North Carolina Lawyers Weekly
Of all the private industries in America, the free press is the only one explicitly protected in the U.S. Constitution, whose First Amendment provides that Congress will make no law abridging freedom of speech or of the press. No lawyer in North Carolina has done more to protect those freedoms than Hugh Stevens, who served for more than 20 years as general counsel to the North Carolina Press Association and is one of only two lawyers inducted into the North Carolina Journalism Hall of Fame.
National politics, high-profile U.S. Supreme Court decisions, and the ongoing tectonic shifts in the media business have put the free press and the First Amendment in the spotlight in 2017. Stevens recently sat down with North Carolina Lawyers Weekly reporter David Donovan in Stevens’ Raleigh office to share the unique insight he’s gained from a career defending those who defend the public’s right to be informed. The following is a transcript of their conversation, lightly edited for length and clarity.
The Roberts court has handed down a number of opinions recently, including one striking down a North Carolina law, which have been very protective of free speech. What do you make of the current Supreme Court’s approach to free speech issues?
Generally speaking, they’ve been quite protective of free speech. You mentioned the Packingham case. It’s an interesting case. The North Carolina Court of Appeals panel unanimously decided that that law was unconstitutional. Our Supreme Court reversed that 4-2, and then it went to the U.S. Supreme Court, and it was essentially a unanimous 8-0 opinion. So, by my count of appellate judges, it was 13 to 4 who thought that law was unconstitutional, and frankly, I was really both surprised and disappointed in Justice Edmunds’ opinion for our Supreme Court. It seemed to me that that case was as close to a slam dunk for the First Amendment as you could find, because the breadth of the law was so excessive. So that was a very interesting case, and of course, it had local ramifications.
Packingham was one of the first times the Supreme Court has really set guidelines for free speech on the internet, and the ruling was very protective of social media websites in particular, likening them to the traditional public square. What did you think about the court’s treatment of social media?
A: Yeah, Kennedy’s opinion for the court jumps right into that. He says that when we’ve talked about public forums, we’ve traditionally talked about streets and parks and sidewalks and such. But now the biggest public forum of all is the internet and its various ramifications, and I think that’s right. The court, I think, is simply applying the same principles there as it has traditionally applied in many cases on more traditional places. I guess the internet’s not really a place—it’s more of a conceptual place.
We’ve seen a lot of controversy lately over so-called “fake news.” How do you think that controversy is affecting the mainstream media?
There’s obviously a certain quantum of people out there who, for whatever reason, completely mistrust the traditional media, and they are ready to believe accusations that the information put out by the traditional media is fake. I think that’s unfortunate, but I’m not sure that that’s a wholesale change from the way things have often been. I think America is a culture in which there’s always been a certain quantum of people who just are mistrustful of the government, they’re mistrustful of institutions, they live in a very closed society, and anything outside is sort of threatening to them. On the other hand, for the most part, until recently, alternatives like these fake websites, or these pseudo-news sites, didn’t really have much of a way to get out to people. I mean, we’ve always had the National Enquirer at the supermarket and there are a certain number of people who buy it and the people who run it have made a lot of money, but, by any standard, they were marginalized and confined in their reach. By exploiting social media, these alternative voices have found a new way to reach people and to bypass the traditional distribution chain. I think there’s been a bit of panic on the part of the mainstream media in some respects, that they’re being undercut and their credibility is being damaged by this, but at the same time the New York Times’ digital subscribers are up by hundreds of thousands, the Washington Post the same. So, to me it reflects a polarization that existed before, and I don’t see it playing out much differently than it has up to now, except that the noise level is higher.
I want to get your long-term perspective on this, because you’ve been dealing with this issue since you worked to oppose the speaker ban at UNC. Do you think that the polarization and distrust that you were talking about is better or worse than what you’ve seen over the course of your career?
That’s a good question. It takes different forms, because the issues are different. We don’t talk about communist propaganda anymore. We talk about fake news or we talk about other things. We don’t talk anymore about the division, particularly in the world I grew up in, between those who sort of supported the expansion of civil rights, and those who were sort of diehard segregationists. So the issues change. I do think that, what I’ll call “contrary voices,” that is, people who feel strongly about certain positions, have become bolder and have found new ways to get their voices heard. Let’s face it, if you go back to the 1960s, most people were dependent on a very few sources for news. You had essentially three national television networks. NPR, as such, didn’t exist. You had your local newspaper. You had national newspapers like the New York Times, but they were basically confined geographically to those centers like Washington and New York and whatnot. Now, the proliferation of places to look for information is just amazing, and I think it has enabled people to find supportive outlets for their opinions, even opinions that a few years ago, we might have thought were just crazy, off the board, radical, whatever word you want to use.
