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.
The 31st Annual Media & the Law Seminar
The impact of technology, culture, and politics on media freedoms
View the brochure (PDF)
Friday, May 4, 2018 | 8 a.m. - 4:15 p.m.
Sheraton Kansas City Hotel at Crown Center
Kansas City, Missouri
Perhaps now more than ever, the foundations of media law seem to be shifting. Some concepts considered to be bedrock First Amendment ideals now seem as unstable as a house built on sand, thanks to technological advancements, conflicting cultural views and political turmoil. As a result, we’ve seen a rise in government attacks on the media, the resurgence of libel and other causes of action, including product disparagement and privacy, and the growth of social media as both an ethical challenge for lawyers and as a public forum that poses unique First Amendment concerns.
At this year’s seminar, we will address the impact these issues have on media freedoms and discuss how media law practitioners, journalists and the courts should respond. Plus, New Yorker cartoonist Tom Toro will be on hand as our luncheon speaker to provide his own unique, humorous perspective on these issues.
Tom Toro, New Yorker Cartoonist
Tom Toro has been a cartoonist for The New Yorker since 2010. His work has also appeared in The Harvard Business Review, Narrative, Audubon and The Funny Times. He lives in Kansas City, Missouri.
Thursday, May 3
Many opine about what makes the world go 'round, but it's really insurance (sorry, romantics). Insurance is a necessity for mitigating risk on a global basis for personal, commercial and professional exposures. Insurance with adequate insurance limits is critically important for media companies as they face record-breaking defamation settlements, adverse jury verdicts — and high-profile accusations of "fake news" that erode credibility and public perception. Every company that creates and distributes content, from traditional media organizations to digital publishers to entertainment companies, has a media liability exposure and hopefully specialized media insurance coverage to pay defense costs and loss in the event of a claim. Historically, media insurers spend significantly more on defense costs than loss as First Amendment interests are usually fiercely defended — especially in cases involving public officials. Defense counsel retained to defend these cases should understand how a media liability policy works to better advise clients, avoid ethical pitfalls and increase his or her chanc of being paid, fully, and in a timely manner. (And yes, defense counsel really does need to execute a budget and fully account for billing time.) Potential conflicts are raised by the "tripartite relationship" created when an insurance company retains and pays defense counsel to represent the policyholder. Tricky issues arise with respect to settlement: What happens when the insurer wants to settle, but the insured doesn't? How is coverage handled for independent contractors, who helped create content, but don't have insurance? How are claims for punitive damages handled in venues where it is against public policy for an insurer to pay them? What happens when there are covered and non-covered allegations raised in a complaint or demands in excess of policy limits? Should the smae outside media attorney who conducted pre-publication review also handle a subsequent claim arising from the vetted material? This panel of insurance and ethical experts will guide attorneys through the ethical duties that arise in the tripartite relationship, as well as the bascis of media insurance and its role in litigation, the process of selecting counsel, the policholder's duties, settlement, other insurance clauses and more.
2 hours CLE approved (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
Friday, May 4
R u on #Twitter? #ethics answers to #tweetstorms and #cranktweets in this fab panel. PRT to spread word, then #showup 2 this #tweetorial 4 ur daily #twitamin on the #twettiequette of the #twegalsphere. *(Those who do not understand this descripton are particularly urged to attend.) Issues addressed by the panel include:
- Do attorneys have an ethical duty to understand Twitter and use it so that they know how it works?
- Is there an ethical responsibility to get a tweeting client under control?
- If a client has tweeted out damaging content, what can and should the client's attorney do?
- When do tweets become evidence that should not be destroyed?
- Do attorneys ever have an ethical responsibility to vet a client's tweets for legal problems? If so under what circumstances?
- Do attorneys have a duty to groom their client's social media presence?
- Does an attorney have an obligation to tweet about a case in order to provide zealous representation if an opposing attorney is doing so?
- If an attorney tweets out about a victorious result is that advertising? Is tweeting at someone a potential solicitation?
- At what point does information that was confidential become sufficiently public for it to be ethically permissible for an attorney to tweet it out?
- What ethical issues arise if your represented opponent (or a juror) "follows" you?
- Staff gone wild? What to do when subordinate lawyers or staff comment on pending cases on their personl Twitter feeds?
