With more than 80 years of combined experience between them defending domestic and international journalists, newsrooms and advocacy organizations, Davis Wright Tremaine partners and media lawyers Laura Handman and Rob Balin join us to discuss the onslaught of attacks they expect the press to face in the coming months and years. 

This interview has been edited for length and clarity.


You’ve both been media defense lawyers for a long time, and I’m sure you’ve seen a lot of different types of attacks on the press. What do you think, if anything, is different now in terms of the legal attacks that you’re seeing? 

Laura Handman: I’m a little older than Rob, so I’ve seen it all. This is certainly not the first time we’ve seen a surge in attacks on the press. Watergate was obviously one time. And the number of federal subpoenas to reporters in leak investigations was very high in the Obama years, surprisingly. What is different is the weaponization of libel to go after critics, and what’s surprising is to see government officials using the weapon of libel. That’s not that common, and it’s been much more common now. As Rob knows, I’ve also been representing advocacy groups who are facing libel suits where the whole purpose is to try and put them out of existence.

Robert Balin: I completely agree with Laura. I think we’re going to see an uptick in libel suits. Even before this new administration has started, we are seeing an uptick. And also, this hasn’t happened yet, but there is a real concern about subpoenaing journalists and whether the Department of Justice guidelines are going to be watered down. They’re pretty good right now under Attorney General [Merrick] Garland, in terms of subpoenaing the press as a last resort and having to get high-level permission to do that. I think there is going to be more going after the press almost as a first resort, but we’ll see. That is a very real concern. And, given some of the statements by the president-elect, it is a concern that has basis. These Department of Justice guidelines on subpoenaing journalists haven’t always been as good as they are in the Biden administration, but I do think that in the Trump administration you’re going to see a lot more subpoenas served on journalists for confidential sources in leak investigations. I hope I’m wrong, but I don’t think I am.

Handman: I would add to that the demise of the PRESS Act that had passed the House and almost passed the Senate. But then, as you recall, president-elect Trump sent out on Truth Social a notice to the GOP – don’t vote for the PRESS Act – which would have provided a federal shield law for reporters’ sources. Now we just have state shield laws, but they don’t apply when there’s a federal leak investigation. You need a federal shield law. Maybe it will be reintroduced, but unfortunately it did not get to the finish line in the Congress that just ended.

What else are you expecting to see in terms of the upcoming legal attacks in the next few months or years? 

Handman: There’s also one other branch in all of this, and that’s the judiciary. One thing we have observed is that in the past, courts have not been reluctant to get rid of cases that don’t have any merit, particularly in the libel context. Courts have sort of pulled back on that and let it go forward into discovery, which of course, then does involve sources. Why they’re doing that is unclear. The good news is that there are 32 states plus the District of Columbia that have anti-SLAPP (Strategic Lawsuits Against Public Participation) laws that, if it’s a matter of public interest, defendants can request to have an earlier decision and get attorney’s fees if you prevail, which is a great counter to the weaponization of libel. Just recently, there was introduced in Congress a federal anti-SLAPP law, which would guarantee that that law would be applied in federal court, and that would prevent people from choosing particular judicial forums based on what states do or don’t have anti-SLAPP laws. That would be great, and it’s bipartisan, which is a very good thing, and that’s partly because these suits have been against all kinds of media, conservative and liberal, and everyone needs that protection. 

Balin: The only thing I would add is, there is an obvious concern about the use of the FCC or the FTC in terms of broadcast licenses and the further politicization of these entities. That is a concern. The other one is organizations like Voice of America or NPR – public broadcasters, whether or not there is going to be interference with their journalistic independence. That is another thing that I unfortunately see in my crystal ball. 

Do the kind of attacks you’re seeing on journalists and claims of fake news create physically dangerous or otherwise personally dangerous situations for journalists? If so, how do you think journalists can protect themselves from those dangerous situations?

Balin: I represented a number of photojournalists who were covering the George Floyd protests in New York City. As in other cities, there was use of excessive force and arrests without probable cause of many demonstrators, but also assaults and arrests of journalists who were trying to cover the protests. We ultimately brought a lawsuit against the New York City Police Department, which resulted in a historic settlement where they’ve agreed to change their policies and practices in terms of training officers on the First Amendment rights of the press and the public to record police activity in public places. 

But I do think that is a legitimate concern beyond that example. When we talk about a chilling effect in this country, it’s typically been on speech. But I actually do have a concern about violence and physical safety. That should not – and I’m hoping will not – change reporting without fear or favor. But there’s no question that is a concern. It’s incredible that I’m saying this, but yes, I do think safety of journalists is something that we do need to think about. Maybe now more so than ever.

Handman: Reporters get trolled on social media all the time, and that no doubt raises fears. We represented an Australian TV reporter and her cameraman, and they were in Lafayette Square in D.C. covering the Floyd protests when Trump walked over with a Bible to go to the church across the street, and then the U.S. Park Police pushed a shield into the cameraman’s camera, into his face and stomach. And then the woman reporter, as they were leaving, the Park Police hit her with a baton in her back. Those are the kinds of things that are also very scary. Luckily, that was caught on video, and I think there was wide agreement that that was unnecessary and they received compensation for their injuries from the United States. That’s another thing certainly we could see again as well.

