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Thomas R. Burke

BurkeThomas
Partner
T415.276.6552
F415.276.6599
Tom Burke concentrates his practice on media, entertainment and intellectual property litigation and counseling. He has over 23 years of litigation experience in the trial and appellate courts including multiple appearances in the California Supreme Court, 9th Circuit Court of Appeals, and California’s Courts of Appeal.

Tom's clients include: Amazon.com, The Bakersfield Californian, California Newspaper Publishers Association, CBS, Center for Biological Diversity, Center for Investigative Reporting, CNN, Kaiser Permanente, Lions Gate Entertainment, The Los Angeles Times, The McClatchy Company, NBCUniversal, The New York Times Co., San Francisco Chronicle, Santa Rosa Press Democrat, Sierra Club, Western Communications, Inc., and Zite.com.

Practice Highlights
  • Wrote Anti-SLAPP Litigation (2013 The Rutter Group), the first comprehensive, practical guide to litigation under California’s anti-SLAPP statute, enacted to protect petitioning and free speech activities
  • Represented national media coalition in access proceedings in the U.S. Supreme Court and 9th Circuit in Hollingsworth v. Perry, 558 U.S. 183 (2010) (landmark federal same-sex marriage litigation)
  • Counsels Internet publishers, television networks, studios, magazines, authors and journalists on all aspects of libel, invasion of privacy, right of publicity, copyright, trademark, reporter’s privilege, and newsgathering issues
  • Since 2002, lecturer on media law at the University of California, Berkeley

Representative Experience

Jones v. Dirty World Entertainment Recordings LLC

Submitted amicus brief on behalf of online service providers, including major technology companies and news media, arguing for reversal of district court's narrow interpretation of Section 230 of the Communications Decency Act. Sixth Circuit Court of Appeals ultimately reversed and vacated the judgment, endorsing a broad interpretation of Section 230 which permits websites and service providers to engage in traditional editorial functions without becoming liable for user content. (6th Cir. 2014)

Riley v. California and U.S. v. Wurie

Submitted amicus brief on behalf of National Press Photographers Association, Reporters Committee for Freedom of the Press, and a coalition of media organizations, urging the U.S. Supreme Court to examine the constitutionality of warrantless searches of cell phone data incident to arrest. (U.S. 2014)

Abbas v. Foreign Policy Group, LLC et al

Submitted amicus brief on behalf of coalition of media organizations and trade associations urging D.C. Circuit to hold that Washington, D.C.’s anti-SLAPP law applies in federal court. (D.C. Cir. 2014)

Intercon Solutions, Inc. v. Basel Action Network et al

Submitted amicus brief on behalf of coalition of media organizations and trade associations urging 7th Circuit to hold that Washington's anti-SLAPP law applies in federal court and that the collateral order doctrine permits immediate appeal from denial of an anti-SLAPP motion. (7th Cir. 2014)

First Amendment Coalition v. DOJ

Prosecuting Freedom of Information Act lawsuit to compel the U.S. Justice Department to disclose its legal memoranda concerning the legality of the lethal targeting of U.S. citizens overseas. (Ongoing)

GLAD v. Cable News Network, Inc.

Lead counsel representing CNN in this putative class action lawsuit seeking to compel CNN.com to include closed captioning on all news videos available on CNN.com. (Ongoing)

Martins v. INS

Prosecuting a Freedom of Information Act lawsuit challenging the federal government's recent practice of withholding of Asylum Officer interview notes from individuals seeking asylum in the United States. (Ongoing)

The Los Angeles Times v. The Regents of the University of California

Successfully prosecuted a California Public Records Act lawsuit on behalf of The Times and Sacramento Bee to compel public disclosure of the names of all UC Davis police officers involved in the pepper spraying of students protesting tuition increases at UC Davis in November, 2011. (2014)

Pacific Merchant Shipping Association v. Board of Pilot Commissioners & San Francisco Bar Pilots

Co-counsel in the successful prosecution of a public records act lawsuit to compel disclosure of scheduling and other records of the state’s licensed pilots who are responsible for safely piloting all ocean-going vessels in San Francisco Bay. (Ongoing)

Smith v. The Press Democrat

Twice successfully obtained dismissals of libel and newsgathering lawsuits filed after The Press Democrat reported on plaintiffs’ disputes with her former landlords. (Ongoing)

Kim v. Korea Daily

Successfully defended Korea Daily in a libel action challenging news reports about the 2010 election of the Korean-American Community of San Francisco. (Ongoing)

Manuscript vetting; Production & pre-publication counseling

Regularly vets manuscripts, news articles, and documentary films and provides production advice for movies and television programs including the Emmy Award winning "Mad Men." (Ongoing)

Chamber of Commerce of the United States v. Servin, et al.