Walter Cronkite, as anchor of the CBS Evening News, was often labeled "the most trusted man in America." When Gallup began polling Americans' trust in mass media in 1972, 72 percent of the country had a great deal of trust in the media. Last year, however, a Harvard-Harris poll found that nearly two-thirds of Americans believe the "mainstream press" publish "fake news." What has eroded that sense of trust, and to what extent is the government on local, state and federal levels leading the attack on the press? This panel will explore ways government has denied access to media outlets deemed unfavorable, made unenforceable threats - such as hinting at a prior restraint against a book publisher and revoking non-existent FCC licenses from networks - and waged PR battles by labeling news as "fake." The panel will also explore ways in which the erosion of public trust in the media has created a hostile lititgation environment for the media, leading to unprecedented verdicts against he media. Finally, the panel will discuss potential remedies for the press when it finds itself at odds with the government. Issues to be addressed by the panel include:
- Legal issues tha tmay arise when government denies access to a news organization it disfavors.
- How media may meet the challenge of defending themselves in a hostile litigation environment.
- The availability of remedies when government acts to prevent or punish critical news coverage.
In 1990, in Milkovich v. Lorain Journal Co. the U.S. Supreme Court considered whether a newspaper defamed a high school coach. A columnist for the newspaper had suggested that a high school coach lied about his part in a melee that occurred during a wrestling meet. The newspaper defended by stressing that th ereference to lying occurred within a column. The newspaper's position essentially was that the reference to lying waws an expression of opinion protected by the First Amendment. However, the Court rejected the defense, ruling that liability for defamation may be imposed for an opinion that includes a "provably false factual connotation." The Milkovich decision caused shock waves across the media law bar, with its suggestion that calling someone a liar may well be actionable. But like in the aftermath of an earthquake, the shockwaves subsided as lower courts processed the opinion and, apparently recognizing its flaws, devised ways to work around it. Now, however, accusation of lying seem increasingly common, noticeably in the context of the Me Too movement. Women sometimes find themselves denounced publicly as liars when they accuse prominent men of sexual misconduct. In this new age of uncivil discourse, and the back-and-forth accusations arising from the Me Too movement, courts might review the Milkovich decision and consider anew whether expressions of opinion that damage reputation are actionable. Issues to be addressed by the panel include:
- The tension between credible accusations of sexual harassment and the rights of the accused.
- The various ways in which lower courts have responded to the Milkovich decision
- The extent to which Milkovich remains viable caselaw in light of its treatment by the lower courts.
- Whether questions of public policy raised by the Me Too movement on one side, and the misinformation in our political discourse on the other, could create a fertile environment for judges to view Milkovich in a new light.
- Defenses that may be asserted against claims of defamation related to expression of opinion.
- The role that SLAPP actions (Strategic Lawsuits Against Public Participation) and Anti-SLAPP laws may play in disputes over allegedly defamatory opinions.
In July 2017, the Knight First Amendment Institute filed suit against President Trump and members of his media staff alleging that when the President blocks users on Twitter, he is barring them from participating in an important "public forum for spreech." Shortly before the filing of this suit, the U.S. Supreme Court likened social media to the "modern public square" in its June 2017 opinion in Packingham v. North Carolina, a case involving state restrictions on sex offenders' use of social media. (A concurrence criticized the majority opinion's equating of "the entirety of the Internet with public streets and parks"). Meanwhile, social media usage only continues to increase: a Pew Research Center study concluded that 69 percent of American adults used at least one social media site in 2016, compared with 5 percent in 2005. Issues this panel is to address include:
- The nature of legal arguments made by the Knight First Amendment Institute reqarding Twitter
- The concept of the "modern public square" as indicated in Packingham v. North Carolina
- The legal and practical implications of social media usage as a form of petitioning the government
- How social media as a "public fora" looks from the front line of the debate
Electronic devices, applicances, vehicles, and other machines have all become "smart" through increasingly sophisticated algorithms empowering artificial intelligence applications. This future is already happening throughout the world. For example, in the newsroom financial, weather and traffic reports are already being published by AI content generators. The field is exploding, and AI devices, enhanced by electronic neural networks that learn as they operate are now gathering factual information and are capable of writing narrative news stories indistinguishable from human outputs. As the technology improves adn the costs come down, pulishers, broadcasters and advertisers face increasing economic pressure to use these tools to enhance the productivity of the newsroom and related communications fields. This panel will examine the technological and commercial underpinnings of the AI phenomenon, and how the law will cope when the bot engages in conduct that can result in traditional forms of media law liability, including defamation, invasion of privacy, intellectual property infringement and other types of potential torts or even criminal acts. Issues to be addressed by the panel will include:
- How does the concept of the reporter's state regarding the truth of a libelous statement apply when the content is created by a machine?
- Can a machine be "willful"?
- Is the machine's conduct imputable? Is the publisher always liable for the bot's content?
- What First Amendment issues are implicated?
- Are artificial intelligence driven devices that communicate with humans separate entities that are themselves entitled to First Amendment protections?
Lawyer Vetting Issues:
- How does a vetting lawyer do the usual pre-publication review? How can the lawyer inquire about the underlying facts or the choice of words?
