Report

Elements of Nonprofit News Management Chapter 5: Law and the newsroom

By Richard J. Tofel

October 4, 2022

One of the blessings of the American press is to operate under a legal system that generally is the world’s most protective, even in our own tumultuous times. Given my own experience in this area, I want to address a few particularly important issues regarding the law and your lawyers. 

The independence of lawyers — and editors 

When I became the first in-house newsroom lawyer at The Wall Street Journal, the newspaper had been publishing for 100 years.  Why did it take so long? Robert Potter, the company’s supremely decent longtime outside general counsel, once told me that in a company where the CEO then still traditionally came from the ranks of former journalists, having an in-house attorney who reported up to that person would entail diminished independence from the newsroom for the lawyer; it was safer to have that individual in an outside law firm. By 1989 that notion had become a bit quaint, not to mention excessively costly. 

But Bob Potter’s insistence on preserving the independence of newsroom counsel was spot on, and it is the ability to navigate this requirement that, in my observation, has distinguished the very best press lawyers, beginning with my own mentor in this work, the brilliant Robert Sack (since 1998, a judge of the federal Second Circuit Court of Appeals). 

Independence is not enough, however. Press lawyering at the highest level also demands a genuine enthusiasm for great journalism, a passion to see it published. At the end of the day, the independence of lawyers is designed to protect what is most crucial — the independence of editors. 

Defending the journalism 

Sometimes, of course, especially in our enormously litigious country, what is published may result in lawsuits. Good journalism will ultimately produce a certain number of these — if you have never been sued, you either haven’t been at it long enough, or are excessively pulling your punches. 

Having said that, the first and most critical objective of newsroom lawyering is not to prevail in lawsuits, but to prevent them from being filed. Once cases are filed, the costs are considerable, in terms of both cash (libel insurance deductibles are skyrocketing) and precious time lost by reporters and editors. 

In seeking to prevent cases from being filed, I have learned that it’s enormously important, if possible, to understand the perspective of unhappy story subjects. At least three practical points emerge: 

• Always make sure people whose activities are being held up to criticism, no matter how well justified, are given a fair opportunity to comment. A “no surprises” approach to journalism is not only good practice, it’s also legally strategic. 
• Always respond respectfully to good faith post-publication complaints, even if they are entirely off base or vituperative. Frequently, just being heard can lower the temperature of a potential plaintiff below the boiling (litigation-filing) point. 
• Always work to correct factual errors. Many reporters and not a few editors sometimes resist this, but refusing to acknowledge mistakes not only undermines confidence in journalism generally. In our era of radical transparency, a corrections column has, I think, paradoxically become a source of credibility;  it can also occasionally defuse potential litigation. 

Enabling, not controlling 

One of the very first lessons I learned in legal review of stories prior to publication is that press lawyers are at the mercy of reporters. Quite simply, the attorney must assume that the facts in a story are accurately reported — which is, appropriately, the first and last legal line of defense for journalism. Sure, a lawyer can seek to double-check a pivotal fact, or an assertion that you fear is inaccurate or just wonder about. But, by and large, the pre-publication process is not a fact-checking exercise, and it would be intolerably costly for it to be otherwise. The upshot: Behind all the best press lawyers stand great reporters. 

And this should be the guiding impulse for newsroom attorneys, whether on staff or outside counsel — and the executives who manage or retain them. The job of the newsroom lawyer is to enable great journalism, not to control it; to assess risks rather than to take them (or to choose not to); to see that what reporters and their editors want to publish can be safely published, not to limit publication to what may be safer.