Jeff Hermes, deputy director of the Media Law Resource Center, spoke at an INN conference in 2015. Below is his advice on how to best work with media lawyers, plus many resources for nonprofit newsrooms seeking legal help or advice.
Media lawyers are not editors. While some have worked as journalists, their function is not to tell you what to publish or what not to publish, or to advise you on your ethical obligations as a journalist. Legal standards and ethical standards are two different things, for good reason. Rather, an attorney’s role is to assist you to publish what you decide is proper and to help you understand and mitigate the legal risks involved.
Lawyers are like home contractors. They can do many things, some of which you might be able to do for yourself based on your comfort level and experience. A denied FOIA request is like blocked plumbing; in the first instance you can probably try to fix it with a plunger rather than pay for a plumber. But just as most of us wouldn’t try to build our own homes or refurbish our kitchens without help, trying to form a new business or navigate copyright issues by yourself can result in significant issues later on if you don’t know what you’re doing. Subpoenas and lawsuits are the metaphorical tree falling on your house – don’t mess around, just get an attorney.
Many journalists approach media attorneys with specific questions, and that’s fine. However, one of the most important functions that a lawyer can perform – especially for a journalism organization with a limited budget – is to triage your legal needs and help you prioritize them. Do not be afraid to ask your attorney if there are other issues of which you should be aware (most will volunteer that information anyway), and which need to be addressed first.
You should be comfortable that your attorney understands your level of risk tolerance. Legal issues are rarely cut and dried, and so legal advice is often a matter of your attorney extrapolating from past cases to evaluate how the law will likely apply your situation. But many attorneys tend to be risk averse on behalf of their clients, and so the advice they give might sound like a prohibition rather than a statement of probabilities. Talk with your attorney about how significant the risks they identify are as a practical matter, and what level of risk you are comfortable accepting.
Legal Resources for Independent Journalists
Authors Guild: The Authors Guild has struck a deal with major media liability insurer AXIS PRO for professional media liability insurance for its members.
Harvard Law School Cyberlaw Clinic: While primarily focused on issues related to technology and intellectual property, this leading academic clinic has a history of working with journalists who are experimenting with new ways of developing and sharing content online.
Law for Media Startups Guide: Produced by the Tow-Knight Center for Entrepreneurial Journalism at CUNY Graduate School of Journalism, this guide presents important information regarding legal issues faced by new journalism projects, including not only traditional media issues but also business formation, employment law, and much more.
Media Law Resource Center: First Amendment advocacy organization and trade association for media lawyers in firms, media organizations, & academia. Most MLRC resources are directed to its member media attorneys, but you can use the MLRC’s member search tool to find media lawyers in your area.
New Media Rights: Provider of free, reduced fee, and full fee legal services for digital media projects and journalism based at California Western School of Law. They also provide a host of useful resources on a wide variety of legal topics.
Reporters Committee for Freedom of the Press: “For more than 40 years, the Reporters Committee for Freedom of the Press and its staff attorneys have provided free legal resources, support, and advocacy to protect the First Amendment and freedom of information rights of journalists.” In addition to a wide variety of written topics, the RCFP has a legal defense hotline at 1-800-336-4243.
Society for Professional Journalists Legal Defense Fund: “The Society’s Legal Defense Fund is a unique account that can be tapped for providing journalists with legal or direct financial assistance. Application to the fund is approved by either a small committee or the national board, depending on the level of assistance sought.”
Yale Media Freedom and Information Access Clinic: Based at Yale Law School, this academic clinic focuses on assisting journalists, news organizations, public interest organizations and others with legal issues related to newsgathering, access to information, and government transparency.