- Should AI created content be vetted at all?
- Should the lawyer assess the assumptions that comprise the underlying algorithm?
- Are human lawyers able to assess undocumented capabilities of artificial intelligence devices that learn as they go and generate new algorithms through machine learning?
Business and Contractual Issues:
- Who owns the intelligent device information and the speech rights associated with it, and how does this interface between human and machine fit into the usual employee/independent contractor structure?
- Can the creator/programmer of the algorithm be expected to indemnify the publisher for the bot’s libelous, invasive or infringing content? At what point does the machine separate from its creators and have an independent legal existence protected by state and federal law?
- Is the bot (and its creator/programmer) insured under the publisher’s policy?
- Does an artificial intelligence entity have the right to independent counsel if it asks for it?
This panel will explore new and developing threats tot he media from the private sector. America is as polarized as ever, with emotions running high, and the press has experienced increased threats from many different directions intent on disrupting the gathering or publication of news. First, we will discuss recent efforts from private groups to discredit the press, such as the failed "project Veritas" effort to discredit The Washington Post by planting a fake news source asserting a "new" claim of sexual conduct against Roy Moore. Second, we will explore increasing online threats to journalists (some anonymous, some not) and discuss how the media should deal with online threats of death or bodily harm to reporters as a practical matter. Issues to be addressed by the panel include:
- In response to threats, under what conditions should media seek an injunction?
- Should the media adopt hostile environment training policies and, if so, what legal issues may be taken into account?
- What may be the reponse to threats posed offline to journalists, including threats of arrests fro trespass and actual physical assault or equipment destruction?
7 hours CLE approved
A total of 9 CLE credit hours, including 1 hour of ethics, is 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.
|By April 13, 2018||After April 13, 2018|
|Journalist, educator or member of the public||$110||$110|
|Thursday Preconference CLE only KCMBA Member||$70||$70|
|Thursday Preconference CLE only Non-KCMBA member||$110||$110|
A block of rooms has been reserved at the Sheraton Kansas City Hotel at Crown Center, 2345 McGee Street, Kansas City, Missouri. Rooms will be released at 5 p.m. April 2, 2018. After that date, room availability and rate cannot be guaranteed. To receive the special seminar rate of $179, please reserve online or by calling 866-932-6214 and mention that you are attending the University of Kansas Media and the Law Seminar.
Location & Parking
The Sheraton Kansas City Hotel at Crown Center offers valet parking for $26 a day or self-parking for $18 a day to hotel guests. For those participants commuting to the seminar, the hotel can validate 3 hours of complimentary parking. The parking garage is managed by an independent company, not the Sheraton.
If you find you are unable to attend, we encourage you to send a qualified substitute and notify us ahead of time if possible. If you do need to cancel, you must send a written cancellation request on or before April 26, 2018 and you will receive a refund, minus a $50 cancellation fee. No refunds will be given after that date.
Kansas City Attractions
Thinking of enjoying the weekend in Kansas City after the seminar? There are attractions and events for everyone, including:
- Crown Center: Located in the heart of downtown this city within a city offers visitors 85 acres of shops, restaurants, and theatres.
- Country Club Plaza: One of Kansas City’s popular retail, dining and entertainment destinations within a 15-block district of fun.
- Westport: A fusion of local eateries, fashionable boutiques and hot night spots compounded with remnants of the neighbor- hood’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.
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.
A full refund of registration fees, less a $50 administrative fee, will be available if requested in writing at firstname.lastname@example.org and received by April 26, 2018. 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 31st 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.
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- The Kansas City Metropolitan Bar Association Media Law Committee
- University of Kansas School of Law
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
Professional & Continuing Education
Regents Center 125
12600 Quivira Road
Overland Park, KS 66213
Phone: 785-864-5823 or (toll free) 877-404-5823
Thank you to our seminar contributors!
- AXIS Insurance
- Baker Hostetler
- Ballard Spahr LLP
- Davis Wright Tremaine
- Fox Rothschild LLP
- Frankfurt Kurnit Klein & Selz PC
- Greenan Peffer Sallander & Lally LLP
- Honigman Miller Schwartz and Cohn
- Katten Muchin Rosenman LLP
- Kissel Hirsch & Wilmer LLP
- KU School of Law Media, Law and Technology Program
- Larry Worrall
- Lathrop Gage LLP
- Mutual Insurance Company of Bermuda LTD
- OneBeacon Entertainment
- Prince Lobel Tye LLP
- Satterlee Stephens Burke & Burke LLP
- Stevens & Brand LLP
- Thomas & LoCicero PL
- Vedder Price
- Waller Lansden Dortch & Davis LLP
- Media, Privacy and Advertising Law Committee of the Tort, Trial and Insurance Practice Section of the ABA