Slade Metcalf: The Mentor

Vol. 30 No. 1

By

Rachel F. Strom is an associate in the New York office of Levine Sullivan Koch & Schulz, LLP.

For my final contribution to the ongoing series of conversations with practitioners of media law, I was able to sit down with my former boss and mentor, Slade Metcalf.

Two things struck me after our chat. First, although Slade (just like Judge Sack and Floyd Abrams) certainly had mentors who taught him the ropes, he was largely self-taught when it came to learning the substance of media law. Slade began practicing when the field was very much evolving, and there was a sense that a person had to learn it or make it up as he went along. Second, given the lack of substantive training he had, it is amazing what a premium he put on mentoring others. From a personal perspective, I cannot even begin to tell you how much time he carved out for his associates, organizing biweekly breakfasts where we went over recent decisions and learned how to vet or grilling us on the rules to make sure that we had a good grasp on procedure.1 Those that have worked for Slade have a true respect for getting things right, reading and following the rules, and making sure that they do the best they can for their clients.

As Slade talked about his career, it was clear that the people he was able to work with and work for were the most important part. Now that he has retired, he is most proud of the fact that his former associates “don’t go in-house to a bank, but they also don’t just stop working. Most—thank goodness—are able to go on and go in-house at media companies. . . . The rewards are that” his former associates and partners “have an understanding how the law should be practiced. I think that is important to have people with positions of responsibility”—such as his former colleagues who are now at Dow Jones, News Corporation, Thomson Reuters, HarperCollins, and AOL, among others—who, “without sounding boastful, have a sense of what the First Amendment is and what is the right way to go about protecting it.”

Following His Father’s Lead

After graduating from Princeton (as his father, George, had done before him), Slade joined VISTA (Volunteers in Service to America) for one year, where he worked in inner-city Detroit, and then taught at a boys’ school in Millbrook, New York, for another year.

But Slade always knew that he wanted to go to law school and focus on media law. His interest in the field was piqued, he said, by his father, who had started his own publishing firm, Auburn Press, in 1938. Although his father closed the press in 1941 when he enlisted in the army (he fought in the Battle of the Bulge), he later wrote “A Look-See” column for the local newspaper for about forty to fifty years while serving as a New York state senator for fifteen years.

Slade decided to go to law school at New York University (NYU) (he graduated in 1973) because he wanted to be in a large city. Although he was already interested in representing the media, the law school did not offer any media courses—just a course on law and literature. (“There was nothing of the caliber of a Dave Schulz teaching at Yale,” Slade said, helpfully allowing me to brownnose my new employer now that Slade has retired.) He explained that when he started law school, the field was just not developed. Of course, people represented newspapers, but New York Times v. Sullivan2 was less than six years old when libel cases, for the most part, were considered to be a type of personal injury case. Summary judgment was almost never granted. On the other hand, juries rarely handed out large awards, so most publishers did not feel bad about doing some quick discovery and heading straight to trial.

From Small Firm to Megafirm: The Best-Laid Plans . . .

Once out of law school, Slade was looking for a small firm, some place with under fifty lawyers. He said that he did not “like the psychology of big firms” and, in any event, did not want to be a “Wall Street lawyer.” He joined Townley, Updike, Carter & Rodgers in September 1973. When he started, the firm had about thirty-five lawyers, which was perfect; and it represented a number of media clients, such as the Daily News, Newsday, and WPIX-TV (Channel 11). He worked there for about three and a half years and was able to do some libel work, but spent most of his time working on general litigation matters and product liability cases.

At the end of February 1977 (the 22nd, he believes, to be precise, as he always tries to be), Slade joined Squadron, Ellenoff, Plesent & Lehrer. Squadron had been doing work for Rupert Murdoch and when, in 1976, Murdoch acquired the New York Post, Howard Squadron, Neil Goldman, and Arthur “Trace” Stout, who in many respects became Slade’s mentors, realized that they needed a lawyer who had experience with media law. They approached Slade, asked him to join the firm, and the rest is history.

