Half of Americans perceive made-up news as a big problem for our country; fewer are as worried about the effects of racism. Tom Leatherbury and Ted Boutrous sit down with host Rocky Dhir following their panel at the State Bar’s 2019 Annual Meeting to discuss the legal ramifications of “fake news”, the factors leading to the overuse of the phrase, and how more transparency both in government and journalism could help undercut this worrying trend.
Tom Leatherbury is co-leader of Vinson & Elkins’ Appellate Practice Group.
Ted Boutrous is a partner at Gibson, Dunn & Crutcher LLP.
Special thanks to our sponsor, LawPay.
State Bar of Texas Podcast
State Bar of Texas Annual Meeting 2019: Ted Boutrous and Tom Leatherbury on Open Government Law and Fake News
Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice, with your host Rocky Dhir.
Rocky Dhir: Hello and welcome to the State Bar of Texas Podcast recorded from the Annual Meeting in Austin, Texas, this is Rocky Dhir and I am the host for today’s show, which is being sponsored by LawPay, trusted by more than 35,000 law firms to accept legal payments online. It’s the only payment solution offered as a member benefit by the State Bar of Texas.
Joining me now I have two tremendous guests, I’ve got Ted Boutrous and Tom Leatherbury.
Welcome to the show, guys.
Ted Boutrous: Thank you
Tom Leatherbury: Hi Rocky.
Rocky Dhir: Well, now before we get started so you guys had a panel this morning, it wasn’t just the two of you, there were some others in it, but it was called Open Government Law: Vaccine for fake news or some time pathogen, with a question mark at the end. So, obviously this was an open question to everybody and you guys I’m sure solved the question. Before we get into that though tell me and all the listeners a little bit about yourself. So, Ted, let’s start with you.
Ted Boutrous: I’m a lawyer based in Los Angeles but I practice all over the country. I’ve practiced in Texas while I had cases in Texas. I do First Amendment litigation, represent journalists and news organizations. I represented Jim Acosta and CNN and battling to get his press credentials back at the White House —
Rocky Dhir: Oh wow.
Ted Boutrous: — revoke them, and I just saw all sorts of other litigation, appellate litigation of all kinds, constitutional litigation.
Rocky Dhir: Have Texans been pretty nice to you since you’ve been coming back?
Ted Boutrous: Texans have generally been pretty good to me.
Rocky Dhir: Okay, good.
Ted Boutrous: I like good.
Rocky Dhir: This place.
Ted Boutrous: Yay, Texas. I love that.
Rocky Dhir: Yes, absolutely. And Tom, you are a Texan, but tell us a little bit about what you do?
Tom Leatherbury: I am and I’m glad Ted’s been treated well because we want him to come back.
Rocky Dhir: Absolutely.
Tom Leatherbury: He was a great panelist. I’m a partner of Vinson & Elkins in Dallas. I have practiced in Dallas since law school and I have done a lot of open government work, Public Information Act requests, representation of media, and individual journalists just as Ted has and that’s really how we met each other years and years ago.
Rocky Dhir: So, obviously, this topic, it has the word “Fake News” in there, so let’s maybe get right into it. So what are the legal implications of this term “Fake News”? It sounds like that’s kind of a crawl in the bonnets of a lot of media lawyers. So let’s talk about that, maybe Ted, should we start with you?
Ted Boutrous: Sure. One of the things we talked about this morning is, what is the term “Fake News” come to mean and what’s the spectrum, and I think originally it cropped up when describing just absolutely concocted made-up stories that, for example, the Russian interference, the Russian trolls will just make up a story, put a picture on it, and then tweet it out or put it through social media or get it out there, just absolutely made-up material.
On the other side of the spectrum we’ve seen politicians use this, the label “Fake News” to just attack stories they don’t like, so they attack real legitimate journalism, and all of that comes in an atmosphere where there are challenges to journalism in a sense that I think there’s an attack that’s meant to undermine the legitimacy of real strong journalism. So those are some of the things we talked about today.
And from a lawyer perspective when you go into the court if we’re representing news organizations if the jurors or the court doesn’t appreciate the serious need for strong journalism and it’s just kind of lumped together in this other world that can create real problems.
Rocky Dhir: Tom, you were the moderator for this panel this morning.
