Thomas R. Burke

Partner

I defend speech and fight government secrecy.

Tom Burke defends speech and content across all mediums – representing internet companies; networks; studios; book, magazine and news publishers; and authors, journalists, photographers, documentary filmmakers, and environmental groups. With over 30 years of trial and appellate experience in California's state and federal courts, Tom's practice covers the full spectrum of content liability issues including First Amendment and the defense of libel, privacy and copyright claims. A veteran newsroom lawyer, Tom regularly provides pre-publication counseling and defends journalists facing subpoenas for unpublished information and confidential sources. He also regularly litigates high-profile state and federal public records lawsuits. Tom has successfully handled hundreds of anti-SLAPP motions and is the author of "Anti-SLAPP Litigation" (The Rutter Group 2013-present). Since 2002, he has taught media law at the Graduate School of Journalism at the University of California, Berkeley.

Tom is a member of the firm's Executive Committee.

Practice Highlights

Libel defense

Planet Aid v. The Center for Investigative Reporting - Secured the dismissal of a long-running libel lawsuit against The Center for Investigative Reporting and its reporters that challenged nearly 80 statements and 20 publications about an 18-month investigation into plaintiffs' ties to a Danish cult and the alleged misuse of US and foreign funding to farmers in Malawi, Africa. 2021 WL 110252 (N.D. Cal. 03.23.21). OP-ED: "What a costly lawsuit against investigative reporting looks like," Columbia Journalism Review, 03.30.21

Public records & access lawsuits

Litigating public records lawsuits to make public information about: police misconduct throughout California following S.B. 1421 including ongoing lawsuits against the California Attorney General, California Highway Patrol and BART; Veteran's Administration whistleblower complaints; federal agency records of missing and murdered Native Americans; and FBI surveillance of an Muslim American community in Illinois.

Internet speech

Defended Yelp Inc. in a closely-watched California Supreme Court case (Hassell v. Bird, 5 Cal. 5th 522 (2018)) that upheld Yelp's due process and free speech rights under Section 230 of the Communications Decency Act. In a 4-3 decision, reversing the Court of Appeal, the Supreme Court held that Yelp was not required to comply with a trial court order to remove a defamatory user review of a law firm published on Yelp. On January 22, 2019, the U.S. Supreme Court declined to review the case.

Libel, Privacy, and Other Constitutional Matters

Edward Gallagher v. David Philipps

Represented New York Times reporter David Philipps, a Pulitzer Prize recipient and author of Alpha, in a libel action brought by former Navy SEAL Eddie Gallagher concerning Philipp's reports about Gallagher's prosecution for war crimes. Despite Gallagher's claim that Philipps published "false and misleading information" about him in Times articles, podcasts, and other documentaries, a federal court in California dismissed the bulk of the allegations in response to an anti-SLAPP motion based on the fair and true reporting privilege and other First Amendment protections. Gallagher subsequently dismissed his case. (S.D. Cal. 2022)

U.S. WeChat Users Alliance v. Trump

Pro Bono representation of the WeChat Users Alliance to secure a preliminary injunction and challenge the implementation of President Donald Trump's Executive Order 13943 banning the WeChat App as violating the First Amendment. 488 F. Supp.3d 912 (N.D. Cal. 2020); 2020 WL 6891820 (N.D. Cal. 2020). "U.S. Judge Temporarily Halts Trump’s WeChat Ban," New York Times, 10.05.20

Loomer v. Facebook, Inc.

