Conducting Trials in Mainstream & Social Media

March 13, 2013, 3:45 p.m.

The University of Iowa's Self-Defeating Policy:
Standing With Arms At Our Sides When the Cow Pies Are Flying


Ideally, lawyers would try their cases in court, not in the media. I would not advocate that the University of Iowa have anyone run to a microphone the minute a case is filed against it. Nor would I suggest a policy permitting any and everyone affiliated with the University to talk to reporters about the University's pending litigation.

My concern relates to those instances in which the lawyer suing the University exercises no restraint in putting the most favorable view of the plaintiff's case in the media, while the University both (a) silences those most directly involved, forbidding them to speak to the media, and (b) simultaneously refuses to designate anyone else as a spokesperson.

Two stories came to my attention this morning, along with one from earlier in the week, that prompted my re-thinking this aspect of the University of Iowa's litigation policy.

One came by way of Facebook from an outstanding former law student of mine, Mark Lambert, who went on to serve as a commissioner of the Iowa Utilities Board, among other things. Tanner Colby, "Regrettable: The troubling things I learned when I re-reported Bob Woodward’s book on John Belushi," Slate.com, March 12, 2013. I express no opinion about the validity of either Woodward's book, or Colby's critique. But what Colby is asserting, and providing anecdotes to support, is that Woodward's presenting factually accurate information, while omitting or minimizing contrasting information, produces a misrepresentation of the life of John Belushi. Colby suggests that this helps to explain the recent flap between Woodward and the White House's Gene Sperling. Jonathan Chait, "What the Hell Happened to Bob Woodward?" New York, February 28, 2013. (This involves a distinction between two related legal doctrines: "defamation," which involves communicating harmful, factually inaccurate information about someone, and "false light," information that, while accurate, creates an unwanted false impression.)

The point, for purposes of this essay, is that even factually accurate information, if publicly distributed and left unanswered, can be presented in a way that is destructive of the reputation of an individual or institution.

The second story involves "two high school football players [in Steubenville, Ohio, about to] go on trial on charges of raping a 16-year-old girl last summer." Erica Goode and Nate Schweber, "Case Already Tried in Social Media Heads to Court," New York Times, March 13, 2013, p. A13. The reason this story is of relevance, as its headline suggests, is that "The case first came to light through Twitter posts and a photo on Instagram. And the defendants, Trenton Mays and Ma’lik Richmond, who have pleaded not guilty, have already been accused, prosecuted, defended and judged guilty or not by their peers and strangers in blog posts, YouTube videos and entries on Facebook, Twitter and other sites."

There can be restrictions on the media's reporting of trials, and lawyers' "trying their cases in the press." But those restrictions can sometimes be overreaching and other times ineffective. See e.g., "[I]n Britain, because of loopholes in the law and pressures from modem media technology, harsh restrictions on the press unacceptably impinge on freedom of expression . . .. In the United States, courts have powerful tools with which to guarantee fair trials without sacrificing First Amendment values; but trial courts often fail to deploy these protective measures . . .." Joanne Armstrong Brandwood, "You Say 'Fair Trial' and I Say 'Free Press': British and American Approaches to Protecting Defendants' Rights in High Profile Trials," 75 N.Y.U. L. Rev. 1412 (2000).

The balance that the law tries to strike, as that quote suggests, is between what we call a "free press" and a "fair trial." The media have a constitutional right to report on the public's business, including what's going on in its courts (First Amendment's "freedom of speech, or of the press"). On the other hand, the parties to litigation, at least in a criminal trial, have a right to "an impartial jury" (Sixth Amendment). Moreover, I believe that the law should recognize that pre-conviction assertions can also constitute a form of punishment, and that damage to one's reputation can constitute a significant financial and emotional loss. See e.g., "Sebring's affaire de e-mail: Spotting the Issues; Was This Really an "Email Policy" Resignation?," June 14, 2012; "Sebring's Emails, Part II; How Private Emails Become Public Records," June 24, 2012.

What is relevant from the story earlier this week involves quotes from a colleague. Brent Griffiths, "UI professor speaks about College of Law's discrimination lawsuit," The Daily Iowan, March 11, 2013, p. A1.

Because so far as I know the University Administration's gag order on faculty includes me and has not yet been lifted, I deliberately will not go into the details of the law suit in question: alleged facts, testimony, legal issues, procedural questions, verdicts, judge's rulings, or possibilities of appeal. What I will say, in order to make this blog essay understandable, is that someone who is actually employed by the law school, but was passed over for a different position, sued with a contention that she was rejected for the second position because of the political affiliations and ideology of the faculty. (I was not involved in any way in this faculty interview process, evaluation of her past academic record and interview/presentation, or ultimate decision.)