Represented the Yes Men against trademark claims filed after they performed a political parody of the Chamber of Commerce's controversial position on global climate change; three years after defendants moved to dismiss, the Chamber dropped its lawsuit. USDC D.C. 09cv 2014 (2013)

Valentine v. Nebuad

Obtained dismissal on lack of jurisdiction, on behalf of Internet service provider Bresnan Communications in federal privacy lawsuit challenging the use of deep-packet inspection technology (2009). Won dismissal of sister-case in Montana and currently on appeal in the 9th Circuit. (Ongoing)

ACLU-NC v. City of Redding

Obtained temporary and permanent injunction against enforcement of City of Redding, Calif.'s "Outdoor Public Forum Policy" as violating the public’s First Amendment rights. Third District Court of Appeal largely affirmed in published opinion. 211 Cal. App. 4th 1322 (2013)

Tiwari v. NBCUniversal Media, Inc.

Represented NBCUniversal to obtain dismissal of libel and IIED claims and to resolve a federal civil rights lawsuit arising from an episode of "Dateline NBC: To Catch A Predator." (2012)

National Photo Group, LLC v. Bleacher Report

Defended Bleacherreport.com in copyright litigation arising from the use of a celebrity photograph. (2012)

Marken v. Santa Monica-Malibu Unified School District

Represented a UCLA Professor in a California Public Records Act lawsuit to obtain access to public records of a high school teacher disciplined by the SMMUSD. 202 Cal. App. 4th 1250 (2012)

Funspire Interactive v. mywaves, Inc.

Successfully defended mobile content provider in breach of contract action involving advertising on mobile devices. (2012)

Perry v. Schwarzenegger

Represented national media coalition to seek the public release of the videotape of the trial in this federal constitutional challenge to California’s Proposition 8 banning same-sex marriage. (2012)

Whitted Atkins Funeral Home v. ABC

Successfully represented ABC to block a prior restraint order sought by a funeral home to prevent the broadcast of a news investigation. (2012)

Alberghetti et al. v. Corbis Corporation

Represented national media and licensors of photographic imagery in amicus brief challenging district court's ruling that the subject of a photograph may assert a viable right-of-publicity claim based merely on a licensor's offer to license the copyright in the photograph. (9th Circuit 2012)

Young v. CBS Broadcasting

Represented CBS in a libel lawsuit (involving more than a dozen allegedly libelous sentences) based on an investigative news broadcast that reported on problems arising in legal proceedings to conserve the elderly and infirm in California. The California Court of Appeal held that plaintiff (a private conservator) was a public figure for purposes of the alleged libel and failed to establish actual malice, and ordered her claims stricken. 212 Cal. App. 4th 551 (2012)

The Press Democrat v. Sonoma County Employees’ Retirement Association

Prosecuted California Public Records lawsuit to secure public access to the names and pensions paid to Sonoma County government retirees kept secret for decades by Sonoma County. 198 Cal. App. 4th 986 (2011)

Sacramento County Employees’ Retirement System v. Superior Court

Co-authored media amici brief in support of the public’s right of access to the names and pensions paid to Sacramento County government retirees kept secret for decades by Sacramento County. 195 Cal. App. 4th 440 (2011)

People v. Ramos

Successfully quashed pre-trial and trial subpoenas seeking to compel testimony from San Francisco Chronicle protected by the reporter’s shield law in a triple murder trial. (2011)

People v. Shotwell

Successfully quashed subpoena seeking San Francisco Chronicle photographer’s unpublished photographs of a BART protest. (2011)

Keck v. Amazon.com

Defended Amazon.com against privacy claims raised by book that was published by third parties through Amazon's Kindle Direct Publishing program. Court found Amazon.com immune from liability under Section 230, granting its motion for judgment on the pleadings. (2011)

Snyder v. Phelps

Submitted amicus brief on behalf of twenty-two media organizations urging the U.S. Supreme Court to decide that intrusion and intentional infliction of emotional distress claims cannot be based solely on the publication of offensive opinions about matters of public concern. The Court agreed, ruling 8-1 that the speech at issue is protected by the First Amendment. Read the amicus brief. 562 U.S. 9 (2011)

Suulutaaq et. al. v. Center for Investigative Reporting et al.