Represented Facebook against defamation claims by Laura Loomer, a conservative blogger and former congressional candidate, who was removed from the platform for violating Facebook's Community Standards. Loomer alleged that Facebook defamed her by stating that she had violated its "Dangerous Individuals and Organizations" policy. Court granted motion to transfer to N.D. Cal., and Loomer voluntarily dismissed the case before responding to Facebook's summary judgment motion. (S.D Fla. 2020; N.D. Cal. 2020)

CoreCivic, Inc. v. Candide Group LLC and Morgan Simon

Secured dismissal of defendants in libel action brought by one of the nation's largest private prison owners arising from statements published on Forbes.com advocating against the use of private prisons to house immigrants detailed by the United States. (N.D. Cal. 2020)

Henreid v. Microsoft

Represented Microsoft and its search engine Bing.com in securing dismissal of libel and related claims from alleged search engine results challenged by a California attorney. (Santa Clara Cty. (Cal.) Sup. Ct. 2020)

*Denotes an attorney's experience prior to joining Davis Wright Tremaine

Internet

Henreid v. Microsoft

Multiversal v. Yelp

Defended Yelp in a false advertising and unfair competition lawsuit from Yelp's publication of an online video about the operation of its recommendation software. Defeated plaintiff's repeated efforts to access Yelp's proprietary source code and then prevailed on the merits following a 16-day trial (spread across more than two months). The decision was affirmed on appeal. (Los Angeles Cnty. (Cal.) Super. Ct., Cal. App. 2022)

Hassell v. Bird (Yelp)

Defended Yelp Inc. in this closely-watched California Supreme Court case that upheld Yelp’s due process and free speech rights under Section 230 of the Communications Decency Act. Reversing the Court of Appeal, in a 4-3 decision, the Supreme Court held that Yelp was not required to comply with a trial court order to remove a defamatory user review of a law firm published on Yelp. On January 22, 2019, the U.S. Supreme Court declined to review the case. (5 Cal. 5th 522 (2018))

Darsky v. Avvo, Inc.

Represented Avvo in lawsuit brought by licensed California attorney on behalf of putative class who alleged that Avvo misappropriated his name and likeness by selling advertising on the same page as publicly available information about him and his law practice. (N.D. Cal. 2016)

GLAD v. Cable News Network, Inc.

Lead counsel representing CNN in this putative class action lawsuit for alleged California civil rights and Disabled Persons Act violations that sought to compel CNN to include captioning on all news videos available on CNN.com only months before the FCC issued final closed-captioning rules. Reversing the district court, the 9th Circuit held that CNN’s captioning decisions were protected by its free speech rights and dismissed the civil rights claims. The court certified review of the disability claim to the California Supreme Court after which plaintiffs voluntarily dismissed the action. (742 F.3d 414 (9th Cir. 2014); 742 F.3d 871 (9th Cir. 2014))

Public Records Litigation

ACLU Chapters v. Department of Homeland Security

Successfully represented ACLU chapters in Freedom of Information Act lawsuits in the Southern, Central and Northern Districts of California against the Department of Homeland Security and Customs and Border Protection to compel the release of public records documenting CBP’s local implementation of President Trump’s 2017 executive orders halting refugee admissions and barring travelers from several predominantly Muslim countries. (S.D. Cal., C.D. Cal., N.D. Cal.; Ongoing)

Boundaoui v. FBI

Representing a documentary filmmaker in FOIA litigation to compel the FBI to produce records of "Operation Savage Betrayal" – the FBI’s surveillance of a Muslim American community outside of Chicago. Ms. Boundaoui’s investigation uncovered one of the largest FBI terrorism probes conducted before September 11th and is the subject of her film: "The Feeling of Being Watched" (2018) (N.D. Ill.; Ongoing)

First Amendment Coalition v. Becerra

Representing KQED in a California Public Records Act lawsuit to compel California's Attorney General to comply with newly enacted Senate Bill 1421 and release "millions" of records related to peace-officer conduct currently being withheld. Becerra v. San Francisco Superior Court, 44 Cal. App. 5th 897 (2020) (San Francisco Cnty. (Cal.) Super. Ct. Ongoing)

Lawyers Committee for Civil Rights of the Bay Area v. U.S. Citizenship & Immigration Services

Representing LCCR and immigration nonprofit organizations in FOIA litigation against USCIS to compel the agency to release records regarding the agency's use of "gang indicators" in asylum determinations. (Ongoing; N.D. Cal.)

