American Bar Association
Forum on Communications Law


As our Sixth Annual Conference at Boca Raton approaches, I thought I would use this opportunity to answer two of the questions I am often asked regarding our winter meetings-how we choose the sites and programs for our conference.

There always is much heated discussion about site selection. Those from the Left Coast say they are sick of traveling east for every First Amendment conference, noting that PLI and LDRC don't even think about rotating coasts. Easterners complain of being jet lagged for the trip out west; midwesterners are happy to go anywhere that is warm.

The last poll of our attendees was somewhat like the Florida vote for president-nondeterminative. About equal numbers voted for each of the four alternatives: Boca; Florida, other than Boca; Arizona; or California. We saw no loose chads or dimples.

Kelli Sager, representing the West Coast view, has been a strong advocate of a rotating conference. Though Barbara Wall, Lee Levine, and I are not sure why we should bear the burden of the lack of flexibility by other First Amendment conferences, in principle we have agreed that rotating coasts is a good idea. Then why, you may ask, are we booked for Boca not only in 2001, but also in 2002?

The answer lies in the fact that there are some priorities higher than site rotation. First, we are looking for a warm weather site, which in addition to the obvious conference necessities, also offers us onsite golf, sufficient tennis courts for our tournament, and swimming, preferably of the ocean variety. Moreover, we think it is important to be in close proximity to an airport and have a destination that has direct flights from most metropolitan centers. The latter requirement, for example, pretty much eliminated Santa Barbara and even Palm Springs, two sites that we otherwise would have considered. The Ritz Carlton at Laguna Niguel was pretty pricey and also did not have a sufficient number of tennis courts.

Thus, our search for a western spot for 2002 led us back to the Phoenix area. However, when our crack planners inquired, they were told that the five hotels that we had focused on for Phoenix were all booked for the key weekends in 2002. We went ahead and booked one of those hotels for 2003, but happily had the chance to retreat back to Boca for 2002.

Boca is a site that seems to be well liked by everyone, other than for its distance from the West Coast. One of its other great advantages for us is that it is a draw for speakers, as is South Florida generally. Since, for better or worse, many of our guest speakers come from the northeast, it is far easier (and cheaper) to get them to Florida than to ask them to travel across country.

Discussions on what programs to present begin almost as soon as the prior year's conference is over. Barbara, Lee, Kelli, and I start by evaluating the last conference and suggesting ideas for the next. Last spring, it seemed pretty clear that the Bartnicki/Gingrich tapes/Peevey cases were very important and, at the least, would be the subject of three different federal courts of appeals decisions by conference time. Since the issue they raised was so significant and interesting, the topic seemed like a no-brainer for a program. We speculated that if any of them got to the U.S. Supreme Court, that would make the program all the more topical-and, of course, Bartnicki did.

Adding to our prescience was a little bit of luck in that the oral argument was eventually scheduled for before the conference. If it had been the other way around, it is unclear whether advocates in the case would have been willing to speak. Indeed, even now, the Solicitor General's office, which we definitely wanted to participate, begged off because of an office policy against speaking on pending cases.

Based on my review of the evaluations that come in after each conference, I proposed a panel on how journalists view media lawyers. This has been a subject that has been proposed on a couple of evaluation forms each year (I don't know if it's the same person always repeating the idea). We also thought this would be a good opportunity to bring some interesting editors and reporters to our conference.

Finally, Barbara Wall was intrigued by discussions about the Cohen v. Cowles Media case and its applicability to newsgathering cases in general. As many of you will recall, we've had a history of retrospectives, viewing Watergate, Times v. Sullivan, and Vietnam war coverage many years after. With that in mind, and with the question of when a journalist can reasonably out a source always an interesting topic, we quickly grabbed on to her idea of a program revisiting that case.

Left on the drawing board was a proposal I had, to revisit the Audubon Society case and do a panel on why neutral reportage has not been accepted nationally. I believe that is the most counterintuitive part of libel law, but, at the end, there was no room left on this year's program. As they said in Brooklyn (and are saying this year in Queens), wait till next year.

In sum, we're very excited about all three plenary sessions and about returning to Boca. In addition, we believe that the key to the success of our conferences has been our workshops, allowing for give-and-take among all participants, and we eagerly are repeating those that worked so well last year in San Diego. We think it will be a great conference, and we look forward to seeing you there.

One bit of business will also be transacted at Boca. That is the election of a new chair-elect and three new Governing Board members. The nominating committee of Peter Canfield, Chuck Tobin, and Kelli Sager gave the matter considerable thought and proposed a truly superb slate, which I hope will be endorsed by the membership in Boca. Tom Kelley of Faegre & Benson in Denver has been nominated as chair-elect. Tom has worked tirelessly on the Governing Board, particularly on the rather thankless mission of increasing membership, and he is a great choice to take over when my term is done in 2002. He also would continue a pretty good tradition of flip-flopping between easterners and westerners and between in-house and outside counsel. On the slate for Governing Board positions are Carol LoCicero of Holland & Knight in Tampa, Sandra Williams of CBS in Los Angeles, and Nicole Wong, an Internet expert from Perkins Coie in Menlo Park, California. They will add to the tremendous diversity of the Governing Board, including a geographic spread away from the northeast corridor. I hope you will elect these new Governing Board members in Boca.

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