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Media & the Law Seminar

Each year, the University of Kansas School of Law and the Kansas City Metropolitan Bar Association Media Law Committee host the Media and the Law Seminar in Kansas City, along with other local events, to facilitate and encourage dialogue about the latest legal issues and developments in media, law and technology.

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The 30th Annual Media & the Law Seminar

The Fickle Future of First Freedoms 
Countering Top Threats to the First Amendment 

Friday, May 5, 2017 | 8 a.m. - 4:15 p.m.
InterContinental Hotel at the Plaza
Kansas City, Missouri

Digital technology has changed everything — from the way international corporations do business to the way teenagers communicate with each other. But with those changes come challenges, and press freedom is not immune.

News leaders resoundingly agree that laws related to the First Amendment are no longer adequate in the digital age. In a recent survey of leading news editors by the Knight Foundation, 88 percent agreed that “there are many unsettled legal questions about the scope of free expression” today.

At this year’s 30th annual seminar, we will take on these unanswered questions and present how media law practitioners can counter the top threats to the First Amendment. Topics will include the chilling effects of surveillance, hacking and consumer monitoring; retaliation and revenge against the media through litigation funding; fair use abuse; government secrecy; and more.

Luncheon Presentation

Journalism and Justice: A Look at Trials that Made History
Linda Deutsch, Associated Press Special Correspondent

Linda Deutsch

Ms. Deutsch will share her views on the importance of high-profile trials as a mirror of America’s transformative changes and as a force in shaping both the justice system and a society that reacts to these cases. She also has many stories to tell about what it was like to be there.

"She is best known for her detailed, objective reporting on some of the most sensational, newsworthy and influential trials of recent decades," according to Current Biography magazine. Her Pulitzer Prize-nominated coverage of the O.J. Simpson criminal and civil trials brought her face, as well as her byline, into millions of homes as she was called upon by TV news shows to share her expertise for their audiences.


Program

Thursday, May 4 | 4 - 5:45 p.m.

Bonus Session

A Five Star Review: Navigating the Pros and Cons of Crowdsourced Media for Your Clients and Firm*

2 hours CLE
(A program jointly sponsored by the KCMBA, and the Media, Privacy and Advertising Law Committee of the ABA/TIPS)

*Free when attending the Friday program

Online users are increasingly turning to social media platforms, such as Yelp, to lash out at businesses for poor service – or for taking controversial positions. Law firms, too, are often on the receiving end of punishing reviews, which can impact future business. To add insult to injury, algorithms often push bad reviews to the top of web pages for all to see. This panel of legal and public relations experts will consider the impact and legal implications of negative reviews. Issues to be discussed include:

  • What legal advice should be given to business clients — including law firms — who have received damaging reviews?
  • What ethical constraints apply with respect to an attorney’s or firm’s use of social media?
  • How may a target of a damaging review best mitigate exposure and effectively respond to online criticism?
  • Does the First Amendment always protect the reviewer and the content provider?

Moderator:
Amanda Zimmerman, Partner, Jackson Walker, Houston, Texas

Panelists:

  • Richard Callow, Public Eye Inc., St. Louis, Missouri
  • Erin Evans, Counsel - Consumer and Marketing Practices, Sprint, Overland Park, Kansas
  • Karen R. Glickstein, Shareholder, Polsinelli PC, Kansas City, Missouri
  • Richard Morefield, Member, Morefield Speicher Bachman LLC, Overland Park, Kansas
  • James Rosenfeld, Partner, Davis Wright Tremaine LLP, New York, New York

Readings:


Friday, May 5 | 8 a.m. - 4:15 p.m.

Panel 1

If You Can’t Say Anything Nice, Don’t Say Anything: Analyzing Unpublishing Demands, Nondisparagement Clauses, and Whistleblower Retaliation and their Impact on the Fourth Estate

Troubling practical and legal issues arise when a media company receives “un-publishing” demands, is asked to agree to (or even asks its employees to agree to) a non-disparagement clause or is approached by whistleblowers subject to non-disparagement clauses. For example, what law applies if a French citizen seeks to have a news story erased from the Internet? Can a foreign court in France censor or tell an American company (such as Google) to delete links to news reports that originated in the United States? Could foreign courts, pursuant to “right to be forgotten laws” or even U.S. courts pursuant to U.S. expungement laws require media companies in the United States to “rewrite history?” Would such orders violate the First Amendment? This panel will also explore how and why some American companies are voluntarily complying to un-publishing demands and the impact of “updates,” including the recent jury finding of actual malice on the basis of an “update” posted to a copy of a controversial Rolling Stone article. The panel also will address:

  • the chilling impact that non-disparagement clauses can have on the discussion and reporting of matters of public concern
  • strategies for possible legal challenges to non-disparagement clauses on public policy grounds
  • what can and should be done to protect whistleblowers who seek to violate non-disparagement clauses
  • the legal issues being raised by employees of companies that seek to impose non-disparagement clauses or confidentiality clauses.