Successfully defended award-winning investigative reporting center, its veteran reporter, and the San Francisco Chronicle in libel action brought by an Alaska Native Corporation challenging news article that raised questions about its receipt of millions in federal stimulus money for a construction project in Napa Valley. The bulk of Suulutaaq's implication claims were dismissed by the Court as a matter of law, after which Suulutaaq voluntarily dismissed the action with prejudice. 782 F. Supp. 2d 795, 2010 (D. Alaska 2011)

In re Reglan products liability litigation

Successfully obtained the prompt dismissal of 103 individual products liability lawsuits filed against a drug monograph publisher, using the anti-SLAPP statute. (2010)

Smith v. The Regents of Univ. of California

Represented The Regents, through summary judgment, in a class action that included CMIA and constitutional invasion of privacy claims arising from UCSF’s automated sharing of patient information with a third-party vendor. The constitutional privacy claim was dismissed on summary judgment and the CMIA claim was favorably resolved in a settlement approved by the trial court. 2010 WL 5148256 (2010)

Hollingsworth v. Perry

Represented national media coalition in expedited proceedings over the course of a week in the U.S. District Court, 9th Circuit Court of Appeals and in the U.S. Supreme Court in support of Chief Judge Vaughn Walker's proposal to broadcast trial proceedings to five overflow courtrooms in five cities and to make the proceedings publicly available on YouTube.com in this landmark federal constitutional challenge to California's Proposition 8, banning same-sex marriage. Read the Media Coalition's U.S. Supreme Court brief. 558 U.S. 183 (2010)

Simpson Strong-Tie v. Gore

Obtained unanimous California Supreme Court decision affirming the summary dismissal by the trial and appellate courts of a trade libel lawsuit arising from a plaintiff class action attorney's constitutionally-protected efforts to locate potential class representatives, which established the precedent that the 'commercial speech' exemption (CCP 425.17(c)) to California's anti-SLAPP statute is to be narrowly construed to protect First Amendment activities. 49 Cal. 4th 12 (2010)

Stewart v. Rolling Stone Magazine

Represented Rolling Stone Magazine to successfully dismiss right of publicity claims brought by a putative class of musicians that arose out of a gatefold editorial feature published adjacent to a cigarette advertisement. In this issue of first impression, the Court of Appeal unanimously dismissed plaintiffs' claims finding that the gatefold was protected under the First Amendment. 181 Cal. App. 4th 664 (2010)

In re Search Warrant to Gizmodo.com

Aided Gizmodo.com (one of the Gawker Media websites) in dealing with reporter's shield issues immediately following the execution of a search warrant by the San Mateo County District Attorney's Office on the home of a Gizmodo writer covering a story about a prototype Apple iPhone left in a Redwood City, Calif., bar. (2010)

Rivera v. First Data Bank

As local counsel, using the anti-SLAPP statute, obtained the dismissal of wrongful death claims brought against First Databank, a medical publisher, on the grounds that First Databank's drug monograph was protected by the First Amendment. 187 Cal. App. 4th 709 (2010)

Brooks v. San Francisco Chronicle

As local counsel, using the anti-SLAPP statute, obtained the dismissal of a libel lawsuit filed by an elected Oakland City Councilwoman. The action challenged one sentence in a column that recounted law enforcement investigations of the plaintiff. The trial and court of appeal unanimously upheld the challenged statement as absolutely privileged as a 'fair and true' report of an official proceeding. (2010)

In re Adams County Historical Society v. Kinyoun

Reversing more than a century of secrecy, obtained a unanimous opinion from the Nebraska Supreme Court that the names of some 1,600 former residents buried anonymously between 1890 and 1959 at the Hastings Regional Center, the state's largest mental health cemetery, are public under the state's Public Records Act. 277 Neb. 749 (2009) Read more

Mark v. Nextweb

Obtained voluntary dismissal of class action lawsuit asserting unfair competition claims against mobile advertising companies. (2009)

