At the turn of the 20th century, the father of modern public relations, Edward Bernays, the double nephew of Sigmund Freud, used his uncle’s theories of psychoanalysis to create modernity and influence public opinion.
“The counsel on public relations,” Bernays explains in “Crystalizing Public Opinion,” his magnum opus, “not only knows what news value is, but knowing it, he is in a position to make news happen; he is the creator of events.”
Written in 1923, it set the theoretical foundation of the field and created a sensation, especially in Hollywood. The major studios understood what it meant to be “the creator of events,” a way to reach mass audiences with the new talking pictures. And there was an opportunity for unconscious persuasion because the rising news media of the time were looking for stories that would attract readers and advertisers. The use of press releases to disseminate news nationally was revolutionary.
The press release, created by public relations pioneer Ivy Lee, spokesman for the Rockefeller family, served as the vehicle for “making news happen.” I argue it was the first social media platform that influenced the news. In 1919, Lee created the press release with this Declaration of Principles: “We aim to supply news, our plan on behalf of business concerns and public institutions to supply the press and public of the United States prompt and accurate information concerning subjects which is of value and interest to the public to know about.”
Initially the media acquiesced and saw publicists as valuable to the news cycle, but as press releases became one-sided, many in the media saw this as propaganda.
The legal industry became the new standard bearer of the press release in 1977 when the U.S. Supreme Court, in a landmark 5-4 decision in Bates v. The State Bar of Arizona, ruled that lawyers and law firms are allowed to advertise their services. Justice Harry A. Blackmun, writing for the court’s majority, argued that commercial free speech merits First Amendment protection given the important function it serves in society, such as providing consumers with information about services and products and helping to allocate resources in the American system of free-enterprise.
Hollywood revolution
It was a revolutionary. With Hollywood as its backdrop, legal marketing by L.A. law firms using press releases to promote appointments, honors, and lawsuit victories soared as a way to “create” news in the late 1970s and’80s.
But the real paradigm shift in legal publicity started with the 1995 trial of O.J. Simpson in downtown Los Angeles. Lawyers at the time saw how even the losing side received massive publicity, which made them celebrities and garnered them millions.
In a major case regarding publicity, the 2nd District Court of Appeal in Los Angeles last week ruled in J-M Manufacturing v. Phillips & Cohen that a press release could be considered privileged communication. In that case, Phillips & Cohen had issued a celebratory press release after the verdict in false claims act litigation, in which the jury found J-M had misrepresented that its PVC pipe had been manufactured and tested in a manner that assured it had strength and durability required by applicable standards. The company sued.
The court found that the law firm did not violate legal limits in its release. Justice Dennis Perluss ruled that the press release, taken as a whole, was a fair and true report of a judicial proceeding, making it privileged under California Civil Code.
Justice Stanley Blumenfeld strongly dissented: “The literary license doctrine did not permit Phillips & Cohen to falsely insinuate that the jury found J-M’s pipes to be defective.”
This is a significant victory for the use of the press release and publicists to promote wins for law firms in the media.
The press release turns 100 years old in 2019, and L.A. lawyers and their firms are at the vanguard as the court of public opinion becomes just as important as wins in the court of law.
David Silver is chief executive of Silver Public Relations, an L.A.-based litigation and crisis public relations firm, and he studied law at Washington University in St. Louis School of Law.
