Practice Areas & Industries: Baker & Hostetler LLP

Practice/Industry Group Overview

Leaders in the Evolving World of Media Law

For more than 90 years we have been the leader in developing First Amendment law for media companies and the journalists and writers who work for them. As First Amendment law has evolved, sometimes explosively, sometimes glacially, we have been at the forefront in shaping the law both in the United States and abroad.

Libel and Privacy

Baker Hostetler Media Practice Leader, Bruce Sanford, authored a leading treatise on libel and privacy law that is relied upon by media lawyers and courts throughout the country. In addition, in 2000, he wrote the best-selling trade book, Don't Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us, on public attitudes toward the media. The book received critical acclaim. Larry King termed it "brilliant, a must read." The Boston Globe said it "transformed media criticism into something resembling fun!" USA Today called it "important and thought-provoking," and The Baltimore Sun ranked it as "the most intelligently disciplined book on the free press."

The firm's lawyers have helped shape the law of libel and privacy through winning hundreds of cases on summary judgment, at trial or on appeal.

• In the 1970s and 1980s we expanded the public figure doctrine in cases such as Brewer v. Memphis Publishing Co. and established that private figure plaintiffs bear the burden of proving falsity in cases involving matters of public concern, a principle later adopted by the Supreme Court of the United States.
• In the 1990s, after the Supreme Court had rejected a federal constitutional privilege for the expression of opinion, we convinced the U.S. Court of Appeals for the DC Circuit in Moldea v. New York Times Co. to reverse itself and extend opinion protection to The New York Times in litigation over a book review.
• We also persuaded the Supreme Court of Ohio to recognize a separate state constitutional opinion protection in Vail v. Plain Dealer Publishing, Inc.
• We persuaded federal courts in the District of Columbia to take a strict view of what constitutes sufficient evidence of actual malice in dismissing a libel case brought by former National Security Advisor Robert "Bud" McFarlane in McFarlane v. Esquire Magazine.
• In the 21st Century, we convinced Colorado courts to refuse to recognize the tort of false light invasion of privacy and persuaded them to adopt the media-friendly "incremental harm" doctrine.

Our clients turn to us to win the tough cases.

• Recently, we defended The New York Times in a $15 million federal court libel trial brought by a state Supreme Court justice. The jury returned a defense verdict for The New York Times even though the newspaper conceded mistakes in its reporting.
• Similarly, we convinced the Supreme Court of South Carolina to vacate a large jury award against a broadcaster on the grounds that the plaintiff, a powerful state senator, failed to demonstrate actual malice.
• In 2005, when a jury slapped the Boston Herald with a $2 million plus verdict for allegedly publishing libelous statements about a local state court judge, it turned to Baker Hostetler to obtain reversal on appeal.

Services Available

As a new world of digital content grew over the last decade, the firm was among the first to question whether the special vernacular and content of the Internet should be governed by the same law that controls language in traditional media.

In the seminal libel case against prominent cyber journalist Brock Meeks, we sought to have the rules of the road adapted for Internet writers and publishers. This case presented novel questions such as the determination of public figure status when an individual is famous within the Internet community.

As libel law has stabilized, we have moved into other areas of media law which intersect with the First Amendment, such as civil rights litigation, the newsgathering rights of reporters and sources, access to information, and copyright and securities law.

Civil Rights Litigation

In a landmark case against the Governor of Puerto Rico, we represented the Commonwealth's largest newspaper asserting First Amendment claims in response to government retaliation for unfavorable news coverage, and negotiated a favorable settlement for the newspaper on the eve of trial.

News Gathering Rights of Reporters and Source and Access to Information

For several decades, we have helped journalists gain timely access to public records, closed meetings and closed court proceedings. In the 1970's we established First Amendment protection against the overbroad use of gag orders and prior restraints by trial judges in civil cases. In the 1980's, we convinced the U.S. Court of Appeals for the First Circuit to provide significant First Amendment protection for civil discovery materials. We obtained the release of the Iran-Contra report from the three judge panel overseeing the independent prosecutor, and secured disclosure of tightly guarded records from the CIA and U.S. Navy.