Gangland/A&E Lawsuit

Obtained voluntary dismissal of invasion of privacy and libel lawsuit arising from the use of still photographs in an episode of The History Channel's "Gangland" television program. (2009)

Ibarra v. Houston Chronicle

Obtained summary dismissal of libel litigation challenging the comments of sports blogger writing about MMA controversy. (2009)

Liao v. CNN

Twice, obtained dismissal of federal civil rights lawsuit challenging editorial content on CNN.com. (2009)

Lawyers Committee for Civil Rights v. U.S. Treasury

Successfully prosecuted Freedom of Information Act lawsuit to compel the public disclosure of documents reflecting individuals mistakenly identified on the federal government's public terrorist watch list. 534 F. Supp. 2d 1126 (N.D. Cal. 2008)

Club Members for an Honest Election v. Sierra Club

Obtained unanimous California Supreme Court ruling for Sierra Club, dismissing a lawsuit targeting the environmental organization's First Amendment-protected election activities, and establishing the precedent that the 'public interest' exemption (CCP 425.17(b)) to California's anti-SLAPP statute is to be narrowly construed to protect First Amendment activities. 45 Cal. 4th 309 (2008)

Savage v. Council on American-Islamic Relations

Obtained summary dismissal of a copyright/RICO lawsuit brought by conservative syndicated radio talk show host Michael Savage targeting the free speech rights of the nation's largest Muslim civil rights organization Council for American-Islamic Relations (CAIR). 87 U.S.P.Q.2d 1730 (N.D. Cal. 2008)

Bank Julius Baer v. Wikileaks.org

Successfully represented national media coalition to successfully oppose and vacate a prior restraint order issued by a federal court in San Francisco against Wikileaks.org after confidential Swiss banking records were posted to this whistleblower website. 535 F. Supp. 2d  980 (N.D. Cal. 2008)

Fair Housing Council of San Fernando Valley, et al. v. Roommates.com, LLC

Submitted amicus brief on behalf of media amici in 9th Circuit's en banc review of the scope of immunity afforded by Section 230 of the Communications Decency Act to mixed-content websites. No. 04-56916 (en banc) 521 F.3d 1157 (9th Cir. 2008)

NIMA Entertainment v. Persian News Network

Successful defense of satellite television station in a complex copyright infringement lawsuit involving the ownership of three Iranian films. (N.D. Cal. 2008)

International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Alameda County Superior Court

Filed amici brief on behalf of the Coalition of University Employees in support of the public’s right of access to the salaries paid to California’s public employees in this landmark decision by the California Supreme Court. 42 Cal. 4th 319 (2007)

Taus v. Loftus

Obtained dismissal of claims (in the Court of Appeal and California Supreme Court) in complex defamation and invasion of privacy lawsuit against prominent psychologists and national magazine arising from the scientific debate over 'repressed memories' of alleged sexual abuse. 40 Cal. 4th 683 (2007)

Berman v. CIA

Represented Vietnam war historian in Freedom of Information Act litigation, defeating CIA's claim that presidential intelligence daily briefs are categorically exempt from FOIA's disclosure mandates. 501 F.3d 1136 (9th Cir. 2007)

Bonds v. Sports Illustrated

Defended Sports Illustrated magazine in injunctive relief lawsuit filed by Barry Bonds to challenge publication of confidential federal grand jury testimony appearing in article about steroid use in Major League Baseball. Action voluntarily dismissed by Bonds after request for injunction was denied. (2007)

In re Subpoena Issued to STF Productions, Inc.

Successfully defended 'America's Most Wanted' television program against federal criminal defendant's pre-trial subpoena in murder case seeking unpublished video outtakes in nearly four-year dispute; subpoena withdrawn following favorable rulings by the 9th Circuit Court of Appeals. (9th Cir. 2007)

Kaiser Permanente v. Cooper

Obtained temporary and permanent injunction against former IT employee (self-dubbed the "Diva of Disgruntled") from disseminating online, protected health information for over 100 Kaiser members. (2006)

Drake v. Leno

Obtained summary dismissal of libel action against television network arising from comedy routine on 'The Tonight Show With Jay Leno.' (2006)

Gilmore v. Gonzales

Represented John Gilmore in writ petition to the U.S. Supreme Court challenging, on due process grounds, the Transportation Security Agency's secret directive that requires commercial airline passengers show identification or undergo security screenings before flying. (2006)

