A Lawyer for Dr. Phil, Oprah and the First Amendment

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By Miles Smith on May 8, 2014. No Comments

By James Walker

Highland Lakes Newspapers

 

One of the foremost First Amendment attorneys in the country, Chip Babcock traces his fascination with newspapers and the media to his childhood and a moment in the noise and bustle of printing an edition of the legendary New York Herald-Tribune, where his father worked in the book review section.

“He took me to the paper’s backshop where one of the printers set my name in type. It was a huge thrill,” recalled Babcock after speaking to the Burnet Rotary Club last Wednesday on threats to the Constitutional guarantees of free speech and a free press.

The name on that line of lead type was “Charles L. Babcock IV,” one considerably more  imposing than the casual “Chip” he uses today for everything but legal documents. That little gesture printers often liked to do for visiting kids in the day of  chattering teletype machines, dinging typewriters and presses that shook the newsroom, inspired a five-year-old to start his own neighborhood newspaper with his mother and some carbon paper.

By the time he was a teen-ager in Florida, Babcock’s sports stories in the school paper attracted the attention of a Miami Herald reporter and won him a job doing  stories on prep school athletics.

Now 64, Babcock is a lawyer’s lawyer, having represented Texas Supreme Court Justice Nathan Hecht and Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals in separate legal disputes; media clients like Oprah Winfrey, Dr. Phil McGraw and Bill O’Reilly; Fox News and all of the major television networks; and national newspapers as large as The New York Times and hometown newspapers smaller than The Highlander.

“The heft of Babcock’s clients, his success not only in handling litigation but in preventing it, and the significance of favorable media rulings from his work have clearly made him one of the most respected and sought after attorneys in the field of First Amendment and media law,” said Roy E. Bode,  President and Publisher of Highland Lakes Newspapers and former editor of the Dallas Times Herald – the first newspaper Babcock represented.

Babcock began to understand his potential as an attorney after graduating from Brown University and landing a job on the sports staff of the Philadelphia Inquirer. While visiting a girlfriend, his curiosity moved him to wander into a Yale Law School class on Constitutional law class taught by Eugene Rostow, the renowned former dean and top political aide to President Lyndon Johnson.

“He assigned the class to write a paper and I wrote one and included a note that said I was just auditing the class,” said Babcock. “Later, I got a note from Rostow that was extremely complimentary.” With that encouragement and doubts about whether sports reporting would be fulfilling as a life-long career, he checked in his press card at the Inquirer and enrolled in the Boston University School of Law, where he received his law degree.

He was hired to clerk for a federal judge in Dallas, then joined Jackson Walker, which incorporated the Dallas Times Herald for new owners in 1905.  By serendipity, The Times Herald was also the new home of two top editors he’d worked with as a reporter in both Philadelphia and Miami. They wanted him to represent the paper’s newsroom.

It was a great place for a new lawyer to start a career. The Times Herald  was bringing a more aggressive approach to Texas journalism that led to large editorial staff increases, the recruitment of top journalists from around the country, creation or enlargement of several news bureaus — in New York and Washington, along with 12 in the state and four abroad. A host of major journalism prizes also followed, including Pulitzers, the George Polk Award and others.

“As it happened, the guy who had handled much of the Times Herald’s business didn’t particularly like media law and one day he came into my office with an arm-load of files and dumped them on my desk,” Babcock recalled.

While he was happy with the sudden influx of cases, he also had a concern. “I did not want to get tagged as only a media lawyer,” he said. “I wanted to be a trial lawyer, so much so that I would take minor cases in Justice of the Peace court and demand a jury trial.”

As a senior partner, Babcock  has been a key player in the growth of Jackson Walker, which has expanded from its Dallas base to six other Texas cities — including Houston, where he now makes his home — to become one of the state’s five largest law firms.

Among the many high-profile trials Babcock has been involved in during his career, probably the most famous and the one that first brought him widespread national attention was “the Oprah trial.”

It took place in 1998 in Amarillo, often  acclaimed as the beef producing capital of the world, after a group of Texas cattlemen sued her, her production company and others for $12 million, contending an April 1996 program about mad cow disease cost them at least that much after a guest on her show said some American cattle were fed ground-up meal made from dead livestock.

Howard Lyman, a cattleman-turned-vegetarian activist, said the practice was believed to cause the spread of mad cow disease in Britain and could lead to an outbreak of the disease in the United States.