Slade spent most of his career at that firm, seeing many changes through the years. When he joined Squadron, he was the thirteenth lawyer there. The firm grew to about 150 lawyers before, in 2002, it merged to become part of the large, D.C.-based Hogan & Hartson. Then, in 2010, Hogan merged again to become Hogan Lovells, one of the largest firms in the world, with about 2,500 lawyers. Throughout all of these changes, Slade’s practice remained the same: he “focused almost exclusively on media law in the areas of libel, invasion of privacy, copyright, prepublication review, access to courtrooms and documents, protection of journalists’ rights, and breach of contract.”

Just a month or so before Slade joined Squadron, Murdoch acquired New York Magazine Co., which, at the time, published New York magazine, the Village Voice, and New West magazine, so Slade had a full plate from the start. Murdoch had also started Star magazine (it was originally the National Star, but Murdoch later dropped National) and, later, in 1986, HarperCollins Publishers, which just added to the mix. When Slade spoke about his early years at Squadron, he was able to recount, with astonishing detail, the media landscape at the time: who owned what newspaper; which law firms worked for which clients; and, most of all, how Murdoch (or “Mr. Murdoch,” as Slade calls him) became a media fixture in New York.

From the start, a main part of Slade’s practice involved staying up late on Friday nights vetting the magazines. He had never vetted before, and he was essentially self-trained. Because iPhones did not exist (gasp!), copy would either be read to him over the phone, or he would sit around the office waiting for the copy to come in over one of the original fax machines.

In addition to vetting for these clients, Slade worked on more libel, invasion of privacy, and copyright cases than I care to list or you care to read about. When he started out at the firm, he did not handle the litigation by himself. If a case went to trial, he acted as a second chair to a trial expert, such as Ike Sorkin, and Slade was the “law guy.” If a case ended up at the New York Court of Appeals, New York’s highest court, he would also act as second chair. However, around 1982, Slade started handling the cases himself. Slade stressed over and over the importance of the support that he received from the firm, which gave him the flexibility to handle cases on his own at the young age of thirty-five without looking over his shoulder. It meant that when cases went to the Court of Appeals, he was able to argue them himself, which he did four times.3 And when they went to trial, that was his responsibility, too. It is no overstatement to say that his cases helped define New York’s truly broad protections for speech and the press.

Literally Writing the Book on Media Law

While at Squadron, Slade wrote the treatise Rights and Liabilities of Publishers, Broadcasters, and Reporters, which was first published in 1981 by Shepard’s/McGraw-Hill. As Slade explained, around 1978 or 1979, the company was looking for someone to write a book on media law and, through a friend of a friend of a friend, the company approached him. Although he was still an associate at the time, he said, “Sure, I’ll give it a try.” This meant that for over a year he worked four days a week at the office on his regular cases, and then he would head to the NYU library every Friday and on the weekends to research the book. Not to mention he would somehow fit in all the vetting that he was doing at the time as well.

Again, Slade made it clear that he could not have done it without the support of his firm. The partners allowed him to rearrange his schedule to get the book finished—and even made him partner on January 1, 1981, a few months before the book was published.

Slade supplemented the book by himself for the first two to three years. Then, he said, “I realized I am going to die” and needed to get some help with the supplements. In the early years, Slade received invaluable assistance from the “terrific” Robin Bierstedt, who went on to become the vice president and deputy general counsel at Time Inc., and, after Robin moved on, from the “fantastic” Leonard Niehoff. When Len decided to pass the torch, Slade asked the publisher to find someone else to work on the supplements—he just could not devote the time to oversee it anymore. The publisher hired Rodney Smolla. At that point, the book evolved from Slade’s original vision of a practical guide to help practitioners to a “more academic treatise.”

His Team

After listening to Slade’s war stories about all the work and time he had to put into writing a book while litigating and vetting, I started to feel extraordinarily lazy. Here, still in the early days of my career, I use my time off to watch an unhealthy amount of television, while he spent his weekends at the library and nights waiting at the office for copy to come in.