Moderator:
Cynthia Counts, Partner, Duane Morris, Atlanta, Georgia

Panelists:

  • Jonathan Anschell, Executive Vice President, Deputy General Counsel and Secretary, CBS Corporation, Los Angeles, California
  • Elizabeth McNamara, Partner, Davis Wright Tremaine, New York, New York
  • Joshua Pila, General Counsel, Local Media Group, Meredith Corporation, Atlanta, Georgia
  • Nabiha Syed, Assistant General Counsel, BuzzFeed, New York, New York

Readings:

Unpublishing

Non-disparagement

Whistleblowing

Bibliography

Panel 2

DMCA Smackdown — Take it Down Because I Said So!

DMCA takedown notices are a valuable tool for protecting intellectual property on the Internet. But are there limits? From pirated copies of hit television shows and the NFL’s famous copyright notice to dancing babies on YouTube, this panel will explore the current scope of the DMCA and consider whether it protects or threatens free expression. Issues to be addressed include:

  • What happens when owners go too far in trying to protect their IP?
  • Is there room for an online publisher of third-party content to push back on excessive DMCA requests without losing the protections of the safe harbor?
  • And where does the fair use fit into all of this?

Moderator:
Peter Rienecker, Vice President and Senior Counsel, HBO, New York, New York 

Panelists:

  • Fred von Lohmann, Senior Copyright Counsel, Google, San Francisco, California
  • Ben Scheffner, Vice President, Legal Affairs, Motion Picture Association of America Inc., Sherman Oaks, California
  • Karen Shatzkin, Partner, Shatzkin & Mayer PC, New York, NY

Readings:

Bibliography

Panel 3

Anonymous Speech and the Dark Web: Resolving the Tension between First Amendment Rights and Online Threats to Reputation, Privacy and Public Safety

In cyberspace, prying eyes are everywhere. Law enforcement agencies routinely monitor Internet communications. Hackers frequently breach data security to steal private emails. As a result, exercising one’s First Amendment right to speak anonymously online is increasingly difficult. A solution is to move into the Dark Web — the hidden portion of the Internet. The Dark Web is accessible through Tor (the onion router) network and other similar technologies, and it appeals to growing numbers of journalists and their confidential sources, as well as others ranging from lawyers to political dissidents. At the same time, though, the Dark Web is inhabited by malicious actors, who use their anonymity to defame, invade privacy and plot criminal and terrorist acts. Issues to be addressed by the panel include:

  • How effective Tor and similar technologies are for protecting online communications between journalists and their confidential sources
  • The extent to which the Fourth Amendment and privacy-protective statutes do—or should—limit law enforcement’s efforts to penetrate anonymity in the Dark Web.
  • Why the First Amendment right to speak anonymously online may be difficult to defend as malicious actors proliferate and use their anonymity in the Dark Web to escape liability.
  • How the tension between the ability to communicate anonymously and Section 230 is playing out in practice and in the courts.

Moderator:
Rachel Matteo-Boehm, Partner, Bryan Cave, San Francisco, California

Panelists:

  • David Greene, Civil Liberties Director, Electronic Frontier Foundation, San Francisco, California
  • Ronald Miller, Former Police Chief of Topeka and Kansas City, Kansas, Basehor, Kansas
  • Steve Vockrodt, Reporter, Kansas City Star, Kansas City, Missouri

Readings:

Litigation

Articles

Bibliography

Panel 4

#mediafrenzy: Exploring the Changing Coverage of 'Trials of the Century'

Once upon a time, journalists reported on infamous trials with a notepad and pencil. The public did not learn about the day's proceedings until — gasp — the next morning, or perhaps even the next afternoon or following week. Today the news — and the commentary — is virtually instantaneous. Does it make a difference? What would public perception be today of, say, the OJ trial in the age of Twitter, Google, and Facebook? Legendary Associated Press reporter Linda Deutsch and a panel of trial lawyers will debate the effects of social media on high-profile trials. Questions to be addressed include:

  • Do social media affect public perception of trials and their outcomes?
  • What about the jury? Can a court truly expect jurors to avoid the allure of social media?
  • What are the ramifications of violating a court's admonition to consider only the evidence presented in the courtroom?
  • And how about the lawyers? Do they change their trial tactics because of the pervasiveness of social media?

