Ten Questions to a Media Lawyer

Kevin Goldberg is the First Amendment specialist at the Freedom Forum, where he works to educate the public on the importance of the First Amendment and oversees the Freedom Forum’s network of experts. Prior to joining the Freedom Forum, he served as vice president, legal for the Digital Media Association (DiMA), which represents the world’s leading audio streaming companies. Before DiMA, Goldberg spent 25 years in private practice.

How’d you get interested in media law? What was your first job in the business?

I studied communications with concentrations in TV / radio and journalism at James Madison University. I took a required mass communication law class my junior year, and I loved it and did really well in it.

That fall, I took the LSAT and applied to a select few schools where I might prepare to represent journalists instead of being one. I attended George Washington, with a plan to get the attention of Prof. Thomas Dienes who was General Counsel to US News and World Report and had written casebooks and other First Amendment books. That strategy worked, because he asked if I’d forgo a law firm job my second summer to work for him on a new book that he was writing with Lee Levine – the first edition of Newsgathering and the Law. It was a great opportunity that carried through my third year.

My first post-graduation job was thanks to Professor Dienes’ connections. He knew some attorneys at Cohn and Marks, a DC-based communications law firm. While the firm focused primarily on FCC regulatory work, Richard Schmidt, Jr., and Allan Adler had a First Amendment – mostly newspaper – practice. Six months into my time at Cohn and Marks, Allan left the firm to go in house at the Association of American Publishers. It was a stroke of serendipity, because I was otherwise going to split my time between First Amendment and regulatory work, but now concentrated exclusively on the former, and because Dick Schmidt proved to be an incredible lawyer, mentor and person who is still a massive influence on my legal career to this day.

What was your highest profile or most memorable case?

Not a case, but a definitely memorable work experience were the international trips I did with the American Society of News Editors: twice to Cuba (in 1998 and 2002) and once to Venezuela (in 2008).

The point of the trips was to not only try to open up each country to more free – and foreign – media, but to gain a greater first-hand understanding of the cultures and government. But they all had some standout moments.

Our 1998 trip to Cuba was micromanaged by the government, who didn’t want us to meet with any private media or opposition leaders. The carrot at the end of the stick was a meeting with Fidel Castro that was dangled in front of us and occurred as a last minute “change of plans” on our final day. It was fascinating to hear a leading figure of the 20^th Century speak for almost five hours – and then for me to have a one-on-one conversation with him in Spanish about his failed attack on the Moncada in 1953.  The trip actually led to Castro allowing additional US-based media to have full time bureaus in Havana.

But four years later, we returned and enjoyed an essentially open itinerary which allowed for more direct interaction with private media and ordinary citizens. A unique highlight of this trip was getting a tour of Havana nightlife from Charles Hill (aka “Charlie Pedroso”), an American who hijacked a plane with two others after they were accused of killing a policeman and has lived in Cuba ever since. 

While in Venezuela, we had similar freedom to our 2002 Cuba trip, but were also invited to a press conference with Hugo Chavez, which then led to yet another last minute change of plans and a meeting in his private office. But another highlight was being treated to a private performance of the “La Sistema” youth orchestra, which is comprised of the top young musicians in the country.

These were experiences I never could have imagined when I started private practice.

How does working for a nonprofit compare to your years at a firm?

Working for an organization whose mission is to educate, engage, and inspire, I’m free to try a lot of things that wouldn’t be possible in a firm. We have more freedom to try things that aren’t successful.

But the bigger difference is the chance to unlock my creative side. I mainly still write, edit and speak on legal issues, but my final product takes a wider variety of forms as well. I help produce videos – from TikToks to short form documentaries – and work on our traveling exhibits. I’ve been the go-to “tour guide” for our new offices at The Wharf in Washington, DC, which are decorated with some of the artifacts that had been at the Newseum. And I’m sometimes an event planner, assisting our outreach and engagement personnel when they are putting together in person experiences like our 1A Fest at The Wharf in September or the 1A House installment we did at South by Southwest last year. I’ll do everything from help curate the visuals to review theatrical scripts to write questions for a First Amendment Trivia game.

Who is easier to educate about First Amendment values: students or judges?

Students are easier but definitely scarier. I’ve never been more nervous than the first time I was asked to speak to a class of middle schoolers – and I’ve testified before the Senate Judiciary Committee.

But, in the end, you’re mainly trying to engage students more than educate. My goal when speaking to non-practitioners is to have them walking out of the room (or semester when I taught journalism students as an adjunct at George Mason) with a new appreciation and respect for the First Amendment and a desire to learn more. You just don’t have the time to really “teach” more than a few concepts, certainly not expect mastery.

How do you feel about the phrase “weaponizing the First Amendment?”

I avoid using the phrase and encourage others to do the same. “Weaponizing the First Amendment” implies that someone is controlling the First Amendment, whereas at the Freedom Forum we emphasize that the First Amendment is for everyone. The Freedom Forum prides itself on being a non-partisan non-profit dedicated to fostering First Amendment Freedoms for all, and we avoid phrases like “weaponizing the First Amendment” because they implicitly carry political weight and distract the conversation what people really need to know about the First Amendment. 

