First Amendment Litigation
Practice Leader: Amy B. Ginensky
Lawyers in the Media and Communications Practice Group of Pepper Hamilton LLP have successfully represented publishers and related media entities – on the national and local level – in numerous First Amendment, defamation and privacy suits. We have an in-depth knowledge of both First Amendment principles and the passion journalists have for their jobs. We share that passion and convey it to both our adversaries and the court.
We know first hand the problems faced by broadcasters and publishers; we deal with them on a daily basis. We know the importance of being able to report the news promptly, and the issues that the media faces before judges and juries. We know the stigma sometimes associated with the media’s aggressive pursuit of its work. We also know that “guts and gusto” is what is often needed to effectively represent our clients; it is what we are always prepared to provide. Whether it means knocking at the court’s door late at night, pointedly cross-examining a public official, working around-the-clock on pre-publication review, or continuing to argue an unpopular position, we are committed to doing whatever it takes to ensure our clients’ rights are defended and needs are met.
The Media and Communications Practice Group has handled countless media matters in state and federal courts. We have tried jury cases where powerful people, with much social and political influence, have been the opponents. We have gone to court on countless access matters to obtain information the press needed – and needed immediately. We also have represented reporters faced with contempt proceedings, who have refused to testify, or otherwise aroused the ire of a judge. All these matters are critical to our clients and critical to us.
Meeting the Needs of Clients
Publishers, broadcasters and information providers have special needs. Pepper’s media and communications group provides fast, responsive advice from a group of lawyers who bring a depth of experience to the wide range of issues faced by these clients.
Our representation of media and communications companies includes:
- trial of major defamation and privacy matters
- pre-publication vetting
- assistance in obtaining access to information
- representation of reporters in subpoena matters
- federal and state trial and appellate litigation of newsgathering issues
- strategic advice to Internet content and service providers on defamation and privacy issues
- protection of intellectual property rights.
We represent national, regional and local newspaper publishers, and e-commerce and Internet advertising companies. Defamation and Privacy Litigation
Pepper lawyers have a reputation for litigating high-profile defamation and privacy claims brought by powerful public officials and well-known personalities. Our lawyers have successfully handled claims brought by justices and judges, law enforcement officials, mayors, legislators and a variety of public and private figures. Handling hundreds of such claims for a variety of clients enables us to draw upon a wealth of experience and offer first-rate, efficient representation to our clients.
Due to our trial and appellate experience, we have been selected by both national and local media clients to handle their significant matters. We take pride in our ability to utilize our knowledge of First Amendment principles and our understanding of and appreciation for journalists’ jobs in presentations to judges and juries. Newsroom Representation
We provide a variety of services for publishers and broadcasters, including pre-publication and pre-broadcast vetting, assisting news reporters in gaining access to information from the government, protecting sources of news and providing advice regarding the handling of claims for clarifications. Experienced attorneys are available 24 hours a day to respond to questions or concerns so that our clients can meet their deadlines. Representative Clients
Our lawyers have represented, among others, the following:
- The Philadelphia Inquirer and Philadelphia Daily News
- Journal Register Company
- MediaNews Group
- Inner City Broadcasting Corp.
- Pocono Record
- Ottaway Newspapers.
The following engagements are representative of matters handled by our media and communications lawyers. Defamation and Privacy Matters
- Tucker v. Philadelphia Daily News, 848 A.2d 113 (Pa. 2004).
The Pennsylvania Supreme Court in 2004, after our lawyer’s argument, reversed the Superior Court and affirmed the trial court’s dismissal of complaint on preliminary objections on the grounds of actual malice. This decision in favor of Philadelphia Newspapers is important in Pennsylvania, setting a high bar for any actual malice case to proceed.
- Lewis v. Philadelphia Newspapers, Inc., 833 A.2d 185 (Pa. Super. Ct. 2003), appeal denied, 844 A.2d 553 (Pa. 2004).
Obtained summary judgment in this case brought by a state court judge with respect to a column in which she claimed a mistake was deliberately made. The decision was affirmed by the Superior Court, and a petition for allowance of appeal to the Pennsylvania Supreme Court was denied in 2004.
- Blackwell v. Eskin, et al., 80 Pa. D. & C. 4th 284 (C.P. Philadelphia, 2006), aff’d, 916 A.2d 1123 (Pa. Super. Ct. 2007).
