The State Bar of Michigan has honored Herschel Fink with its John Hensel Award for his dedication to protecting free speech.
Featured photo by Anthony Lanzilote
Lawyer Herschel Fink has built his career as a crusader for the First Amendment. His client list is a virtual Who’s Who: Rapper Dr. Dre, filmmaker Michael Moore, author Stephen King, Jay Leno and the Temptations, in addition to longtime clients the Detroit Free Press and Fox 2 Detroit. Throughout his career, Fink has specialized in representing newspapers, TV stations, networks, motion picture studios and media personalities in a broad range of First Amendment, intellectual property and entertainment issues.
Fink was recently honored by the State Bar of Michigan with its John Hensel Award, presented annually to a member who has significantly enhanced arts, communications, entertainment or sports. The Hensel Award joins numerous other awards Fink has received, including a Lifetime Achievement Award from the Society of Professional Journalists Detroit Chapter in 2005 and the SPJ national First Amendment Award in 2010.
“I sometimes think that Herschel has on him some place tattooed the full text of the First Amendment as that is what he’s most devoted to,” said senior U.S. District Judge Avern Cohn in a video tribute at the November event.
Fink, a native of Metro Detroit, always aspired to be a journalist. During college, his first paying journalism job was with the Jewish News.
“Part of its attraction was talking history with Jewish News founder and publisher Philip Slomovitz. His stories were better than history class. He actually knew Israel’s founders as well as America’s leaders. He delighted in telling stories, and I was eager to hear them,” he said. “My passion for journalism and the First Amendment began at the Jewish News.”
He was also a writer and editor for his student newspaper, then the Daily Collegian at Wayne State University. After graduation in 1963, he applied and was accepted to law school, but deferred the option for a reporting job at the Flint Journal. A few years later, he returned to his hometown as a reporter for the Detroit News.
A nine-month newspaper strike in 1967 left Fink with extra time to re-evaluate his career. Shortly after the strike, he started night school at Detroit College of Law. During those years, he worked the graveyard shift and eventually was promoted to night city editor at the News while studying law and starting a family with his late wife, Annette.
Armed with his law degree, he left journalism to practice law with Detroit’s Honigman Miller Schwartz and Cohn law firm, specializing in representing local and national media companies. He represented the JN on First Amendment matters while an attorney with Honigman Miller.
After 35 years as a partner, he began his “encore career” as legal counsel for his longtime client, the Detroit Free Press, and five sister Michigan news properties. He is also of counsel at the business law firm Jaffe Raitt Heuer & Weiss P.C.
He lives in Orchard Lake with his wife, Adrienne. They are members of the Zionist Organization of America and are heavily involved with the Holocaust Memorial Center in Farmington Hills. Fink was also a founding member of the Great Lakes Chamber Music Festival and is involved with the Chamber Music Society of Detroit. They attend services at Adat Shalom Synagogue.
His daughter, Sheri Fink, is a physician who left medicine to become a New York Times correspondent, now with two Pulitzer Prizes to her credit, as well as a best-selling nonfiction book, Five Days at Memorial. His son, Marc Fink, a lawyer and the chief editor of the Middle East Policy Forum, lives in Cherry Hill, N.J., with his children Levi and Leah. Adriennne’s son, Erick Ruby, is a property manager in Chicago. His entire family was on hand to see him honored.
Fink said he has no plans on retiring soon.
“Choose the job you love and you will never have to work a day in your life,” he said. “That’s me. I love what I do after more than four decades. It’s a privilege and honor to defend the First Amendment. I consider it a sacred calling and I feel blessed to do it.”
Consequential Cases
Fink represented the Detroit Free Press in the unearthing of public records in the text message scandal that led to the conviction of then-Detroit Mayor Kwame Kilpatrick for perjury and the eventual federal bribery and corruption charges that ended in Kilpatrick’s conviction and 28-year prison sentence. The Free Press won a Pulitzer Prize for its coverage of the scandal and reporters called Fink “a member of their team.” This was the case that earned him the SPJ First Amendment Award.
Fink said, “I’ve had a lot of big cases and fun cases, but that was the most consequential.”
Retired Wayne County Circuit Judge Robert J. Colombo heard the case.
“One of the most important cases in my career was the case of a whistleblower suit in the case of Brown v Kilpatrick,” he said in a video tribute. “This is a fine example of how the media and an attorney representing the media can expose corruption and protect the public.”
Another of Fink’s big cases involved suing the U.S. Department of Justice on behalf of the Detroit Free Press over post-9/11 secret closed courtroom immigration removal proceedings against mostly Middle Eastern men. “The public was barred, no information was allowed, and I filed a lawsuit,” he said.
He won in federal court, but the government appealed. Judge Damon Keith, the U.S. Court of Appeals judge in this opinion who ruled in Fink’s favor, wrote some words in the case that the Washington Post immortalized: “Democracy dies behind closed doors.”
In another big case, Fink defended filmmaker Michael Moore in a libel suit filed by the brother of one of the Oklahoma City Federal Building bombers over his movie Bowling for Columbine.
“The party who was suing us was perhaps … unhinged,” Fink said. “I didn’t want him coming to my office so I took his deposition in the federal courthouse where the person suing him, James Nichols, would have to go through metal detectors and be searched.”
When it was Moore’s turn to be deposed, Fink hired security and metal detectors at an attorney’s office in New York City, but Nichols never showed up. Fink won the case.
A 10-year Battle for the First Amendment
Fink successfully defended rap music icon Dr. Dre in a 10-year long First Amendment fight.
