Gearing Up for MLRC’s Biggest Conference of the Year

How the Plenary Sessions Came About

We are only two months away from the Virginia Media Law Conference at the Lansdowne Resort in Leesburg, Va., and Dave Heller and I are delighted with the way the program is shaping up. This Conference has historically been known for its boutiques — this year attendees can go to 5 of the 25 being offered on 18 topics — which allow and emphasize all present to participate in the discussions. But in addition to the receptions, meals, activities, and Journalism Jeopardy, we are especially excited about the six plenary presentations we will be presenting.

A few lines on how they came about:

We held an open planning meeting for all interested members in New York the day after our Annual Dinner last November. It was immediately apparent that the subject most people were interested in was AI. So Dave is working with Lauren Chamblee, Senior Corporate Counsel, Open Innovation Microsoft, to organize that program. In answer to popular demand, part of it will be a demonstration about using AI in journalism; the other part will be a discussion about legal, ethical, and practical issues with Nicol Turner Lee,  Director of the Center for Technology Innovation at the Brookings Institute; Sy Damle, former GC at the US Copyright Office; and a member of Microsoft’s Democracy Forward Journalism team. We have scheduled this to be the slugger’s clean-up position in our lineup, that is, a program at our closing lunch.

Online content moderation and whether the government can restrict the choices of platforms were also subjects that drew a lot of attention. But the cases in Florida and Texas involving laws very questionably purporting to override social media platforms’ moderation decisions have not (yet) been taken by the Supreme Court, and were subjects on which all conferees probably agree. Thus, we thought we should focus on how platforms are currently handling disinformation and content moderation, a serious issue on which there is no single approach. So when Alison Stein of Jenner & Block, co-chair of our Internet & Technology Law Committee, suggested a session featuring Brent Harris, a Facebook executive who played a key role in developing an Oversight Board to make decisions about content moderation, we jumped at the idea.

We decided that Sec 230 was such a timely and pervasive issue that we ought to renew our efforts to bring Sen. Ron Wyden (D-Or) to the program. Sen. Wyden was a leading draftsman of Sec 230 back in 1996 (he has served in Congress for 41 years) and is still very involved in Congressional discussion on whether to amend it. As busy as he is, and even though we had struck out before, I thought I had a reasonable chance to succeed since I have long known his wife, whose parents (the longtime owners of the venerable Strand bookstore in New York) were neighbors of ours. He is tough to pin down as he shuttles between Congress in Washington, his constituents in Oregon, and his wife’s business place in Greenwich Village, so after some negotiations we settled on a taped video interview with him which we will play at the Conference. To add to the interest level, just about a month before the interview he introduced in the Senate the PRESS Act, which is really a federal shield law. While many of us have worked on this project for close to 20 years now, this bill has a realistic chance of being approved by both Houses of Congress and becoming law.

We occasionally hear from members that the Virginia conference leans toward traditional defamation and newsgathering issues and not so much toward IP issues.  So, with the Supreme Court this past spring deciding both a copyright and a trademark case, both with fun facts worthy of a law school hypo, we thought a program about them would be ideal for our conference. Of course I’m talking about 1) the Andy Warhol fair use case, deciding whether publishing one of his portraits of Prince on a magazine cover was a transformative use of the photo on which the portrait was based, and 2) the Jack Daniel’s dog toy trademark case, determining whether a humorous dog toy emulating and clearly evoking a Jack Daniel’s bottle was protected against trademark liability. For sure, both these cases have been thoroughly discussed — including in three very well attended MLRC Zoom calls (archived here) — so we thought we needed to get a really top-notch panel, hopefully of some of the lawyers who argued the cases. And we did. We expect Lisa Blatt, who argued — and won — both these cases, and who probably now is the country’s leading SCOTUS litigator whose win-loss record at the Court exceeds the percentage of any pitcher from Whitey Ford to Roger Clemens, will speak. Joining her will be Ramon Martinez, who argued the Warhol case against Lisa, as well as Harvard Prof. Rebecca Tushnet and Susan Kohlmann, who submitted amicus briefs in both cases.    

Of course, we will have a program about traditional media law as well. And what a subject to discuss — probably the most important and controversial libel case in decades: Dominion v Fox. We decided upon this panel well before its trial date and so before the case settled, but the settlement ought not take away from the depth and importance of the discussion and may even add a little intrigue. After all, it’s not often a media libel case settles for close to $800 million. In addition, the topic might yield unusually intense thoughts, as many in the audience, and perhaps some of the panelists, might feel conflicted about how they wanted the case to end. But though there has been a lot of discussion about the legal issues, strategies, personalities, evidence, and journalism in the case, we have some of the land’s leading libel litigators and experts to discuss it: Floyd Abrams, Lee Levine, and Prof. RonNell Anderson. We also expect to have lawyers who worked on the case on both sides to give us some inside baseball. And beyond all the remarkable events leading up to the settlement, don’t forget the Smartmatic case versus Fox is still pending.

Finally, as we will be only about 30 miles from the Supreme Court, we thought a session on the High Court would be appropriate. There are so many issues in the last year which focus on it: its politicization and allegations of bias; the divisions between its two wings and the role of Chief Justice Roberts; the ethical questions which have been raised about the justices and whether stricter regulation or guidelines are needed; the retention of some of the changes instituted during the pandemic; cases in our field decided last term and on deck for the term which begins the very week our Conference takes place; the reasons why the Court hasn’t taken a media case since the start of the century, and whether that is good or bad; and, dare I say it, what might happen if a Trump criminal case ends up at the Court’s door.

To discuss all this we brought together two star SCOTUS litigators and two expert reporters who cover the Court: Donald Verrilli, a former Solicitor General who has argued over 50 cases at the Supreme Court, now at Munger Tolles; Kannon Shanmugan, Chair of the Supreme Court and Appellate Litigation practice at Paul Weiss who has argued 36 cases at SCOTUS — both clerked for the Court in their younger days. Along with these experienced and expert practitioners, the panel will include Amy Howe of SCOTUSblog and Greg Stohr of Bloomberg News.

All six sessions should be intriguing and engaging. They certainly are on timely and important subjects. And along with the “open-mic” boutiques and social events and receptions, they are a great reason to drop your day-to-day work and come to the Lansdowne resort October 4-6. You can register HERE and sign up for a room HERE. If you register before September 7, you’ll qualify for the discounted early-bird rate, and we urge you to reserve a room now as our room bloc is limited. We expect over 300 media lawyers (close to half of the registrants so far are in-house counsel), so be part of the fun.