How has that fragmentation affected your job as a media law attorney, where you don’t just have a couple of big clients in town with huge budgets for legal fees, and now you have all these different news sources? How has that affected the role of media law attorneys?
One way it has affected it here locally is that 25 or 30 years ago, if we were approached by a client who was having trouble getting public information from, say, state government or local government, generally speaking, they proceeded alone. So the News & Observer, for example, would file a public records suit to get access to information. One of the things that the fragmentation has done, obviously, is to weaken economically a number of these outlets, particularly newspapers. But at the same time, there came to be a realization that, if you spent your time and money to win a public records suit, for example, the results were open to everybody. Once the records were public, anybody could use them, and so, we began several years ago, trying to put together coalitions to pursue these kinds of matters for several reasons. First, it’s cheaper for everybody because you share the cost. Second, I have to think that a judge confronted by a complaint that’s got nine or 10 media companies as plaintiffs is going to think about that maybe a little differently than just one. Maybe not, but at least there is strength in numbers. And particularly since people use the information differently, that’s been a major change. I don’t remember the last time we pursued a public records case on behalf of a single entity. It would be a long time ago. And more recently, we’ve even brought in some non-media groups, advocacy groups, who use public information in their work. So that’s been a major change, and one in which, if you want to use the term fragmentation or diversity, has probably helped. It’s allowed for more, I think, of these matters to be pursued than would be the case if you had to look to one entity alone.
Are there any ways in which that diversity or fragmentation have made the job more complicated or challenging for attorneys?
I think the main way in which it’s made it more challenging is simply that the traditional advertising-driven media are just financially weaker than they used to be, particularly newspapers. They just don’t have the wherewithal that they had before, with some exceptions. My colleague Amanda Martin has been pursuing a matter, trying to open records in a big federal court case in Wilmington for the New York Times for months, and the New York Times can afford to do that. They have great reporters, they have great legal staff to work with, their in-house lawyers are savvy, and there are a few like that who still can do it. But I think the way in which it’s become the most challenging is that, particularly the smaller papers, I don’t know if the Wilson Daily Times or the Greenville Reflector can afford to pursue a public records case anymore. I’m not naming them specifically. I’m just saying a lot of the financial stress has seemed to be focused most severely on these sort of middle-sized daily newspapers, these smaller city papers. And where that’s going to lead, ultimately, I don’t know. I think we’re in the throes of a major change in the way the news media are organized in this country.
Do you think political messaging that depicts the mainstream media as the enemy, or something to be fought against, has any potential to erode public support for first amendment and free speech protections?
I don’t know. Free speech has never been at the forefront of most people’s thinking, frankly, unless it affects them. I learned a long time ago that if you’re going to be a First Amendment lawyer, you’re going to have the benefit of smart, savvy, experienced, just terrific colleagues all over the country who get it, for whom it is a passion. Nothing in my career has been more enjoyable than getting to know and work with people like Floyd Abrams, for example, who is a pioneer and a role model. But, at the same time, you realize that it’s not a huge number of people. The protection of these rights, and it’s not just free speech, generally falls to a fairly small group of dedicated people whose clients are supportive enough to fight for these matters. I think Americans are generally supportive of the concept of free speech, but they’re not going to get down in the weeds about it, for the most part. In terms of whether the current political climate erodes that, again, I think it works both ways. I think it further provides support for the people who are sort of anti-anything, but I think it also means that people who do care about it enough are stepping up.
What’s been the most rewarding part of practicing First Amendment and media law?
Working with the people who are news gatherers and editors and publishers and news directors, the people who go out on the street and who dig into public records, and who try to find out the truth and publish it. I’ve just had wonderful opportunities to work with dedicated news people. I really have just enjoyed the association with those folks enormously, as well as getting to know and work with this group of First Amendment media lawyers around the country that, again, it’s small enough that a lot of us know each other and we share, we go to the same conferences, we talk a lot, we are friends. That’s been the most rewarding part for me.
Follow David Donovan on Twitter @NCLWDonovan
