TrendWatch: Public Entities

Transcript

Misha Isaak
Partner, Litigation

My name is Misha Isaak. I'm a litigation partner here at Stoel Rives.

What game-changing trends are reshaping the legal landscape?

Litigation does tend to kind of come in waves and there's different kinds of claims that are more popular. Certainly, the emergence of social media has brought a whole new kind of First Amendment type claim to public entities. Also advising public entities on things like campus protests, public universities and trying to understand how to balance fostering an environment that encourages free and open expression in a public university. But also a public university has obligations under Title VI to maintain a safe learning environment for all of its students. So how to balance those two things are really tough questions that we advise public entities on all the time and the public entities face litigation about on a regular basis, particularly public universities.

How is the First Amendment colliding with the power of social media in today’s legal battles?

There were two cases about public entities, moderation, and management of social media channels at the U.S. Supreme Court last term. It is rare for any topic to reach the U.S. Supreme Court in any given term, let alone two cases on the same topic reaching the U.S. Supreme Court in the same term. And that just is an illustration of how developing and evolving the law is in terms of the obligations under the First Amendment that public entities have and public officials have to have a presence on social media while respecting the First Amendment rights of members of the public to interact with that presence.

Public scrutiny comes at a price—Is your institution ready to pay it?

Public entities are under an enormous amount of scrutiny. I also represent private businesses. I represent closely held family-owned companies. And those businesses also get sued and they have their problems too. But usually those problems are not routinely on the front page of the newspaper in the way that the problems of public entities are. Public entities are subject to the public records and public meetings laws. And so their dirty laundry happens all out in the open. And so very often, if a problem emerges at a public entity, the public entity's decision makers have to deliberate about that problem in public, whether in public meetings or if they're communicating over email and public records. And then very often the litigation follows based on the things that the public entity did or said out in public. So it is just a huge amount of heat and scrutiny that public entities are under.

Why is litigation not just a battle, but a calculated strategy?

I like to help clients solve problems and I get to do that in advising clients and counseling clients and I get to do that in litigation. Any client who comes to me because they have been sued in a piece of litigation, I mean they have a problem on their hands and, you know, certainly the thrill of a fight in litigation is exciting and invigorating and motivating for me, but the most motivating thing for me is to try to strategize with a client a way out of this problem that they've been saddled with. And frankly, sometimes the best way out, unfortunately, is litigating the case to conclusion and winning a trial. The conversation I am constantly engaged in with my clients is, what are your objectives here? How do we solve this problem for you? And then how do we steer this sort of unwieldy situation of a piece of litigation to accomplish your objectives and solve the problem you've been confronted with?