Robert A. Bertsche

Robert A. Bertsche is devoted to protecting and strengthening his clients’ ability to communicate their content on a wide variety of platforms, including digital, interactive, print, electronic, and social media.

As a media and First Amendment lawyer with a national practice, Rob offers counseling and litigation services to clients throughout the United States including magazines, newspapers, book publishers, broadcasters, website operators, bloggers, filmmakers, and advertising and public relations agencies.

Rob’s media practice includes:

  • Defending media clients in state and federal court against claims of libel, invasion of privacy, copyright and trademark infringement, commercial appropriation, and breach of contract, as well as related actions;
  • Conducting prepublication and pre-broadcast review for magazines, newspapers, websites, broadcasters, and advertisers;
  • Advising artists, photographers, and writers on copyright and fair use law;
  • Negotiating and drafting freelance and other media contracts;
  • Conducting workplace trainings to help the media stay out of court;
  • Prosecuting access challenges under federal and state law;
  • Helping clients draft and enact policies relating to social media, confidential sources, ethics, blogging, and data privacy;
  • Defending reporters against subpoenas seeking confidential sources or notes;
  • Assessing website compliance with state and federal regulations; and
  • Designing and drafting rules for sweepstakes, contests, and other promotions.

Rob’s clients range from the multinational publishing company to the solitary blogger, from the television talk-show host to the cartoonist, and from the documentary filmmaker to the publisher of a community newspaper.  Much of Rob’s day-to-day work involves protecting his clients from litigation.  As a former newspaper and magazine journalist, he is dedicated to helping journalists and reporters practice their craft aggressively and responsibly, without courting undue legal risk.  He has conducted prepublication review of thousands of newspaper and magazine articles, as well as nonfiction books on politics, business, and ethics, as well as cooking.  He has also served as legal counsel to documentary filmmakers.

Rob plays an active role in the journalism community.  He serves on the Supreme Judicial Court’s Judiciary-Media Committee.  He is treasurer, and a member of the Executive Committee, of the New England First Amendment Coalition.  As outside general counsel to the New England Newspaper and Press Association (NENPA), he established and continues to oversee an active legal hotline for the 400-plus community newspapers that are NENPA members. Since 2002, the New York-based American Society of Magazine Editors has selected Rob to provide its annual business and editorial law training for staff of print and online publications alike.

Rob has presented at conferences of the National Newspaper Association, Magazine Publishers Association, Alliance of Area Business Publishers, City and Regional Magazine Association, and New England Newspaper and Press Association.  He has also served as an adjunct professor in communication and media law at Boston College and Tufts University and is a frequent guest speaker to journalism classes at Northeastern University, Emerson College, Boston University, and elsewhere.  For more than 20 years, he has authored the annual survey of First Circuit libel law published by the New York-based Media Law Resource Center.  He also writes an outline of Massachusetts public access law published by the Reporters Committee for Freedom of the Press.

In his employment practice, Rob counsels employers on issues including terminations, sexual harassment, wage and hour laws, and independent contractor status.  He has defended businesses in state and federal court and at the Massachusetts Commission Against Discrimination (including in public hearings) against a variety of employment-related claims. His annually updated survey of Massachusetts employment libel law is distributed nationwide by LexisNexis.

Rob was an associate, then partner, at the Boston law firm of Hill & Barlow for 13 years until its closing in 2003.  Before attending law school, he worked as city editor of the daily Transcript-Telegram newspaper in Holyoke, Massachusetts, attended the Radcliffe Publishing Procedures Course in Cambridge, Massachusetts, and was a founding editor of New England Monthly magazine, which twice won the National Magazine Award for General Excellence.

