Four Lessons from Two Decades of Newsroom Lawyering
Reflections on retiring from practice, with gratitude.
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Welcome to Second Rough Draft, a newsletter about journalism in our time, how it (often its business) is evolving, and the challenges it faces.
Sometime early next month, I will formally retire from the practice of law after 26 years at the bar, including more than 21 years as a full- or part-time newsroom attorney.[1] As I do this, I want to take stock of a few of the more important things I think I have learned in this role.
Newsroom lawyers are ultimately at the mercy of reporters
One of the very first lessons I learned in reviewing stories prior to publication is that press lawyers are at the mercy of reporters. Quite simply, the attorney must assume that the facts in a story are accurately reported— which is, appropriately, the first and last legal line of defense for journalism. Sure, you can seek to double-check a pivotal fact, or an assertion that you fear is inaccurate or just wonder about. But, by and large, the pre-publication process is not a fact-checking exercise, and it would be intolerably costly for it to be otherwise. The upshot: behind all of the best press lawyers stand great reporters.
Many potential plaintiffs just want to vent
The first and most critical objective of newsroom lawyering is not to prevail in lawsuits, but to prevent them from being filed. Once cases are filed, the costs are considerable, in terms of both cash (libel insurance deductibles are skyrocketing) and precious time lost by reporters and editors.
In seeking to prevent cases from being filed, I have learned that it’s enormously important, if possible, to understand the perspective of unhappy story subjects. At least three practical points result:
Always make sure people whose activities are being held up to criticism, no matter how well justified, are given a fair opportunity to comment. A “no surprises” approach to journalism is not only good practice, it’s also legally strategic.
Always respectfully respond to good faith post-publication complaints, even if they are entirely off base or vituperative. Frequently, just listening can lower the temperature of a potential plaintiff below the boiling (litigation-filing) point.
Always work to correct factual errors. Many reporters and not a few editors sometimes resist this, but refusing to acknowledge mistakes not only undermines confidence in journalism generally (in our era of radical transparency, a corrections column has, I think, ironically become a source of credibility), it can also occasionally defuse potential litigation.
Hard cases make bad law
This maxim traces back at least as far as a mid-19th century British judge, but it has special relevance to modern American press law. Because, since New York Times Co. v Sullivan in 1964, that has been largely federal constitutional law, the implications of any case for others can be enormous.
As a result, one of the key tasks of a newsroom lawyer should be to do everything they can to see that the evolving constitutional common law (i.e. case law) is built on cases where the journalism is worth defending. Asking appellate judges to craft new rules or sympathetically apply old ones in circumstances where the press has misbehaved is tempting fate. Particularly as cases approach the Supreme Court, it may sometimes be the better part of valor even to settle a matter rather than try to vindicate an important principle on the basis of bad facts.[2]
A newsroom lawyer needs a degree of independence, and more
I was the first in-house newsroom lawyer in the then 100 year history of the Wall Street Journal. The reason it took so long? Robert Potter, the company’s supremely decent long time outside general counsel, once told me that in a company where the CEO then still traditionally came from the ranks of former journalists, having an in-house attorney who reported up to that person would entail diminished independence from the newsroom for the lawyer—safer to locate them in an outside law firm. By 1989 that notion had become a bit quaint, not to mention excessively costly.
But Bob Potter’s insistence on preserving the independence of newsroom counsel was spot on, and it is the ability to the navigate this requirement that, in my observation, has distinguished the very best press lawyers, beginning with my own mentor in this work, the brilliant Robert Sack (since 1998, a judge of the federal Second Circuit Court of Appeals).
Independence is not enough, however. Press lawyering at the highest level also demands a genuine enthusiasm for great journalism, a passion to see it published.
It has been and remains one of the pleasures of my life, for more than four decades now, to begin each day with about an hour of immersion in narrative news. When I need to wake up early for travel or an appointment, I almost invariably do so even earlier to read the day’s reporting. Getting, as a newsroom lawyer, to read some of that reporting before it is published has been one of the greatest privileges and real joys of my professional experience, and the thing I will most miss in leaving the practice of law behind.
[1] I “retired” earlier as well, from about 1994 until 2006, when I worked in non-legal roles, and could unretire again from law practice, although I have no plans to do so, and don’t expect to.
[2] As a corollary, I have long thought that the almost reflexive filing of industry-wide amicus curiae (friend of the court) briefs supporting rather than attempting to distinguish instances of press misbehavior can be, and has been, a mistake.
Mr. Tofel, thank you for your commitment to journalism and to the law--and often in that order.
Over the years, as reporter and news director, I've found that for me, the most effective and helpful counsel had--in their heart--a deep passion and appreciation for journalism and its role in a democracy. Although we have not met, I am sure that those attributes are at the core of what has made you so valuable and appreciated by those you've helped over the years. Thank you for your contributions to the profession.
Dick, so typically thoughtful and spot on! As a WSJ reporter eons ago, I was defended--successfully--in a libel suit by one famous outside (Patterson Belknap) newsroom attorney, Bob Sack, and, later, as a page one rewrite staffer, "lawyered" a feature story with another Patterson Belknap attorney, Rudy Giuliani. Congratulations on your choosing "retirement," but many of us wish you wouldn't!