Ten Questions to a Media Lawyer: Charles “Chip” Babcock
Charles L. Babcock is a partner at Jackson Walker in Houston and Dallas.
How did you get interested in media law? What was your first job in the business?
I have always been fascinated with newspapers. My father worked for the New York Herald Tribune and when I was five he took me to the press room where a printer set my name in type and gave it to me. I was hooked, which might explain why I became editor of my grade school paper and, at age 11, published a neighborhood newspaper I called The West Palm Beach News. I wrote all the copy and my mother typed it up.
Although I charged .5 cents a copy for The News, my first real paying job came during my high school junior year when I was the sports editor of our student paper, but also captain of the varsity basketball team. A sportswriter for the Miami Herald did a story about me and had reviewed some of my writing. He offered me a part-time job on the sports rewrite desk after the basketball season ended, which led to a full-time summer job as a sportswriter for the Herald. I held that job every summer through my junior year of college at Brown University.
During my senior year, the two editors I worked most closely with at the Herald moved to the Philadelphia Inquirer. When I graduated, they offered, and I accepted, a sports writing job with the Inky (as it was called). After graduating from Boston University Law School, I clerked for a federal judge in Dallas and, as luck would have it, these same two editors moved to the Dallas Times Herald.
When I finished my clerkship, Jackson Walker LLP (which represented the Times Herald) offered me a job; and when I got to work, these editors asked that I be put on their files. I didn’t go to JW to practice media law, but once there I discovered that the firm also represented KDFW-TV, a CBS affiliate, and other media clients.
So to directly answer the question: my interest in media law was a long time in the making and my first “job” was as an eleven year old publisher making $2.00 a week. Fortunately, the West Palm Beach News was never the subject of a libel action. But Jackson Walker has provided an amazing platform to represent its clients in a wide variety of important media cases.
What do you like most about your job? What do you like least?
It is enormously satisfying to be doing important work defending the rights of free speech and of the press with people at Jackson Walker like Bob Latham, Nancy Hamilton, Joel Glover, Paul Watler, Jamila Brinson, Amanda Crouch and many others. But as I told Oprah on her talk show, “great lawyers are made by great clients,” and I have been fortunate to have more than a few who have not only allowed me to represent them, but trusted me to do it in my own (some would say unorthodox) way.
I like least the situations where, for whatever reason, the litigation decisions are made against advice or are driven by an agenda that has little to do with free speech or press.
What was your highest profile or your most memorable case?
It was undoubtedly the Texas Beef v. Oprah Winfrey “Veggie Libel” suit filed against the talk show and her company, Harpo Productions, in Amarillo, Texas. Because of the venue, we thought the odds of winning were very low, but in the end our First Amendment defense prevailed. Along the way there were many memorable moments like the time during the lunch break when Oprah took off (in heels) for a jog around the courthouse followed by a gaggle of cameras operated by people who were not as fit as our client and who could be heard gasping for breath as Oprah ran off in the distance. Or the time the Plaintiffs’ Bovine Spongiform Encephalopathy expert tearfully apologized to Oprah from the witness stand for his testimony, noting that if we had hired him first he would have testified for us.
My most memorable media case, however, would not be Oprah, but rather the eight week libel trial covered gavel to gavel by CourtTV, which featured people in the audience dressed up as circus performers, and where our client (whose mother had just died) had a meltdown on the witness stand. The jury deliberated eight days, but we ultimately lost it by a 10-2 vote, although the appellate courts later reversed and rendered.
Are you able to maintain a decent work-life balance? What are some of the rules you follow?
Done correctly what we do is very hard and it’s so time consuming. I have always put an enormous amount of time and energy into representing clients, but also in writing and speaking which, I believe, makes me a better lawyer. But I also have kids, and I hope they would say that growing up I gave them the same attention I did to my law practice. In fact, one of their high school softball teammates noted how I was at every game and coached the tournament (traveling) team which led to her question to my daughter: “Does your dad work?”
I didn’t set any rules other than a general one that you have to devote the same energy to your family as you do your law practice. Our clients and our kids are counting on us in equal measure. Sometimes these two important jobs have to intersect. I can recall conducting infield practice early on a Saturday morning while on a call with a client located in Sweden. The client asked what that “pinging” sound was in the background, no doubt referencing the metal bat striking the ball. “Nothing to worry about,” I replied.
Fake news, Sullivan under fire, reporters being physically assaulted—will things get worse before they get better?
Short answer is “Yes”: things will get worse, but also these same things will get better. First, Fake news. You don’t hear the term as much anymore, but the ways “information” can be manipulated is staggering. Photos and videos can be made to show things that did not happen. So I try to rely generally on publications I believe have editorial integrity and hope these publications will alert me if the videos and photographs they show have been verified or not. And, of course, that they will write their stories with that same integrity. But I am a much more skeptical consumer than I used to be and on important stories look for confirmation of what is being said.
That doesn’t mean that there will not be disputes about the facts or what they mean. To me that’s not fake news. Those types of disputes have been with us for a long time. Fake news, to me, is intentionally manipulating the facts or an image to demonstrate that something is so when it is provably false.
