Editor: How did your career as a journalist lead to law?
Kimrey: After earning my journalism degree from the University of Kansas, I worked for a year and a half for the Arkansas Democrat-Gazette in Little Rock. Bill Clinton was running for president for the first time while I was in Arkansas, and watching coverage of the campaign piqued my interest in the intersection between law and journalism.
I took the LSAT and moved to Austin to work for the Austin American-Statesman and establish residency to attend the University of Texas School of Law. I then practiced for several years in Kansas City, where I did a lot of media work, representing The Kansas City Star, The Kansas City Business Journal, and the area's TV stations. I also represented national and international media companies that had litigation in Kansas City, including HBO, Glamour magazine, and Yahoo!. I am continuing my media practice here at Winston & Strawn.
Editor: How has the media law practice evolved?
Kimrey: One notable trend during the past 10 or 20 years has been the expansion of plaintiffs' claims beyond defamation to encompass newsgathering torts. Many cases focus on the tactics that journalists use to get the news, such as boom mikes, high powered cameras and other surveillance devices. The claims allege an invasion of privacy tort, such as intrusion upon seclusion, public disclosure of private facts or misappropriation of personal information or images.
Another trend is to plead plain negligence, as in the Jenny Jones case brought by the family of a guest who was shot and killed after the taping of the "Jenny Jones Show." Finding the show's owner and distributor liable for the guest's death, the jury awarded millions to the family. The appellate court tossed out the verdict on appeal, finding that the show "may be regarded as the epitome of bad taste and sensationalism," but that the allegations did not support a finding of negligence.
By pleading these other causes of action, the plaintiffs try to circumvent the First Amendment defenses available to journalists under the Supreme Court's ruling in New York Times v. Sullivan. The plaintiffs have been largely unsuccessful. With a few exceptions, courts continue to apply the First Amendment.
The challenge for the media lawyer in the current environment is continuing to apply these First Amendment defenses to other torts. The key under New York Times v. Sullivan and its progeny is that a public official or public figure must prove actual malice with convincing clarity to recover damages for defamation. Issues of state qualified privilege must also be kept in mind. For instance, the Illinois courts recognize several qualified privileges based on the state's common law. These include qualified privileges for matters of public interest and for matters that are in the publisher's or a third party's interest.
Editor: How has technology impacted media law?
Kimrey: Technology enables the media to get a story out immediately. The print media no longer has to wait for the next press run. The broadcast media does not have to wait for the next scheduled news program. With the Internet, a story can go around the globe with a blink of an eye. Issues of personal jurisdiction multiply. For example, are you going to be sued in Germany for a story that you ran out of a newsroom in Iowa? Also, as your pool of potential plaintiffs grows through Internet distribution, so does your exposure to damages.
A media entity needs to have its media lawyer's number on speed dial and needs the kind of lawyer who will always answer the phone when caller ID shows the media entity is calling.
Editor: How can media companies protect themselves while staying competitive in today's fast-paced and litigious marketplace?
Kimrey: A close relationship with good media counsel who understands the perspective of the journalist is critical. When a new media client calls me, I usually suggest that the client get errors and omissions insurance, or at least look into it. The client could be the most reputable newspaper in the world and run only well investigated and well vetted stories. It may, nonetheless, be sued. Even a frivolous lawsuit can be expensive to defend. E&O insurance can help defray the expenses.
Second, I recommend entering into a relationship with a prepublication and prebroadcast review counsel. The relationship begins with a Media Law 101 session with the news staff. Because staffs change and new issues arise, the session should be repeated every six months or so. This gives the editors the sense of where dangers lie so that they know when to call their media lawyer for prepublication and prebroadcast review.
Because the journalists must trust their lawyers, I've found it helps to have been a journalist. Like any journalist, I want the story published. That attitude engenders a lot of good will with media clients.
A new client may worry that prepublication and prebroadcast review can get expensive. What I've done is to enter a retainer agreement with a flat monthly rate for unlimited reviews per month. Although I may lose a bit of money with such an arrangement, it's good for everybody in establishing a long-term, trusted relationship.