Tom Leatherbury: Right.
Rocky Dhir: So what was the scope and sort of one of the key takeaways maybe from this? I am sure there were over more than one, but what was the scope of the panel and what were you trying to explain to the audience there?
Tom Leatherbury: Well, we covered a lot of ground in an hour and it ranged from what is fake news, what has this elastic term come to encompass, what do Americans perceive about it, there’s a new Pew Research poll saying a half of Americans believe made-up news is a big problem for this country. More Americans then believe that racism is a big problem for this country.
Rocky Dhir: Wow, okay.
Tom Leatherbury: And so, just the prevalence of the phenomenon we use some examples of recent events that where the government was itself accused of spreading misinformation whatever the state of mind of the people who acted, whether it was just faulty statistics or deliberate misrepresentation.
And also what does this mean? This is a very multifaceted problem with implications, as Ted said, for journalists, for lawyers, also for educators and how do you train the American public to tell fake news from real news, and how do you educate them about the value of what journalists do for our democracy?
Rocky Dhir: So, Ted, not to interrupt you, but there’s been this tension though at least when I look at the hashtag fake news, when I see this term being thrown about. A lot of the times I see fake news referring to what might be biased journalism or journalism with an opinion but it’s not in the guise of opinion journalism, I’m kind of playing devil’s advocate here, right? Because, there are those who say, well, I tune in to name your major news network and I read a story and it’s supposed to be objective but I see them using words or I see them using phrases that clearly betray an opinion.
Ted Boutrous: Well, there’s always a lot of criticism and usually it’s coming from people who don’t like the content of the story, so there’s so much incredible journalism, hard-hitting journalism, and if you are the subject of the journalism you might say, geez, that seems like an opinion but I think it’s an unfortunate use of the term “Fake News” to challenge just news stories that you don’t like. And there are analysis pieces, there are opinion pieces but every day in this country there are just multitudes of extremely strong, powerful journalistic stories and we can’t just have this label “Fake News” tossed out there to undermine them.
Rocky Dhir: Do we need new labels, do we maybe need to have categories of journalism and say, look, one is purely objective, there’s another one that might have a bent one where the other, then you’ve got opinion journalism and then there’s what we might call Fake News that is actually fake news.
Tom, do you think maybe as lawyers as a legal profession, do we need to take control of that and maybe create new categories and new definitions?
Tom Leatherbury: I don’t think so I —
Ted Boutrous: I firmly rejected on that one.
Tom Leatherbury: Yeah. I resist categories and labels, I think it does have great implications for educating the public about what journalists do, and the different types of communications as you mentioned. I think there’s some new research from the Knight Foundation that essentially shows that a wide swath of American consumers really can’t distinguish between editorial fact-based reporting, entertainment, advertisements, that sort of thing, so I’m not sure new labels would help.
Rocky Dhir: Is it an echo chamber problem, I mean, are we looking to just hear news and talk to people that think exactly like we do?
Tom Leatherbury: I think that’s part of it and I think you see that in the creation of more-and-more blogs and micro-publications, if you will, for particular points of view.
Rocky Dhir: To what extent do you think major news networks are contributing if at all to the echo chamber phenomenon, is that a factor or do you think it’s at least of our worries.
Ted Boutrous: I think you have again tremendous news gathering entities and reporters and objective reporters, you have opinion journalists on news networks and a lot of expressing opinion. I think by and large they’re doing tremendous work. Then, our topic today was what’s happening to undermine networks. So purely fake news President Trump popularized the use of the word the phrase “Fake News” just to challenge stories he doesn’t like.
And the Trump administration is put out in my Jim Acosta case, their response was to tweet out a false statement, in a false video, and when we went to court the Justice Department refused to defend it and the court rejected those reasons for taking away Jim’s Press Pass and we won and we got it back.
Rocky Dhir: Well, so all right, I’m again playing devil’s advocate, Ted. If I was on the other side of that issue I’d say, look, maybe you are on the far left and you’ve got an axe to grind and that’s why you’re saying this about President Trump. So, is this a partisan issue or are we seeing this —
Ted Boutrous: It really isn’t a partisan issue. I’ve represented journalists of every stripe across the political spectrum.