Carver v. Bonds

Successfully defended former San Francisco 49er Roger Craig in libel lawsuit arising from statements published in newspaper's investigative article. (2005)

Gordon v. FBI

Successfully prosecuted Freedom of Information Act lawsuit to compel the FBI and TSA to publicly release previously secret documents about the federal government's expanded use of the 'no fly' and 'selectee' lists to screen airline passengers after September 11th. Recovered 200K in attorneys' fees given to the America Civil Liberties Union. 388 F. Supp. 2d  1028 (N.D. Cal. 2004); 390 F. Supp. 2d 897 (N.D. Cal. 2005) 

Bakersfield City School Dist. v. Superior Court

Successfully prosecuted California Public Records Act in trial court and court of appeal to establish legal precedent ensuring the public's right to review complaints of misconduct by public employees. 118 Cal. App. 4th 1041 (2004)

Wiley v. Black Entertainment Television

Obtained voluntary dismissal after motion filed to dismiss emotional distress claims against BET for use of still photograph of Magic Johnson during annual cable television network's annual music awards program. (2004)

Li v. CBS Broadcasting

Obtained dismissal of libel and privacy claims based on hidden-camera news investigation of San Francisco restaurant health code violations. (2003)

Sea Horse Ranch v. CBS Broadcasting

Obtained voluntarily dismissal after motion filed to dismiss negligence and privacy claims based on hidden camera investigation of alleged animal abuses. (2003)

Zito v. Steeplechase Films

Successfully defended Sierra Club against copyright infringement claim relating to use of photograph of Ansel Adams. The federal court barred plaintiff from recovering statutory damages or attorneys' fees, leading to dismissal of the action. 267 F. Supp. 2d  1022(N.D. Cal. 2003)

Citizens Against the Unauthorized Practice of Law v. ABC

Obtained voluntary dismissal of invasion of privacy claims based on hidden-camera news investigation of immigrant counseling service. (2002)

Daly v. Viacom

Obtained dismissal of libel and invasion of privacy claims based on VH1's 'Bands on the Run' reality-television program. 238 F. Supp. 2d 1118 (N.D. Cal. 2002)

Seelig v. Infinity Broadcasting

Obtained dismissal of libel claim brought by contestant on 'Who Wants to Marry a Multi-Millionaire?' reality-television program against live morning radio program, establishing appellate precedent for the broad application of California's anti-SLAPP statute. 97 Cal. App. 4th 798 (2002)

Nadel v. Regents of the University of California*

Successfully defended libel action based on press release about plaintiffs’ actions in People’s Park in Berkeley. Court of Appeal recognized that government employees enjoy First Amendment protected free speech rights. 28 Cal. App. 4th 1251 (1994)

Sparks v. San Francisco Bay Guardian*

Successfully defended Bay Guardian in libel and invasion of action arising from April Fool’s Day parody edition of the newspaper. 17 Cal. App. 4th 655 (1993)

Williams v. Superior Court*

Represented Freedom Communications in Public Records Act lawsuit seeking access to disciplinary records of law enforcement officers involved in the botched execution of a search warrant. 5 Cal. 4th 337 (1993)

Lesher Communications v. Superior Court*

Obtained precedent-setting appellate ruling ensuring the public’s right of access to jury questionnaires used in criminal cases in California’s courts. 224 Cal. App. 3d 774 (1990)
* Denotes experience completed at a prior firm

Additional Qualifications

  • Extern Law Clerk, Hon. Marilyn Hall Patel, U.S. District Court, Northern District of California, Fall 1988

Professional & Community Activities

Professional Recognition

  • Named as one of "America's Leading Lawyers for Business" in Media & Entertainment: Litigation (California) by Chambers USA, 2003-2014
  • Named "Lawyer of the Year" in San Francisco Litigation – First Amendment by Best Lawyers in America, 2015 
  • Received the "Willard J. Wright Award" for Outstanding Community Service, 2014  
  • Named as one of "500 Leading Lawyers in America" by Lawdragon, 2013 
  • Named as one of the "Best Lawyers in America" in First Amendment Law by Best Lawyers, 2004-2006; named in First Amendment Law and Media Law, 2007-present
  • Selected to "Northern California Super Lawyers," Thomson Reuters, 2004-2014
  • James Madison Freedom of Information Award for Legal Counsel, Northern California Chapter of the Society of Professional Journalists, 2002