A Conversation with Viet D. Dinh JD’93, Chief Legal and Policy Officer, Fox Corporation

Thank you all very much for coming. My name is David Wilkins. For those of you I haven't met, which I think is a lot of you because I think we have a lot of first-year students, I am the faculty director of something called the Center on the Legal Profession, which its goal is to do exactly what it sounds like: to try to both study and teach about the profession, and to give students an idea of what are the opportunities and possibilities for professional careers, but also to talk about the complex and interesting issues that lawyers often find themselves in the middle of. My guess is today we're going to have a good opportunity to examine some of those issues. Before we get started, just a couple of housekeeping rules. This is being both recorded and live streamed. The only people on camera are Viet and me, and students' voices will not be recorded, except to the extent they get picked up by our lavalier mics. These are the only mics that are hot. That's why when we get time for questions, and I promise we are going to save a very good amount of time for questions from all of you, and Viet has generously agreed to answer any question that people have for him here. I will repeat the questions because there are a couple of thousand people on the live stream, and my guess as many more will watch after that, which is an indication of why I'm very delighted that we're having this event here today. Let me just say a little bit by way of background. I first met Viet on the very first day of his law school experience in 1990, in Civil Procedure in the old Harvard Law School, which means there were 140 people in his Civil Procedure class. I think we were in Langdell North or something like that. I had a giant seating chart in front of me just with names on them; we hadn't even figured out how to put pictures on them. In typical Harvard Law School fashion, I was going to call on a student to recite the facts of the case, which I think was Goldberg v. Kelly at the time, and I looked down on my chart, and I saw "Dinh." I said, "Ms. Dinh, please." It turned out there was a silence, and then a sheepish hand: "I'm Mr. Dinh." That's how we first met. We became quite close that year here because, as some of you know, and we'll only talk a little bit about this in general now because we have many more issues to cover, I think it's well worth knowing Viet has an incredible personal story. He and his family literally escaped via a boat from Vietnam after the fall of Saigon. He arrived in this country basically and worked picking vegetables in his early life, first maybe in Texas before moving to California, or was it Oregon before moving to California, where he was quite frankly discovered by a teacher who said, "You know, you are really bright. You should have higher aspirations than he probably thought he could ever have for himself." He ends up coming to Harvard College and doing exceedingly well, and then coming to Harvard Law School. But by the time we met, his sister, who had stayed behind when his mother and several of his siblings had left on a boat, had stayed behind because his father had been imprisoned and she wanted to stay with him. She stayed, and eventually her father escaped, and eventually she escaped, but she was caught in a Hong Kong refugee camp. So at the time we met, I'm not quite sure, I think I was having lunch with all my students in groups of 10 or something like that, and we talked, and he told me the story. I said, "Well, let me see what we can do to help." So we spent much of the next year enlisting people we knew who were in the Bush Administration, the H.W. Bush Administration at the time. Bill Alford, who you just met, who wasn't unfortunately able to be here, also chipped in, as did several other professors, and we managed to get his sister out of that refugee camp. We've stayed in touch ever since. I think it's fair to say we don't agree on everything, and that may come out here. We have different views on a lot of different kinds of things, but he remains one of the most extraordinary people that I've met. When we were in touch around the death of Charles Ogletree, who was also a mentor of Viet when he was here and was a dear friend of mine, I said to him, "Viet, if you're ever around, you should come and talk to students about some of the issues that you have been dealing with. I'm sure there will be tremendous interest." The fact that there's kind of standing room only in the back of the room shows that there is indeed. As I said, I promise there'll be lots of time for questions, and Viet has graciously agreed to answer any question or at least engage with any question that anybody has. But we're going to start out by talking a little bit about how he got to his current position as the General Counsel at Fox, and then some of the issues that he's confronted there, and what the role of the General Counsel is in those issues. This is partly my interest and our interest in the Center and the Legal Profession: to talk about what is the role of lawyers, particularly General Counsels, which is a role that there's been, quite frankly, very little attention to, especially in law schools, and yet I'm going to argue is one of the most important roles in the legal profession, because General Counsels sit at a very interesting place between law and business. I know we have a lot of members of the Association of Law and Business here, between internal facing in the company and external facing in the world. They encounter many important public issues, and the question is, what's the role of the General Counsel in those sorts of issues? Because they are not the owners and managers of the business, they're not the clients, and yet they play a very influential role. With that in mind, Viet, I want to start here. Before you took the role at Fox, you had pretty much every job anyone could have in the legal profession. You'd been a law clerk, including on the Supreme Court for Justice O'Connor. You had worked in the Department of Justice as an Assistant Attorney General for the Office of Legal Policy. You had been a law professor for 20 years at Georgetown. You had started your own law firm, which was kind of the first of what we now see several of, which are kind of boutique Supreme Court-focused or appellate-focused litigation boutiques. You had then negotiated the merger of that boutique into one of the biggest, most successful law firms in the country, Kirkland & Ellis. Many of you know. So after all that, why did you decide you were interested in being a General Counsel?

