Branzburg v. Hayes Chairmanships and Boards Committees Communications Law Seminar& First Amendment Bar Debevoise & Plimpton LLP
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Education & Early LIfe Employment History Lord, Day & Lord New York Times Other Memberships Pentagon Papers Personal Life
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James C. Goodale is a leading First Amendmentlawyer.He has represented The New York
s in four of its cases to go to the Supreme Court.These were the Pentagon Papers case (The New York Times Co. v. The U.S.),The New York Times Co. v. Sullivan (libel), Branzburg v. Hayes (see below) and The New York Times Co. v. Tasini, (digital rights).
He first came to public prominence during the Pentagon Papers case in 1971.
The Pentagon Papers
The Pentagon Papers were classified documents leaked by Daniel Ellsberg, a State Department employee, to Times reporter Neil Sheehan.Goodale convinced The New York Times’ publisher Arthur Ochs Sulzberger to publish the Papers because the First Amendment protected the Times from prosecution. The first Papers were published on June, 13, 1971.
On June 14, 1971, the Nixon Administration’s Attorney General John Mitchell said he would go to court the next day to stop the Times from publishing the Pentagon Papers.Late that night Lord, Day & Lord quit as outside counsel because it concluded publication was not “patriotic.”
Consequently, Goodale thought he would have to argue the case the next morning himself although he was not a trial lawyer.Later that night he was able to reach constitutional scholar Alexander Bickel who agreed to do the case backed up by Cahill Gordon, a major New York City law firm.Goodale knew Bickel through their collaboration in the writing of a brief for the Supreme Court in the Branzburg case.
James Goodale developed the argument that the Espionage Act does not apply to publishers or the press.
In a 6-3 decision, the Supreme Court ruled the U.S. Government could not stop the Times from publishing the Pentagon Papers, holding that prior restraints were barred by the First Amendment unless the publication “will surely result in direct, immediate, and irreparable damage to our Nation or its people.”
According to Second Circuit Judge Robert Sack, who reviewed the book The Day the Press Stopped: The History of the Pentagon Papers, by David Rudenstine, “Goodale is portrayed as one of the heroes of the affair."
Branzburg v. Hayes
In 1970New York Times reporter Earl Caldwell was subpoenaed by the U.S. Department of Justice for his sources on the Black Panthers. At that time the Nixon Administration had been subpoenaing files of national reporters, including those working for Newsweek, CBS and NBC, all of whom complied.Goodale, concluded that the Times had to stand up to the Nixon Justice Department and caused the Times and Caldwell to resist the subpoena.
Caldwell and the Times won in the 9th Circuit, establishing for the first time in history, a reporter’s privilege.In 1972, the case merged with three other similar cases at the Supreme Court and became known as Branzburg v. Hayes.The Times appeared as a friend of the Court (amicus curiae), and so was not a party to the case when it reached the Supreme Court.In a 5-4 decision, the Supreme Court held however, that reporters do not have a First Amendment right to protect their sources and defy a subpoena.
Undaunted, Goodale interpreted the Supreme Court’s decision in an article in the Hastings Law Journal, 1975,in defense of a reporter’s privilege.That articlespawned over 1000 reported cases by 2010 involving the recognition of such privilege.There had been only two or three cases before Branzburg.
Using his article as a basis for protecting reporters’ sources, he persuaded other major media companies such as, Time Inc., NBC, CBS and The Washington Post to resist attempts to obtain reporters’ sources.He suggested to them that if the major media companies used the power of contempt to resist requests for sources, eventually the state and federal courts and, indeed, state legislatures, would recognize the privilege of reporters not to disclose sources and other information.
He succeeded in these efforts as one by one state and federal courts recognized a reporter’s privilege.To date, 49 states and virtually all of the federal courts have recognized the privilege.In 39 states the privilege is recognized in “shield laws,” many modeled upon the concepts set out in Goodale’s Law Review article.
For his efforts he became known as the “father of the reporter’s privilege.”He was also recognized as the founder of a First Amendment Bar for corporate media companies.