Media group attorneys also successfully resisted the first subpoena for information collected through a news organization's Web site

Reporter's Privilege

For decades, our media attorneys have fought subpoenas served on news organizations. Recently, we filed an amicus brief on behalf of 36 media organizations in support of Judy Miller and Matthew Cooper in the U.S. Court of Appeals for the District of Columbia Circuit in the CIA leak/Valerie Plame investigation. We charted a counter strategy to provide cover for the reporters by authoring several Op-eds that highlighted the difficult burdens of proof the government faces in proving a violation of the Intelligence Identities Protection Act.

Copyright/First Amendment

We obtained summary judgment on behalf of John Grisham and his publisher, Bantam Doubleday Dell, in a copyright infringement challenge to his novel The Chamber, as well as a substantial attorneys' fee award against the plaintiff;

Securities Law

In 2005, when the Securities and Exchange Commission filed a far-reaching test case trying to extend the anti-fraud provisions of the Commission's broad authority under Rule 10b-5 to publishers in SEC v. Agora, we represented one of the nations leading investment newsletters in resisting intrusion into business and financial reporting. As described by The New York Times, this is a "first" of its kind lawsuit.

This cutting-edge case also involved Maryland securities regulators issuing broad subpoenas for records of the newsletter publisher, including its subscriber lists. We successfully litigated this case to Maryland's highest court, the Court of Appeals, and obtained a landmark decision establishing broad First Amendment protections for subscriber lists.

Global Reach

Building on our strong legacy in libel and First Amendment cases, we have extended these successes to establishing important jurisdictional precedents. Even though American libel law has stabilized, we have persuaded courts to adopt a restrictive view as to whether Internet publications can be sued anywhere in the world.

• For the Tribune Company in 2002, we persuaded the U.S. Court of Appeals for the Fourth Circuit in Young v. New Haven Advocate to refuse to hear a case in Virginia brought by a Virginia state prison warden against a Connecticut newspaper, even though the newspaper published an article on its website that mentioned the warden.
• Likewise, in Agee v. Bush, we persuaded federal courts to exercise jurisdiction when a former CIA agent living abroad sued Barbara Bush for libel in state court.

Indecency

As counsel to the Society of Professional Journalists, the firm was part of a coalition that opposed the portion of the Communications Decency Act that prohibited vaguely defined "indecent" Web publications. As a result of the litigation, this portion of the CDA was struck down as unconstitutional.

Media group attorneys also contributed to an industry effort over the last few years to contain government regulation of alleged indecent programming by authoring policy papers on the First Amendment implications of such regulations.

Counseling

We've provided advice, counsel and vetting services for scores of best-selling books on topics ranging from politics to pop culture. Examples include:

• Dutch by Edmund Morris
• Murder in Brentwood by Mark Fuhrman
• Show Time: Seducers, Stumblebums and Sheer Madness on the Way to the White House by Roger Simon
• Thurgood Marshall: American Revolutionary by Juan Williams
• Lennon in America by Geoffrey Giuliano
• Prelude to Leadership: The European Diary of John F. Kennedy edited by Deirdre Henderson
• Sportsman's Life: How I Built Orvis by Mixing Business and Sport by Leigh Perkins with Jeffery Normans
• High Crimes and Misdemeanors: The Case Against Bill Clinton by Ann H. Coulter

Talent Management and Licensing

Beginning in the 1970s, Baker Hostetler was a pioneer in strategies to help owners of copyrighted and syndicated cartoon characters and comic strips protect their intellectual property from unauthorized use and duplication.

Convinced that such activities violated our clients' rights, deprived them of valuable syndication fees and diluted their product quality, our lawyers undertook some of the first-ever international licensing efforts for syndicated characters. We launched a major effort to make retailers pay for use of our clients' characters, using the threat of litigation to stop them from buying counterfeits. Our work with studios, syndicators and other organizations (such as Major League Baseball Properties) continues today, and is part an extensive licensing and copyright practice.