  • Harvard Law School, J.D., magna cum laude, 1989
  • Radcliffe Publishing Procedures Course, 1986
  • Wesleyan University, B.A., magna cum laude, 1980
  • Massachusetts
  • New Hampshire
  • New York
  • Pennsylvania
  • United States Court of Appeals for the First Circuit
  • United States Court of Appeals for the Second Circuit
  • United States Court of Appeals for the Third Circuit
  • United States District Court for the District of Massachusetts
  • United States District Court for the Eastern District of Pennsylvania
  • United States District Court for the Southern District of New York
  • United States Supreme Court
  • Judiciary-Media Committee of the Massachusetts Supreme Judicial Court
  • New England Newspaper and Press Association (General Counsel)
  • New England First Amendment Coalition (Second Vice President)
  • American Bar Association
  • American Bar Foundation (Life Fellow)
  • Boston Bar Association
  • Copyright Society
  • Massachusetts Bar Foundation (Oliver Wendell Holmes Fellow)
  • National Newspaper Association
  • Martindale-Hubbell AV® Preeminent™ Peer Review Rated
  • Lawyers of Distinction (Media and First Amendment Law)
  • Litigation Counsel of America (Media, First Amendment, and Intellectual Property), Fellow
  • 2005-present: Listed in The Best Lawyers in America®, New England’s Best Lawyers, and Boston’s Best Lawyers (Woodward/White) in the fields of Communications Law, Media Law, First Amendment Law, and Litigation – First Amendment
  • 2004-present: Recognized as a “Massachusetts Super Lawyer” in the area of First Amendment/Media/Advertising
  • 2012: Named a top-rated intellectual property attorney by Martindale-Hubbell in American Legal Media’s publication of Top Rated Lawyers: Intellectual Property
  • 2011: Robert B. Fraser Award for Pro Bono Excellence, from Volunteer Lawyers for the Arts of Massachusetts
  • Media Law Resource Center
  • New England First Amendment Coalition (Second Vice President)
  • New England Newspaper and Press Association (Outside General Counsel)
  • Reporters Committee for Freedom of the Press
  • Author of Massachusetts chapter in MLRC 50-State Survey: Employment Libel and Privacy Law, 1999-present
  • Author of Massachusetts chapter in MLRC 50-State Survey: Media Libel Law, 1999-present

RECENT ARTICLES & ALERTS

  • April 2020:  Prince Lobel Commentary/ Public Resource:  “Can the New England News Media Attend ‘Virtual’ Court Hearings?”
  • September 2017: “First Amendment’s Clash with Censorship and Hate Speech,” Lawyer 2 Lawyer podcast
  • April 2016: “12 Questions Skeptical Lawyers Might Have About Social Media,” Massachusetts Lawyers Weekly
  • August 2014: “Tale of Junk Faxes, Wily Lawyers, and Super Bowl Seasickness,” Massachusetts Lawyers Weekly
  • March 2013: “Discussing Slots in Private: Good Government or Violation of Law?,” Massachusetts Lawyers Weekly
  • October 17, 2019, “Annual Legal Briefing,” American Society of Magazine Editors, New York, New York
  • February 2018: Moderator, “Reporting on Sexual Assault: The Journalistic, Emotional, and Legal Challenges,” NENPA Winter Conference 2018
  • September 2017: Presenter, “ASME Magazine Law Update 2017: Fake News, ‘Alternative Facts,’ and the Crisis of Media Credibility,” American Society of Magazine Editors
  • May 2017: Speaker, “The Making of Silent U., and the Battle Against a State That Wanted to Keep it Quiet,” with Liz Canner, Astrea Media, National Association of Women Judges
  • May 2017: Speaker, “How to Fight Impostor Websites, Phishing, Pharming, Vishing, and SMiShing,” and “Social Media: Tools for Controlling Employee (and Ex-Employee) Speech,” New England Corporate Counsel Association (NECCA) Conference
  • February 2017: Panelist, “Protecting the Student Press: Legal Issues Facing Student Journalists,” and “The Next Four Years and the Press;” Speaker, “Defamations Back in Style,” NENPA Convention
  • October 2016: Speaker, “Tips and Training to Keep Your Newspaper in Compliance with Changing Employment Law,” with Laurie Rubin, NENPA University Seminar
  • October 2016: Speaker, “Media Law for Journalists: Newsgathering Torts,” Media Law Resource Center (MLRC) Institute
  • October 2016: Speaker, “Tips for Staying Out of Legal Trouble: Common Issues in Defamation and the Invasion of Privacy,” New England First Amendment Institute (NEFAI)
  • June 2016: Speaker, “The New Landscape of Media Law in the Digital Age,” The Alliance of Area Business Publishers Summer Conference
  • December 2015: Panelist, “The Right to Be Forgotten: How Newspapers Should Handle Requests to Take Down What Theyve Reported,” Massachusetts Newspaper Publishers Association (MNPA) Annual Conference
  • September 2015: Speaker, “The Reporters Legal Toolbox,” with Jeffrey J. Pyle and Asya Calixto,  NENPA Training Workshop
  • May 2015: Speaker, “Reporting from the Internet: Truth, Libel, Copyright, and Fair Use,” New England Scholastic Press Association (NESPA) Annual Conference

Trials

  • Mandel v. Boston Phoenix, Inc., 483 F. Supp. 2d 67, 492 F. Supp. 2d 26 (D. Mass. 2006, 2007) (counsel to individual defendants in libel case re-trial that resulted in hung jury and later settled).
  • Martin v. Roy, 54 Mass. App. Ct. 642 (2002) (tried and obtained defense verdict on libel claim by college professor; obtained affirmance on appeal) without requiring disclosure of journalist’s confidential sources.