To go back to the chilling effect of litigation and legal attacks, do you have any advice for journalists who are trying to cover falsehoods and disinformation effectively, in terms of how they insulate themselves against these legal attacks, especially at smaller outlets that don’t have the resources to obtain legal support and protection?

Handman: There are groups like the Reporters Committee for Freedom of the Press, which I’m on the executive committee of. They are very focused on helping local reporting and have a whole initiative and have lawyers dedicated to that. And of course, we lawyers would say, be sure that a lawyer has a look at what you’re publishing, and that includes what you put on social media.

Balin: I’ll add a couple of things about the small publisher that doesn’t have the resources of the New York Times. One is media insurance. There’s different kinds of policies, and that coverage has saved many a defendant from paying sometimes significant defense costs. The second thing is, this is going to be about media lawyers stepping up to the plate and possibly doing more pro bono work. And, as Laura said, vetting beforehand is really crucial. And there are actually initiatives where they’re pairing up senior media lawyers like Laura and me with more junior lawyers to provide advice on a pro bono basis to small news organizations. It is going to require a whole bunch of different actors, but media lawyers are going to have to play a part in this struggle to protect small publishers.

What do you think of the press using litigation like defamation or libel cases to go on on offense? There have been situations where researchers who are facing these really vicious attacks bring those lawsuits against people who are spreading false information about them. Is that something you think the press should consider, even though they’re usually on the other side of those cases?

Handman: Our law firm has made a commitment that they will not bring a plaintiff’s libel suit, even if we think it has some merit. And there obviously have been cases recently won by someone – like the Georgia election workers – that everyone could sympathize with. But our concern has always been that it could make bad law for our clients, and that is why we haven’t gone in that direction. With things like the actual malice standard hovering in the balance, there is the worry it will be taken away by the court. We don’t want to make bad law, and that’s true in the internet context as well, and so we steered clear of that. I understand other kinds of cases, like the First Amendment one PEN brought against the first Trump administration (which was brought in 2018 and dismissed without prejudice), but it would be very unlikely that we would ever bring libel lawsuits, even if they have merit. I know in the PEN case, we did work on that one, that’s not a libel case.

Balin: Again, I agree with Laura. Journalists don’t necessarily want to be part of the news. They want to cover the news. And it does take thick skin. But there are other avenues – the PEN lawsuit, for example. There is invoking the First Amendment as a tool for offensive litigation where the press is being retaliated against for actions that are targeted on the fact that they are reporting news. My lawsuit against the NYPD on behalf of photojournalists is a good example. Affirmative litigation is really where advocacy organizations like PEN can be playing an important role, but you’re not going to hear media lawyers like Laura and me be on the plaintiff’s side of a libel suit. And I think it is a good tradition in America that news organizations are not libel plaintiffs. They have a special role. You know, they’re the only industry that’s actually mentioned in the U.S. Constitution. 

Handman: We are obviously plaintiffs when we’re seeking access to information or under the Freedom of Information Act. And I expect, for example, under the Freedom of Information Act, with this new administration, how that is administered will likely provide less access to government and make government less transparent than it is now. Those are fights that we will definitely take up and bring as plaintiffs.

Is there anything I didn’t ask that you’d like to touch on?

Handman: On a slightly happy note, I feel that the actual malice standard for winning a libel case will remain strong. I base that partly on an experience I had in 2017, when my client had made a mistake, and the lower court had denied summary judgment but certified it to the D.C. Circuit, and we got a glowing opinion from the judge, now-Justice Brett Kavanaugh, raising the actual malice standard, urging these cases to be dismissed before trial and reversing the district court judge who had denied summary judgment but had certified the appeal, and she was now-Justice Ketanji Brown Jackson. I feel like there is strong support for keeping actual malice whole, although it is definitely under attack from various justices. But that’s one thing that is very fundamental to the protection. Obviously, who President Trump puts on the Supreme Court could affect that. It’s affected so many other rights and protections. But at the moment, at least, I feel like actual malice has good footing.

Balin: I agree. Just to put a point on that, there’s really only two of the justices right now who question the actual malice standard, maybe two and a half. But sitting here listening to Laura reminds me that the First Amendment is going to be doing some heavy lifting in the not-so-distant future. This is the time for media lawyers to be fighting good fights, and I suspect we’re going to have a couple good fights ahead of us. I’m not pessimistic. I’m actually optimistic about the ability of the First Amendment. I don’t want to look at the world through rose-colored glasses. I recognize that we are under a lot of stress, but I think there are reasons to be hopeful as well.


Laura Handman has four decades of experience bringing to light newsworthy information and then defending clients from complaint through appeal. She has established many of the key precedents that have strengthened the protection for content, winning the first U.S. decisions to refuse to enforce foreign libel judgments, leading to passage of the SPEECH Act; establishing the standard in New York for libel by implication; establishing a heightened standard before the government can access records of a customer’s expressive content purchases, establishing that internet rankings are opinion, defeating use of RICO in libel suits against advocacy groups and securing for satire protection from libel and right of publicity claims. 


Robert Balin is a partner in the New York office of Davis Wright Tremaine, and for almost 40 years has represented U.S. and international news organizations, publishers and journalists in all aspects of media law and litigation. For the past 18 years, Balin has also taught media law as an adjunct professor at Columbia University Law School. He has served as the chair of the Media Law Committee of the International Bar Association, chair of the MLRC International Media Law Committee, and president of the Executive Committee of the MLRC Defense Counsel Section.