National Public Radio v. Federal Bureau of Investigation

Representing NPR in FOIA litigation to compel the release of videos of ballistics testing conducted by the FBI. (D.D.C. 2020)

*Denotes an attorney's experience prior to joining Davis Wright Tremaine

Access to Public Proceedings

The People v. David DePape

Successfully represented a coalition of media clients (including The New York Times, The Washington Post, Fox News, and CNN) that requested the trial court to release exhibits played during the preliminary hearing for the defendant charged with attacking then-U.S. Speaker Nancy Pelosi’s husband. See "Court Releases Video of Paul Pelosi Hammer Attack, Adding Chilling Details," New York Times, 01.27.23

First Amendment Coalition v. Governor of the State of California

Representing the First Amendment Coalition in a series of motions to unseal records submitted by the California Governor's Office to the California Supreme Court, seeking the Court's approval of a proposed grant of clemency former state senator convicted of election-related crimes. In its ground-breaking order in Wright on Clemency (Case No. S251879), the Supreme Court applied constitutional law and the California Rules of Court governing the sealing of court records to order the governor to provide public access to the vast majority of the clemency file. Other motions to unseal involving records submitted by Govs. Brown and Newsom in support of clemency requests involving twice-convicted felons remain pending before the court. (Ongoing)

Perry v. Schwarzenegger/Prop. 8 Trial Video

Represented national media coalition in access proceedings in the District Court, 9th Circuit and in and through the U.S. Supreme Court – during a single week – seeking to televise this historic San Francisco federal trial involving a due process challenge to California’s prohibition against same-sex marriage. The Supreme Court issued a temporary stay of the broadcast [Hollingsworth v. Perry, 558 U.S. 1107, 130 S. Ct. 11232 (2010) (mem.)] and two days later, by a 5-4 vote, extended the stay. Hollingsworth v. Perry, 558 U.S. 183, 130 S. Ct. 705 (2010) (per curiam). Secured a later ruling by the district court allowing access to a videotape of the bench trial [2011 WL 4527349], later reversed by the 9th Circuit. Perry v. Brown, 667 F.3d 1078 (9th Cir. 2012). In 2018, on behalf of KQED, obtained an order unsealing the video of the trial in August of 2020 absent a further court order. Perry v. Schwarzenegger, 302 F. Supp. 3d 1047 (N.D. Cal. 2018). In April of 2019, the 9th Circuit dismissed an appeal of that order by the Proponents of Prop. 8 on ripeness grounds. (Ongoing)

Los Angeles Times Communications LLC v. Kernan

Represented the Los Angeles Times and KQED to challenge the State of California’s lethal injection execution regulations, on constitutional grounds, to ensure the public's right of access to observe executions and to prevent the State of California from carrying out significant portions of executions in secret. Defeated the State’s motion to dismiss. On March 13, 2019, California Governor Newsom issued an executive order suspending the death penalty in California. 2018 WL 10419787 (N.D. Cal. 2019)

McNair v. National Collegiate Athletic Assn.

Represented The New York Times and the Los Angeles Times to successfully unseal 400 court documents regarding the NCAA’s investigation into whether USC running back Reggie Bush received improper treatment while at USC. 234 Cal. App. 4th 25 (2015)

*Denotes an attorney's experience prior to joining Davis Wright Tremaine

Intellectual Property

Philpot v. Alternet

Defended Alternet in copyright litigation arising from the online publication of a celebrity photograph. (N.D. Cal.; 2019)

Blackshear Enterprises Inc. v. Lenox Corporation

Defended Lenox in arbitration in a complex licensing, copyright, trademark, right of publicity and royalty dispute involving the marketing and sale of collectable figurines. (2016)

City of Inglewood v. Teixeira

Defended citizen-activist in a copyright suit brought by the City of Inglewood arising from his use of clips of city council meetings in critical YouTube videos. The district court found that California government agencies cannot enforce copyright in public records absent specific statutory authorization, and that the action independently was barred by the fair use doctrine. The court dismissed the city’s complaint with prejudice and awarded attorneys’ fees under the Copyright Act. (C.D. Cal. 2015)

AJ Management Consulting, LLC v. MBC FZ-LLC

Defended MBC in copyright action involving a dispute over the ownership of cloud-based mobile technology used to power MBC's "Omar App" a digital story-telling app used by MBC to promote its Omar television series in the United Arab Emirates. MBC's motion to dismiss granted. (2014 WL 2878891; N.D. Cal.)