Those faculty who testified at the trial obviously took a different view of the process and decision. And without getting into the procedural niceties of the case, the plaintiff was unsuccessful in the trial court.

The case attracted national as well as local attention by the media. Because the University Administration insisted that neither the law school dean nor any member of the faculty say anything to the media, and because the plaintiff's attorney was not similarly restrained (the judge denied a motion that he impose a "gag order" on the attorneys), the media's stories were entirely one sided. The media repeated the plaintiff's assertions of her opinions, and in some instances stated as facts matters that could be, and were, contested in the trial.

In fairness to the reporters covering the story, there was little more they could have done. The University had silenced the only people who could respond, while simultaneously refusing to designate a spokesperson to fulfill this role on a daily basis. As the Daily Iowan story, linked above, put it:

[University of Iowa College of Law Professor] Herbert Hovenkamp said he backed the judge’s decision against Teresa Wagner but said while the UI’s policy of maintaining silence during the case was “not irrational,” it resulted in some frustrations from faculty members, and it was not unique to the university or Wagner’s case.

“One consequence of [the silence] is the media tend to get one side of the story when one side speaks a lot, and the other side is kind of barred from speaking,” he said. “There’s a reason for [the policy] … several hundred people work for the university, and they’re afraid for a kind of free-for-all.” . . .

[The plaintiff] pointed out his [Professor Randy Bezanson's] time as clerk for Supreme Court Justice Harry Blackmun, a Minnesota Republican who was nominated to the court by then-President Richard Nixon and became the author of the Roe v. Wade decision. However, Hovenkamp believes this portrayal is unfair.

“Since [the Roe decision], Bezanson has been not an abortion scholar but a First Amendment scholar,” Hovenkamp said. “He is the last person on the planet who would ever exclude somebody on the basis of their beliefs.”

There is good reason for any large corporation or other institution (the University of Iowa has about 30,000 students and 15,000 faculty and staff) to restrict who can talk to the media about sensitive issues, especially during an investigation or litigation. But there is no reason to gag-order all 45,000. My suggestion would be that deans of colleges, and department executive officers, with a bit of training, consultation with the relevant University administrators, lawyers and publicists, and a heavy dose of common sense, ought to be perfectly capable of handling this role. If the Administration doesn't trust the competence of its deans and DEOs to handle it, it can appoint some other spokesperson -- or as many schools do on such occasions, have the president of the institution present its public face and story.

Here's an illustration of how the big boys handle this challenge. Google, with 37,000-plus employees, is roughly the size of the University of Iowa. "A group of Google’s competitors, including Microsoft and Yelp, had been lobbying the government for several years in an effort to prod federal officials to go after the search giant on antitrust grounds. Google dominates the Web search space, with about 70% market share." Sam Gustin, "In Major Victory, Google Dodges Federal Antitrust Lawsuit with FTC Deal," Business & Money, Time, January 2, 2013. Google agreed to some minor changes, the FTC dropped its two-year investigation, and there will not be the "high-profile lawsuit" (by the FTC) Google's rivals had hoped for.

Those who track such things closely believe that a significant factor in the outcome was that while Google management instructed its 37,000 employees not to talk to the media, it also designated a spokesperson who tracked the proceedings day by day, hour by hour, leaving no Microsoft allegation without response. In fact, the linked story concludes with an instance in which Google's spokesperson was available "late Wednesday" for the reporter. Microsoft had said that day that Google "continues to block Microsoft from . . . access to YouTube." The Google spokesperson was able to knock that assertion out of the park with detailed examples, thereby retaining Google's favorable position in the media -- and the marketplace.

If this were just a matter of leaving a dean and her faculty members "to twist slowly in the wind" (as John Ehrlichman said to John Dean regarding L. Patrick Gray III during the Watergate events) that would be bad enough. But there is an institutional reputation at stake here, and it is not just that of the Law School. The failure to put forward any version of our story in response to media-distributed allegations, reflects adversely on the University as a whole. It affects the University's ability, as well as that of the Law School, to attract new faculty and students. It affects what the people of Iowa, and their elected legislators, think of their "state universities."

Sadly, law suits are filed and fought in the media as well as the courtrooms. However much we may regret it, that's the reality. We may be admonished by the Bible, "whosoever shall smite thee on thy right cheek, turn to him the other also." King James Version, Matthew 5:39. But I don't think Jesus was defending himself or others in court at the time. Whether it is one's own reputation that is at stake, or even more so if it is the reputation of another for whom we are responsible (as was the case for the Administration on this occasion), if demeaning allegations are being flung about in the media like cow pies at the State Fair, they need to be answered, honestly, but firmly and effectively.

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