The MLRC’s European Conference: A Dramatic Return to Paris

(or We’ll Always Have Paris)

The MLRC was founded close to 50 years ago as an American organization to promote freedom of speech and to solidify legal protections for the media. Over the years, through the work of our predecessors, media lawyers from the UK joined and became enthusiastic and vital members, The initiation of the biennial London Conference strengthened the connection of these British members and began the globalization of both our mission and our membership.

As the media ecosystem became both more digital and more international, serious involvement of Europe became an obvious next step. All this gave birth to a series of European conferences, starting with a gathering in Paris 11 years ago. The horrendous murders at the offices of the satirical magazine Charlie Hebdo after its cover cartoon about Islam gave our first meeting a special poignancy. It was hard to leave the historic offices of Jones Day, hard by the Place de la Concorde, so we met there for three consecutive years. Then we moved to Berlin for two years, and Amsterdam for two years after that. In the last two years we gathered in Ireland, diplomatically meeting in Dublin one year and Belfast the next. And last month we came full circle, returning to Paris once again at the modern offices of our generous member Dentons.

Through these years we took pains not to publicize these meetings to our American members. We did this for two reasons. Mainly, as I’ll discuss below, we wanted this to really be a European lawyers’ gathering, where they could get to know each other with a view of working together to strengthen free expression laws throughout the Continent. We didn’t want that collegiality compromised by a huge delegation of lawyers from the States. We also didn’t want to undercut the very successful London Conference, and the very wonderful vibes it creates with its unique audience, half American and half from Europe and the rest of the world. But now, with the tradition and quality of the European Conference so well ingrained, I feel more free to write about it.

The European Conference has three purposes. First, as with all our conferences, we try to put on programs on recent developments in media law and interesting issues for media lawyers which will engage them and help them become better day-to-day attorneys. That is the goal of our big conferences, such as Virginia, specialized conferences, such as our Digital and Entertainment Conferences on the West Coast, and our smaller conferences, such as our Latin American/Florida Conference in Miami. As you will see below, it is likewise an aim of our European Conference, a goal which I think was amply met last month. In fact, one of our sessions in Paris was particularly educational to our audience, and another was moving and I would say dramatic to all.

A second goal, maybe the underlying mission of the whole enterprise, is to give these European lawyers the ideas and resources to work collectively to improve media law in their countries and throughout the Continent. Although there is no First Amendment in the EU, they have a solid body of free speech law, in some areas weaker than ours, though in some particulars a bit stronger. Thus, European hate speech laws are far more speech restrictive than ours, individual privacy is far more guarded from media fodder, and, as we all know, there is no actual malice concept recognized on the other side of the pond. But protection for confidential sources is stronger there. We highlight these differences at these conferences, and offer some suggestions as to how the European attorneys might make some improvements, but this is assuredly a work in progress. Improvements have been made over the past decade – Anti-SLAPP laws and reform of libel law in the UK are two examples – but far be it for us to take credit for that.

A third goal, deriving perhaps from our successes in the social arena back home, is to create a media lawyers community among those working in this space across the nations of Europe. Whatever the occasional and historic animosities among NATO allies, if improvements are to be made in media law from Budapest to Belfast (or perhaps better said, Amsterdam to Zagreb,) it will be easier accomplished if the lawyers from the various countries know each other, are friends with each other and can work collegially and constructively together. If anyone saw the warmth and energy with which our guests met each other at the pre-conference dinner in Paris, and felt the buzz of the conversations among our French, Dutch, Irish, German and English registrants, she would have no doubts that this goal has been very well met. And that would be true even without all the wine which was consumed.

All that said, substance is still the thing, and the Paris Conference gave our audience a full glass of sharp and tasty information. The lead-off program featured Tom Clare, not a usual attendee of our conferences, but who positively responded to our invitation as the lawyer for President and Madame Macron of France. They are suing a conspiracy adherent for libel in Delaware for statements that Mme. Macron was born a man – and engaged in a variety of vile criminal activities.

Clare spoke very frankly about the lawsuit, the warnings he gave the Macrons about the downsides of going through such a case, and of greatest interest to the European lawyers present, he and a French attorney compared and contrasted the procedures of this case and two cyber harassment lawsuits she is pursuing in France.

Just for starters, the French cases are criminal, brought by the State, whereas the Delaware case, of course, is civil. Similarly, the U.S. case will be tried to a jury while the French cases went before a judge. And as you would suspect, motion practice and discovery, to the extent they exist in Europe, are far more limited. Tom explained all that cogently and concisely; he particularly captured the interest of the audience when he discussed jury selection, and what kind of jurors he favored picking, strategies quite foreign to the foreign advocates. With his simple and open yet reasonable and credible explanations, it is clear why he is a worthy adversary.

I did question him as to what I saw as the principal difficulty of his case – and it was not overcoming the actual malice standard, which is typically seen as the highest stumbling block in a case brought by a public figure. Rather, I asked whether he’s confident a court would find it defamatory to be called a born man, but now a woman; In other words if, as is clear, it’s not defamatory to be misidentified as to race, why would an accusation about opposite gender be actionable? Tom recognized the difficulty here, but said he had even clearer causes of action in his Complaint, such as the defendants’ allegations of Mme. Macron’s incest and fraud.

A more dramatic program came in the afternoon, on the occasion of the 11th anniversary of the Charlie Hebdo murders. Their long-time lawyer spoke movingly about his beliefs strongly supporting unbridled free expression, and testifying at the trial of the attackers’ co-conspirators who had killed his colleagues because of their exercise of free speech. He recounted how, despite the pain in revisiting the deaths of his associates, it was his duty to still fight for free speech and the values the terrorists tried to destroy.

We haven’t settled on a site for next year’s European Conference, but wherever it will be, a small sprinkling of attendees from the States would be welcome. Given the unfathomable political chasm between the US and Europe after such a strong alliance for almost 80 years, comity on questions of free speech is the least we can hope for.

The views expressed are those of the author and not of MLRC. Comments are welcome – email gfreeman@medialaw.org.