Mark I. Bailen

Counsel

Washington, D.C.
T +1.202.861.1715
F +1.202.861.1783

Overview

Mark Bailen focuses his practice on publishing and First Amendment matters, including libel, privacy, copyrights and trademarks, while also performing complex commercial litigation and international litigation. As media and technology have evolved, Mark has transitioned from representing traditional media outlets to also representing clients in the growing fields of the internet and digital media. He represents websites, bloggers and others who publish and disseminate news, information, opinions and ideas. He represented clients who were among the first to invoke the District of Columbia anti-SLAPP law in 2011 and the modified New York anti-SLAPP law in 2020.

His involvement with all mediums of publication leaves Mark with a full understanding of the rights and obligations of content publishers. He advises clients on the potential legal issues related to their content and is proactive in developing the appropriate solutions to protect clients in their publishing and information management endeavors.

Mark also litigates complex commercial disputes in federal and state courts across the country and internationally.

Select Experience

Media

  • Defended online news site in defamation, privacy and Section 1983 actions in Maryland federal and state courts.
  • Represented a nonprofit firm, a major national newspaper and others in a libel suit in New York state court arising out of an advertisement published in the newspaper and on the internet. 

International Litigation

  • Managed a team of attorneys through a six-week jury trial in New York in a multimillion-dollar breach of fiduciary duty and fraud action involving a foreign government official.
  • Has represented a foreign government in sovereign debt litigations.

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Experience

Media
  • Defended online news site in defamation, privacy and Section 1983 actions in Maryland federal and state courts.
  • Represented a nonprofit firm, a major national newspaper and others in a libel suit in New York state court arising out of an advertisement published in the newspaper and on the internet. 
  • Serves as general outside counsel to journalism organizations.
  • Represented a publisher in copyright infringement actions in New York and California federal courts involving claimed rights in photographs and manuscripts. 
  • Advises clients on formation and development of news media entities.
  • Defended nonprofit firm in defamation action over its issues advocacy campaign brought by union official in New York state court.
  • Represents journalists, bloggers, news websites and thinktank in various defamation actions in Washington, D.C., arising from direct publications and social media use.
  • Litigated issue of first impression concerning the identities of anonymous online posters and established the standard for disclosure of their identities under Maryland law.  
  • Represented news and commentary website in defamation action filed by a publicist who sued over statements made about her on the website stemming from postings on her personal social media page, raising issues of first impression under the First Amendment when one seeks attention and publicity through social media.
  • Defended publishers in various actions brought by authors disputing royalties in arbitration and federal court in Washington, D.C., and New York.
  • Represented a newspaper in a civil rights action against a governor and state agencies for denying newspapers' First Amendment rights to comment freely on the governor's actions. 
  • Has vetted numerous manuscripts, including the best-selling biography of a former U.S. president. 
International Litigation
  • Managed a team of attorneys through a six-week jury trial in New York in a multimillion-dollar breach of fiduciary duty and fraud action involving a foreign government official.
  • Has represented a foreign government in sovereign debt litigations.
  • Represented a foreign bank in a breach of contract action in New York federal court.
  • Litigated dispute on behalf of a major publishing firm over royalties from sales through foreign distribution outlets.

Recognitions and Memberships

Recognitions

  • Chambers USA
    • Nationwide Media & Entertainment Litigation
      • Band 3 (2020)
    • Nationwide First Amendment Litigation
      • Band 4 (2020 to 2021)
    • Media & Entertainment Litigation in the District of Columbia (2021)
      • Band 3 (2021)
  • The Best Lawyers in America© (2021)
    • District of Columbia: Media Law
  • Washingtonian Magazine’s “Top Lawyers”
    • First Amendment and Media: 2009, 2013-2014, 2016, 2018, 2020

Memberships

  • Barristers: Washington, D.C.
  • American Bar Association
    • Governing Committee of the Forum on Communications Law
    • Sponsorship Committee of the Forum on Communications Law: Co-Chair

Community

  • International Center for Journalists: Board of Directors
  • Butler Wyatt Thompson Boys and Girls Club #2: Board Member

Prior Positions

  • Nationally Syndicated Political Talk Show: Producer

Admissions

  • U.S. Court of Appeals, Second Circuit, 2012
  • U.S. Court of Appeals, District of Columbia Circuit, 2005
  • U.S. District Court, Southern District of New York, 2012
  • U.S. District Court, Eastern District of New York, 2019
  • U.S. District Court, District of Massachusetts, 2010
  • U.S. District Court, District of Columbia, 2001
  • U.S. District Court, District of Maryland, 1998
  • U.S. Court of Appeals, Fourth Circuit, 2015
  • District of Columbia, 1998
  • Massachusetts, 1997
  • Maryland, 1997
  • New York, 2011

Education

  • J.D., New York University School of Law, 1997
  • B.A., Cornell University, 1992