Case-by-case basis

From the Winter 2009 issue of The News Media & The Law, page 30.

What could be more eyebrow-raising than a powerful lobbyist suing a prominent national newspaper over an already polarizing news article? How about if the lobbyist’s lawyer is a noted First Amendment scholar?

Rodney Smolla is that lawyer, a media law veteran and the dean of the School of Law at Washington and Lee University, who agreed to take on Vicki Iseman’s 2008 libel lawsuit against The New York Times. Indeed, his willingness to challenge the press was the subject of some chatter, and with good reason: Smolla has written a First Amendment casebook, several treatises on free speech and on libel law; a host of law review articles; and “Jerry Falwell v. Larry Flynt: The First Amendment on Trial,” a text on the case in which he also wrote an amicus brief to the Supreme Court. And those are just the accomplishments that made it into Smolla’s biographical paragraph on the law school’s Web site.

“I don’t think there’s any doubt that he’s a First Amendment heavyweight,” said Douglas Lee, a legal correspondent for the Freedom Forum First Amendment Center and partner in the Dixon, Ill. firm, Ehrmann Gehlbach Badger & Lee.

Smolla himself declined to be interviewed for this story.

But if his work on behalf of a libel plaintiff doesn’t come as a total shock, it may be because there’s precedent for it. In 1997, Smolla took on a lawsuit for the family members of three murder victims against the publisher of Hit Man: A Technical Manual for Independent Contractors. Smolla argued before the U.S. Court of Appeals in Richmond (4th Cir.) that the book was a step-by-step murder manual that instructed James Perry to kill the three victims. The publisher of the book claimed it was protected by the First Amendment. The publisher lost.

Lee, who profiled Smolla for a First Amendment Center article last January, said it is not shocking that First Amendment “absolutists” would now be dismayed by Smolla’s role in Iseman’s case.

“I think that people who represent clients in First Amendment matters on a regular basis probably better understand how someone can be on, what might be perceived as, the other side of the issue,” he said, pointing out that lawyers are trained to look at both sides of an issue.

In recently speaking with the Washington, D.C., legal newspaper Legal Times, Smolla also stressed that he assesses cases on an individual basis, rather than putting them under broad issue umbrellas. He said the Iseman case will “‘reinforce the core principles of what is legally protected journalism’ by showing that the Times’ article is defamatory in its alleged claim of an inappropriate relationship,” the Legal Times said.

“There are times when the better societal benefit is struck on the side of the press, and there are times when the better societal position is struck on the other side,” he said in the interview.

Sandra Baron, executive director of the Media Law Resource Center, said she believes a principle exists within the media law community that “most lawyers simply could not play both ends to the middle,” because “the principals at stake were just too important.”

“What you hope is that the lawyers who represent the media in connection with their First Amendment issues are profoundly committed to the cause of expanding and protecting free speech principles,” she said. In fact, MLRC bylaws require that its members not represent plaintiffs in media libel, privacy, or related action.

Libel insurers also expect commitment from the lawyers they hire to defend claims. Robert Lystad, the vice president of claims for Media/Professional Insurance, says that generally “we will not retain law firms that do libel plaintiffs work because when they do that, they’re trying to mold the law in a fashion that is detrimental to the newspapers and television stations and magazines and all the other media that we insure.”

Smolla’s broad intellectual interest in the case is understandable, Lee said, and the First Amendment is not without boundaries. But it is still troubling, he said, that for Iseman to prevail, “those boundaries will need to be reigned in a little bit,” which could ultimately affect how the First Amendment is treated in courts in the future.

“It seems kind of one thing to get involved when the line is clear and someone has crossed it,” he said. “It’s another thing when you’re changing what the line is.”