truthfully and objectively.”

Sam Davis Bergsagel, an incoming law student at the University of Georgia, contributed to the research for this story, parts of which have been excerpted, with permission, from the author’s academic article in the Virginia Sports & Entertainment Law Journal.

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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.