In January 2007, the Pennsylvania Superior Court affirmed the trial court’s grant of summary judgment in favor of Howard Eskin, sportscaster, and NBC, rejecting the libel claim brought by a former assistant coach and past star of the Temple University basketball team. The Superior Court’s opinion is important in holding that even if the defendants had failed to investigate, either by obtaining independent confirmation of a single source’s story or consulting other more reliable sources, which was what the plaintiff argued and defendants denied, that finding would be insufficient to demonstrate actual malice.
- Savitt v.Fraternal Order of Police, et al., No. 00567, 2005 WL 5006127 (C.P. Philadelphia, Oct 13, 2005) (Trial Order), aff’d, 915 A.2d 159 (Pa. Super. Ct. 2006).
In November 2006, a member of the Philadelphia Police Advisory Commission’s libel suit ended when the Pennsylvania Superior Court affirmed the grant of summary judgment in favor of the defendants. The trial court had originally denied summary judgment, but our lawyers convinced the court to reconsider its decision. The plaintiff had sought to hold the newspaper responsible for reporting a critical statement by the head of the Fraternal Order of Police.
- Norton v. Glenn, et al., 860 A.2d 48 (Pa. 2004).
Represented West Chester’s (Pa.) Daily Local News and its reporter and editors in a case where the Mayor and President of Parkesburg, Pa., City Council claimed that the defendants libeled them when reporting outlandish charges by another council member, which the reporter had admitted during a first trial he thought were untrue. The first trial in favor of defendants had been reversed on the grounds that the Pennsylvania appellate courts found no neutral reportage privilege. Our lawyers retried the case to a jury until it was satisfactorily resolved prior to closing.
- Merriweather v. Philadelphia Newspapers, Inc., 61 Pa. D. & C.4th 423 (C.P. Philadelphia, 2002), aff’d, 835 A.2d 842 (Pa. Super. Ct. 2003), appeal denied, 842 A.2d 407 (Pa. 2004).
Representation led to a JNOV being granted from a jury verdict in favor of a popular Philadelphia judge. This decision was affirmed by Pennsylvania Superior Court and the 20-year-old case was finally concluded with the denial in 2004 of a petition for allowance of appeal to the Pennsylvania Supreme Court.
- Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648 (Pa. Super. Ct. 1999).
In this appeal from grant of summary judgment in favor of the defendants, the Pennsylvania Superior Court affirmed the trial court’s decision and established the leading law on right to privacy claims in Pennsylvania.
Newsgathering and Reporters’ Privilege
- Honorable Justice James McDermott v. Biddle, 674 A.2d 665 (Pa. 1995).
Pennsylvania Supreme Court Justice James McDermott sued The Philadelphia Inquirer in 1983 contending that a series, which was highly critical of practices by the Supreme Court of Pennsylvania, had defamed him. Another law firm tried the case in 1990, and there was a $6 million verdict against the defendants. After a number of appeals and motions before the trial court, our lawyers convinced the trial court to dismiss all but one claim. In 2006, the parties agreed to dismiss the cases, without any payment and with each side to bear its own costs.
- State of New Jersey v. Neulander, 801 A.2d 255 (N.J. 2002), cert. denied sub nom., Philadelphia Newspapers, Inc. v. New Jersey, 537 U.S. 1192 (2003).
Successfully represented a reporter in a contempt proceeding relating to the trial of Rabbi Neulander in New Jersey for the murder of his wife. The reporter was charged with violating a court order prohibiting contacting jurors after a mistrial. At trial, the client was found guilty (though given only a fine); the appellate court reversed, lifting the finding of contempt.
- Publicker v. Cohen, 733 F.2d 1059 (3d Cir. 1984).
Successfully represented newspaper in an appeal to the U.S. Court of Appeals for the Third Circuit, where the court issued a precedent-setting decision regarding access to civil proceedings, recognizing First Amendment and common law concerns.
- Kurtzman v. Hankin, 714 A.2d 450 (Pa. Super. Ct. 1998).
Represented newspaper when trial court closed civil proceedings. The Pennsylvania Superior Court reversed the closing.
- Perry v. Keulian, No. 96-1374, 1997 WL 459971 (E.D. Pa. July 25, 1997).
Successfully defended subpoena for non-confidential information in federal court. The district court quashed the subpoena finding that the party had not met First Amendment requirements for subpoena.