Next Thing We Do, Let’s Talk About the Lawyers

How they can help newsrooms, and behaviors to avoid

Welcome to Second Rough Draft, a newsletter about journalism in our time, how it (often its business) is evolving, and the challenges it faces.

I spent more than 20 years as a practicing newsroom lawyer, and some of my best friends remain lawyers, both active and recovering. But recently I found myself trying to convince colleagues in journalism that they ought to pay less attention to attorneys in evaluating the risks to journalism today. This week I want to explain why.

I think the best way to approach this topic is to lay out what lawyers representing journalists do best, and what they should do less of. Let’s start with the positive side of the ledger.

What lawyers do best

The first and most important job of a newsroom lawyer, or even just a lawyer representing a newsroom in another role, is to facilitate getting material published. This is a simple but critical point. The object is not to eliminate all risks and avoid all potential pitfalls. Advising about how one might achieve those goals are lawyerly tasks, to be sure, but publishers are in the business of publishing, and the best lawyers never for a minute forget this. Pre-publication review of stories, for instance, should not be an exercise in taking things out of stories, but of figuring out how to let editors, reporters and producers share with readers, listeners and viewers what they have learned.

Next, lawyers, who are trained in how to effectively marshal an argument, can work to ward off attacks, whether in court or elsewhere, through pointed advocacy. In our own time, it has become clear that any line that once separated litigation and public relations has long since blurred. The most valuable lawyers know how to practice both, and to do so in ways that arguments made in one arena complement those in the other. David McCraw, the New York Time’s chief newsroom counsel, is a master of this critical skill.

More proactively, attorneys can help newsrooms limit risks by ensuring they follow sound practices and procedures, from compliance with corporate, regulatory, tax and accounting requirements to implementing solid HR policies and following them to playing an important role in information security, including formulating document retention policies (and, again, observing them). But this important work needs to be conducted not for its own sake but with rule number one always in view: helping publishers publish.

A final essential role for lawyers is the defense of the rule of law in our society. This is, of course, not the sole responsibility of lawyers—it is, in fact, a duty of all citizens. But lawyers have a special role to play, both because they ought to be the first to recognize threats to the rule of law, and because of their special role in the functioning of the legal system. That is why the surrender of the Paul Weiss law firm to Trump threats last March, and the active complicity of Sullivan & Cromwell in those threats, was so disappointing. In contrast, the institutional courage of Jenner & Block and WilmerHale and Perkins Coie was heartening and even inspiring. Each of us ought to do whatever we can to socially (or, if we can, economically) sanction the former firms and elevate the latter.

What lawyers should do less of

Now we come to the downside, which I think is sometimes too little recognized in an environment as challenging as the one in which we find ourselves these days. My first rule here flows directly from the discussion above. The job of lawyers is to advise clients, who must be the decision-makers. Clients have a broader view, of more than merely legal issues, or at least they should. There may be risks they choose, on balance, to run— stories to publish, statements to make in the interest of transparency or staff cohesion or garnering reader loyalty, even sometimes corners to cut.

It is decidedly not the job of lawyers to scare clients out of making these choices, and far too often over the years, I have seen lawyers who, in their zeal, get confused about this. It is also important for lawyers to stay in their own lane unless and until invited out of it. Attorneys are (or should be) steeped in the law, but this does not automatically confer expertise in PR or employee relations or donor or shareholder stewardship. For clients, it is always appropriate to respond to purported “legal” advice by asking what statute or case or regulation the advice is based on. If the answer is some other consideration, the advice may be worth taking—or may not.

Not unrelatedly, lawyers, who are trained to spot potential risks, need to be careful not to overstate the likelihood of their occurring. Two examples from the last hard year come immediately to mind. Shortly after Trump returned to power, his Justice Department effectively withdrew rules protecting newsrooms from DOJ subpoenas. And since at least Pete Hegseth’s Signalgate debacle, the Administration has blustered about leaks. Both of these areas pose real risks for the press in the months and years to come.

But in assessing those risks, we also need to acknowledge that, one quarter of the way through Trump’s second term, there has been no surge in DOJ subpoenas, and no significant leak investigations focused on the press (at least that we yet know of).

Even last week’s search of the home of a Washington Post reporter, following this breathtakingly incautious piece, sought information on one potential source who had already been charged with a crime and had been communicating with the reporter, was conducted on the basis of a warrant from a federal judge and was accompanied by assurances that neither the reporter nor her publication were subjects or targets. Yesterday a judge held up the government’s review of the seized material pending a further hearing.

I have no doubt of the authoritarian impulse of the regime, nor its hostility to a free press. Perhaps the worst is yet to come. Perhaps, however, the need to employ the courts in subpoena fights and the time-honored fact that many leaks are authorized are limiting the risks in practice.

Finally, as I noted in writing about related questions four years ago, lawyers for the press have a special obligation to take care that we not push hard cases too far and make bad law. I want to repeat what I said then, in what was a more hospitable climate:

Because, since New York Times Co. v Sullivan in 1964, [press law] 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.

The same can be true of situations when the press has behaved entirely appropriately, yet the facts as we find them do not jibe well with established case law. There may be instances where cases should not be pursued, or even when those that have been initiated should be dropped.

This is not a time make new legal inroads, but rather to try to hold our ground, knowing that the press law of this country, at least for the moment, remains the most protective and generous of almost any nation. That is no small inheritance. Preserving it should be, for now, victory enough.