SPJ NorCal - Society of Professional Journalists – Northern California

“I stood up for the truth” Media Rights Attorney James Chadwick Wins SPJ-NorCal Career Award

James Chadwick is a media and First Amendment attorney who has for thirty years fought successfully against censorship and to uphold journalists’ right to investigate how government agencies, officials and employees are conducting the people’s business. Based in the San Francisco Bay Area, Chadwick represented Mother Jones magazine in a legal fight against attempted censorship by a billionaire, and for years worked out of the San Jose Mercury News’s newsroom, vetting stories. “Being able to look back on a career in which I can say, honestly, I stood up for the truth,” Chadwick says, “That’s a great, rewarding feeling.”

SPJ NorCal is honoring Chadwick with its Norwin S. Yoffie Career Achievement Award, part of its 36th Annual James Madison Freedom of Information Awards, awarded during Sunshine Week in March. Chadwick spoke about his career with SPJ NorCal’s Freedom of Information Committee members Richard Knee and Aaron Field. 

The interview has been edited for length and clarity. 

 

SPJ:  What made you interested in practicing law?

Chadwick: Nothing very romantic. I worked as a graphic artist for about nine years after graduating from college. I was kind of stuck in a rut doing that. I decided it was time for a career change. And being really not very good at anything else, I decided to try law school.

 

SPJ: What drove you towards media law, sunshine access law, and First Amendment law in particular?

Chadwick: It was really chance. I was in my last year of law school at Santa Clara University. In my last year, I had some options about what I could do. I took a class on media law that was taught by two really eminent media attorneys, Ed Davis and Judy Alexander, who were then at Pillsbury Madison and Sutro, which is now Pillsbury Winthrop. I enjoyed the class. They liked me. And they hired me. And before I took that class, I didn’t even know there was such a thing as media law. I didn’t have any burning longtime ambition to become a First Amendment lawyer or a media attorney. But I’m very grateful that chance brought me that opportunity because it’s been a really incredibly fulfilling and rewarding career.

 

SPJ:  What was the first major media law issue or case that you faced?

Chadwick:  I’d say the first case that I really worked on from beginning to end, which I really think of as my case, although obviously I worked with Judy Alexander on it, and they contributed greatly to the outcome of that case, as well, is Montana v. San Jose Mercury News, which was a right-of-publicity case, a Civil Code Section 3344 case that involved the sale by the Mercury News of posters reproducing the front page of each edition of the Mercury News after the 49ers won a Super Bowl. You might recall, there was a period there when that was happening a lot. And [49ers quarterback] Joe Montana was pictured on three, I think, or four of those posters. He brought a right of publicity lawsuit against the Mercury News [arguing that the newspaper couldn’t sell posters featuring reproductions of newspaper pages that contained Montana’s image] on which we ended up prevailing both in the trial court and on appeal.

 

SPJ:  What are a few cases you participated in that you found particularly meaningful or significant?

Chadwick:  The Montana case is one of them, because it established a First Amendment basis for defending the right of news media to use images in an editorial context and reproduce them even in promotional context, as long as they came out of the original news context.  

Another case that was particularly significant is Sipple v. Foundation for National Progress, not only because it was an early anti-SLAPP case, in which the court held that the anti-SLAPP statute protects the media, but also because it was a really wonderful case that reinforced the breadth of the protection for fair report privilege under California law, as well as the First Amendment. [Editor’s note: California’s “fair and true report privilege” protects journalists from liability under California law for fairly and accurately reporting on statements made in certain public proceedings, like court cases or city council meetings.] 

That is an incredibly powerful tool for the media: if you can find privileged sourcing [sourcing that is connected to a covered proceeding closely enough to trigger fair and true report privilege protection], you know, to a large extent your risk mitigation work is done. And that’s largely thanks to California’s fair report privilege and the way it’s been interpreted, particularly in the civil case.

 

SPJ: Can you explain what  “anti-SLAPP” means, for readers who may not know that term?

