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February 2023

Ten Questions to a Media Lawyer: Dan Novack

By Dan Novack

Dan Novack is Associate General Counsel at Penguin Random House.

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

I ran my mouth a lot as a youngster and therefore the First Amendment was always of great interest, if not always applicable to my situation. In high school I was – briefly – the Editor-in-Chief of the school newspaper. When the principal deigned to intrude upon my journalistic freedom, I resigned in a fit of righteous indignation. On an unrelated note, I was also banned from calling Girls Basketball games on public access television after parents complained about my irreverent commentary.

In college, I wrote a cheeky back-page sports column that was ahead of its time. Nonetheless, my editors (both of whom now hold prominent positions in the national media) and I did not see eye to eye. I resigned in a fit of righteous indignation. It was about then that I realized I was completely unsuited for journalism and that I needed to either work on myself or go to law school. I enrolled at NYU Law. 

My first job in the business was at the (then) start-up The Intercept. Within a few weeks of leaving my comfortable law firm gig I was on a plane to Rio de Janeiro combing through an archive of NSA documents leaked by Edward Snowden. That was also the first time I violated the Espionage Act.  

Renowned warzone journalist Jeremy Scahill once threatened violence if I ever published this photo of him being tender with my Havanese, Lillian. Your move, Jeremy.

2. What do you like most about your job? What do you like least?

The ultimate perk of being a book lawyer is getting to ask novelists which real-life jerk inspired their fictional antagonist.

More seriously, I enjoy responding to legal letters. That means the work is making an impact. It’s a privilege to work on books like Bad Blood or Empire Of Pain that comfort the afflicted and afflict the comfortable.

Seymour Hersh accelerated the end of the Vietnam War. His memoir, Reporter, is must-read.

My least favorite aspect of the job is managing the unbearable envy – nay, jealousy – I feel towards every successful author. That or dealing with copyright trolls.

3. What was your highest profile or most memorable case?

I have had some interesting experiences trying Freedom of Information Act (“FOIA”) lawsuits. I represent journalists pro bono, so the motivating factor is often that I share their curiosity about the subject of their request. I’ve litigated a range of FOIAs, from the investigation of a corrupt NBA referee (“Operation Flagrant Foul”) to the FBI’s historical investigations of Scientology. I have been fighting for the release of the FBI’s Jeffrey Epstein file since 2017 – my Motion for Summary Judgment has been pending for the past year.

Me attempting to convince the Court of Appeals to uphold a 3rd Department ruling ordering the release of electronic election data. I lost 4-3 but humbly submit that I won oral argument.

As for my most “high-profile” experience, that was probably seeing my name in the news after I wrote a blistering response to a legal threat issued by now-disgraced superstar lawyer Michael Avenatti (“Book publisher paraphrases Bullwinkle in response to Michael Avenatti’s defamation assertion”). Subsequently, I found myself ahead of Mr. Avenatti in line to enter the Southern District courthouse (I was there to observe Palin v New York Times and he was there to avoid going to prison). I opted not to introduce myself.

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

The conservative legal movement is like the dog that finally caught the car. They have no plan for a post-Sullivan world. The actual malice defense is the only thing standing between Fox News and billions in potential damages for their promotion of The Big Lie.

Maybe once the dust settles on the Dominion v Fox News lawsuit, right-wingers will come to understand that continued attacks on the First Amendment are not in their self-interest.

5. Media law can be a difficult industry to break into. What would you suggest to a young lawyer or student trying to do so?

I have two recommendations.

First: Write, write, write! Not law review notes, but short pieces that show off your research and communication skills (i.e. the two skills that matter most as a young attorney). Writing about the law improves your understanding of it, and there is no better way to demonstrate interest to a future employer.

Find a controversy that interests you then call up a few media lawyers and ask them what they think. What case is it like? How is it different? Lawyers are nothing if not analogy machines. Fill in some legal research around their musings and got yourself a solid 800-word “legal analysis.”  

Submit it to legal publications or put it up on your personal Medium page – just make sure people know where to find it.   

Second: network. Get to know your local media bar, via your city or state bar, or national organizations like the MLRC and ABA. Join them, show up (in person, if you can), and volunteer. Once upon a time, former MLRC Chair Lynn Oberlander let a young attorney tag along with her to meetings and conferences, setting in motion a chain of events that led to this very Q&A.

6. Your most important client takes you out for karaoke. What do you sing?

Weird Al Yankovic, but I let them choose which song.

7. Who is your favorite fictional legal character? 

Vincent LaGuardia Gambini. What I love about “My Cousin Vinny” is that it deflates the stuffy self-seriousness of the legal profession. Vinny’s courtroom arguments are completely understandable to the audience. He’s just doing what he did at Cousin Ruthie’s wedding, only instead of exposing the groom’s brother Alakazam’s magic tricks, he’s poking holes in the prosecution’s case.

I try to explain to my clients that First Amendment law is reasonably straightforward. If they have a good reason for publishing something, the law tends to recognize it.

One day I will have the courage to ask in a legal brief: “Does the defense’s case hold water?”

8. What are your hobbies?

Besides suing the government for public records? I started a podcast called SLANDERTOWN with my friends Ari Cohn and Tanvi Valsangikar. We discuss the latest First Amendment cases, with a particular focus on the most-petty legal disputes.

SLANDERTOWN is available on Apple, Spotify, Amazon, or wherever you listen to podcasts.

9. What novelist should win the next Nobel Literature prize? 

I am not terribly well-read when it comes to literature and therefore am unable to answer without coming across as a poser. Working in publishing, this is a constant source of embarrassment and shame.

10. Favorite Plaintiff’s Bar Pen Pal?

I’ve corresponded with many of the greats over the years: Tom Clare, Charles Harder, Lin Wood. But as much as I enjoy the prose stylings of Marty “Govern Yourself Accordingly” Singer, none can hold a candle to the late Bert Fields. He once called an article a “sewer of lies.” Pure poetry.