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Communications Lawyer Vol 31 No 1 Communications Publication of the Forum on Communications Law American Bar Association Volume 31, Number 1, Winter 2015Lawyer THE JOURNAL OF MEDIA, INFORMATION, AND COMMUNICATIONS LAW In this issue Jackpot! Presumed Damages COVER STORY Gone Wild—and Unconstitutional Jackpot! Presumed Damages Gone Wild—and SUSAN E. SEAGER Unconstitutional ......................... 1 This article argues that presumed damages violate fundamental notions of fairness as Vegas casino billionaire million jury award for presumed dam- by chilling speech and punishing unpopu- Steve Wynn recently hit a ages in his libel per se lawsuit against lar speakers who dare criticize government judicial jackpot in Los Ange- a small Chicago-area newspaper and officials and public figures, running afoul les with a $17 million jury reporter. The Illinois jury handed out of the First Amendment and the due pro- Laward for presumed damages in his the multimillion-dollar award despite cess clause of the Fourteenth Amendment. slander per se lawsuit against Joe Fran- the lack of any independent evidence cis, the volatile creator of the Girls of reputational or economic harm. Click Here to Accept the Terms Gone Wild video empire. To the contrary, reputation witnesses of Service .................................... 4 Never mind that Wynn presented no testified that Justice Thomas “still This article addresses the key features evidence that anyone believed Francis’s enjoy[ed] a good reputation,” had been of the most common types of online absurd statement. Even the newsman honored by bar associations, and ele- agreements—clickwrap and browsewrap who reported the statement said he vated to chief justice of the Illinois agreements—the circumstances under didn’t believe Francis, who blurted in Supreme Court after the news report.3 which courts have upheld such agree- court that he heard that Wynn had Posttrial evidentiary challenges to ments, and best practices for ensuring threatened to hit Francis “in the back the two presumed damages awards met the agreements are enforceable. of the head with a shovel and bury him with little or no success. The trial court in a hole in the desert,” due to Francis’s rejected Francis’s challenge to the size CDA No Bar to Failure to Warn $2 million gambling debt. Wynn pre- of the presumed damages award and Actions Against Website sented zero evidence to the jury of any affirmed the entire $17 million award.4 Operators .................................... 8 actual reputational or economic harm Justice Thomas’s presumed damages The Ninth Circuit Court of Appeals to himself. Yet the judge instructed award was “reduced” as excessive by recently carved out a dangerous exception jurors with the standard California the trial court from $5 million to $3 to CDA immunity that may be exploited instruction for presumed damages million.5 No First Amendment or due by plaintiffs who seek to shift liability to that Wynn was “entitled to receive process challenges were made to the website operators for injuries caused by compensation for this assumed harm presumed damages awards in either other website users. in whatever sum you believe is reason- case.6 In sum, these presumed damages able.”1 The jury decided $17 million awards resemble casino jackpots more Access to Cloud-Based Public was reasonable for presumed reputa- than carefully weighed court awards Records ..................................... 12 tional damages, and awarded another supported by hard evidence and sub- This article examines the issues that digi- $3 million for mental anguish.2 ject to meaningful judicial review. tized government records pose for citizens In 2007, Illinois Supreme Court Presumed damages appear to be and journalists who wish to mine the bur- Chief Justice Robert Thomas won a $5 gaining popularity with public figures geoning data repository to discover “what and public officials. In California, Wynn their government is up to.” filed another lawsuit for slander per se Susan E. Seager is a vice president at Fox in September 2014 against hedge fund Jurisdictional Issues in Group Legal, a unit of Fox Entertainment manager James Chanos.7 In Illinois, a Anonymous Speech Cases ...... 