Chadwick: SLAPP is an acronym for “strategic lawsuit against public participation.”  The paradigmatic anti-SLAPP lawsuit was a lawsuit brought by a commercial developer against people who are protesting or objecting to development. But it really evolved into lawsuits for things like defamation and invasion of privacy that were brought not because they had merit, but because people with resources could use those lawsuits to deter reporting they didn’t like. California was one of the first states to enact a robust anti-SLAPP statute. It really transformed media litigation: it became a real deterrent to frivolous, meritless litigation [against the press]. And after its enactment in the late ’90s, there was a major decline in meritless defamation litigation.

 

SPJ:  Tell us about a few cases you participated in that you found challenging.

Chadwick:  The quintessential example is when I defended Mother Jones in a defamation action brought by Frank VanderSloot, a conservative billionaire in Idaho who took exception to a backgrounder article Mother Jones did about him when he made a huge donation to Mitt Romney’s presidential campaign. 

It was real scorched earth litigation. There was very little connection between Mother Jones and the state of Idaho, but it’s very difficult for the media to win personal jurisdictional arguments [which is disputing whether a party can be sued in a particular place]. And so we found ourselves in Frank VanderSloot’s backyard in Idaho Falls, Idaho, where every sitting judge recused himself (they were all men). We ended up with a senior judge from another county in Idaho, who was not particularly sympathetic to the media. The case was scorched earth from the word go: extremely challenging, capable – but not particularly scrupulous – counsel on the other side. But we prevailed on a motion for summary judgment on the eve of trial, after the longest oral argument I’ve ever had – 11 hours of oral argument on two motions for summary judgment by Mother Jones and by the co-defendant, [journalist] Peter Zuckerman. So that was a particularly challenging case, to be sure. 

 

SPJ:  Turning to advising and counseling: You spent some time working out of the San Jose Mercury News newsroom. What it was like to work in a newsroom alongside journalists?

Chadwick:  I can’t tell you what it was like for the journalists, but it was a great pleasure for me. I was physically located in the offices of the editorial board. But it was contiguous with the whole plant. The way it used to run was, the newsroom and the physical plant – the printing presses – were all in one big building in San Jose. So you saw everything and I could meet with the publisher, the executive editor, and reporters.  We were working on the San Jose Sunshine Ordinance at that time, and Bert Robinson, the managing editor of the Mercury News, took a lead role in that. I worked very closely with him and the editorial board as we were trying to get the Sunshine Ordinance passed. It was a really interesting time to be there.  I was doing some ordinary newsroom-type work too, pre-publication clearance [vetting and ok-ing articles on legal grounds].  And there was some litigation going on at that time.  In fact, we had a trial at around that time in a copyright case. But the biggest thing was just working day to day on trying to get the Sunshine Ordinance passed [and it did].

 

SPJ:  Are the cases you’ve mentioned also the ones that you think most advanced First Amendment law?

Chadwick:  I think the Sipple Anti-SLAPP case definitely made a lasting contribution to First Amendment jurisprudence. One that’s in my mind is one of the most recent: the Walnut Creek Police Officers Association case addressing SB 1421 [the recent California law making records related to police uses of force and misconduct public]. It’s probably the shortest published opinion I’ve ever received. It was originally unpublished. We asked the Court of Appeal to publish it. They did. And every court in California since has followed it and held that SB 1421 applies retroactively to records of police misconduct prior to the effective date of SB 1421. That’s a pretty transformative decision. That casts a lot of light on police misconduct in California.

 

SPJ:  What media and First Amendment law battles do you see on the horizon?

Chadwick:  That’s a difficult question, just because there’s been so much transformation and I don’t know where we are in that process of transformation. The news media have been both transformed and devastated by the advent of social media and online advertising. Simultaneously taking away on one hand their advertising and on the other hand their readership. 

And I personally feel that that’s been a fundamental degradation of the sort of foundations for social discourse in this country. If you look to social media for your news – and increasingly people do – you are just about as likely to be misinformed as you are to be informed, if not more so. And, you know, the news media had some responsibility to get it right. That was the law; the law essentially imposed a duty on the news media. If they don’t get it right, they can be sued, and they can be held liable. Social media platforms can’t, thanks to Section 230 of the Communications Decency Act. So allowing a lot of disinformation and invective and even insurrection doesn’t really bother the social media platforms. As people look increasingly to social media platforms for their information, the foundation for really informed discussion and social discourse has eroded. I think that situation has gotten very bad; I think it could still get worse. 

