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From the Executive Director's Desk: MLRC Annual Dinner on ‘68 and Forum on #MeToo Reporting Rousing Successes

Also: In-House Group to Meet Regarding Trump, Press Access, and Legal Threats

By George Freeman

MLRC Annual Dinner week (formerly known as PLI week) has come and gone. It was, at once, busy, productive, interesting and entertaining. As so often seems to happen, it was almost contemporaneous with major legal events: the Kavanaugh hearing took place the very day of our Virginia Media Law Conference, and unbeknownst to us just as we sat down to eat at our Annual Dinner in New York, CNN's Jim Acosta's White House press credential was being revoked after a spat at a press conference that afternoon.

But the events in New York contained quite enough to keep us duly occupied.

First up, Wednesday afternoon, was the Annual Meeting of the MLRC Board, whose minutes appear elsewhere in the issue. The headline was the passing of the gavel, as Chair of the Board, from Lynn Oberlander to Randy Shapiro, Global Media Counsel of Bloomberg. I very much look forward to working with Randy, but at the same time I regret seeing Lynn go (although she is staying on the Board for another term). Over the past four years, pretty much coinciding with my tenure, Lynn has been at the same time supportive and instructive, and always a pleasure to collaborate with. I am sure Randy similarly will be a boon to the Board and a creative leader for the MLRC.

The well attended Board meeting also featured the second of two amendments to our By-Laws this year. The one passed at the meeting was relatively ministerial, an amendment to the DCS By-Laws, now ratified by the MLRC Board, of a section conforming the length of terms of DCS Executive Committee members to current practice. Never having been changed since the early 1990's, the old version called for ExCom members to serve for 10 years, double the practice over recent decades and arguably unconstitutional as "cruel and unusual punishment."

The other amendment, enacted earlier this year, is more significant. Recent events and some changes in the media law landscape had raised questions about the efficacy and breadth of our By-Laws as to the stipulation preventing MLRC members from representing plaintiffs in libel and privacy cases against the media. So some changes were made, unanimously approved by both the MLRC Board and the DCS Executive Committee.

First, in addition to defamation, privacy and related lawsuits which firms are prohibited from bringing against the media, we added "newsgathering" lawsuits as well. More important, the prohibition had for years only included "actions" or "cases." That has now been expanded to include "lawsuits" and the taking of "steps in contemplation of such litigation against the media." So a DCS firm may not write a demand letter threatening a libel suit, etc. with an aim of getting a monetary settlement. There is a carve-out if the letter makes clear that it is not geared to a potential lawsuit, but is just seeking a retraction.

From the Board meeting, we moved to the Forum, which focused on #MeToo reporting and the breaking of the Harvey Weinstein story. We had a truly all-star cast, headlined by Ronan Farrow and Jodi Kantor, whose New Yorker and New York Times articles, respectively, combined to break the Weinstein story and send shock waves throughout the Hollywood community. Complementing them were Rebecca Corbett, the Times Assistant Managing Editor who painstakingly oversaw the Weinstein story, and Fabio Bertoni and David McCraw, the lawyers for each publication.

By unanimous acclamation, this was simply the best Forum we have ever put on. The room, unfortunately a little smaller than usual, was packed, with a crowd that spilled out the back doorway. But more important, the audience was rapt as they listened to the authors describe how they found their sources (interestingly, they each had separate sources); how they got them to tell their sometimes horrific stories; and, critically, how they convinced the sources to go on the record. They also discussed their strategies in getting sources to agree to bypass NDAs which they might have signed. It was a fascinating, detailed discussion, with the remarkable panel unusually open in discussing what clearly was and still is a very sensitive topic.

Also of great interest to this audience were the comments by Rebecca as the editor on the Times' stories and the two lawyers as to their roles in facilitating and vetting the articles. Fabio received many kudos from Ronan, and David did a great job with the two-headed job I asked him to fulfill, of being both moderator and panelist. Interestingly, everyone on the panel said the process and the reporting techniques employed were no different than on other investigative stories, but that their resonance certainly was greater – largely because the victim/witnesses were, in large part, famous actresses whom the public knew and believed. A full description of the session, written by my colleague Michael Norwick appears elsewhere in this issue.

After a 90 minutes break for a reception well stocked with food and drink, it was on to our Annual Dinner. Some 550 members and friends packed the Grand Ballroom of the Grand Hyatt for dinner and for a program focusing on the tumultuous year of 1968. The questions posed to the panel ranged from were the divisions in American society 50 years ago greater than the schism we face today? (answer: yes); have we made significant progress in race relations and women's rights in the intervening years? (yes); and would '68 have played out differently in today's media environment with cable, the Internet, etc? (the panel punted on that one).

It was a very erudite and eloquent panel – and they gave sophisticated and nuanced answers to most of the questions posed. They included Max Frankel, in '68 Washington Bureau Chief of The New York Times, later its Executive Editor; Marvin Kalb, CBS' Chief Diplomatic Correspondent in '68, later host of NBC's Meet the Press; Lynn Sherr, a reporter for AP in '68, and then for 30 years a National Correspondent for ABC News and at its news magazine show 20/20; and moderator Jeff Greenfield, a speechwriter for Robert Kennedy until his assassination in June '68 and later a political correspondent and analyst for CBS, CNN and ABC.

The program began with a 13 minute video montage taking the audience through the events of '68: the Tet Offensive, a turning point in the Vietnam War, in January; Walter Cronkite's report saying that the War couldn't be won in February, Gene McCarthy's challenge to LBJ, his near-victory in New Hampshire and LBJ's famous speech saying he wouldn't run for re-election, all in March; Martin Luther King's assassination in April; RFK's assassination and his funeral and the train procession from NY to DC in June; the fighting between police and students in Chicago, outside the Democratic Convention, and the nominations of Humphrey and Nixon in August, and so on. Also included in the video were Muhammad Ali, Joe Namath, Mick Jagger, draft card burning, bra burning and women's lib marches, the black power sign at the medal podium of the Mexico City Olympics, as well as sex, drugs and rock n' roll. It was quite a dramatic and vibrant intro to the program, and, he says modestly, the most creative thing I've ever produced.

