Free Speech Rocks!

When Babcock got Oprah off the hook in her notorious $11 million defamation suit, she was so grateful that she loaned him her 160-foot cruise boat

Published in 2005 Texas Super Lawyers Magazine — October 2005

Everybody asks Chip about Oprah. And why not? Charles “Chip” Babcock has been linked to the queen of daytime ever since he successfully defended her in 1998 from a horde of ticked-off Texas cattlemen who were convinced that Oprah’s comments on national television caused the price of beef to head south.
 
Today, Babcock is happy to talk about Oprah. As he sits in his modest corner office in downtown Houston, he says he doesn’t mind answering the questions, though he makes it clear that he’s done a heck of a lot more work than just being Oprah Winfrey’s attorney seven years ago.
 
“If you’re gonna be linked to somebody, Oprah is a pretty good person to get linked to,” Babcock says with a smile that hints he’s probably said that a few hundred times before. “I don’t get tired of people asking me about it. In fact, I think about it a lot. And it was an important case. But if I had just sort of shut it down and not really tried any cases after that win … well, shame on me.”
 
The thing about Babcock, though, is that he doesn’t shut it down. He may never shut it down. As a partner at Jackson Walker, Babcock has emerged as one of the country’s most renowned defenders of the First Amendment. He’s been successful in more than a dozen defamation cases regarding the media — always on the side of free speech and freedom of the press.
 
In fact, he’s just returned from Chicago, where he won what he calls “an extraordinarily important” libel case on behalf of the Chicago Tribune. The case centered around a series of articles examining inequities in the criminal justice system.
 
Says Maury Possley, criminal justice reporter at the Chicago Tribune, “Chip was tremendously effective, not only in court but in helping me prepare for court. He sat me down and asked me to create a timeline of the events of the case. It was a very valuable tool, and coincidentally, a great journalist exercise.”
 
“The Tribune was so proud of what they had done,” says Babcock. “This journalism had effected real change, real results. [Illinois’] governor cited this body of work as one of the reasons he commuted the death sentences for all the people on death row.”
 
However, a local prosecutor felt defamed in one of the articles, based on the paraphrasing of statements made to the grand jury. So he sued the writers and the Tribune. Had he prevailed, the press as an institution might have been intimidated into relaxing its aggressive pursuits of similar investigative projects. A win for the prosecution would also have been a major influence on future jurors’ attitudes about the integrity and fairness of such journalism.
 
“This was such a major case that there were other prosecutors coming into the courtroom to watch this trial and give support [to the prosecutor]. In fact, I overheard one of them saying something like ‘You’re doing this for all of us,’” Babcock recalls.
 
The jury took a mere three hours to decide that there was a factual error, but nothing defamatory or malicious. But the fact that Babcock had to slug it out for three weeks doesn’t augur well for this type of journalistic pursuit. “Who knows what would have happened if the results had come out the other way?” says Babcock. “Whether it’s the Chicago Tribune or the Houston Chronicle or the Los Angeles Times, if a prosecutor is able to prevail in a case like this, over a small misattribution, there could be very serious consequences. Instead of tackling the big issues, the media organizations are going to say to themselves, ‘If we’re just going to get sued over this, let’s instead just go see how Jennifer Aniston is doing.’”
 
When the verdict was read, members of his legal team and the defendants felt such relief that they had to fight back tears. “I was kind of emotional about it too,” says Babcock. “I wasn’t crying, but I came close.”
 
 
Writing the Early Years
 
Because everybody asks about Oprah, it doesn’t always get reported that part of the reason Babcock zealously defends the First Amendment is because he’s practically got printer’s ink in his blood. He was born in Brooklyn, and his father worked for the New York Herald Tribune in their book review section. Babcock remembers being in the pressroom when he was 5 years old and the pressman setting his name in type. It was his first byline, but not his last.
 
The family moved to Florida, where he continued his interest in the press. “I published a neighborhood newspaper when I was 11 called the West Palm Beach News, and I sold it around a two- or three-block radius. I charged a dime and wrote all this crazy stuff in it,” says Babcock.
 
During his junior year of high school, he worked part-time for the sports section of the Miami Herald. That led to a full-time position each summer during college, and to his very first taste of media litigation.
 
“There was a lawsuit filed against the paper about an article I had something to do with,” Babcock says. “We wrote about a high school football coach who had been fired, and the mayor was mad about the article. I don’t know if I was even served. I was never deposed, and as I understand it the case got dismissed. But I was on the edge.”
 
After graduating from Brown University he had job offers from the Herald as well as Sports Illustrated and the Philadelphia Inquirer. He ultimately chose Philly, though some [In fact, I] might question why he would turn down Sports Illustrated, then, as now, the bible of sports journalism. “It was a shitty job that didn’t pay very much,” explains Babcock. At this point I remind Babcock that this is journalism we’re talking about — and it never pays well. Babcock replies that his offer from SI was “especially shitty.”
 
Babcock wrote columns about the Philly area high school and college sports teams. The response he got to those essays reimpressed upon him how the power of the press moves people to respond with their own opinionated speech — and sometimes further.
 
“I was walking into the Palestra arena one afternoon to cover a basketball game. Someone from behind me goes, ‘Yo, Chip,’ and I turn around and this fist comes that close to my face … holy smokes,” he says while demonstrating how he had to duck a sucker punch thrown by a guy who strongly disagreed with his writing. “At that same game, the team I had written would be the loser was killing the other team. While I’m sitting at the press table, the guy sitting next to me says, ‘Hey, what’s that?’ These kids sitting across the court have this big sign that says, BABCOCK SUCKS. A certain form of free speech, I guess.”
 
