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London Conference Preview: Breyer, Assange and a Bloody Brilliant City

By George Freeman


Our London Conference (Sept. 15-17) is happening in little more than a month – and it looks to be our best one ever. The bookends of the program will be spectacular: we will begin the proceedings Monday morning with a session starring Justice Stephen Breyer of the U.S. Supreme Court and end the Conference Tuesday afternoon with a hypothetical trial of Julian Assange.

But before I go on to give you the details about these and other programs, I really want to give a shout-out to the City of London. Two years ago when many of you were nice enough to congratulate me and Dave Heller for a great Conference, I often deflected the praise by saying that much of the credit goes to London, our host. The energy and classic environment of London added huge intangibles and boosted the enjoyment and success of our programme. I am sure that will remain the case this September. Albeit the UK is suffering political turmoil – sound familiar? – the packed streets backing upon elegant architecture, the teeming crowds spilling out of pubs and restaurants, the diversity of people and languages seen and heard in the parks and streets, the venerable sights of Parliament and Big Ben on the River Thames, the historic sites such as Churchill War Rooms, the British Museum and The Tower, the black cabs and red double-decker buses – I could go on - all make London a great place to be when you're not enjoying the lively discussions at The Law Society.

breyer2Back to the program. As far as my memory goes – and I have been in this Bar for 43 years – no MLRC or ABA media law program has ever before been honored with a sitting Supreme Court justice. Justice William Brennan, in whose name we give our prestigious Award, and Justice Harry Blackmun, an early recipient of that Award, both appeared at separate Annual Dinners, but in both cases after they had stepped down from the Bench. And Justice John Paul Stevens, who sadly passed just a few week ago, was interviewed at a ABA Forum "Boca" Conference a few years ago, but, again, as a retired justice.

We invited Justice Breyer to speak in London in part because of all the justices, he has emphasized learning and taking from the laws of other countries – a position sometimes strongly decried by others – but totally in line with the goals and mission of our international Conference.

Of course, I expect Justice Breyer will talk about that, but a lot more too: whether First Amendment theories and the "marketplace of ideas" still work in our bifurcated digital age; why SCOTUS hasn't considered a media defamation case in about 30 years (and perhaps Justice Thomas' recent anti-Sullivan opinion); relevant to our being in the UK, the ramifications of the SPEECH Act, essentially dissing UK libel law as heinous; his concurring opinion in Bartnicki (and perhaps how it might apply to Julian Assange); whether European balancing approaches work better than our strict scrutiny and other more absolute tests; and whether the divides between European and American law on privacy and hate speech regulation are irreconcilable.

Talking about hate speech, the following program will be a debate about hate speech regulation between Nadine Strossen, former head of the ACLU, and Prof Gavin Phillipson, a British university professor. Nadine was a former law school classmate of mine (though I unfortunately didn't know her back then owing perhaps to the huge classes and the rather impersonal law school environment), and is one of the most dynamic and engaging speakers in our media law world. I am confident listening to her debate – you can probably guess which side she is taking – will be a treat.

Monday afternoon will feature a session on leaks, whistleblowers and the practical issues in defending sources for disclosing sensitive, classified information to journalists. Among the panelists will be Jim Risen, who has been through many a trying leak case, as well as other lawyers for leakers in some current notorious cases.

Tuesday morning will start with a session entitled "European Responses to Fake News, Disinformation, Violent Material and the Responsibility of Tech Companies." Among the speakers will be a Member of Parliament who is exploring legislation to regulate fake news, and Delphine Meillet, a lawyer who has worked against similar legislation in France. It is an intriguing, difficult and timely subject.

Later on Tuesday there will be a panel on MeToo# reporting around the globe. It will discuss whether MeToo# stories are less likely to come out because of the more restrictive libel and privacy laws elsewhere than in the U.S., and the effect of NDAs internationally.

Finally, to cap the Conference, we will be presenting a hypothetical trial of Julian Assange. It will be based on hypothetical facts, simple (since we have limited time and an unwillingness to get bogged down into the weeds of the expected case) but similar to the real thing. We have lined up two star litigators to give closing arguments in the case: renowned barrister Geoffrey Robertson to represent Assange and our own charismatic Chip Babcock to be the prosecutor.

We intend to have a lay London jury of people David and I run into over the weekend in town – and perhaps a smattering of non-lawyers from our member firms in London. I am currently laboring over the hypo, the jury questions and the jury instructions, but they probably will focus on whether Assange's "encouragement plus" leads to guilt under Bartnicki; whether publishing sensitive national security information totally passively received leads to guilt under Bartnicki and its forerunners; and whether the jury might nullify a clear breaking of the law by hacking into a government website if it leads to a good result which is in the public interest.

And I am not even giving details on a number of other top-flight programs: one on press freedoms under siege in trouble spots all over the world, from Myanmar to Latin America; another on whether the changes in the British Defamation Act has actually affected what can be published and the practical decisions of UK publishers; and one on the troubling and weird media law developments in Australia, including the censorship of reporting about the Cardinal Pell case and a police raid on ABC Australia's newsroom similar to what occurred recently in San Francisco.

Last but hardly least are the social gatherings which come with attendance at the Conference. As in past years, Mark Stephens will host a Sunday brunch at his offices overlooking London Bridge and within sight of the Tower Bridge. Later Sunday evening Bloomberg will host a reception at its brand new European headquarters, which happen to be built over some Roman ruins. Needless to say, good food and drink will be offered at both these parties, as well as at our reception Monday evening at the National Gallery hosted by Hiscox. Of course, it is centrally located right above Trafalgar Square, and I understand we will have access to a different wing of the museum than we had the last time we were there.

Finally, as in each London conference since my period at the MLRC, David and I are planning to lead a crowd of 20 or so on Saturday afternoon to an English soccer – that is, football – game. Our research has shown that only one London English Premier League team is playing at home the weekend we are there, and that is Tottenham, in a new and uninteresting stadium very remote from downtown, and whose tickets are very difficult to acquire. So instead we are planning to go to a Fulham v. West Brom game at Fulham, two teams who recently have been relegated from the Premier League to the Championship League. But it should be classic as Fulham plays at Craven Cottage, the oldest soccer pitch in London, built in 1896 and located hard by the Thames near Chelsea, a short hop from central London. Tickets may go fast, so if you're interested, please let me know. Being on top of the list will be your reward for reading my column down to its end.

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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