Communications Law Seminar and First Amendment Bar Starting in 1973, he convened annually the Communications Law Seminar for the Practising Law Institute.It was a seminar for lawyers from major media companies and others to instruct them in First Amendment law.Many of these lawyers were corporate lawyers and had no knowledge of First Amendment law.
He ran the Seminar from 1972-2007.It had 10,000 attendees over the years, coining the phrase “a First Amendment lawyer.”He edited and compiled essays for the seminar on the First Amendment totaling 85 volumes (or 81,000 pages), including one essay of his own each year on the reporter’s privilege.This seminar formed a new speciality for commercial lawyers known as "communications law" which in turn led to the start of a First Amendment Bar.He continues as chair emeritus for the Seminar.Before this seminar, First Amendment law was practiced by non profit lawyers such as those working for the American Civil Liberties Union (ACLU).
He produced and hosted a highly acclaimed tv show from 1995-2010 called “Digital Age,” which reached 10 million tv homes in the New York metropolitan area on Channel 25/WNYE public television.The premise of the show was that the Digital Revolution would up-end the media establishment as it then existed.As such he anticipated the decline of network television, the emergence of cable tv and the Net.He has written a book on cable tv, All About Cable, which has been cited twice in the Supreme Court.
He also correctly saw the impact of the Net on authoritarian societies.In 2005, for example, he produced a show entitled “Will the Net Topple China?” which articulated the risks for authoritarian regimes in the Digital Age.He produced and hosted more than 350 programs for "Digital Age."
He had been involved in an earlier program on the impact of media on society.In 1975, with Fred Friendly and Stuart Sucherman, he created “The Media and Society” program.In 1984Mr. Friendly turned these programs into the “Fred Friendly Seminars” which runs to this day on PBS.
James C. Goodale was born in Cambridge, Massachusetts in 1933.His mother, a college professor, was daughter of the Shakespearean scholar Oscar James Campbell, Jr. who wrote “The Readers Encyclopedia of Shakespeare.” His father was an insurance executive.
He went to private schools on scholarships and attended YaleUniversity on a William Brinckerhoff Jackson Scholarship, graduating in 1955.He then won a National Honor Scholarship to the University of Chicago Law School from which he graduated in 1958.A skilled athlete, he played varsity baseball and hockey at Yale and once tried out for the Chicago Cubs.
Lord Day & Lord
After serving in the army in 1958-1959, at age 26 he joined the law firm of Lord, Day & Lord.That firm then represented The New York Times.At the time he was also a member of the U.S. Army Reserve where he served as an intelligence analyst.This was his first exposure to classified documents which influenced his views on the Pentagon Papers.
New York Times
He left Lord, Day & Lord at age 29 and joined the Times in 1963 as its sole lawyer.He eventually built up a legal department to serve The New York Times Company.
While he was trained as a mergers and acquisitions lawyer, his interests lay in the publishing world.He soon became a trusted advisor to Abe Rosenthal who was the editor of the Times and to Arthur Ochs Sulzberger, its publisher.
He advised Sulzberger that the Times as a private company could not stand up to its unions which had nearly bankrupted the Company in a long strike in 1962-63.He told Sulzberger that the Times had to become a diversified public company.
He created the Company's Class A & B voting structure and conceived a going-public strategy that permitted the Company to use Class A stock for acquisitions.A Company in excess of $300 million when this effort began in 1969, became a diversified $3 billion Company in 1990. This structure was copied by The Washington Post and others.
In the early 70s he led the acquisition of Cowles Communications designed to solve the financial problems of The New York Times.With a huge asset base, the New Times Company could negotiate with the unions and protect the financial integrity of The New York Times newspaper.This led to the prosperity the Times enjoyed in the 1980s and 90s.
As executive vice president and vice chairman of the Company, he was a member of the its Executive Committee with responsibility not only for legal affairs but also for the management of the parent company, particularly with respect to its diversification efforts.From 1979-80 he was a member of the Board of Directors of The New York Times Company.