We maintain our clients' copyrights in all forms of expression, such as design drawings, publications, artwork, music, film, software, advertising, Web site content and other copyrightable subject matter.

Our lawyers also excel at complex licensing, joint development, "work for hire" and international portfolio acquisition agreements. As part of this practice we develop such specialized business arrangements as restricted use agreements, software licenses, security and escrow agreements, recording agreements, film production pacts, and all forms of permission and agreements and releases.

Communications

Baker Hostetler assists broadcast group owners, telecommunications companies and individual licensees in navigating the full range of broadcast regulatory issues. We represent clients in acquisitions, licensing proceedings, facilities modifications, spectrum allocation proceedings and the numerous program-related matters affecting FCC licenses. Our lawyers are also active in helping companies offer both wired and wireless telecommunications services.

With a team that includes extensive experience at the Federal Communications Commission, we have the insight and skill to represent broadcasters, cable television programmers and telecommunications service providers in proceedings and litigation before the FCC. When regulatory remedies are inadequate, we pursue legislative relief through the extensive lobbying capabilities of our Washington, DC, office. We also have extensive experience in handling mergers, acquisitions and dispositions of communications and media companies.

For example, we:

• Represented The E.W. Scripps Company in taking its broadcasting subsidiary private, in the sale of its cable television business, and in its acquisition of cable networks and an internet product comparison shopping service.
• Scored a significant ad valorem tax appeal in Florida for Clear Channel Communication, in a case that affirmed the appropriate methodology for valuing tangible personal property (in this instance, cables, antennas and wire). The case took more than a decade to conclude on appeal, and saved our client $4 million in tax and interest.
• Lobbied on behalf of Verizon Wireless to educate Congress concerning telecom issues -- from antitrust to illegal downloads of films and music -- involved with their purchase of MCI.
• Helped Verizon Wireless secure regulatory approval for installation of wireless communication systems in large public facilities like Dallas-Fort Worth Airport, George Bush International Airport in Houston and Reliant Stadium in Houston.
• Act as lead counsel for telecommunications industry leaders for network buildouts, zoning and land use, statutory and regulatory matters and agency and franchise law issues.
• Represent CLEC, IXC, cellular, and paging service providers before state Public Utilities Commissions, representing them in regulation cases, helping them obtain Certificates of Public Convenience and Necessity, and securing approval of tariffs, contracts and financing.

About Baker Hostetler

Baker Hostetler lawyers help clients establish, maintain and protect market-leading positions across the United States and around the world. We offer clients the strength of 600+ lawyers in a full range of practices, a unique geographic platform including both coasts and the center of the country, a deep knowledge of industry issues and a 90-year track record of excellence and achievement.

For more information about our Media industry focus, contact:

National Leader

Bruce W. Sanford
202.861.1626
bsanford@bakerlaw.com

Cincinnati

William Appleton
513.929.3403
wappleton@bakerlaw.com

Cleveland

Hewitt B. Shaw
216.861.7514
hshaw@bakerlaw.com

Columbus

George W. Hairston
614.462.2638
ghairston@bakerlaw.com

Costa Mesa

George T. Mooradian
714.966.8806
gmooradian@bakerlaw.com

Denver

Raymond Sutton
303.764.4103
rsutton@bakerlaw.com

Houston

Lisa H. Pennington
713.646.1303
lpennington@bakerlaw.com

Los Angeles

John F. Cermak
310.442.8885
jcermak@bakerlaw.com

New York

John Siegal
212.589.4245
jsiegal@bakerlaw.com

Orlando

Thomas Ball
407.649.4004
tball@bakerlaw.com

Washington, DC

Bruce W. Sanford
202.861.1626
bsanford@bakerlaw.com

Clients:
ABC, Inc., Bertelsmann AG, Boston Herald, Chicago Sun Times, Cleveland Plain Dealer, El Nuevo Dia, FOX Television, Hearst Corporation, National Geographic Society, NBC, New York Times Co., Phillips Publishing International, Random House, Simon and Schuster, Society of Professional Journalists, St. Martin's Press, The E. W. Scripps Company, Tribune Co., Verizon Wireless, Washington Times