If You're A Journalist Hiring Lawyers To Intimidate Publishers Into Killing Stories About Your Misdeeds, You're A Hypocrite

from the shameful dept

Over the years we've obviously written tons of stories about the rich and powerful hiring shameless lawyers who try to browbeat and intimidate news organizations (both large and small) out of publishing embarrassing stories. That's one of the many reasons why we support strong anti-SLAPP laws across the country, as an essential protection for a free press. Media companies and journalists tend to be some of the biggest supporters of free speech and anti-SLAPP laws as well for this exact reason. But what happens when rich and successful journalists are suddenly the subject of unflattering stories as well? Apparently, they throw out their principled support of free speech and hire a sketchy law firm that celebrates its history of "killing stories."

Lachlan Cartwright, over at the Daily Beast, has a story about the law firm Clare Locke, who not only specializes in killing stories, but appears to brag about why we should chip away at the First Amendment. After opening with a story about how a 60 Minutes producer hired the firm, Cartwright mentions some of the other high profile journalists who have hired the firm:

Clare Locke also did work for former Today show host Matt Lauer and current New York Times reporter Glenn Thrush, three sources say. Both men were accused in news publications of sexually harassing women. The law firm was also recently hired by David Pecker, the CEO and chairman of American Media Inc., parent company of the National Enquirer, to try and shut down a negative story from a newspaper, according to two sources.

The article notes not just a history of litigation against various news orgs (Rolling Stone, The New York Times, Katie Couric, CNN, and Gawker among them), but also how one of the firm's named partners, Elizabeth Locke, has some bizarre views on free speech:

Locke has publicly backed President Trump’s call to “open up” libel laws and attacked shield laws that protect journalists from disclosing their sources in court. “How are you supposed to prove as a defamation plaintiff that the journalist knew what they were writing was false if you don’t have access to the identities of their sources? It’s really problematic,” she said in a speech last year to the Federalist Society, a conservative legal group.

Locke continued, saying she wanted to “talk a little bit about why the pendulum has swung too far in the direction of freedom of the press.”

There are so many things to say in response to this, but let's just start with the big one: free speech is not a pendulum. It doesn't swing back and forth. Free speech either exists or it doesn't.

Second, any journalist hiring a firm with a partner who would say such a thing is a disgrace to the practice of journalism. Obviously, some would (perhaps reasonably) argue that the names listed above are already disgraces to the practice of journalism, and perhaps that's true. But the whole idea of supporting a firm that openly advocates for limiting free speech and freedom of the press, while practicing intimidation tactics against a free press is horrific and shameful.

Third, Locke is being disingenuous in arguing that you need to know someone's sources to prove defamation. That's not even remotely how it works in most cases. Whether Locke knows it or not (and you can speculate on your own whether she does), demanding that journalists hand over sources is a popular and powerful intimidation technique. It serves to accomplish a number of things antithetical to a free press and reporting: it makes it that much more difficult for journalists to get sources to come forward for whistleblowing or other information. It makes it much, much more costly for journalists (even if they have not defamed anyone) to defend against defamation claims. In other words, even in the very, very, very rare instances where it might make legitimate defamation claims easier to make, it would also serve as a huge help in both threatening and filing SLAPP suits designed solely to kill legitimate, but embarrassing stories.

There's a lot more in the Daily Beast article, and the firm itself insists that it is not "making threats" or "chilling speech." You can, of course, make your own judgment on that. Also, it's no surprise that there are law firms that are building up reputations as specializing in going after media organizations, but the fact that journalists themselves are hiring such a firm is an absolute disgrace.

Filed Under: anti-slapp, chilling effects, david pecker, defamation, elizabeth locke, free speech, glenn thrush, intimidation, journalism, matt lauer, shield law, sources, threat letters
Companies: clare locke


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  1. icon
    James Burkhardt (profile), 20 Jul 2018 @ 2:59pm

    Re: Reading comprehension?

    I see nothing in there about not disclosing sources.

    A LOT gets "read into" the Constitution. A LOT of the Constitution proper is ignored by the Government.

    So one of the issues with simple language laws is this kind of bullshit. They write laws in legalese to reduce the amount of reading into the law we need to do. I will highlight again that if you have an issue with the way courts have interpreted the constitution, too bad, because under that standard, courts do not have the power of judicial review, and therefore there is no protection against unconstitutional action.

    But the first amendment was written with simple, understandable language, which means the courts have spent years reading into the meaning of those words. The key question is, what constitutes an abridgement of "the freedom of the press"?. In general courts have recognized that government actions which will have the effect of discouraging future first amendment activity (a chilling effect) are considered an abridgement of first amendment rights.

    So, forcing the disclosure of sources makes it unlikely that future sources will come forward, due to the likelihood of being revealed and the potential for negative consequences. That reduces the ability of the press to hold the government and corporations accountable. Action by the judiciary to force the reveal of anonymous sources is the government chilling the speech of the source, and the ability of the press to function. Abridging 1st amendment rights in 2 ways. It is most certainly a first amendment issue, as understood by constitutional case law.


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