Debevoise & Plimpton LLP
He joined the firm of Debevoise & Plimpton in 1980, taking the Times with him as a client.With this as a base, he soon ended up representing many of the major media companies and media personalities in New York City.
Before he arrived at Debevoise & Plimpton, that firm did not represent media companies nor had any capability to advise on intellectual property matters.He created two practice groups for this purpose: one for litigation and one for corporate representation, including mergers and acquisition.Since he started these groups, representation of media entities has been an important part of Debevoise & Plimpton’s practice.
He, or his groups, at Debevoise have represented scores of media and communications companies including The New York Times, the Hearst Corporation, NBC, Cablevision, WNET/Channel 13, Infinity Broadcasting, the New York Observer, The Paris Review, the NFL, NHL and NBA.He was outside general counsel for Channel 13/WNET and a founding officer (secretary) of the New York Observer.He has personally represented many celebrities including George Plimpton, Harry Evans, Tina Brown, Margaret Truman and former Mayor John Lindsay.
A prolific writer, he has written two books on the First Amendment, The New York Times v. The U.S. and All About Cable, and approximately 200articles, particularly on the role of the press in the Information Revolution.His articles have been published in various Law Reviews, The New York Times, The New York Review of Books (cover piece), The Nation, the Nieman Reports, the New York Law Journal, National Law Journal and TheDailyBeast.com. (Also see Communications Law Seminar above for additional publications.)
Fighting for the Press: the Inside Story of the Pentagon Papers and Other Battles, is about what really took place in the Pentagon Papers case in 1971, and the perils facing the press today (CUNY Journalism Press, April 30, 2013). Goodale led the case for the New York Times. The book was twice named best non-fiction book in 2013 by Alan Rusbridger, Editor of The Guardian and Alan Clanton, Editor of ThursdayReview.com. "Fighting for the Press" is citied in the ruling by U.S. Federal Court of Appeals for the Second Circuit, in which the National Security Agency program of collecting data on the landline telephone records of early every American, has been declared illegal. The ruling, which came on May 7, 2015, is the first of its kind by an appeals court. (A.C.L.U. et al. v. James R. Clapper et al.; 2015 WL 2097814 (C.A.2 (N.Y.)).
James Goodale has been a professor since 1977 on the faculties of Yale and New YorkUniversityLawSchools and an affiliated scholar with New YorkLawSchool.Since 1986 he has been on the faculty of FordhamUniversityLawSchool where he teaches “Old Media, New Media, the Internet and the First Amendment.”
At his suggestion, Yale and the Ford Foundation started the Master of Studies in Law/Journalism Program for journalists specializing in law who wish to spend one year at YaleLawSchool.The program was inaugurated in 1976 and for 27 years attracted distinguished journalists, most particularly Linda Greenhouse who covered the Supreme Court for The New York Times.
Throughout his career Goodale has devoted time to public service.In 1992 he was the chairmanof the New York State Judicial Commission on Minorities which concluded the New York judicial system was "infested with racism,” and led to a long dispute between the Commission and New York's then-Chief Judge Sol Wachtler.
A staunch Democrat, he has been active in many political campaigns, including Michael Dukakis for President; David Dinkins, the first African American for Mayor of New York City; and Joseph Lieberman’s campaign for vice president.Lieberman and Goodale had been friends since Lieberman’s college days at Yale.He was a member of the Democratic National Convention Rules Committee in 1988.
As chairman of the Committee to Protect Journalists from 1989 to 1994, he built CPJ into a significant international force to release imprisoned journalists, enlisted powerful members to its Board which included Tom Brokaw, Anthony Lewis and Kati Marton, and increased its budget substantially.In his first year as chairman this budget was $300,000, today it approximates $4 million with an endowment of approximately $10 million.He continues to serve on the CPJ Board.