What is the best advice you received as a young lawyer?

“Keep your mouth shut in elevators and taxicabs.” – Richard M. Schmidt, Jr.

What do you like to do when you’re not working – any unusual hobbies?

I’m a Washington Wizards fan and have been a ticket holder for years, which most people find unusual given how bad the team is most seasons.

My real hobby is soccer refereeing, which I’ve done since high school. At one point, I was refereeing college and some lower level professional games. I’m not at that level anymore, though I’m still doing highly competitive youth and adult amateur games. In line with my current education-focused role at Freedom Forum (and in the spirit of “those who can do and those who can’t teach), I also became a  “Referee Mentor” about 5 years ago, where I teach new referee classes and observing and providing feedback to younger referees.  

I continue to do this because I get paid to stay fit doing something I enjoy and I get to give back to the game at the same time. I’ve also seen aspects of refereeing translate into my professional career and life in general, including the ability to stay focused under pressure and better understanding of how to “manage” people.

Is there a First Amendment precedent you’d like to scrap?

Hazelwood. Student journalists don’t deserve the specter of censorship hanging over every story. It’s bad not just for their journalism but for their lives. An important part of the educational experience involves maturing through uncomfortable conversations and even your own mistakes.

Fake news, Sullivan under attack, reporters under attack – will things get worse before they get better?

Sadly, yes. We’re living in an increasingly polarized society where more information travels faster than ever to an audience that lacks media literacy and doesn’t seem to want to acquire it. People are more than willing to seize on any perceived mistake to attack —  with the attacks increasing in their intensity. Rather than stop and consider the validity of a story or ponder the opposing point of view, they seek their own tribe to reinforce their world view. It creates a vicious cycle.

You’re having a media law themed dinner party. Which judges, lawyers, and journalists are you inviting and what will you serve?

I’m going to do that thing where you cheat and pick some people who aren’t alive.  My answer  may not make sense to most people but it’s my dinner.

I’m going to start with Antonin Scalia because I always found him to be a fascinating thinker and one of the best legal writers of “my time.” As I once said to him at a reception: “I disagree with almost every one of your conclusions, but I always reconsider my position two or three times before saying, ‘It’s Scalia, I never agree with Scalia.” He seemed … confused, but he thanked me.

We’d have the dinner at A.V. Ristorante Italiano in DC, an old school Italian restaurant that no longer exists. A love for that restaurant is one thing Nino and I shared (we’re having dinner together so I can call him “Nino”).

I’d invite my former mentor Dick Schmidt, because he was the political polar opposite to Scalia and, while Nino (yes, we’re sticking with that) was pretty strong on the First Amendment generally, he didn’t love the media and Dick would take him to task on that. Dick was not one to hold back and had the intellectual chops to go toe to toe on those topics. It would be a fascinating, possibly combustible conversation.

And I’d invite one living person: Lucy Dalglish. Having known Dick, she is probably the only person that would appreciate this spectacle as much as I would and curating this unique experience would be a small means of repaying her for all the mentorship she’s provided to me over the years. She also has the legal mind – and experience as a journalist, lawyer,  and educator – to be the perfect moderator for this conversation (with a thumb on the scale of journalism and the First Amendment of course). 

You’re a Manchester United fan. Who’s your all-time favorite Man U player? What does the team need to become a top-4 club again?

Wow, this might be the toughest question so far. I’ve supported United since 1986 so this is like choosing a favorite child.

I might have said Ryan Giggs but not anymore – and definitely to this audience, what with the whole “superinjunction” thing back in 2011…

I’ll land on Ole Gunnar Solksjaer. Not just because he put the ball in the Germans’ net, but because he’s United through and through. Just went out there and got the job done but with a mix of intensity and impish joy. I drove my wife crazy when, during a trip to a journalism conference in Norway back in 2015, I dragged her to what must have been dozens of sports stores looking for a replica of his 1998 Norway national team jersey.

The question isn’t what United need to do to return to top four. It’s what United need to do to win the title again – which is where they deserve to be. Things are going to be back on track under INEOS because there’s a premium on structure, stability and accountability and a solid core of talented young players to build around.

What’s your favorite Springsteen album and track? Are there any young performers that can continue his legacy?

Favorite album is easy: Born to Run. It is the perfect rock and roll album. A tight eight songs, all of which are individually strong but have an incredible cohesiveness and flow as a group. The genius stands out even more an in era where streaming means people don’t make actual albums anymore.

Favorite song is much harder, but right now it’s the live version of “The Ghost of Tom Joad” with Tom Morello’s guitar solo at the end. It’s a song that I listened to a lot in 2016 and early 2017 to remind myself – not that we needed reminding – to keep fighting but this version just gets you going a little more.

The next generation is well represented in Josh Ritter (though I hesitate to call him “young”).  Like Bruce, he’s an incredible showman who radiates energy while on stage. He’s also an incredible songwriter. Don’t tell Bruce, but the opening lines to “Kathleen” might be the greatest lyrics to any song ever written.