Babcock wrote in Philadelphia for two years. He dated a girl at Yale, and as long as he was driving regularly to the campus anyway, he decided to audit a class on constitutional law. He took the midterm exam and wrote on the outside of the booklet that the professor didn’t have to read it, since he was auditing the course anyway. The professor did read it, however, and informed him that he had written the best exam in the class. Two years later, he was attending Boston University’s School of Law.
 
After graduation, he worked a clerkship in Dallas. Two editors that he knew from Miami and Philadelphia, and who now worked for the Dallas Times Herald, suggested that he apply to Jackson Walker. In 1978, Babcock joined that firm, where the First Amendment was just waiting for his arrival. A colleague who was legal counsel for the Times Herald hated the work, and when Babcock showed up, he took the opportunity to dump his media clients on the new guy. Babcock says, “It’s been a terrific marriage of the two professions ever since.”
 
 
Putting It Into Practice
 
In those early years he tried a case that he remains most proud of, though it had nothing to do with the First Amendment. It gained zero notoriety but helped him gain perspective on how the justice system is supposed to work for everyone.
 
He was doing pro bono work for a clinic when a woman told him that her husband had taken her children away two years earlier. The father threatened to kill her and the kids if she ever came after them. With no leads on where to find them, Babcock and his paralegal simply started asking everyone who might have known about the whereabouts of the father and his kids until they eventually found them all — living in a crack house. He called the county sheriff and together they went to call on the father. Babcock knocked on the door to his house.
 
“I’m in pinstripes, for crying out loud, in this bad part of town,” says Babcock. “This guy was definitely on some drugs, and I knew he had a violent history, and he was really upset. It took a while to calm him down. I was a little scared, even though the sheriff was there.”
 
The father showed up to court and made a big, convincing argument on how the mother was unfit and had abandoned the kids. Babcock realized the judge was listening and looking sympathetic, so he had to cross-examine the guy knowing there was a distinct possibility these kids’ lives were on the line. The judge ultimately decided that the kids should stay with the mom. “I think I did a really good thing for those boys. I’ve never seen them since, but it took a lot of time and energy, and I have always been proud I won that case.”
 
But everyone always asks about Oprah. So Babcock will take a deep breath and begin the story in 1996, when Oprah said on one of her shows that certain feeding practices of cows had “stopped me cold from eating another burger.” That set into motion events that would lead to one of the most publicly followed trials in American history. When she was sued for defamation by the Texas cattlemen, she brought in Babcock.
 
The trial took place in Amarillo, and he says it was impossible not to notice the Welcome to Cattle Country sign, or the mural in the courthouse of a cattle drive, or the bumper stickers saying The only mad cow in America is Oprah. But he believes that the lead lawyer for the cattlemen gave too much credit to the venue: “He would say to me, ‘You ought to settle because all we gotta do is roll the ball onto the court and we’re going to win this game.’” (Here’s a lesson: Never challenge a former sportswriter with a sports cliché.)
 
If there was ever a question about Babcock’s bravado, he dispelled it when he let a rancher onto the jury. “I remember getting criticized for that, being called the dumbest lawyer since they made lawyers,” says Babcock.
 
Not hardly. Babcock had seen in that juror everything he needed to win the case, a sentiment that he was convinced existed strongly in West Texas. And that was the sentiment that by God everybody’s got a right to their opinion.
 
Babcock’s decision was a homerun hit. After the trial he discovered that that juror had delivered an impassioned speech in the jury room about how, in his lifetime, so many rights had been lost — and one of the only rights that hadn’t been lost was free speech. That’s the right, he stated, that should be used to regain those lost rights.
 
Oprah did her part too. Babcock says she was very engaged in the case and showed up every day. He says her work ethic was extraordinary, working on the case each morning, taping a show and returning each evening to continue the work.
 
“Oprah could have paid what they were demanding to settle out of her pocket change,” says Babcock. “That wasn’t the issue at all. I think that she did a great thing for free speech.”
 
After six weeks, he looked at those jurors in closing and said, “You don’t compromise. Don’t give them a little bit of money to go away. The First Amendment is not for sale.” And that’s what they told the cattlemen: No sale. After reflecting on the meaning of the First Amendment, the jury decided Oprah did not maliciously harm the U.S. beef industry. The cattlemen had asked for $11 million in damages. They got nothing.
 
After the verdict and after Oprah’s famous “Free Speech Rocks!” exclamation on the courthouse steps, Babcock received hundreds of pieces of fan mail. Oprah was so appreciative that she gave Babcock a cruise. “And I mean not just a cruise,” he clarifies. “She gave me the boat, a 160-foot boat to do with what I want.”
 
Not a bad reward for defending the most basic right our country knows, the one we brag most often about but have to defend so adamantly. As for Babcock, he appeared on Oprah’s show to take a bow for his work. “Well, it was fine until the end, when she wanted me to dance with her,” says Babcock. “I was up there, but I wouldn’t call it dancing.”
 
And one more thing. Babcock made a major contribution to American popular culture when he introduced Oprah to the psychologist he brought in as a jury consultant. They got along so well, she started having him appear on her show. And that’s how Dr. Phil owes his fame to Chip Babcock.
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