In 2001, as counsel to George Plimpton, he conceived the idea of turning The Paris Review, a literary magazine which published then unknown writers Samuel Beckett, Philip Roth and Jack Kerouac, into The Paris Review Foundation, Inc.As a result, the Review is one of the few literary journals able to survive the death of its founder.It has an endowment of more than $3 million which Goodale helped raise.In 2001 James Goodale became secretary of the Foundation and in 2003 a member of the Board.
He is married to former Toni Krissel of New York City who is president of the New York City fund-raising firm, T.K. Goodale Associates.They are the parents of Timothy (Co-Founder of Teragon Capital Partners, London), Ashley, a lawyer, and foster parents of Clayton Akiwenzie, a Native American (Director of Wells Fargo, Multifamily Capital, San Francisco ).
Chairmanships and Boards
Cable TV Law and Finance, 1981 – Chairman. Citizens Public Utilities, 1996-99 – Member of the Board. Committee to Protect Journalists, 1989 to 1994 – Chairman. Community Law Offices, East Harlem, 1968-70. Communications Law Seminar, Practising Law Institute 1972-2007 – Founder, Chairman; Chair Emeritus 2008-. Human Rights Watch, 1994-96 – Member of the Board. Ice Theatre of N.Y., 1995-2009 – Member of the Board. International Center for Journalists, 1998-2004 – Member of the Board. Media Law Reporter, 1977-; Co-Founder, Founding Member Advisory Board and contributor. National Law Journal, 1983-90 – Board of Editors and contributor. New York Observer, 1988-92 – Secretary. New York State Judicial Commission on Minorities – 1992 Chairman. Sky Rink, 1990-99 – Chairman and owner. The New York Times, 1979-80 – Member of the Board. The New York Times Foundation, 1966-80 – Member of the Board. The New York Times Neediest Cases Fund, 1966-80 – Member of the Board. The Paris Review Foundation, Inc. (Founder), 2001-, Secretary; 2003-, Member of the Board. Washington & Gunnery Hockey Ice Skating Assoc., 1972 -; Founder and Chairman of the Board.
Communications and the Law, Advisory Board, 1980 – Member. Democratic National Convention Rules Committee, 1988 – Member. New York Lawyers Committee for Dukakis, 1988 – Chairman. New YorkState Privacy & Security Committee – former Member. Second Circuit Commission on Reduction of Burdens and Costs in Civil Litigation, 1977-80 – Member. U.S. Supreme Court Judicial Conference Committee on Judiciary, 1980-89 – Advisor. University of ChicagoLawSchool, Visiting Committee, 1977-80 – Member.
Boys’ Club of New York 1979-1982 – Trustee. Federal Bar Council 1980-84 – Trustee. Gunnery School, 1973-1984 – Trustee. New York City Citizens Budget Commission, 1990-98 – Trustee. Pomfret School – 1972-77 and 1982-86 – Trustee. Salzburg Seminar, 1976-1981 – Trustee; 1981-, Sr. Fellow. St. Bernard’s School, 1978-1981 – Trustee.
The Association of the Bar of the City of New York Member Corporate Law Dept. Committee, 1977-81; Chairman and Founder, Communications Law Committee, 1978-83; Member, Nominating Committee 1981. Fellow of the Institute of Judicial Administration, New York State Bar Association Chairman of the Special Committee on Public Access to Information and Procurement, 1979-84; Special Committee of New York State Bar Association On Media Law, 1985-92. American Bar Association Communications Law Forum and co-Founder, 1979-85; Committee on Public Understanding of the Law, 1979-82; ABA-ANPA Task Force, 1978-84.
Century Association Economic Club Elihu Club 1966-70 - Governor St.Elmo Club WashingtonConnecticut Club -1972-78 - Governor Yale Club - 1964-67 - Governor.
1958–1964: U.S. Army Reserve in Intelligence Unit 1959–1963: Lord Day & Lord, Associate 1963–1980: The New York Times, General Counsel and Vice Chairman 1980– : Debevoise & Plimpton LLP He can be reached at Debevoise & Plimpton LLP, 919 Third Avenue, New York, NY10022; tel: 212 909 6253; fax: 212 909 6836; firstname.lastname@example.org