Sullivan under attack. Floyd Abrams and I appeared on a podcast last spring where the continued viability of Sullivan was discussed in light of the Thomas and Gorsuch opinions dissenting from the denial of cert in a libel case. We both expressed our view that Sullivan is safe. But this was before Dobbs, which to my mind, changes everything we might believe about the predictability of the Court’s precedents. I still think Sullivan is not in danger, but I’m not as certain about Gertz and the public figure doctrine.
Reporters under attack. It is a dangerous time to be a reporter and yet we still attract some of our best and brightest to the profession. Reporters have always been at risk, but not like today. The organizations that employ and represent journalists must stay vigilant and do what it takes to ensure their safety.
I still think Sullivan is not in danger, but I’m not as certain about Gertz and the public figure doctrine.
Elon Musk puts you in charge of Twitter. Would you allow Trump back on? Keep the status quo? Make any other changes?
First, I think that Twitter ,as a non-governmental entity, has the editorial right to allow or not allow anyone on its platform. But from an editorial (not legal) standpoint, I have always believed in the marketplace of ideas and for that reason would permit Trump back on Twitter if I were in charge, although I recognize the many arguments advanced to keep him off. This does not mean that I endorse his views, but like it or not his thoughts and ideas are a part of the marketplace. My free speech perspective would lead me not to censor those views. But, so far, Mr. Musk has not asked my opinion.
Media law can be a difficult industry to break into. What would you suggest to a young lawyer or student trying to do so?
There are several paths into the business. The one I choose (dumb luck) probably can’t be replicated, although perhaps elements of it are instructive.
First, I think knowledge of the industry is important, and you can establish some credentials (as I did) even before going to law school.
But after you graduate, there are a few things to consider. First, much of what media lawyers do is litigation. I thought early in my career that I should try to become a good trial lawyer first and an excellent media lawyer second. So I tried anything I could. Jackson Walker had a parking lot docket where we represented the owner of several lots around town. The company was sued quite a bit for allegedly unauthorized towing or damage to the vehicle. The cases were almost always filed in our Justice of the Peace (small claims) courts.
In a Texas JP court you have the right to a jury trial and a trial de novo in County Court if you don’t like the result. So I asked the client if I could demand a jury in our parking lot cases and received permission (although they were somewhat skeptical). As a result, in my first 18 months of practice, I had over 20 jury trials, only losing once. The point is: a young lawyer should be alert for opportunities to get before a jury, even if it’s not something on a traditional path.
What is more traditional is learning the subject matter. As a first year associate I attended PLI in November (two months after I started practice) and brought home those thick three volumes of materials and read them cover to cover. Of course, I got lucky and had clients handed to me, which doesn’t just happen.
Getting clients is not easy but there are a lot of ways to improve your chances. I was hired in one case because of a law review article I wrote eight years earlier on an esoteric libel topic involving “Real People and Writers of Fiction.” The case wound up in the Fifth Circuit, which affirmed our win in the trial court. Speaking and getting your name out helps. In my first year, I gave ten or more speeches around Texas on media law topics.,
What’s a book , show, song, movie, podcast or activity that’s been keeping you entertain during the pandemic?
When the pandemic started, my daughter Kathy ,who is now the lead producer for the 10pm news on WPIX in New York, thought I would enjoy a series by Harlan Coben about a former Duke and Boston Celtics basketball player, Myron Bolitar, who goes to Harvard law School after his NBA career is tragically cut short by injury. Well, I read every book in the series during COVID including spinoffs centered on Myron’s nephew and best friend.
As for song, it has to be “Clorox Wipe” by Chromeo (“If I could reincarnate / Tonight I would be your Clorox wipe”), although a close second would Chromeo’s “Six Feet Away” (“Six feet away / That’s how I’m gonna love you / From Six feet away”). At an in-person hearing on July 1, 2020 in federal court, I started my presentation by noting that the Court had Lysol wipes on the podium, but that our trial team preferred Clorox Wipe. The judge apologized saying that Lysol was mandated by GSA. Two weeks later, they had a COVID outbreak. Just sayin.
Show has got to be “Hamlet,” which was streamed to my family by the Stratford (Ontario) Shakespeare Festival on our annual Mausoleum weekend (long story) (coinciding with PLI ) which in 2020 was done remotely.
What’s a typical weekday lunch?
When I’m in the office I try to lunch with some of my colleagues (post-pandemic reacquaintance) and, of course, there are client lunches . Out of the office, it just depends on whether we’re in trial or a deposition or a hearing.
You’re most important client takes you out for karaoke. What do you sing?
The only actual karaoke I have ever performed was at a firm Christmas party after a few cocktails. The song was made famous by Sam the Sham and the Pharos and titled “Wooly Bully.” I remember that the performance was well received, but I’m not certain of that. For my best client , however, I would sing “You’ll Be Back” from Hamilton, making use of my classical training and the breathing techniques I learned from teacher Ed Classicale, who gives lessons from his mother’s home in Jersey. You can look that up.