First, Let’s Kill All the Editors

Have a lawyer check your magazine before it’s published?
Maybe not such a crazy idea...

BY Mark Obbie

In the run-up to the launch of Texas Monthly 35 years ago, founder Mike Levy asked David Anderson, a law school classmate who by then was a young University of Texas law professor, to read the magazine’s editorial copy before publication. Since then, Anderson has been Texas Monthly’s prepublication-review lawyer — its only one, for each of the more than 400 issues of the magazine. Besides setting some kind of record in the annals of moonlighting law professors, Anderson, now 68, serves as a hopeful beacon in a business where “run it by the lawyers” can send chills down the backs of deadline-crazed editors. Getting your copy lawyered, it turns out, needn’t be the legal equivalent of a root canal. It can even yield better journalism.

“There’s a deceptive quality, I think, to prepublication review. It almost looks too easy,” says Sandy Baron of the Media Law Resource Center. But, she cautions, “Doing prepub review is a craft. I don’t recommend it for novices.” Longevity breeds judgment about the sorts of reporting and writing that provokesor worse, loses—lawsuits over libel, privacy, newsgathering or intellectual property claims. Longtime service also attunes a lawyer to a publication’s stomach for controversy and tolerance for taking responsible risks. In Anderson’s case, says Texas Monthly editor Evan Smith, “We trust him to understand the law and to understand the implications of the decisions that we make.”

That trust, where it exists across the industry, faces new tests in an era of cutbacks in fact-checking and 24/7 Web deadlines. “There are all kinds of new ways you can get sued,” says a top media insurance executive, Mike DiSilvestro of Kansas City-based Media/Professional Insurance. Plopping a manuscript in front of a legal generalist, or one not comfortable with the magazine’s culture, puts editor and lawyer on opposing sides. “There are lawyers out therewhich drives me crazythere are lawyers out there who just spike everything,” says veteran media lawyer Chip Babcock of Dallas’ Jackson Walker. “Well, their advice is never going to be called into question because what they were giving advice on is never published.”

But of course, we’re in the business of publishing. And most editors, for the sake of economy or avoiding conflict, are highly selective about which articles to run by a lawyer. Inc. magazine editor Jane Berentson prefers that arms-length relationship simply because good editing, she believes, resolves most problems. By using that tack, she spares herself time-consuming nitpicking over word choice. “That’s not the kind of thing I want from a lawyer,” she says.

Time Inc. also believes lawyers should speak when spoken to, at least for most of its magazines. But it reserves the wall-to-wall, Texas Monthly-level scrutiny for a handful of its titles perceived to be a higher risk, principally its weeklies and business magazines. At those magazines, paralegals review everything, says deputy general counsel Robin Bierstedt. Any warning flags bring a lawyer into the mix.

What makes a good prepub lawyer? “I think you have to love journalism for starters, or at least appreciate journalism and what journalists are doing,” says Bierstedt, a 24-year Time Inc. veteran who personally reviews Time magazine’s copy. “Occasionally, it can actually happen that you improve the copy along the way while making it more defensible, and they can really appreciate that. I think if you work with people for a long time they can trust you and see you as an ally rather than an adversary.”

Because the Texas Monthly editors have grown up with Anderson, they place their lawyer in the mainstream of their copy flow. He attends all monthly editorial meetings to brainstorm about stories in progress. He’s on call to reporters as they do their work. Even before fax machines, much less e-mail, the magazine sent Anderson all edited copyincluding during Anderson’s teaching stints out of state and overseasand got back memos noting any legally troublesome soft spots, which Texas Monthly fact checkers then are assigned to firm upgetting a copy of an indictment, for instance, rather than relying on someone’s word for it. He’s even on the masthead, as a contributing editor. “We’ve been at it a long time,” Anderson says. “I can make my comments pretty cryptic and everybody will understand what I’m saying.”

Anderson, in other words, is the archetype of the activist media lawyer. Which makes him unlike most media lawyersand unlike most other types of lawyers as well. “Lawyers are accustomed to telling their clients, ‘Don’t take chances,’ ” Anderson says. “But in journalism you have to take chances.” Preventing lawsuits is easyif you publish nothing of substance. Producing solid journalism that’s true and fair, and that will win every legal challengeas Texas Monthly hasis a higher calling, albeit one with a price tag. “It’s a matter of credibility,” Anderson says. “It’s authoritativeness. You know, it’s just being right.”

MARK OBBIE teaches magazine journalism at Syracuse University’s Newhouse School and blogs about legal reporting at LawBeat.

 

This article originally ran in the Spring, 2008 issue of FPO.