Other Media/First Amendment/Intellectual Property Cases

  • Hurwitz v. Newton Public Schools, et al., No. 1681-cv-03064 (Mass. Super. Ct. for Middlesex Cty., filed Oct. 24, 2016), removed, No. 1:17-cv-10231 (D. Mass. Feb. 23, 2017), remanded after dismissal of federal claims, No. 1681-cv-03064 (Mass. Super. Ct. for Middlesex Cty, July 14, 2017), dismissed November 2019. Successfully represented two community bloggers against libel and invasion of privacy claims; prevailed on motion to dismiss privacy claims, liberating one defendant; mid-discovery, obtained judgment for other defendant under Rule 37.
  • Cona v. Metro Corp. Holdings, Inc., No. 190202514 (Penn. Ct. Com. Pleas for Phila. Cty., filed 2019 and still pending against other defendants). After months of discussion, successfully persuaded plaintiff’s counsel to voluntarily dismiss libel claims against magazine and staff writer, without any payment and before even filing Preliminary Objections.
  • Dandelias v. Giulii et al., No. 170200228 (Penn. Ct. Com. Pleas for Phila. Cty., filed Jan. 25, 2017). Obtained non-prosecution dismissal of libel claim in 2019 after sending demand letter that had led to plaintiff’s two lawyers’ withdrawal from representation.
  • Lemelson et al. v. Bloomberg LP et al., No. 16-11650 (Mass. Super. Ct., filed May 10, 2016), removed, 253 F. Supp. 3d 333 (D. Mass. 2017), aff’d (1st Cir. Aug. 8, 2018) (with J. Korn, Willkie Farr). Obtained dismissal of defamation and related claims against news publisher, author, and editor, based on failure to plead actual malice; affirmed by First Circuit on appeal.
  • Ayyadurai v. Floor64, Inc., 270 F. Supp. 3d 343 (D. Mass. 2017). With J. Pyle, obtained dismissal of libel claims brought by self-styled “inventor of email” against Techdirt blog that disputed his claim.
  • Jane Doe No. 1 et al. v. Backpage.com, LLC et al., 104 F. Supp. 3d 149, 165 (D. Mass. 2015), aff’d, 817 F.3d 12 (1st Cir. 2016) With Jeffrey J. Pyle, represented internet publisher in defense of claims based on third-party content; obtained appellate ruling that Section 230 of Communications Decency Act protected website.
  • Grafton County Attorney’s Office v. Elizabeth Canner et al., 169 N.H. 319, 147 A.3d 410 (N.H. 2016). Representing documentary filmmaker, established right of access to public records relating to annulled criminal trial that resulted in acquittal; affirmed by New Hampshire Supreme Court on appeal.
  • Rogaris v. Doe 1, et al., No. 1681-cv-3529 (Mass. Super. Ct., Middlesex County Dec. 9, 2016). Represented nonparty Yelp Inc. to oppose plaintiff law firm’s motion to compel identification of anonymous internet commenter; after we filed opposition, plaintiff dismissed case before any ruling by court.
  • Green v. Cosby, No. 3:14-cv-30211-MGM (D. Mass, filed Dec. 10, 2014; settled and dismissed, May 2019). Represent nonparty magazine writer, opposing subpoena seeking notes from writer’s interviews of alleged Cosby victims; relying on common-law reporter’s privilege, we sent a R. 45 letter of objection in June 2016, after which plaintiff did not proceed with third-party discovery.
  • Informed Communications d/b/a Delaney Report v. Meredith Corp., No. 15-CV-9820 (SDNY, filed Dec. 16, 2015) Defended magazine publisher against claims of copyright infringement and unfair competition based on internal circulation of copies of newsletter: settled March 11, 2016.
  • Cohn d/b/a AC Motors v. Eagle Tribune Publishing Co., No. 0777-cv-00639 (Mass. Super. Ct.-Essex County Nov. 19, 2009), aff’d (Mass. App. Ct. Dec. 13, 2012). Obtained summary judgment, based on fair report privilege, for newspaper on defamation, negligence, interference with contractual relations, and intentional infliction of emotional distress claims; affirmed on appeal.
  • Metropolitan Reg’l Council, United Brotherhood of Carpenters and Joiners, No. 121102821 (Penn. Ct. Com. Pleas for Phila. Cty., filed Nov. 8, 2012). Negotiated early settlement of defamation claim based on blog posts by magazine and staff writer.
  • Motta’s Lawrence Country Club Inc. v. Wacker, No. 0477-cv-01502 (Mass. Super Ct. – Essex Cty. July 8, 2008), aff’d, No.2008-P-1426 (Mass. App. Ct. Sept. 9, 2009). Obtained summary judgment for daily newspaper on defamation claim, based on “substantial truth” and fair report privilege; affirmed on appeal.