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)

Journalist's Privilege and Source Protection

In re Eurasian National Resources Corp. & In re Dechert Subpoenas

Represented The Sunday Times of London and its reporter Danny Fortson, against subpoenas seeking his unpublished and confidential information used in news reporting about the operations of ENRC. (N.D. Cal. 2020)

SFPD search warrants to Bryan Carmody

Represented freelance journalist Bryan Camody to successfully quash five search warrants issued to the San Francisco Police Department, in violation of state and federal protections, in SFPD’s investigation into the leak of a police report regarding the death of Jeff Adachi, San Francisco’s Public Defender. (San Francisco Cnty. (Calif.) Sup. Ct. 2019)

Hatch v. Kantz

Quashed civil plaintiff’s subpoena seeking San Francisco Chronicle reporter Scott Fagan’s unpublished reporting materials and later limited Mr. Fagan’s deposition testimony to only published information about his news reporting on this civil dispute. (San Mateo Sup. Ct. 2017)

Hurry v. Financial Industry Regulatory Authority, Inc.

Quashed federal subpoena issued to reporter with TheStreet.com seeking the identity of confidential sources and other unpublished information. (N.D. Cal. 2017)

People v. Gaskin

Quashed criminal defendant’s pre-trial subpoena to CNN for outtakes of video and reporter’s notes taken following protests on the UC Berkeley campus. (Alameda Sup. Ct. 2017)

Admitted to Practice

California, 1989
U.S. Supreme Court, 2006

Education

J.D., University of San Francisco School of Law, 1989, magna cum laude
B.S., Broadcast Journalism, Arizona State University, 1984, magna cum laude

Memberships & Affiliations

- Chair, DWT Pro Bono and Public Service Committee, 2018-present
- Lecturer, J255, Law & Ethics, Graduate School of Journalism, University of California, Berkeley, 2002-present
- Member, National Board of Advisors, Cronkite School of Journalism and Mass Communication, Arizona State University, 2013
- Governing Board of the ABA Forum on Communications Law, 2008-2011
- Appointed Member, Commission for Impartial Courts, California Task Force on Judicial Campaign Conduct, 2007-2009
- Co-chair, Freedom of Information Committee, Northern California Chapter of the Society of Professional Journalists, 2006-2008
- Member, Internet Law, Membership and Prepublication Review Committees, Media Law Resource Center, 2002-present
- Legal Advisor, First Amendment Coalition, 1990-present
- Legal Advisor, Student Press Law Center, 2008-present
- Member, San Francisco Lawyers Committee for Civil Rights, 2009-present

Professional Recognition

- Named as one of "America's Leading Lawyers for Business" by Chambers USA in First Amendment Litigation (Nationwide), 2018-2024; Media & Entertainment: First Amendment Litigation (California), 2003-2024
- Selected by Best Lawyers as San Francisco's "Lawyer of the Year" in First Amendment Litigation, 2015, 2021, 2023, 2025
- Named one of the "Best Lawyers in America" by Best Lawyers in Litigation - First Amendment, 2006-present; in Media Law, 2008-present
- Selected to "Northern California Super Lawyers," Thomson Reuters, 2004-2024
- Named as one of "500 Leading Global Entertainment, Sports & Media Lawyers" by Lawdragon, 2025
- Named a "Litigation Trailblazer" by the National Law Journal, 2022
- Received the "Willard J. Wright Award" for Outstanding Community Service, 2014
- Named as one of "500 Leading Lawyers in America" by Lawdragon, 2013
- James Madison Freedom of Information Award for Legal Counsel, Northern California Chapter of the Society of Professional Journalists, 2002