One of the battles that may be coming about that is whether or not Section 230 remains with us. And there is still some bipartisan support, I think, for reforming Section 230 and I just saw, you know, some social media platforms seem to be nominally embracing it. I think they want to get a hold of the agenda, and try to make sure that the changes aren’t very significant, so that they retain their legal immunities. But they do seem to be talking about change, at least. So you may be seeing some big change there. 

I think the other thing that really has resonated with me in the last few years is the role of wealthy people in litigation. They call litigation the sport of kings, right? Well, that’s what it’s become, in a way, with wealthy people like Peter Thiel financing litigation to attack his enemies, or people like Frank VanderSloot using their wealth to sue the media to try to deter them from reporting. And then you see them doing things like setting up, at least nominally, funds to support defamation litigation. I don’t know if that will continue. But it’s certainly a disturbing trend.

 

SPJ:  How do you think sunshine laws and First Amendment law can be improved, in California and nationally?

Chadwick:  You really just can’t even get me started on this subject because I’ll just rant and rave indefinitely. So let me try to be a little more helpful: Now pending in the California Legislature is Senate Bill 16, by Nancy Skinner, who SPJ honored for her work to pass SB 1421. It would further expand access to records of police misconduct and remove some of the issues that have dogged efforts to get those records in California. That’s the kind of measure we need. 

One of the ongoing issues confronting not just California, but the nation, is distrust of the police. That’s based in part on the way force is applied. But it’s more profound than that. And it’s been exacerbated by the secrecy that’s surrounded police misconduct for decades. The secrecy of police misconduct in California goes back to the 1970s before I started practicing law, and it had just gotten worse and worse until recent legislation. You really do need to be able to see in order to trust. When you can’t see, it just exacerbates that social tension between the community and the police. If the community knows that bad officers are getting worked out of the system, they’re getting disciplined, they’re getting terminated, they’re not being allowed to continue to do bad things, that’s going to enhance trust. And you really need that today where there is so much tension between particularly minority communities and the police.

 

SPJ:  You founded your own law firm at the beginning of this year, after leaving Sheppard Mullin, the firm you’d worked at for almost fifteen years. We congratulate you on that. What lies ahead for your practice?

Chadwick:  I was very happy working with Sheppard Mullin, which was very supportive of my practice. But I’ve decided to ease off after 30 years of litigation. It takes a toll. [My own firm is] really a vehicle for my partial retirement. I’m continuing to work with a few clients, in particular Mother Jones, doing clearance work [legally clearing articles for publication], advice work. I’m not going to do courtroom work anymore; I’ve pretty much made up my mind. But I will be doing advice and counseling work for news media clients on a part-time basis, so that I have more time for fishing, basically.

 

SPJ:  We’ve steered this ship until now, but we wanted to give you a chance to share anything else you wanted to.

Chadwick:  I’m very honored, I don’t think I really deserve the award that I’m being given, but I am extremely honored to receive it. And I’m certainly not going to reject it! So thank you for that. But really, more than plaudits or awards, I’ve been incredibly privileged to work with journalists throughout my career. Working with journalists has been a great, great pleasure. Journalists are some of the most engaged, intelligent, hardworking, interesting, hopeful people around.

There’s always been complaints about liberal bias in the media, but I always say, no one but a liberal would be willing to work that hard for that little money. So really, it’s been an honor to work with that kind of people. They challenged me, and they’re not afraid to question authority. 

Also, it’s been incredibly rewarding to have a vocation that allowed me on a regular basis to stand up for the truth. I’m constantly advising my clients about how to be able to publish the truth. Then, when they are attacked for doing so, I’ve been able to defend them. I’ve been incredibly fortunate in doing that. And you know, being able to look back on a career in which I can say, honestly, I stood up for the truth – that’s a great, rewarding feeling. So those are really the things that I feel like I take away from this career. It’s been an honor and a privilege.

 

SPJ:  We’re proud to have given you this award. And it comes with no quid pro quo. But we did want to ask: when can we expect you to join us on the FOI Committee?

Chadwick:  Yeah, Rick, I think there’s already enough gray hair on that committee, don’t you?

 

  

Photos used with permission. Story copyright SPJ-NorCal.