Moderator:
Chip Babcock, Partner, Jackson Walker, Dallas, Texas

Panelists:

  • Seth Berlin, Partner, Levine, Sullivan, Koch Schulz LLP, Washington, D.C.
  • Linda Deutsch, Special Correspondent, Associated Press, Los Angeles, California
  • Kelli Sager, Partner, Davis Wright Tremaine, Los Angeles, California

Readings:

Litigation

Perspectives

Bibliography

Panel 5

Technology, Truth, and the Future of the First Amendment

What will the First Amendment look like in 30 years? The last 30 years brought changes in technology that have impacted newsrooms and dramatically shifted the way information gets to the public. Is the press still the "eyes and ears" of the public? The Supreme Court has addressed questions like whether data — or lying — is protected by the First Amendment. We are now facing questions about "fake news" ... and what is truth, anyway? This panel will explore:

  • the changes that have occurred over the last 30 years
  • the issues the media now face
  • how these trends will continue to evolve, and
  • what the impact on First Amendment law will be.

Moderator:
Ashley Messenger, Associate General Counsel, NPR, Washington, D.C.

Panelists:

  • Robert Corn-Revere, Partner, Davis Wright Tremaine, Washington, D.C.
  • Dan Margolies, Health Editor, KCUR - Kansas City Public Media, Kansas City, Missouri
  • Jonathan Peters, Assistant Professor, William Allen White School of Journalism and Mass Communications, University of Kansas, Lawrence, Kansas

Readings:

Litigation

Controversies

Government Action

Analysis and commentary

Bibliography

Panel 6

What Ever Happened to Champerty and Maintenance? The Ethics of Third-Party Financing of Litigation Against the Media

Peter Thiel’s financing of Hulk Hogan’s litigation against Gawker highlights a growing phenomenon: the third-party funding of claims, whether motivated by support for a cause or as an investment. Fostered in part by the weakening prohibitions of champerty and maintence, such funding is becoming a significant presence in litigation. However, such arrangements raise some thorny ethical issues, including many familiar to the insurance-funded defense of claims. As one scholar has noted, third-party litigation funding “is infested with…potential conflicts of interests for the unwary lawyer,” such as when the client “wants to settle for quick cash while the lawyer wants to negotiate further to get more, but the client pays the compounding interest.” Through the use of a hypothetical, a panel of experts will examine ethics of third-party funded litigation, addressing such issues as these:

  • What ethical duty does counsel owe to third-party financers?
  • To what extent is there a risk that the attorney-client privilege and confidentiality will be waived through sharing client and case information with a third-party funder?
  • When may lawyers and their clients waive a common legal interest privilege by sharing information with a third-party litigation funder?
  • Under what conditions does an attorney have an ethical duty to advise the client against entering into a third-party funding agreement?
  • What does an attorney have an ethical duty to discuss with a client regarding limitations on the client’s actual recovery due to loan repayment and percentage-fees combined with the existing costs and fees of litigation?
  • How may the lawyer’s duty of candor be implicated when a third-party funder pays a client’s personal, medical, and living expenses, as well as the attorney’s fees and costs of litigation?
  • What may be the attorney’s ethical responsibility if the third-party litigation funder objects to steps that would benefit the client but reduce the potential award or settlement amount, or increase litigation costs and diminish the potential for profit?
  • Does the funding of the plaintiff’s claim present ethical issues different from insurance funding of the defense of claims?

Moderator:
Katherine M. Bolger, Partner, Levine Sullivan Koch & Schulz, New York, New York

Panelists:

  • Libby Locke, Partner, Clare Locke LLP, Alexandria, Virginia
  • Len Niehoff, Of Counsel, Honigman Miller Schwartz and Cohn, and Professor, University of Michigan Law School, Ann Arbor, Michigan
  • Mitchell A. Orpett, Partner, Tribler Orpett & Meyer PC, Chicago, Illinois

Readings:

Research Paper

Bibliography

General Information

CLE Credit

A total of 9 CLE credit hours, including 1 hour of ethics, has been approved in Kansas, Missouri, New York and California. Seminar support staff will provide on-site assistance to attendees who plan to apply for CLE credit from other jurisdictions.

Registration Fees

  By April 14, 2017 After April 14, 2017
KCMBA lawyer $330 $330
Non-KCMBA lawyer $355 $410
Journalist, educator or full-time student $60 $60
Member of the public $110 $110
Luncheon only $50 $50

Lodging

A block of rooms has been reserved at the InterContinental Kansas City at the Plaza, 401 Ward Parkway, Kansas City, Missouri, until 5 p.m. April 3, 2017. After that date, room availability and rate cannot be guaranteed. Please make your reservations by calling 866-856-9717, or register online at kansascityic.com. To receive the special seminar rate of $194, mention that you will be attending the Media and the Law Seminar. If you register online, enter the dates you will be staying and click on Book Now. On the next page click on Group code and enter M17 to receive the special rate.

Location & Parking

The InterContinental Kansas City at the Plaza offers valet parking for $22 a day or self-parking for $18 a day to hotel guests. For those participants commuting to the seminar, day parking at the InterContinental is complimentary when available.

