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
    Stephen T. Stone (profile), 22 Jul 2018 @ 2:26pm

    Re: Re: Re: Re: Re: Re:

    If we based our laws specifically by the straightforward text of the Constitution, defamation laws wouldn't be a thing (First Amendment) and private citizens being able to own a gun wouldn’t be a thing (Second Amendment). The Constitution should not be set in stone that way; it should be interpreted with the intent of the Founding Fathers in one hand and the realities of our modern existence—an existence that the Founding Fathers never could have imagined—in the other. Men like George Washington had their say in the crafting of this country; their words and their intent should never be what governs the United States for all time.

    The "balance" idea sounds a lot like the "pendulum" idea Mike was dismissing BTW.

    That comment was specifically referencing free speech. My comment was not.

    Whereas a law will always affect the state in some way, it may affect a large group of people in a positive way, a smaller group of people in a negative way, and an even smaller group in no way at all. In an ideal world, the law would perfectly balance the rights of citizens and the interests of the state in a way where the people retain as much freedom as possible while the state retains enough power to govern the populace in an effective way. We do not live in an ideal world; the balance of the law exists as an ideal, but cannot be achieved. The best we can do is strive for the ideal by figuring out how to best craft laws that benefit both the state and as much of the populace as possible. At the least, a law should have good reasons why the balance must favor one side over the other, and why the people who will be most affected by the law will feel those effects more than others.

    Non-discrimination laws are a good example. The state has an interest in keeping the economy booming by having as many people as possible participating in the public sphere, so disallowing discrimination based on immutable traits (race/ethnicity, sex, sexual orientation, age, etc.) benefits that interest. Such laws would also help people who would face such discrimination enter the public sphere with less fear of being booted from it, which can improve their societal relationships and thus society as a whole. Public-facing business owners who would discriminate on such grounds will feel the effects of the law more, as they would be barred from such discrimination in the future, but the state’s broader interest in both the economy and the improvement of society would need to override a businessperson’s desire to say “no Blacks” or something similar. Non-discrimination laws, then, would favor the state—giving them the power to punish business owners for certain kinds of discrimination—while abridging a freedom of a small part of the populace to benefit a greater number of citizens. If the balance of such a law were a see-saw, the law would sit close to the middle, but always on the side of the state.

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