2024 Media & the Law Seminar

"Under Attack: Existential Threats to Journalism and Free Speech"

36th Annual Media and the Law Seminar

Thursday and Friday, April 11 - 12, 2024

Featured Topics:

• Managing Risk in the Age of AI: Market Trends and Insurance Considerations
• Artificially Infringing? The Copyright Implications of Generative AI tools
• Clear and Present Danger: Managing International Reporters and Staff
• Back to Basics: Avoiding AI’s Ethical Pitfalls
• Too Hot to Handle? Defending Speech in the Face of Government Censorship
• AI Awry:Defamation for Bots Gone Wrong
• Journalists On the Front Lines: Overcoming Risks to Reporters

36th Annual Media and the Law Seminar postcard (.pdf)

Schedule and Panel Descriptions

Thursday, April 11

4 - 5:45 p.m. | Bonus Session - Managing Risk in the Age of AI: Market Trends and Insurance Considerations

Contribution from Berkley Cyber Risk Solutions and QBE help support this session

Moderator

Pat Groshong, cyber claims director
Berkley Cyber Risk Solutions
Lee's Summit, MO

Panelists

Patrick McNally, esquire
Octillo Law Firm
Washington D.C.

Karthik Ramakrishan, founder
Armilla AI
Toronto, Canada

JJ Thompson, founder
Spektrum
Indianapolis, IN

6 p.m. | Speaker's Social Event

AXIS Insurance Offices
4622 Pennsylvania Ave, Suite 1200
Kansas City, MO

Please join us after the Thursday bonus session at AXIS Insurance’s new office overlooking the Country Club Plaza for drinks and hors d’oeuvres. All seminar panelists and attendees are invited to join.

Friday, April 12

8 a.m. | Welcome

Katie Studt, Media and the Law committee chair
AXIS Insurance
Kansas City, MO

Max Kautsch, program chair & managing partner
Kautsch Law, LLC
Lawrence, KS

Seminar Moderator: Max Kautsch

8:10 a.m. | Panel 1 - Artificially Infringing? The Copyright Implications of Generative AI Tools

As generative AI tools become more popular, questions have arisen regarding how the tools have incorporated creative works protected under U.S. intellectual property law. In 2023, authors, journalists and artists filed numerous class action suits against companies that rolled out their generative-AI tools, raising unprecedented questions about the use of copyrighted material in training AI-models and the potential for copyrighted materials to appear in the output of AI models. This innovative technology has presented these fascinating legal questions and more. The panel will feature perspectives from both sides of the issue. Join us to discuss:

• How do generative AI models work?
• What prompted the numerous lawsuits against companies with generative-AI tools?
• Who owns the IP in the inputs and outputs of AI models?
• Does U.S. IP law go far enough to address plaintiffs’ concerns?
• Will U.S. IP law stifle innovation in this area?

Moderator

Karen Shatzkin, media lawyer
New York, NY

Panelists

Andrew Bridges, emeritus partner
Fenwick & West LLP
San Francisco, CA

David Graff, vice president of trust & safety
Google
New York, NY

Scott Sholder, partner
Cowan, DeBaets, Abrahams & Sheppard LLP
New York, NY

9 a.m. | Panel 1 Q&A

9:10 a.m. | Panel 2 - Clear and Present Danger: Managing International Reporters and Staff

According to Reporters Without Borders, in 2023, 38 journalists and two media workers have been killed, and 489 journalists and 20 media workers have been detained globally. The ongoing conflicts in Eastern Europe and the Middle East have proven especially dangerous for journalists, with many, including Wall Street Journal reporter Evan Gershkovich, being targeted by anti-press regimes for merely doing their jobs. All too often, the media organizations’ in-house attorneys are closely involved in the efforts to protect their employees in the field, requiring them to work tirelessly to remove journalists and their families from dangerous war zones or liberate wrongly-detained reporters from prison. This panel will feature a discussion among some of those attorneys. Join us to discuss:

• Threats journalists are facing abroad;
• How in-house counsel manages staff abroad;
• Ethical considerations applicable to working in war zones; and
• How the media law bar can help protect journalists abroad.

Moderator

Chad Milton, principal
Media Risk Consultants LLC
Prairie Village, KS

Panelists

Jacob Goldstein, vice president & associate general counsel
Dow Jones / The Wall Street Journal
New York, NY

Katharine Larsen, deputy general counsel, litigation
Reuters News
New York, NY

James A. McLaughlin, deputy general counsel & director of government affairs
The Washington Post
Washington, D.C.