The dispute goes back to Dre’s infamous “Up in Smoke” concert with Eminem and Snoop Dog in July 2000 at Joe Louis Arena.
The show featured a racy video deemed “inappropriate” by the Detroit Police Department, led by then-Chief Police Commander (and later City Council President) Gary Brown, who told Dre’s concert promoters backstage that power to the show would be cut if the explicit video was shown. The tour, not wanting to disappoint the thousands in the audience, agreed to pull the video. The exchanges were openly recorded by a tour film crew.
“The video didn’t show anything you wouldn’t see on a Sunday night on the Sopranos,” said Fink, who was called in to defend Dr. Dre.
The next day, the tour was scheduled to go to the Palace of Auburn Hills. Fink went to federal court that day and obtained an injunction from U.S. District Court Judge Nancy Edmunds to prevent any interference with the show by police. The show at the Palace featured the explicit video introduction.
When the tour left Michigan, the promoters sued Detroit and settled for their attorney fees. Former Mayor Dennis Archer issued a public statement that conceded the possibility of an unconstitutional “prior restraint” on behalf of the Detroit Police officers.
Six months later, Dre and his producers released a DVD of the tour with some bonus tracks that included a 10-minute segment titled “Detroit Controversy,” depicting the heated exchanges between the police and promoters at the Joe Louis show. The officers in the video sued on eavesdropping and other tort theories. At first their case was tossed out, but on appeal the court said dismissal of the claim was premature.
“The wheels of justice turn slowly,” Fink said. The case bounced between courts for nearly a decade before finally reaching the Michigan Supreme Court, which ruled in Dre’s favor.
Respect of Journalists
At the Hensel Award event, former reporter David Ashenfelter said in a video tribute, “I’m one of many reporters Herschel has bailed out of trouble over the years.”
During the 1990s, Ashenfelter wrote a series of stories about a Wayne County judge accused of using racial and ethnic slurs in phone conversations with her ex-husband. She was trying to use her position to convince police he was at fault in their child custody dispute.
Ashenfelter got the tapes from the estranged husband. “We ran a story in the Free Press that was hugely controversial. She sued us both for $100 million in federal court. Here’s what happened: She got booted off the bench. With Herschel’s help, I got removed from the lawsuit.”
Fox 2 News reporter Ron Wolcheck, well-known for his “Hall of Shame” segments, called Fink a “real bulldog” in a video tribute. “Herschel Fink really likes me because, quite frankly, I get sued a lot and he gets to defend me and make a lot of money. But because of my great reporting and Herschel’s great lawyering, we always win.” In his trademark gravelly voice, he added, “Herschel Fink, you’re in the Hall of Fame!”
According to Detroit Free Press Editor Peter Bhatia, “(Fink) has a way of telling lawyers and city officials that the law is on our side, and he does it with humor and incredible effectiveness. I think every news organization needs someone like Herschel … If we don’t have people like Herschel fighting for us, ultimately our freedoms are at risk.”
First Amendment Concerns
Fink said he’s concerned with the media bias in national newspapers in today’s hyper-partisan political climate.
“Opinion polls taken by a number of polling organizations show the public has a remarkably low opinion of the press, as low as or similar to its low opinion of Congress,” he said.
“I’ve always believed that credibility is the most important thing that we as journalists can have,” he added. “And that derives from being accurate, acknowledging errors, being fair and unbiased, separating opinion from news and factual news gathering … I think what was reflected in the low opinion of the public is that the media has lost credibility.”
Fink said he was heartened by a recent poll that showed local news media was still highly regarded in terms of its credibility and accuracy.
“The kind of watchdog journalism that local news organizations do is what is important to the public,” he said. “I’m talking about newspapers and the kind of watchdog journalism the Free Press has been doing and continues to do despite diminishing resources.”
What disturbs Fink the most, he said, is intolerance for differing opinions.
“It’s endemic at universities and college campuses around the country. There are demonstrations that shut down the ability of students to hear both sides of an issue or political debate. For all intents and purposes, there is no longer any free speech on many college campuses. That, to me, is the most disturbing thing because the basis of the First Amendment, as was said by Justice Oliver Wendell Holmes: ‘Freedom of speech means a free marketplace of ideas.’ This free marketplace of ideas, the whole basis of the First Amendment, has been lost on many college campuses. That disturbs me greatly.”
Fink on Hate Speech
“My problem with shutting down hate speech is how do you define it? Do you define it as anything? Any speech that disturbs your sensibilities?” he asked. “If so, then you are throwing out the First Amendment.”
According to the Supreme Court, he said, unless speech is going to inspire imminent violence, it has to be allowed.
“A recent Pew Research Center survey found 49 percent of college students do not support free speech if it’s designated as ‘hate speech.’ That basically translates to a desire to censor speech they don’t agree with or that disturbs their sensibilities or their wrongheaded idea that universities must be ‘safe places’ free from disturbing ideas.
“Of course, the opposite should be the rule at colleges and universities,” he continued. “In other words, they have no understanding of nor tolerance for the very concept of freedom of speech, the concept that underlies the First Amendment.
“Once you start censoring speech, where do you stop? That’s a difficult national debate, but I think it comes back to the core, a free marketplace of ideas and that dissenting voices should be allowed to be heard.
“These are issues that are going to have to be hashed out over a period of time and we’ll see how that turns out. But I’m very bothered by the lack of tolerance for dissenting opinion, principally conservative opinion, which is being taken as hate speech.”