I would be remiss if I didn't retell one vignette. I had sent Jeff Greenfield an outline of what I suggested we cover and asked that we discuss it on the phone. When we talked, I told him that the program would begin with this video montage. Without missing a beat, he said, "And it begins with Buffalo Springfield." Somewhat dumbfounded, as no one outside my office had seen the video at that point, I gulped, "Yes, it does." He said, "Don't worry, every show about '68 starts with their "For What It's Worth." All I could respond with was, "Yes, and to continue the cliché, we then move into Mrs. Robinson and the Stones' Street Fighting Man, as Mayor Daley's cops attack the kids in Chicago."

I will not attempt to distill all the expert analysis given in those 75 minutes in one paragraph. Because of the extraordinary nature of the discussion – and its timeliness today – in a departure from our normal practice, we will put a video of the dinner program on our website. So those of you who missed the dinner and some who would like to see it again can watch it at your leisure. We'll let you know when it's posted.

But I should point out some highlights: Max Frankel seizing on George Wallace in '68 as a forerunner to Trump, and, similarly, Jeff Greenfield emphasizing that Wallace and Nixon between them got 57% of the vote in the national election, a near-landslide, showing, he said, that a majority of Americans recoiled at our now romantic view of the Revolution as depicted in the introductory video, and noting that this large segment still forms the base of Trump's not insubstantial support. Marvin Kalb opining that, in the end, everything in '68 was dominated by the Vietnam War: it was on TV every night, a massive contrast to the happy family shows of the time. And, further, that the Presidents and their Secretaries of State and Defense never adequately articulated why the War was right or justified why it was in our geopolitical interest.

Lynn Sherr saying that what was critical was the destruction and lack of trust we had in our institutions, a trend largely fostered by the youth of the time. In discussing the change in the 50 years, Lynn told some personal stories, about how she and other women would-be journalists were uniformly turned down for jobs, with management saying "we don't hire girls" looking for jobs as reporters, and then, when she finally attained a job at AP, being put on a team whose job was to explain to the American people what the new mores of the young people, such as long hair, really meant. And, finally, Max saying that there wasn't really a parallel between the two years, but that, instead, the "roots" of what we're going through now can be found in '68, because while there might not be direct comparisons, history forms a continuity which needs to be respected.

The program received rave reviews, with a consensus saying it was the best dinner program we have presented. Some folks questioned whether it was relevant enough for young people, but I sought out some millennials, and they uniformly reported enjoying it. After all, it was a crucial year in our history – and the video was aimed to introduce it to those who were uninformed as to its events. Unfortunately, Lydia Polgreen, editor of HuffPost who was not yet alive in '68 and therefore had a perspective we thought would appeal to the young lawyers in the audience, and who was going to grapple with the question of whether the events of the year might have played out differently in today's media environment, was not able to participate because of the day's news events – Attorney General Sessions had just been ousted, leaving us, she said, on the verge of a constitutional crisis. (In that vein, though we had a superior group of panelists, at one time both Gloria Steinem and Lesley Stahl had committed to participate, but both had later conflicts leading them to withdraw and Jann Wenner had health issues and couldn't take part.)

* * *

Finally, I should report on some Trumpian developments. First, as I mentioned above, during our Annual Dinner, Jim Acosta's White House press credential was rescinded. By early the next week, CNN had filed suit; shortly thereafter the Trump-appointed federal judge entered a TRO in Acosta's favor and soon after that the White House backed down and gave Acosta his card back.

Fortunately for the lawyers involved, the MLRC had drafted a model brief early in Trump's presidency on exactly this issue: the revoking of White House access in retaliation for a reporter's or media entity's coverage. The brief came out of a meeting we convened on Dec. 1, 2016, just three weeks after the election, of in-house media counsel to strategize about expected Trump attacks on press freedoms. Of all the possible offensives we thought Trump might take and all the possible litigations the media might bring to assert their First Amendment rights, this was the area we then felt would be the most fruitful to litigate. Indeed, the sense of the meeting was to be very cautious about bringing broader claims where there were less favorable precedents.

As it has turned out, save for this recent imbroglio, Trump's attacks on the press have not really been in the legal sphere. They have been in the p.r. realm –"enemy of the people," "Fake news" and all the rest. But this onslaught, combined with the legal threats, has made it appropriate to have another similar meeting. As I recently wrote the attendees of the '16 meeting, "The never-ending barrage of White House attacks...continues unabated and largely without effective response, leading to the media's credibility being at an all-time low. The moves against Julian Assange suggest more threats against both leakers and publications which run leaked information. Three First Amendment litigations against the White House are under way, whose cost/benefit analyses might be instructive. And journalism on the President has become even more difficult and problematic, as the media is being criticized for becoming too opinionated, biased and even a cause for the nation's polarization – yet how else to cover a President who has made more than 6,420 false or misleading claims in less than two years (WaPo)?"

So we will hold a meeting redux, similar to the 12/1/16 confab, at the offices of the MLRC on the morning of Dec. 13. Because of space limitations and because the meeting is likely to focus on institutional issues and newsroom strategies as much as legal ones, like the '16 meeting, we are restricting the meeting to in-house counsel. If there are any groundbreaking developments, I'll share them with all.

The opinions expressed in this column are those of the author and not the MLRC. We welcome responses at This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; they may be printed in next month's MediaLawLetter.

 
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