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Media lawyers will be busy for years with the issues swirling around the White House and the people associated with it, media law attorney Charles D. Tobin told Bloomberg BNA.
It’s an opportune time for law firms to expand their media law practices, particularly in Washington, where Tobin “set up shop” at Ballard & Spahr in early June.
Tobin and his partners represent journalists who are subpoenaed as part of leak investigations, potentially a high-priority target for President Donald Trump who has reportedly threatened to jail reporters who publish classified information.
The DOJ has already signaled it may back away from protocols Tobin helped the government develop to protect journalists, he said.
Tobin also advises clients on litigation regarding their Freedom of Information Act requests. Washington is an ideal location for this kind of work because that’s where many federal agencies targeted in FOIA requests are headquartered, Tobin says.
“We fight First Amendment battles on behalf of reporters’ rights,” David J. Bodney, who co-chairs Ballard’s Media and Entertainment Law Group with Tobin, told Bloomberg BNA.
Tobin and Adrianna C. Rodriguez joined Ballard from Holland & Knight, and the firm plans to further expand its media law practice because it’s “uniquely positioned to grow,” Bodney, who works in Phoenix, said.
This growth might come sooner rather than later because of Trump’s call for an increase in leak investigations.
Leaks have been a hot topic in Washington as classified and other information has been finding its way to reporters—to the dismay of the Trump Administration.
The administration is going to try to cut leaks off by “getting between journalists and their sources,” Tobin said.
When the Obama administration tried to do that after State Department official Stephen Kim revealed classified information to Fox News reporter James Rosen in 2009, it backfired.
The DOJ, under then-Attorney General Eric H. Holder Jr., prosecuted Kim and called Rosen an “aider and abettor” under the Espionage Act in Kim’s indictment.
The government was essentially saying that journalists asking for or receiving information passively are committing a crime, Tobin said.
The 1917 Espionage Act was passed to prevent spying. But because it’s so broad, some legal scholars think it could be used to prosecute journalists who possess leaked information.
Rosen was never prosecuted, but there was an uproar because of what happened in his and several other Espionage Act cases at the time, Tobin said.
Holder eventually apologized and revised the guidelines for seeking evidence from reporters, Tobin said.
Tobin participated, along with journalists and other attorneys, in discussions with Holder about how to amend the guidelines.
But he doesn’t think that the guidelines will be observed by the current administration.
One week after Attorney General Jeff Sessions assumed office, federal prosecutors subpoenaed Oregon Public Broadcasting for materials relating to an interview with Ryan Bundy, who, along with his brother Ammon, led the armed occupation of a national wildlife refuge in 2016.
The subpoena was issued without following any of the steps in the guidelines, Tobin said.
The DOJ can change the guidelines unilaterally, but “these guidelines were the result of a careful process of months of negotiation” and it was anticipated that they would be “observed by subsequent attorneys general,” he said.
There’s a “not-so-subtle change” in the legal environment that “could erode the rights of news organizations,” Bodney said.
Tobin is aware of four lawsuits now pending against the administration for memos and other documents regarding the administration’s ties to Russia.
The administration hasn’t made access to information a priority, but that’s typical of recent administrations, he said.
There has been “an exponential increase in the backlog for FOIA requests from administration to administration,” Tobin said.
President George W. Bush was less forthcoming with records than President Bill Clinton; President Barack Obama “built on that;" and it has gotten “even worse” in the first few months of the Trump administration, he said.
The FBI didn’t comply with a FOIA request to hand over former FBI Director James B. Comey Jr.'s memos documenting his interactions with Trump before his dramatic firing in May, and CNN sued.
It alleges the agency wrongfully withheld the records in violation of FOIA. It is seeking a court order directing the FBI to turn over the documents.
Ballard’s media law group will likely have its hands full with FOIA-related suits and leak investigations.
All of Tobin’s news media clients from Holland & Knight came with him to Ballard, he said.
Tobin and Bodney are prepared for the challenges they could face protecting journalists and pursuing FOIA violations in an atmosphere that appears to be growing increasingly hostile toward reporters, and they view their friendship as an asset.
Tobin’s “outstanding work throughout the years and our camaraderie made me move as quickly as possible when I heard he was considering a move,” Bodney said.
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