Rocky Dhir: Okay.
Ted Boutrous: Conservatives, conservative opinion writers, I have represented Fox News, The Wall Street Journal Editorial Page, I’ve represented The New York Times, The Wall Street Journal, CNN, MSNBC, NBC. Journalism is just meant to be is transparency so we just want everyone to be able to express their views and then debate issues, what we don’t want is false information, fake information, made-up information that confuses the public.
And one of the problems we talked about today is the misuse of the label Fake News, to try to undermine that great debate. This is a great time for the First Amendment because if everybody with different viewpoints and looking at things from different perspectives debating in this flood of information on social media, which is great, but we have to watch for the disease of falsity just utter made-up manipulation that taints that debate.
Tom Leatherbury: So frankly — oh yeah, please talk.
Rocky Dhir: Oh yeah, please talk.
Tom Leatherbury: Well, I was going to say that the other topic that we covered in our panel was the importance of continued access to government records and government sources in order to continue this debate and so people can.
Rocky Dhir: So they can verify our challenge.
Tom Leatherbury: People can verify our challenge and so it’s harder to stick with the label “Fake News” if the journalist also attaches the Government documents on which she or he basis the report that comes out. So a new trend in journalism that our panelists discussed is show your work, and so it’s not just fact-based reporting, it’s not just opinion-based reporting, but it’s linked to the government documents, linked to the outtakes, linked to the other underlying sources.
So that the public can judge for themselves and either trust the journalist as accurately representative or be able to challenge them on a more granular basis than just calling it fake news.
Rocky Dhir: So frankly, you guys have kind of whetted my appetite, I want to keep talking about this, but I’m going to ask one final question, and that is, bring this back to law and lawyers. What are we as a legal profession regardless of our views or how we want to — where we fall on the spectrum when it comes to the media, and what they should or shouldn’t be doing? What can we, as lawyers do, to try to be a part of this debate with fake news and that label and where journalism should go, open access, what’s your prescription for the rest of us?
Ted Boutrous: Part of what that I think is what we did today we had a panel where we really just kind of shed light on the issues and I think as lawyers the First Amendment is a unique thing because it’s something we as lawyers and for us we deal with, but it’s also such a part of our democracy.
So I think understanding and then getting the public to understand that the First Amendment is for the public, it’s for democracy, and it’s meant to have as much information out there as possible but at some point we have to protect against just outright fakery so we don’t get polluted.
So as lawyers I think we’ve got a constitutional provision, we can tout and enforce, and protect. I think that’s an important role for lawyers in this debate.
Tom Leatherbury: And I would say that to add on what Ted said, this is an extra covering linked to the rule of law. Lawyers protect, promote, preserve the rule of law; we educate the public about it, we educate our clients about it. Access to government records is an attempt to increase governmental transparency that our clients, the journalists do, are absolutely linked to that and so fundamental to our democracy.
Rocky Dhir: Well, unfortunately, that is all the time we have today. It looks like we’ve reached the end of our program.
I want to thank Ted Boutrous and Tom Leatherbury for joining us today.
Thank you both.
Ted Boutrous: Thank you.
Tom Leatherbury: Thank you. Enjoyed it.
Rocky Dhir: If our listeners have questions or wish to follow up, what’s the best way to reach you” So, Ted, let’s start with you.
Ted Boutrous: I’m easily available on our Gibson, Dunn & Crutcher website www.gibsondunn.com and I’m on Twitter @BoutrousTed.
Rocky Dhir: Fair enough, Tom.
Tom Leatherbury: Yes, I’m on the Vinson & Elkins website, velaw.com and I’m on Twitter @Tsleather.
Rocky Dhir: I like that you must have been an early adopter to get that handle.
Tom Leatherbury: My son works there.
Rocky Dhir: Oh, well, that’s okay.
Ted Boutrous: That’s cheating.
Rocky Dhir: You got an inside track. Well, that is all the time we have for this episode of the State Bar of Texas Podcast, brought to you by LawPay. Thank you again LawPay.
Also thank you to our listeners for tuning in.
If you like what you heard, please rate us and review us in Apple Podcasts, Google Podcasts, Spotify or your favorite podcasting app.
I am Rocky Dhir, until next time, thanks for listening.
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