After listening to Lyman, Winfrey said,  ”It has just stopped me cold from eating another burger! I’m stopped!”

The trial was one of the first major tests of the Constitutionality of laws adopted by 13 states, meant to punish anyone who knowingly spreads false information about agricultural products.

Winfrey was sued under the False Disparagement of Perishable Food Products Act passed by the Texas Legislature in 1995. Babcock was hired sight unseen by the defense based on recommendations from the program’s distributor, King World,  and ABC television based on prior work he’d done for both.

His first reaction to the case against Oprah was that it “wasn’t much of a lawsuit.”

“Neither she nor her guest said anything that I thought was terribly defamatory and certainly not defamatory about the plaintiffs. The plaintiffs weren’t even mentioned on the show,” Babcock told the Amarillo Globe-News in 2011.

Nevertheless, he said he wanted to have the trial moved — hopefully to Dallas.

“When we got (to Amarillo) we found out the president of the Chamber of Commerce had issued a memo to his staff  – later withdrawn — instructing  them not to provide any ‘red carpet rollouts’ for Winfrey and saying the Chamber ‘supports the cattle feeder industry because they are a vital part of Amarillo,’” Babcock recalled.

There also were signs that said: “The only mad cow in America is Oprah.”

When the trial began, the first panel of 60 jurors reported to the Potter County courthouse, which was adorned with a giant mural depicting a cattle drive.

“Everybody on the jury seemed have some kind of connection to the cattle industry,”

Babcock said.

Babcock and his legal team, which included Phil McGraw, now better known as “Dr. Phil,” along with Oprah’s entourage, took up residence in a three-story bed and breakfast that became their headquarters for the duration of the six-week trial.

It was McGraw, a psychologist who had a consulting business in Wichita Falls and who Babcock had used previously to help pick jurors, who first outlined the winning strategy in the trial, Babcock said.

It was simple. Don’t argue that the comments on the television show were correct — usually the first defense in such cases.

“One night he told me we can’t ask the jury to vote for a defense verdict because this broadcast is true,” Babcock recalled. “He said the community is invested in cattle and it is part of its fabric. Phil said, ‘You have to couch this as the right for a person to express his or her opinion.’”

So the proper argument, Babcock decided, would essentially center on the First Amendment, the Constitutional guarantee of freedom of speech as well as of the press, he said.

That’s the strategy that ultimately proved successful when the jury voted 12-0 that Winfrey had not disparaged the beef industry.

Interviews with the jurors afterward confirmed the wisdom of the First Amendment argument, Babcock said.

“I was told that the vote was 10-2 with two women holding out, one of whom had strong connections to the beef industry,” he said. “The turning point came when a member of the jury, who was a cattleman and who we had been worried about, made a great speech to the other jurors.

“I was told later that he said, and I’m paraphrasing, ‘I am a rancher and I have seen our rights eroded over the years. Religion rights, the right to carry a gun. One we haven’t lost is the right to free speech and that’s not going to happen on my watch.’

“After he finished, one of the women said, ‘Mr. Guthrie is right,’ and the two holdouts changed their votes.”

Babcock still represents Winfrey and her production company Harpo and also has represented McGraw.

“I’m currently representing Phil in a case that is in its eighth year involving a show he did after the disappearance of Natalee Holloway and the involvement of two brothers who were thought to be involved,” he said.

The case has produced at least one important California Court of Appeal ruling that has given additional protection to the media.

The suit was filed by two Surinamese brothers who claim McGraw aired a segment on his show depicting them as “guilty of committing criminal acts against Holloway,” an Alabama teen-ager whose body has not been found after she was presumed killed during a school-sponsored trip to Aruba.

The judge wrote that the law requires that parties seeking damages for defamation from news sources must first “demand a correction (or) be limited to special damages.”

The ruling is considered important because the plaintiffs did not dispute claims by McGraw’s attorneys that they never demanded a retraction from McGraw or his show’s producers.”

Babcock’s wife, Nancy Hamilton, also an attorney at Jackson Walker in Houston, often works with him on media and other litigation.

Looking back, he’s proud of his career and happy with his decision to combine his two great interests — media and the law.

“I like to think what I do is important,” he said. “It is important that our country abide by and protect our free speech rights.”

 

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