A Fierce Defender of First Amendment Rights Brings His Experience and Love of Teaching to SMU Law School

“I think he will be an incredible teacher. He’s brilliant, thoughtful, a wonderful writer, and a wonderful litigator.”

When Jennifer Collins, the dean of SMU’s Dedman School of Law, was offered a $900,000 gift by the Stanton Foundation to be used to launch a First Amendment clinic, she wanted to seek the advice of some of the country’s leading First Amendment litigators. On her short list: V&E partner Tom Leatherbury.

“Tom was the very first call I made,” Collins recalled. “I have to say, we had mused to ourselves before we called him, ‘wouldn’t it be wonderful if Tom would be interested in heading the clinic?’ But I didn’t have the courage to dream that such a thing might be possible.”

As it turned out, after speaking to Collins, Leatherbury became interested in the idea of leading the clinic. They discussed an arrangement where he would serve as director and adjunct professor, while the law school would appoint a full-time fellow to handle the day-to-day administration. Under this model, Leatherbury could remain at V&E and, at the same time, fulfill his ambition to educate future attorneys.

“This is a great fit for my interests both in First Amendment work and in clinical education,” said Leatherbury, who was named director of the clinic in October. “It’s really important to me to train the next generation of lawyers, and in particular, to train them in First Amendment values which are so critical to our democracy.”

Leatherbury, who is the co-head of V&E’s Appellate practice, knows first-hand the value of advocacy in the defense of a free press.

Leatherbury in federal court in a 2004 patent infringement trial.

In a career spanning more than four decades, he has regularly represented traditional and digital publishers, as well as broadcasters, in all aspects of media litigation, including libel, privacy and other torts, reporter’s privilege, newsgathering and access, misappropriation, and breach of contract actions.

In addition to his active V&E First Amendment practice, Leatherbury has also worked on cases with First Amendment clinics at Yale Law School and at Cornell Law School.

“I think he will be an incredible teacher. He’s brilliant, thoughtful, a wonderful writer, and a wonderful litigator,” Collins said. “I also think it will be an extraordinary opportunity for students to see a role model, a really consummate professional in action.”

Leatherbury recently sat down to talk about his plans for the clinic, why First Amendment clinics matter to both law students and the media, and how he helped now deceased “60 Minutes” correspondent Ed Bradley defeat a libel claim. Here’s what he had to say.

What is the clinic’s mission?

We expect to provide students with opportunities to work with clients on a wide variety of First Amendment matters. Those include motions to unseal court records, motions to open up courtrooms, libel defense, and access to information work.

In addition to direct client work, I expect there will be some amicus efforts in collaboration with other clinics or in partnership with national and state media organizations like the Reporters Committee for Freedom of the Press and the Texas Association of Broadcasters.

How much direct involvement will SMU Law students have with clients?

A lot.

The goal is to get students up on their feet, give them direct contact with clients — under supervision — and teach substance and practical skills through the cases they are actually working on.

Who are the clinic’s potential clients?

I think there is a huge renewed interest in government transparency. But because of the economic challenges facing the publishing industry and the media, there’s likely a significant amount of legal work that’s not getting done because there’s no budget for it.

My hope is that publishers and broadcasters, whether they’re nonprofit or for-profit, will have matters that they’ll refer to the clinic.

Another angle that intrigues me — and something that Yale has done very well — is to develop a high enough profile on campus to sign up other schools within the university as clients when they have First Amendment issues.

In addition, there are organizations that regularly get calls from freelance journalists seeking legal help, like the Reporters Committee for Freedom of the Press and the National Press Photographers Association.

V&E historically has taken on some of those cases. Now some of these cases could go to the clinic.

SMU Law’s First Amendment clinic will officially kick off in August of 2020, with its first class consisting of six to eight students. What are you working on now?

There’s a lot of ramp-up work. I’m drafting a course proposal. I will be recruiting students. I’ve asked our V&E summer associates who are studying at SMU to keep an eye out for students who might be interested.

Then there is the matter of sourcing the cases. I’ll be meeting with organizations such as the Freedom of Information Foundation of Texas and others to make them aware of the clinic. I’m casting a lot of bread on the water to get the best mix of cases possible for the students.

How did you get your start in media law?

I was a first-year associate, just off my clerkship and working at a different firm before joining V&E. I happened to be in the office on a Saturday morning, and a partner at the firm who did all the work for The Dallas Morning News busted into my office and needed an appellate brief written in a libel case. I happened to be there — and I just kept at it.

Leatherbury (l.) arguing a motion to quash a subpoena to a Dallas Morning News reporter circa 1983.

You’ve been involved in numerous notable First Amendment cases over the years. What is a career highlight?

I was on the team that represented CBS, “60 Minutes” and “60 Minutes” correspondent Ed Bradley, in a lawsuit in El Paso federal court back in 1997.

Ed Bradley on the stand.

The “60 Minutes” broadcast in question focused on impoverished communities called colonias, which housed immigrants along the U.S.-Mexico border.

These communities had no running water; there was rampant disease and just horrible living conditions. The “60 Minutes” piece unraveled the ownership of some of the worst of these colonias and found that the principal owner of a particular community was a very powerful El Paso family, the Kastrins.

Deborah Kastrin sat for a “60 Minutes” interview. She didn’t like how it turned out and sued along with other family members for defamation.

The theme of our defense was: “Sometimes the truth hurts.” After a two-week trial, the jury found that the broadcast was not false. Sometimes the truth does hurt.

We were on the side of the angels. It can’t get better than that.