23 Group Inc. located in Los Angeles, California. Chicago trial court judge expressly cited Courts have traditionally paid less atten- This article is based on her own views, and Justice Thomas’s big court win when the tion to the jurisdictional issues relating to not a statement on behalf of her employer. trial judge demanded $7 million in his the unmasking of anonymous speakers. The author thanks UCLA Law School 2011 defamation per se lawsuit, saying But two recent cases highlight the impor- student Celaena Powder and Steve P. he was demanding the jury award won tance of jurisdictional considerations in Mandell of Mandell Mankes LLC for by Justice Thomas (who was awarded the protection of anonymous speech. their valuable assistance. (Continued on page 30) Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. FROM THE CHAIR WHAT CLIENTS WANT David J. BODNEY any things executive editor of New and reporters meet with their counsel, it unite us as Times, built a campus should not be “like you’re going to the media lawyers. “underground” news- principal’s office,” Downie said. Rather, Perhaps what paper into the country’s media attorneys should “enjoy dealing Mbinds us together the most largest chain of metro- with journalists,” and read what their is our commitment to cli- politan newsweeklies media clients and journalists at other ent service. We serve clients with its acquisition of news organizations are publishing. whose role in our democracy, the Village Voice. Lacey “The most interesting job at the and around the world, could described the Internet as paper should be the lawyer’s,” Lacey not be more important. “so bang-on stupid on commented. Assuming the lawyer What do media clients David J. Bodney so many levels,” and pre- understood the “formulaic” world expect of their lawyers? dicted that it will “drive of journalism’s “inverted pyramid,” What don’t they expect? And how how print and TV operate.” Conse- Lacey expected his lawyers to grasp have their expectations changed over quently, lawyers must play a role in the “laziness of the formula” and help the years? making sure that the Internet’s “dumb- ensure that it’s not replaced by the Whether we have practiced commu- ing-down” tendencies don’t lead to a “laziness of the echo chamber.” To nications law for decades or are only lowering of standards for journalists serve media clients well, lawyers need now beginning the journey, learning who take their work seriously. to understand what’s happening in the answers to these three questions Len Downie, Jr., who began his journalism and encourage reporters can help us serve our clients better. career in 1964 as a reporter at The to “take the extra step and find out So I posed these questions in turn to Washington Post, rose to become its what’s really happening” behind the three individuals who have dedicated executive editor and now serves as headlines and public records. their professional lives to journalism, vice president at large, noted that “Google, Facebook, YouTube— and to building strong news organi- “the basics [of journalism] haven’t they’re making the decisions that had zations with their fair share of legal changed very much, but the tech- been made by journalists,” observed challenges. nology has changed.” As Downie Clark-Johnson. She noted ISIS’s A few lessons emerged: observed, “there are new legal issues beheadings in the Middle East, and associated with the new technology.” the decision by media outlets to put Keep Pace with Changing Technology With “tweeting and blog posts not video footage of atrocities on the web. “You’ve got to keep up with the chang- necessarily going through editors,” “Can the lawyers address these issues?” ing technology and its implications,” he added, reporters need to know she asked. To handle the work, attor- said Sue Clark-Johnson, who served as the legal rules, and lawyers need to neys must understand the changing vice president of Gannett Company’s understand the changing technology news business, and the daily decisions publishing division and was respon- to advise them. that editors and publishers face across sible for more than 100 newspapers, platforms. along with websites and magazines. Know Our Newsrooms and Our Business “The changing technology is changing Downie emphasized the importance of Tell Us What You Really Think the very definition of ‘journalist,’” she having lawyers who are “immersed in “Tell me what you think — what do noted, and the “rapidity of technologi- journalism, not just court decisions.” you THINK?” Clark-Johnson under- cal change” is not only transforming He described the media lawyer’s role scored. In today’s economic climate, the content of news but also the legal as one of “collaboration” and “part- it is not enough for the lawyer simply climate that protects its distribution. nership” with the client. When editors to acquaint the client with the risks. “There’s so much data coming at me, it’s like a Category 5 snow- storm,” said Michael Lacey, who, as Communications Lawyer (ISSN: 0737-N7622) is published four times a year by the Forum on Communications Law of the American Bar Association, 321 North Clark St., Chicago, IL 60654-7598. POSTMASTER: Please send address corrections to ABA Service Center, 321 North Clark St., Chicago, IL 60654-7598. The opinions expressed in the articles presented in Communi- David J.
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