  • Tracy v. Winfrey, 282 Fed. Appx. 846, 2008 WL 2474980 (1st Cir. 2008). Obtained dismissal, affirmed on appeal, of copyright infringement and misappropriation claims against television personality (with C. Babcock and N. Hamilton).
  • Bilodeau-Allen v. American Media, Inc., 549 F. Supp. 2d 129 (D. Mass. 2008). Obtained dismissal of invasion of privacy claim against tabloid newspaper.
  • Romano v. Metro Corp. d/b/a Boston Magazine et al., No. 0584-cv-05442 (Mass. Super. Ct. – Suffolk Cty. (filed Dec. 29, 2005; terminated Aug. 8, 2007). Settled defamation claim against newspaper that erroneously published plaintiff’s photograph in connection with criminal proceedings.
  • Stanton v. Metro Corp., 357 F. Supp. 2d 369 (D. Mass. 2005), rev’d, 438 F.3d 119 (1st Cir. 2006). Obtained district court dismissal, reversed on appeal, of libel by juxtaposition claim.
  • Commonwealth v. Shanley (Mass. Super. Ct. January 2005). Representing the New York Times, Boston Globe, and Associated Press, successfully moved to vacate prior restraint enjoining publication of name of complaining witness in high-profile criminal clergy sexual abuse case.
  • Abate v. Maine Antique Digest, et al., Mass. Super. Ct. Sept. 2003 and February 2004.) Successfully defended against libel plaintiff’s motion for prior restraint; later obtained dismissal of plaintiff’s damages claim against online magazine on grounds that court should apply the single publication rule to internet publications – a ruling of first impression in Massachusetts.
  • Bechtel Corp. et al. v. Mass. Turnpike Authority (Mass. Super. Ct. April 2003). For Boston Globe and Associated Press, obtained media access to previously confidential audits of fees charged by contractors on Boston’s “Big Dig” construction project. (With J. Pyle.)
  • MacDonald v. Paton, 57 Mass. App. Ct. 290 (2003). Obtained anti-SLAPP dismissal, affirmed on appeal, of defamation claim against community website.
  • Richards v. Jenny Jones, WLVI-TV, et al., No. 0382-cv-01565 (Mass. Super. Ct. for Norfolk Cty. 2003). Succeeded on motion to dismiss negligence claim against nationally syndicated talk show, network, and location television station, arising out of program advocating “boot camp” for wayward children.
  • U.S. ex rel. Franklin v. Parke-Davis, 210 F.R.D. 257 (D. Mass. 2002). Representing the Boston Globe, obtained access to unfiled discovery materials exchanged in whistleblower case against pharmaceutical company.
  • Howard v. Antilla, 294 F.3d 244 (1st Cir. 2002). Wrote media amicus brief successfully arguing for reversal of false light invasion of privacy verdict against business writer.
  • Rotkiewicz v. Sadowsky, 431 Mass. 748 (Mass. 2000). Wrote amicus brief successfully arguing that police officer is “public official” for purposes of defamation action.
  • Office One, Inc. v. Lopez (Mass. Super. Ct. 1998, 1999). Brought successful motions under Massachusetts Anti-SLAPP Act on behalf of condominium trustees, obtaining award of more than $100,000 in fees, subsequently affirmed on appeal. (With Michael S. Greco and Robert F. Schwartz.)
  • Metro Corp. d/b/a Boston Magazine v. Improper Publications, Inc. d/b/a The Improper Bostonian, No. 97-11654 (D. Mass., filed 1997). After multi-day mediation, obtained favorable settlement for plaintiff magazine publisher who sued competing magazine for trademark infringement.
  • Union Leader Corp. v. New Hampshire Housing Finance Authority, 142 N.H. 540, 705 A.2d 725, (N.H. 1997). Successfully obtained public records, establishing requirement of a “Vaughn Index” under New Hampshire Right-to-Know law. (As associate to J. Steinfield.)
  • Yeo v. Town of Lexington, 131 F.3d 241 (1st Cir. 1997). Wrote amicus brief for Student Press Law Center and others, successfully arguing for affirmance of summary judgment dismissing parent’s first amendment claim over student newspaper’s right to control advertising content.
  • Spitler v. Young, 25 Media L. Rptr. 1243 and 1254 (Mass. Superior and Appeals Ct. 1996) (as associate to Joseph D. Steinfield). Obtained summary judgment in favor of Naval Institute Press and Bantam Doubleday, based on public official and right of reprint defenses to libel claim.