But, he says, it was not as bad as it seems. Although in the beginning he was basically a one-man shop, he soon started to get real help. Early on, Genie Gavenchak, now a deputy general counsel and senior vice president at News Corporation, came on board. She worked on many of his cases and took a lot of the vetting off his plate. Barry Gold, now at Murphy & McGonigle, joined after that; and then came Mark Jackson, now executive vice president and general counsel at Dow Jones & Company; and then Dori Hanswirth, now a partner at Hogan Lovells. And then more and more came and went over the years.

When I asked Slade to look back on his career, he put his wins in terms of his team. He told me that he is “extraordinarily proud of the work that all of us have done.” He is “very gratified that maybe, in the long run, we made a contribution to the protection of the First Amendment. I don’t want to sound very grandiose about it, but I really feel very, very proud of our collective contribution to bulking up the First Amendment.”

Showing the Slade sense of humor, he added that he was equally proud when people approached him after he won a case and asked, “How the hell did you do that?” But again, he emphasized that it was not just him. He referred to “that case I handled with Kate [Bolger, now a partner at Levine Sullivan Koch & Schulz] and Trina [Hunn, now assistant general counsel at HarperCollins].” And, of course, I knew that he meant Bement v. N.Y.P. Holdings, Inc.,4 in which Slade and his colleagues convinced a New York appellate court that a reference to a former beauty queen and alleged spy for the CIA who “slept with foreign government officials” was not defamatory because “[i]t was never stated that she voluntarily engaged in sex with anyone or that this alleged conduct was pleasurable or economically rewarding for her.”5 Similarly, he gave credit to his team in the more recent win in Ava v. NYP Holdings, Inc.,6 where the same New York court agreed that a claim that the plaintiff had “a ‘masturbatory fantasy’ . . . of being with multiple men and then multiple women” was not defamatory because it is acceptable for her to have fantasies: “Nothing in that sentence or elsewhere in the article supports the inference that plaintiff in fact was promiscuous.”7 Slade said, understatedly, that “both of those cases really expanded the protection of the First Amendment and the scope of protection for the press.”

Sunny Days

Despite all of the fun that he had (depositions of Ozzy Osbourne and Whitney Houston and, as Slade said, “I mean, what could be more interesting than a case about [the movie] Borat?”) and all of the colleagues and clients whom he misses (in particular, he noted that his “colleagues have always been the best”), Slade is happily retired now, living in Charleston, South Carolina. Although he still has the occasional nightmare about missing a deadline for a notice of appeal, mostly he has been able to relax. In addition to teaching a media law course at the College of Charleston, he has been spending a lot of time playing golf, and some of his former media law golfing buddies have made trips to South Carolina to join him. Although he really enjoyed media law work, he said, “There is a time to step back.”

And then he bragged about the weather in Charleston and asked me if it was snowing in New York.

Endnotes

1. I still tremble remembering when he caught me copying an affidavit of service from another associate, which affirmed that we would serve papers by an “overnight delivery service.” Slade handed me the New York rules and told me to come back and talk to him when I understood if we were allowed to serve our papers that way. After spending a good thirty minutes reading the rules, I realized that I had it right the first time. (I had copied the work of Jay Conti, now a vice president at Dow Jones & Company, and you can never go wrong copying Jay.)

2. 376 U.S. 254 (1964).

3. See Kipper v. NYP Holdings Co., Inc., 912 N.E.2d 26 (2009) (no actual malice); Golub v. Enquirer/Star Group, Inc., 681 N.E.2d 1282 (1997) (no defamatory meaning); Freeman v. Johnston, 637 N.E.2d 268 (1994) (no actual malice); Stephano v. News Group Publ’ns, Inc., 474 N.E.2d 580 (1984) (no statutory invasion of privacy claim).

4. 307 A.D.2d 86, 760 N.Y.S.2d 133 (N.Y. App. Div. 1st Dep’t 2003).

5. 307 A.D.2d at 88, 92.

6. 64 A.D.3d 407, 885 N.Y.S.2d 247 (N.Y. App. Div. 1st Dep’t 2009).

7. 64 A.D.3d at 409, 414.

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