10 a.m. | Panel 2 Q&A

10:30 a.m. | Panel 3 (Ethics) - Back to Basics: Avoiding AI's Ethical Pitfalls

Emerging technologies prone to producing provably false statements are proliferating our increasingly polarized world.  Although issues such as “supervising” generative AI’s contributions to legal briefs and understanding the role social media bots play in influencing public opinion present new challenges, lawyers’ ethical obligations to perform due diligence and speak truthfully haven’t changed.  Issues to be discussed include:

• Why ceding proofreading or other supervisory duties to AI risks violating Rule 5.1 (responsibilities of supervisory lawyer);
• The responsibilities of a subordinate lawyer using AI in the course of their duties under Rule 5.2 (responsibilities of subordinate lawyer);
• The extent to which Rule 5.3 (responsibilities regarding nonlawyer assistance) applies to AI;
• Lawyers’ responsibility to ensure accuracy of filings under the Federal Rules of Procedure;
• How to verify the information lawyers acquire from the internet and generate with AI in a “deep fake” world; and
• When a lawyer's obligation to zealously advocate for their client may run afoul of their obligation to tell the truth.

Moderator

Max Kautsch, media lawyer
Kautsch Law, LLC
Lawrence, KS

Panelists

Tedrick A. Housh III, CIPP/US, CIPP/E
Lathrop, GPM
Kansas City, MO

Najarian R. Peters
Associate Professor of Law, University of Kansas School of Law
Linda D. Ferrell and Richard C. Tombari Honors Faculty Fellow
Faculty Associate, Berkman Klein Center for Internet and Society, Harvard University

11:20 a.m. | Panel 3 Q&A

11:30 a.m. | Luncheon Address - NO CLEs

Ashley Judd is a Golden Globe and Emmy-nominated actress who deftly navigates between indie gems and box office hits. A feminist and social justice humanitarian, she is the UNFPA Goodwill Ambassador, advocating for the sexual and reproductive rights and health for girls and women worldwide. She has traveled to 22 countries, visiting brothels, refugee camps, hospices and slums, learning directly from the vulnerable and resilient about male sexual violence and how to overcome gender inequality.  Her New York Times bestselling book, "All That Is Bitter & Sweet," chronicles these journeys.

Ashley graduated from the Honors Program at the University of Kentucky with a major in French and four minors, and earned an MPA from Harvard's John F. Kennedy's School of Government.  Her paper, Gender Violence: Law and Social Justice, was awarded the Dean’s Scholar Award at Harvard Law School. She has been Leader in Residence at the Women and Public Policy Program at Harvard's Kennedy School.

She serves on several boards, including the International Center for Research on Women, the Rape and Incest National Network, Demand Abolition, and  is Ambassador for Culture Reframed (focusing on the pubic health crisis of pornography). She is Chairperson of the Women’s Media Center Speak Project: Curbing Abuse, Expanding Freedom. Her Ted Talk about online misogyny has over two million views.

She is a sought after public speaker and frequent OpEd author, including her recent contribution to the New York Times about her beloved mother's death by suicide and the need for privacy laws in such tragedies. 

Ashley was Time magazine’s Person of the Year in 2017 as one of the Silence Breakers. In 2019, the United Nations honored her as Global Advocate of the Year.

Ashley lives part of each year in the Central African rain forest in Democratic Republic of the Congo, where her partner has a bonobo research camp. Bonobos, our closest living relatives, are egalitarian, matriarchal and free from male sexual violence. They give her hope.

1 p.m. | Panel 4 - Too Hot to Handle? Defending Speech in the Face of Government Censorship

Government censorship of speech is in no way a new phenomenon, but amid divided opinions on what constitutes dangerous, extreme or “unprotected” speech, cases involving government efforts to control or silence speech seem to be on the rise. From state actors policing speech in schools to state legislatures passing laws aimed at social media companies, from efforts by local officials to quell protests to efforts by prisons to restrict the communication of people who are incarcerated, threats to First Amendment rights touch all areas of today’s society. This panel will feature commentary and perspectives from the attorneys at the forefront of the fights against these threats.
 
This panel will explore the following questions:

• In addition to the threats to media freedom, what are some of the more pressing threats to First Amendment rights today?
• What are the sources of speech censorship, and are they always easily identifiable?
• What do some of the challenges to government action look like?
• What are the legal arguments in these challenges?
• What is the outlook on some of the cases involving First Amendment threats?

