Alumna Ashley Messenger defends freedom of speech in the media
In Albuquerque, New Mexico, in the late 1990s, Ashley Messenger (JD ’94) was engaged in a phone conversation about the city’s homeless population and agreed with her counterpart that the police could be unnecessarily aggressive.
“I made a comment like, ‘Oh yes, I’ve seen some horrible incidents,'” Messenger recalls. The thing that makes her comments stand out in memory years later is that this was no ordinary phone call‚Äîas the host of a call-in talk show on KTEG-FM she was conversing on air with a listener and had, essentially, publicly accused the city’s police of brutality.
“As soon as I said that,” she remembers, “I got a call from a police officer who said, on the air, ‘You really should go on a ride-along with the police, because you don’t know what it’s like until you’re out there.’ So I arranged a ride-along and it was one of the best experiences of my life.”
She ended up hosting a police officer as a guest to discuss the issues‚Äîeven admitting on air that her earlier comments had been hasty. She has thought about the incident many times over the years as she transitioned from her role as a member of the media to her current role as a First Amendment and media lawyer. Today she continues to walk the line between the media and the law as associate general counsel for NPR and as an adjunct professor of media law at the American University School of Communications, training aspiring journalists to go out into the real world as prepared as possible to defend freedom of speech whenever necessary.
“Being on air was the best possible experience I could have had to provide advice to journalists,” she says. Before accepting the hosting job in 1996 she had graduated Pepperdine School of Law in 1994 with an emphasis in entertainment law, thinking that the most interesting First Amendment cases would transpire from music and film. But she found herself mostly dealing with contracts.
“I was more interested in those great First Amendment cases – those very deep, philosophical cases about freedom of speech and why speech should be permitted or not permitted. I didn’t realize it at the time, but it turns out that most of those cases are really based on news media or protesters, or other people who are trying to present news in a public forum.”
Messenger works with the journalists on a day-to-day basis, advising them on legal issues in the gathering of information, reviewing articles before publication to make sure that the organization is aware of potential controversy and will be able to legally defend its choices, and dealing with complaints about stories after publication. At the end of every day, she strives to ensure that risks are taken knowingly.
“You just have to feel both legally and ethically comfortable with what you’re doing, and sometimes that means knowing that it’s possible someone is going to be angry, but that you still feel like you did the right thing. It’s not really my job to prevent all legal risks – that’s not really possible. People can sue you for anything.”
One case in particular caught her off guard, when she was the editorial counsel for U.S. News & World Report in the mid-2000s. There was almost no way she could have anticipated the plaintiff’s complaints before publication.
The story was about the Harry Potter series by J. K. Rowling, in which an historical figure named Nicholas Flamel is mentioned as an alchemist who could turn lead into gold. The article included mention that Flamel, in real life, had claimed to be an alchemist but that when he died it was revealed to be a hoax.
“So a man sued us, claiming that we defamed him because he was an alchemist and he was about to release his new invention showing everyone how to turn lead into gold, and that our story impugned on his credibility,” Messenger explains.
It was exactly the kind of case that she loves, as it allowed her to stand up for free speech in defined legal terms. “He clearly had no justifiable claim for a few reasons, the main one being that he was not identified in the story, and in the U.S. you have to be identified in order to bring a libel claim. The U.S. doesn’t recognize a group libel – you can’t defame all alchemists by making a claim about one alchemist.”
That incident stands out in memory as a culturally interesting case, and as appealing to her past as a philosophy undergraduate at the University of Massachusetts. In fact, she has found in her media law work a perfect combination of her interests in law, journalism, and philosophy.
“I like thinking about why speech should be protected and about how you should interpret or understand various forms of communication, which is very much a philosophical question,” she enthuses. “I like being able to legally defend what we do when questions come up or when people claim we shouldn’t be allowed to say something.”
As an avid enthusiast of communications, she is merging the two somewhat with articles about media law due for publication later this year in the University of North Carolina’s First Amendment Law Review and Communications Lawyer. She is also completing a textbook manuscript for Pearson about media law, which is tentatively scheduled for publication in the summer of 2013.
Messenger does, however, prefer to be on the legal side of the proceedings; even though she had such a positive experience with the police officer incident as a radio DJ in Albuquerque, she has no plans to quit the law and take up journalism instead.
“A lot of it has to do with just personality and character traits – it takes a certain kind of person to be a journalist day-in and day-out. It’s very difficult to keep that up and maintaining contacts and trying to find out the truth of a story and I was getting burned out at KTEG,” she says. “But I really love the news media business, and I think it serves an important function in our society.”