Kansas City Attractions

Thinking of enjoying the weekend in Kansas City after the seminar? There are attractions and events for everyone, including:

  • Country Club Plaza: Across the street from the InterContinental Hotel at the Plaza, the 15-block district is one of Kansas City's popular retail, dining and entertainment destinations.
  • Westport: A fusion of local eateries, fashionable boutiques and hot night spots compounded with remnants of the neighborhood's historic past, this entertainment district boasts a rich history as the oldest established community in Kansas City. More than 150 years ago, Westport marked the passage into the western frontier and set the foundation for what it is today: a thriving shopping center and entertainment district.
  • Crossroads Arts District: Kansas City's eclectic enclave hosts boutique shops, one-of-a-kind restaurants, creative businesses, studios and art galleries.
  • Kansas City Power & Light District: Spread over a half-million square feet, the Kansas City Power & Light District is the Midwest's premier entertainment epicenter. With more than 50 unique and captivating shops, restaurants, bars and entertainment venues, the district offers something for everyone.

For additional information on the above attractions and Kansas City events, visit visitkc.com.

Program Accessibility

We accommodate persons with disabilities. Please call 785-864-5823 or mark the space on the registration form, and a KUPCE representative will contact you to discuss your needs. To ensure accommodation, please register at least two weeks before the start of the seminar. See the nondiscrimination policy below.

Refund/Cancellation Policy

A full refund of registration fees, less a $50 administrative fee, will be available if requested in writing at kupce@ku.edu and received by April 27, 2017. No refunds will be made after that date. A $30 fee also will be charged for returned checks. (Please note that if you fail to cancel by the deadline and do not attend, you are still responsible for payment.) KUPCE reserves the right to cancel the 30th Annual Media and the Law Seminar and return all fees in the event of insufficient registration. The liability of the University of Kansas is limited to the registration fee. The University of Kansas will not be responsible for any losses incurred by registrants, including but not limited to airline cancellation charges or hotel deposits.

Privacy Policy

KU Professional & Continuing Education does not share, sell, or rent its mailing lists. You have our assurance that any information you provide will be held in confidence by KUPCE.

We occasionally use mailing lists that we have leased. If you receive unwanted communication from KUPCE, it is because your name appears on a list we have acquired from another source. In this case, please accept our apologies.

Nondiscrimination Policy

The University of Kansas prohibits discrimination on the basis of race, color, ethnicity, religion, sex, national origin, age, ancestry, disability, status as a veteran, sexual orientation, marital status, parental status, gender identity, gender expression and genetic information in the University’s programs and activities. The following person has been designated to handle inquiries regarding the non-discrimination policies: Director of the Office of Institutional Opportunity and Access, IOA@ku.edu, 1246 W. Campus Road, Room 153A, Lawrence, KS, 66045, (785)864-6414, 711 TTY.

Sponsors

  • The Kansas City Metropolitan Bar Association Media Law
  • Committee and University of Kansas School of Law

Contributors

  • AXIS Insurance
  • Fox Rothschild LLP
  • Katten Muchin Rosenman LLP
  • Larry Worrall
  • Lathrop & Gage LLP
  • Levine Sullivan Koch & Schulz LLP
  • OneBeacon Entertainment
  • Satterlee Stephens Burke & Burke LLP
  • Stevens & Brand LLP
  • Vedder Price
  • Media, Privacy and Advertising Law Committee of the Tort, Trial and Insurance Practice Section of the ABA

About the Seminar

Since 1987, the Media and the Law seminar series has brought together lawyers, judges and others to discuss legal issues and trends in media, law and technology. Initiated by leadership in the Kansas City media liability insurance community, the seminar is planned by local area media lawyers, journalists and educators and coordinated by the University of Kansas Professional & Continuing Education staff. From the latest First Amendment litigation to emerging social media risks, the "hot topics" of each year are explored and debated by a panel of experts and distinguished speakers.

For questions, contact:

The University of Kansas
Edwards Campus
Professional & Continuing Education
Regents Center 125
12600 Quivira Road
Overland Park, KS 66213


Phone: 785-864-5823 or (toll free) 877-404-5823
Email: kupce@ku.edu

 

Register Online for the Media & the Law Seminar

Payment is required at the time of registration. Only registrations accompanied with payment will be accepted. Please register in advance. Fees include continental breakfast, lunch and refreshments.

Online registration is preferred, but if you need to register by phone, you can call one of our Registration Specialists at the number below:

Register by Phone
785-864-5823 or 877-404-5823 (toll free)

Register by TDD
800-766-3777

Past Seminars

20162015 | 20142013 | 2012 | 2011 | 2010
2009 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003

Return to 2017 seminar page

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