The Internet makes it possible for a story to go through many iterations. Because of the increased exposure to liability, journalists should make sure that not only the print and broadcast versions, but also all the web iterations get reviewed. It may mean more work for the media lawyer, but it's definitely the prudent thing to do.
Editor: Please give our readers an example of the issues that should be kept in mind in the prepublication and prebroadcast review.
Kimrey: Reporters should be very cautious about how far they can go in getting a story. For instance, newspapers and television news programs reported recently on the release of insider information from the White House by Paul O'Neill, who was the first Treasury Secretary in the Bush Administration. He opposed tax cuts that were being instituted because he feared the deficit would explode. He worked with former Wall Street Journal reporter Ron Suskind, who published a book critical of George W. Bush and in particular his administration's tax policy. Titled The Price of Loyalty, the book is based on many sensitive documents. The question is whether Suskind encouraged O'Neill to breach any security protection that applies to former White House officials. If that is the case, there may be a problem. If Suskind merely received the information from a gratuitous source (say, O'Neill), then the U.S. Supreme Court's decision in Bartnicki v. Vopper should protect Suskind from liability.
Bartnicki involved the tape of a telephone conversation that had been illegally recorded and then provided to a reporter. When the reporter was sued for violation of Federal Wiretap Act, the U.S. Supreme Court found no liability because (1) the reporter received the protected information from a third-party gratuitous source, (2) without having encouraged that source to violate the Act, and (3) publication promoted the public interest.
Editor: What steps do you recommend for preserving the attorney-client privilege for prepublication and prebroadcast review?
Kimrey: That is a very tricky question. When the plaintiff is trying to show negligence or reckless disregard for the truth, the client may want to be able to say, "Well, I didn't act negligently or exhibit reckless disregard for the truth because I relied on the counsel of my lawyer, who told me that what I was doing was okay."
If that happens, the lawyer becomes a witness in the case. A problem arises because, under the Rules of Professional Responsibility, the lawyer cannot be both a witness and represent the client at the same time. By having prepublication review counsel be separate from litigation counsel, the client may opt to waive the attorney-client privilege by putting the advice of counsel at issue and putting the prepublication review counsel on the stand without losing litigation counsel.
That's not something that I would encourage. I think you are always in a better position before a jury arguing that you did not exhibit reckless disregard for the truth or act negligently because you did what a good journalist would do. You should be able to say, "Look. I have all of these credentials. I have been a practicing journalist for a number of years. I talked to this source and corroborated the facts with these sources. I had no subjective awareness of probable falsity. I didn't act unreasonably. In fact, I reported what I thought was true, as I always do."
If you rely on "my lawyer told me it was okay," you not only may waive the attorney-client privilege for everything your lawyer told you, but also may lose credibility with the jury.
Editor: Why should a journalist seek the advice of a good media lawyer before engaging in any deception?
Kimrey: Some deception to get a story is fine, but some is not. For example, in the Food Lion case, a few journalists masqueraded as job applicants and were hired as butchers, which resulted in a television news story about the grocer's unsanitary practices. The television network was sued for various newsgathering torts. The resulting finding of liability arose largely out of misrepresentations made on the job applications.
Journalists sometimes think that the First Amendment gives them carte blanche, but it really doesn't. First Amendment protections are qualified. Sometimes the laws of a particular jurisdiction must be exhaustively analyzed before acting. The Food Lion case is just one example of how deception can give rise to an embarrassing finding of liability.
Editor: How does a good media lawyer serve as a sword as well as a shield?
Kimrey: The lawyer should understand that the media serves the public by giving the public access to information that it otherwise could not get. The lawyer needs to come up with creative solutions to obtain the story and not invent reasons to put the kibosh on it. For example, the lawyer should look for ways to say, "Yes, you can use a hidden mike if you follow these procedures" or "I can help you move for access to these closed proceedings because in this particular jurisdiction, there is a presumption of access." A good media lawyer helps, rather than hinders, getting the scoop.
Published February 1, 2004.