Even before the results of the U.S. presidential election were tallied, some of the nation’s top lawyers began making offers of pro-bono representation for individuals, journalists, and news outlets facing threats from President-elect Donald Trump.
In the weeks since, a cascade of generous preemptive offers poured across social media. The cohort of legal brilliance now includes more than 100 attorneys, paralegals, and court reporters who share a deep commitment to defend the First Amendment, according to Ted Boutrous, global co-chair of Gibson, Dunn & Crutcher’s Litigation Group.
The moment appears to be unprecedented.
It was sparked in part by Boutrous himself, a widely recognized First Amendment lawyer and litigator who’s no stranger to arguing before the U.S. Supreme Court. In October, he announced via Twitter that he’d represent anyone Trump sued for exercising their free speech rights, at no cost. “Many other lawyers have offered to join me,” he noted on October 22.
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The tweet attracted 21,000 likes and was retweeted more than 15,000 times. It has made more than two million impressions.
“Within a day or two, I had offers from an all-star cast of lawyers that were ready to go,” Boutrous told Rewire in a phone interview, describing the legal community’s reaction as an “avalanche” of support.
“I’ve never seen this kind of activation of individual lawyers, law firms, and public interest groups all at once, galvanizing around basic constitutional rights,” he continued. “I think there’s a real sense that lawyers need to stand up for the rule of law under the circumstances we find ourselves in.”
Part of the reason that the blossoming movement has emerged lies in the president-elect’s notorious history of aggressively attempting to silence the press.
He’s threatened to sue outlets including the New York Post, the Washington Post, and Fortune magazine, as well as individual journalists such as Timothy O’Brien, author of the 2010 book TrumpNation: The Art of Being the Donald. Trump accused O’Brien of defamation and sued him for $5 billion in damages, a move the National Review called “a special display of petty, thin-skinned litigiousness.” The case was dismissed by a New Jersey court in 2009.
“Trump knows that he doesn’t have to actually sue,” the founders of the Donald Trump Libel Threat Clock website stated online, noting that Trump “has systematically used baseless threats of frivolous lawsuits to deter people from criticizing him.” The anonymous online project tracks the time lapsed between threats made by the incoming leader.
As of December 19, its ticker boasted 43 litigious threats and five actual lawsuits.
Reuters recently reported that the president-elect hasn’t actually filed suit against any news organization for libel since 1984, when he sued the Chicago Tribune after the paper called one of his proposed New York skyscrapers an “atrocious, ugly monstrosity.”
Although it’s been said that the president-elect’s bark may be worse than his bite, the cost of defending even a threat, let alone a filed suit, is something that can give pause to robust news organizations and scrappy freelancers alike.
“The need for attorneys to step up and to help individuals access justice that they may not be able to otherwise afford is very richly needed right now,” said Geoff King, a First Amendment attorney who teaches at the University of California, Berkeley, and has worked with the Committee to Protect Journalists.
“Pro bono counsel is going to be especially important because, although in the United States both federal law and state level laws are very protective of free expression, there is no federal anti-SLAPP law,” noted King, referring to strategic lawsuits against public participation. A SLAPP case is “a meritless lawsuit filed by a plaintiff whose only goal is to bully a defendant and make them less likely to exercise their constitutional right of freedom of speech,” as Rewire Senior Legal Analyst Imani Gandy put it.
In essence, that means no protections exist against malicious or frivolous lawsuits that are filed with the primary purpose of chilling speech or silencing dissent.
“Somebody powerful can just decide to crush someone else, with claims that are lacking wholly in merit, by just filing harassing lawsuits,” King explained. “In the next four years, I think that there are going to be a lot of test cases regarding access to information, the Freedom of Information Act, around prior restraint, First Amendment retaliation, and litigation around the ability of people to use secure technologies like encryption—which is protected by [the] First Amendment.”
Boutrous also cited a need to pay close attention to dangerous new mechanisms that can subvert the justice system at the expense of the First Amendment.
“We’ve now seen, in several instances, where litigation funding behind the scenes—take the Gawker case, the example that’s the most prominent—where powerful individuals can fund lawsuits by other people to pursue media organizations that are not as well financed as the media titans that we’re used to in this country,” he explained. “There’s also litigation funding organizations out there who will invest in lawsuits, where someone who doesn’t have enough money to go ahead and sue can still do so. There are more ways to bring lawsuits.”
That, combined with the fact that many news organizations have slashed budgets and cut back on legal departments, makes the press especially vulnerable.
Some media support organizations—including the Society of Professional Journalists, the Authors Guild, the Committee to Protect Journalists, the Online Media Legal Network, and the Reporters Committee for Freedom of the Press—offer free or low-cost legal services. Some are available to members only, while others are for working journalists at large, on an application basis. Most services relate to open records access and contract review.
Specialized media perils insurance policies also exist, and they can help individuals and publishers protect themselves. “The media market is very fair, and I don’t see impending rate increases, or underwriters under- or overreacting to political comments or commentary or threats,” said Mike Mansel, a veteran intellectual property and media perils insurance specialist who’s worked in the field for three decades.
“The ones that need media perils [insurance] the most are those that get into true crime, exposés, and things of that nature,” he continued. “It won’t be as inexpensive as those who write about plants and nature and trees. There are degrees of risk.”
According to Mansel, most premiums are between $1,800 and $3,000, annually or per project, based on the individual or publisher’s area of expertise. Coverage has evolved in recent years to include social media content.
“The reason freelancers should consider insurance is because of the off chance that something that they authored or wrote might be challenged,” he noted.
Otherwise, the cost of retaining counsel with expertise in intellectual property and First Amendment issues could range from $350 to $750 per hour.
“If you divide that into a premium and come up with billable hours, it means that just one deposition will eat up the amount that an individual would have spent purchasing a premium,” he said. “The insurance companies afford protection for relatively small premiums and take on a fairly large risk.”
Still, only some policies cover expenses like attorney’s fees and legal damages. That means that even with the protection afforded by an insurance policy, individuals and outlets can still get stuck paying thousands, if not hundreds of thousands, out of pocket to defend themselves against challenges.
The lawyers who have joined Boutrous in offering free counsel have the power to prevent that. They now include luminaries like Laurence Tribe, professor of constitutional law and the Carl M. Loeb University Professor at Harvard University; Erwin Chemerinsky, founding dean and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine; and high-profile Supreme Court litigator Peter K. Stris, founder of Stris & Maher LLP in Los Angeles.
So far, the scattershot offers are being organized by Boutrous himself, though no cases have been filed yet. He says a few individuals have already reached out to him.
“I’ve been keeping a list,” he said. “As the dust is settling at least momentarily after the election, I think that everyone is surveying the landscape to see where things are going to be headed, and how things are going to play out …. The legal profession will be ready if it needs to spring into action.”