So Viet, that multi-disciplinary, multi-client, multi-functional idea, I want to pick up on which I think will lead us into some of the substantive discussion. I said General Counsel is a unique role because of where it sits, but often, and this was the case with you, you had multiple hats. In other words, you were the Chief Legal and Compliance Officer, but you were also the Chief Policy Officer, you were also head of Government Relations and Public Relations, and you also sat in as a member of what I think is called the Office of the Chairman. Can you say a few words about how you think about those multiple roles, particularly the aspect of those roles that are legal on the one hand? If you think of yourself as the General Counsel or the Chief Compliance Officer, that sounds very legal in ways that the students I think can understand. But when you start talking about public relations, government affairs, strategy, all those other things, how did you, what are the lines between where you are as a lawyer and where you are in these other roles, and how is that in turn distinguished from the people who are making the substantive policy, business decisions, editorial content, whatever, for the network itself?

So this brings us to an issue that every one of the students knows, and that's put you both in the news and maybe in the hot seat a little bit, and that's the Dominion voting litigation and the penumbra around it. Here you've got something that is both on the one hand legal, it's a lawsuit that's been brought against your clients, but it also implicates things that are at the core of what the business model of Fox News is, how Fox News exercises its editorial judgment. All of these things are wrapped together in this lawsuit, which presumably as a lawyer you have tremendous, I mean you are the chief lawyer running the litigation strategy, and you are also a member of this larger management team. Can you talk a little bit about that? Obviously, there was a lot of publicity around this lawsuit. There was an $800 million settlement eventually around this lawsuit. There was a lot of discussion about what that meant about the underlying conduct.

Thank you for that. One of the things you said there that my guess is again, and we're going to go to questions pretty shortly, I've just got a couple more things I want to ask, is of course about the First Amendment and about its effect on democracy. That was of course one of the big issues that people have talked about, particularly in light of what happened on January 6th. One of the questions about Fox News that my guess is in one sense editorial, but in one sense maybe also legal, particularly with respect to the role of the General Counsel, is what is the line between reporting on the news, the news reporting division, and the editorial content and the editorialization of Fox News hosts? As a General Counsel, presumably there must be legal constraints around both of those things, but they're not necessarily the same thing. How do you as a General Counsel, what is your role particularly with respect to the second of these things, because I think that was the one probably that engendered the most attention and controversy around this issue?

So I'm going to go to questions from the audience, but I have one last thing that builds on exactly what you said. Because there was no on-air host whose opinion was more amplified and also whose emails were more exposed than Tucker Carlson. And Tucker Carlson eventually was fired from Fox. So you're the general counsel. I cannot imagine that that decision would have happened without it coming to your desk. And while many of the things we've been talking about you've been critiqued from the left, I'd say there's been a fair amount of criticism from the right about the firing of Tucker Carlson. How does that fit in with what you just talked about, and in particular, what's the role of the general counsel in making that decision?

The floor is open. Please.

So, Viet, sorry, you don't mind, I'm just going to repeat the question, such a good question I had to jump in. So the question was, if Fox has had for a long time owned the kind of center-right audience, there are now new networks even further to the right. How does that affect not just the business model, but I think you excellently pointed out your legal risk tolerance for competing for that market?

Yes, please.

So, again, just to repeat the question for those of you who don't know, when Viet was in the Bush Administration after 9/11, he was one of the chief architects of what's been called the Patriot Act. I think the question was, looking back now, Viet, we've now had more than 20 years, and also looking forward in terms of what's happening in the world today, how do you think about the balance that was struck with that act, and what are the implications moving forward as technology allows us to be much more intrusive in terms of surveillance than was certainly the case when you were thinking about those issues in 2001?

Other? Yes, please.

Just again, sorry, just to repeat. No, no, but there was a great question. The essence of it is, Viet said that every on-air person and others get training in the First Amendment. The question really was, how are you training on the issue of malice, which is both a legal standard but obviously also a judgment call, and has that training changed, particularly in light of the fact that in the settlement there is an acknowledgement that the standard may have been met? And certainly, whatever was acknowledged in the settlement, whether the emails should have been disclosed or not, a lot of what people read looked as though it might have been something at least that somebody should have been thinking about in terms of training for malice moving forward.

Great question. So let me just repeat, you don't have to. I think for the, she asked what do I think about apple pie and the American flag? No, she asked a terrific question about how do you reconcile your role as a lawyer protecting the interests of Fox News and the organization that you're with and its right to have its own opinion and reporters, with your own personal experience of being an immigrant, a refugee, an Asian-American, in a time in which it's at least fair to say that there has been a lot of editorialization against immigration, against immigrants, and many people, I think she used the word 'degrading' of people on the air. Whether or not it's First Amendment protected, I think she's asking you how do you reconcile that as a human being?

So Viet, I think that's a perfect note to end on. What a conversation that I hope isn't the end but the beginning. We are at a perilous time in this country. I know you agree with this because you and I had dinner last night and we talked a lot about it. What is most at peril is exactly the idea of being able to have civil discourse around difference, and yet the differences are only going to magnify as all the issues that we talk about become ever more complex. As an educational institution, it is our responsibility to try to provide forums for that kind of respectful disagreement and dialogue among our students and our alumni and those who are watching us online. It's why I'm very grateful that you agreed to come here, that you agreed to answer any questions that students have. I just hope that you will continue to engage with us around these issues because, as you say, these issues are incredibly hard and they go to the very heart of what it means to be a lawyer and a citizen and a human being at this time. I want to thank all the students for the incredible questions that they raised. I hope that we will find ways to continue this kind of dialogue, not just on this issue but on all of the issues that we have to face in this world. So thank you very much. I appreciate it.