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Legally Speaking: Charles Tobin

Chair of Holland & Knight’s national media practice talks WikiLeaks and FOIA

Photograph courtesy of Holland & Knight.

Charles Tobin, the chair of Holland & Knight’s national media practice, says he loved “the thrill of the newsroom” when he was a reporter in Florida. Though he decided long ago to trade his journalism career for a life in the law, he’s still embroiled in the day-to-day dealings of newsrooms around the country. He counsels clients such as CNN, Fox television stations, Gray Television, Scripps newspapers and broadcasting stations, and other media companies about the various legal needs that arise in the media industry—from fending off defamation and libel suits to answering questions about anonymous sources to making sure stories are legally sound before publication.

Tobin chatted with about the changing media environment, the rise of WikiLeaks, and whether a Freedom of Information Act request could really compel the White House to release the Osama Bin Laden death photo.

Now that the President has said he will not release the death photo of Bin Laden, there’s been some talk about using a Freedom of Information Act request to get ahold of it. You’re an expert on the FOIA process—is this really a possible avenue for obtaining the photo?
We lawyers really are glorified bookies. Our job is to take precedent and to apply it to a new set of facts, and based on that precedent to make predictions on outcomes. Some bookies in the legal profession could look at the Vince Foster case, which involved photos of a dead person in the face of privacy rights and other interests the government claimed exempted that from FOIA. The case eventually went to the US Supreme Court. There are a variety of ways that national security comes into play in the FOIA context.

I don’t think it would be applicable, but I could easily see—at least at the trial-court level—a judge taking the Foster case and grafting that decision, which withheld Foster’s death photographs because the plaintiff could not articulate a good public-interest reason for releasing them. I could see the government saying that, in the face of national-security concerns about what publicizing [the Bin Laden] photos might do to harm people who are serving in the armed forces or in embassies overseas, that interest outweighs the minimal public interest in releasing them, since no one is really questioning that bin Laden is dead. It’s an unfortunate fact of the way the litigation has developed that FOIA is not being interpreted as the body of law for maximum public oversight and openness that it was intended to be. I’m going to get on a soapbox about this. FOIA was meant to allow for as much transparency [as possible] and for that to be the default. Instead, courts have now put the burden on the FOIA requester to prove the public interest.

So do you think the Bin Laden photo should be public?
I think that information for its own sake is in the public interest, that we have invested ten years of foreign policy toward the goal of finding this man and either taking him out of circulation or bringing him to justice. I think if the end point of our efforts is reflected in a document, that document should be released.

You were on a panel recently about WikiLeaks. What sort of questions and discussions are arising among your clients from that phenomenon?
One of the common issues that we deal with for journalists is they come into possession of a document and they want to know if they can use it. Most of the time when they’re asking me, ‘Can we use it?’ it’s because they have a sense that the person who gave it to them leaked it and they shouldn’t have done that—that they’re under a legal, moral, or ethical obligation to keep it secret but they turned around and gave it to a journalist. WikiLeaks is kind of the extreme case of a leaked document that originated with somebody who was under a very strict legal requirement not to release information. Best we can tell, it was a member of the military, Bradley Manning. Extreme cases make people nervous, and so I can’t say that we’ve had an avalanche of calls, but we’ve had discussions in the wake of WikiLeaks about the whole issue of whether information that’s leaked to us is something we’re comfortable using or not.

Is there a general answer?
The general rule is that if the journalist did nothing themselves other than receive the information and it is in the public interest to publish it, the First Amendment protects that act.

What is the difference between suing a blogger for libel versus a reporter?
Well, there’s finding them, knowing who they are, knowing where they live, and knowing how to serve your lawsuit on them. The other issue is that the blogger is much less equipped to defend themselves because they don’t have the backing of a media organization behind them. They don’t have rules of the road to fall back on to measure their conduct against. Most of them don’t have insurance or money to hire lawyers to defend them. Our firm has taken on the cases of several bloggers on a pro bono basis who we felt warranted legal protection and quite frankly were being bullied into silence.

How have social media and the general evolution of the way we share information changed your practice and legal issues for media?
In defamation lawsuits, we now have to deal with what’s called the Google effect. Plaintiffs will say that they cannot be adequately compensated for the damage that a journalist has allegedly done because the first thing that comes up on their Google search is the offending article. Most libel cases that I’ve come across really don’t have merit. However, the frustration level that the plaintiffs are showing has magnified because anybody can call up the article that they don’t like. The Google effect has complicated discussions in libel lawsuits, and that’s not going to end. Additionally, in access issues, when you go to court to get a document or photograph, invariably you hear the side that wants secrecy complain to the judge they don’t want to see it all over the Internet. That has resonated with a lot of judges, which is kind of a through-the-looking-glass issue. Public access is a good thing; we learn as Americans that transparency over government is an end in itself. If judges are worried about too much publicity, too much transparency because of the Internet, they’re putting the emphasis in the wrong place. We’re seeing, in case after case, clear public-access rights taking a back seat to judicial fears about seeing the information disseminated over the Web. It just is a complete upside-down view of what we’re supposed to be all about.

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