Moderator

Lyndsey Wajert, associate
Vedder Price
Chicago, IL

Panelists

Vera Eidelman, staff attorney
ACLU
New York, NY

Jennifer Jones
Knight First Amendment Institute
New York, NY

Darpana Sheth, vice president of litigation
Foundation for Individual Rights and Expression (FIRE)
Philadelphia, PA

1:50 p.m. | Panel 4 Q&A

2:15 p.m. | Panel 5 - AI Awry: Defamation for Bots Gone Wrong

What does the widespread adoption and use of Artificial Intelligence (AI) like ChatGPT mean for defamation law?  Philip Dick famously asked “Do Androids Dream of Electric Sheep?” in his novel inspiring the motion picture Blade Runner.  Our esteemed group of legal experts will explore questions such as “Does AI ‘hallucinate’ and can it knowingly publish falsehoods or act with reckless disregard to truth and falsity?”

We’ll look at the intersection of AI and defamation law and the questions raised for familiar legal frameworks.  We’ll take an element-by-element approach analyzing who might be liable—and what defenses might be available—when plaintiffs complain about content created by AI or in which AI at least plays some role in creation.  We’ll analyze questions including:

• Are there any circumstances under which AI can be trusted to produce verifiable facts?
• Who should be liable when AI systems contribute to spreading potentially defamatory information, and how can the law assign liability in these situations?
• What potential defenses are available to AI companies, online publishers, and individual users of AI?
• How does the law strike the right balance between protecting free speech and not stifling innovation versus accountability when AI-generated content goes awry? 
• Can existing legal structures be updated to address these new AI-related questions or do we need dramatically new legal frameworks, including new legislation?  

Moderators

Jean-Paul Jassy, Attorney
Jassy Vick Carolan LLP
Los Angeles, CA

Kevin Vick, Attorney
Jassy Vick Carolan LLP
Los Angeles, CA

Panelists

Clay Calvert, Professor Emeritus
University of Florida, College of Law, Professor Emeritus; University of Florida College of Journalism and Communications, Brechner Eminent Scholar Emeritus
Gainesville, FL

Lyrissa Barnett Lidsky, Professor and former Dean of University of Missouri School of Law
University of Florida, College of Law, Raymond & Miriam Ehrlich Chair in U.S. Constitutional Law
Gainesville, FL

John R. Monroe, Attorney and lead counsel for plaintiff Mark Walters in his defamation lawsuit against Open AI in Georgia
John Monroe Law PC
Dawsonville, GA

3:05 p.m. | Panel 5 Q&A

3:15 p.m. | Panel 6 - Journalists on the Front Lines: Overcoming Risks to Reporters

For decades, it was unusual for reporters to even be issued a subpoena to testify in court, let alone be subjected to the intrusiveness of a search warrant.  But in the last few months of 2023, law enforcement has executed unfounded search warrants on a Kansas newspaper, prosecuted Alabama journalists for reporting the contents of public records and issued citations in Illinois to a reporter for asking public officials questions about matters of public concern.

Making matters worse, media outlets are under threat not only from the government, but also from private actors angry about being held accountable.  From the specious defamation case filed against NHPR for its award-winning reporting about the perpetrator of sexual assault to the criminal charges against the vandals who retaliated against the station for broadcasting that story, from an inexplicable order to turn over NHPR’s reporting materials to a judge, to an unwarranted search and seizure of a Kansas newsroom and the incredible fallout as officials pass the buck, the members of this panel are uniquely situated to educate the audience about the threats journalists face and, more importantly, the steps they have taken to survive and thrive in the face of danger.

Our panelists will discuss topics including:

• Applicable federal and state law protecting journalists from unlawful searches and seizures;
• Weighing the reward of speaking truth to power against the risk of exposing powerful wrongdoers;
• The use of physical violence to retaliate against journalists reporting about matters of public interest such as a pattern of sexual misconduct in the substance abuse industry;
• Defining “actual malice” in the wake of extensive in camera review of journalistic work product involving matters of public concern;
• The effectiveness of the criminal justice system in enforcing laws applicable to breaches of journalists’ safety and privacy.

Moderator

Sigmund D. Schutz, partner
Preti, Flaherty, Beliveau & Pachios, Chartered, LLP

Panelists

Lauren Chooljian, senior reporter/producer
NHPR's narrative news unit, Document
Concord, NH

Eric Meyer, publisher
Marion County Record
Marion, KS

Bernie Rhodes, partner
Lathrop GPM LLP
Kansas City, MO

4:05 p.m. | Panel 6 Q&A

4:15 p.m. | Adjourn

4:30 p.m. | Cocktail Reception - Rooftop Lounge