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February 10, 2012

Supreme Court Hears Arguments in FCC Indecency Policy Case

On January 10, 2012, the U.S. Supreme Court heard arguments in Federal Communications Commission v. Fox Television Stations, Inc., a case challenging the constitutionality of the Federal Communication Commission’s (FCC) ban on “fleeting expletives” and displays of nudity by broadcast networks.

This is the case’s second visit to the Court. In 2009, the Court held [PDF] that the FCC has the authority to enforce its indecency policy. Now, the Court confronts a constitutional challenge to the policy’s vagueness and application to fleeting expletives and scenes of nudity on broadcast television.

The case arose from fleeting expletives featured in Fox Television broadcasts of the Billboard Music Awards. In 2002, Cher said “fuck ‘em” to her critics. In 2003, Nicole Richie engaged in an expletive-laced description of The Simple Life, in which she co-starred with Paris Hilton. The nudity at issue appeared in a 2003 ABC-TV broadcast of NYPD Blue in which a woman’s buttocks were displayed as she undressed for a shower.

This iteration of FCC v. Fox Television raises questions about the continuing validity of FCC v. Pacifica Foundation, which upheld the FCC’s policy of penalizing deliberate, repeated use of expletives on the airwaves. In 2004, the FCC adopted a stricter indecency policy, penalizing even single uses of expletives on radio or television between the hours of 6 a.m. and 10 p.m. The FCC appealed the ruling by the U.S. Court of Appeals for the Second Circuit that this new policy was unconstitutionally vague.

At oral argument, some justices raised questions about inconsistencies in the FCC’s enforcement policy, but the Court appeared reluctant to overrule Pacifica and accept the networks’ contention that broadcast should no longer be subjected to special regulations.

Solicitor General Donald Verrilli Jr. argued that broadcasters receive a license from the government to use public airwaves, creating enforceable public obligations, including compliance with the FCC’s indecency restrictions. According to the government, there is value to maintaining a “safe haven” on broadcast television, despite the proliferation of cable television channels.

Attorneys for Fox and ABC contended that the current FCC enforcement policy is arbitrary, providing the networks with no guidance regarding punishable content.

Carter G. Phillips argued for Fox that overruling Pacifica would not inundate the public airwaves with vulgarities. The networks’ internal guidelines, advertisers, and audiences, he said, insist on restraint in the use of expletives and nudity.

Representing ABC, Seth Waxman reiterated that the FCC’s enforcement of the indecency policy as applied to nudity has been “starkly inconsistent.” Although the FCC censured a display of rear nudity in “NYPD Blue,” it allowed a display of full frontal nudity in the film Catch-22. Waxman acknowledged the tension between considering context in regulating nudity and establishing clear guidelines for broadcast networks to follow. As if to illustrate the importance of context, Waxman noted that the FCC is also considering pending complaints about the nude statue featured in the opening episode of the last Olympics. Waxman pointed out that the Olympics statue is “very much like some of the statues that are here in this courtroom, that ha[ve] bare breasts and buttocks.”

Several justices hinted they might favor a narrow ruling in this case. During Waxman’s argument, Justice Breyer asked if the Court could rule solely upon the nudity in the broadcasts at issue instead of rendering “an earthshaking decision” overruling Pacifica. Justice Alito also suggested the Court could refrain from deciding the constitutional issues in the case, asking Phillips whether the Court could let “this die a natural death” in light of broadcast’s dwindling audience.

On January 12, 2012, at a discussion sponsored by the District of Columbia Bar Association and moderated by Jason E. Rademacher, the panelists addressed the linchpins of the Pacifica decision—broadcast is a unique medium, uniquely accessible to children—and agreed that the Court appeared inclined to rule narrowly, leaving Pacifica intact.

Andrew Jay Schwartzman said broadcast’s special status appeared to have continued resonance with the Court, but also noted it was unclear whether the pervasiveness rationale articulated in Pacifica would survive. In Pacifica, the Court indicated the FCC could regulate indecency on the airwaves because broadcast is a “uniquely pervasive” medium. However, an increasing segment of the television audience receives programming through cable, not “rabbit ears.”

Paul M. Smith emphasized it was difficult to predict how the Court would rule. He thought the justices were not overly troubled by the argument that Pacifica no longer makes sense or the FCC’s recent ad hoc enforcement decisions. Smith also pointed out that even Justice Scalia, the author of the majority opinion in Brown v. Entertainment Merchants Association, which Smith successfully argued on behalf of video-game makers challenging California’s ban on the sale of violent video games to minors, was supportive of the FCC’s policy here.

Schwartzmann and Smith said Phillips’s argument that the networks’ internal guidelines and the market would restrain television networks from broadcasting expletives or nudity was persuasive, but found no traction with the Court.

Christopher Landau noted that another traditional justification for the indecency policy, the need to protect children from vulgarity on the airwaves, may evolve to a broader interest in preventing the coarsening of society, pointing to a statement from Justice Scalia that “the government is entitled to insist upon a certain modicum of decency. I’m not sure it even has to relate to juveniles, to tell you the truth.” Landau also predicted the Court’s ruling would be minimalistic because of the lack of clarity regarding the case’s procedural posture and the issues before the Court.

Keywords: litigation, First Amendment, broadcast indecency, fleeting expletives, Federal Communications Commission, FCC v. Pacifica Foundation

—Amba Datta, Levine, Sullivan, Koch & Schulz, Washington, D.C.

November 15, 2011

Court Blocks Graphic Cigarette Warnings; Appeal Expected

In a First Amendment victory for the tobacco industry, a federal judge has blocked a Food and Drug Administration (FDA) rule mandating that cigarette packages carry warning labels with such graphic images as a cadaver with post-autopsy chest staples and a man exhaling smoke through a tracheotomy hole in his throat.

On November 7, 2011, U.S. District Judge Richard Leon of the U.S. District Court in Washington issued a preliminary injunction [PDF] that delays the effective date of the rule. In issuing his opinion, Leon said there is a substantial likelihood that the tobacco industry would prevail in its First Amendment lawsuit, R.J. Reynolds v. FDA [PDF], which argues that the rule unconstitutionally compels speech. The First Amendment & Media Litigation Committee article, “Tobacco Suit Challenges Graphic Warning Mandate” by Diego Ibarguen and John P. D’Ambrosio, discusses this suit.

The litigation relates to the Family Smoking Prevention and Tobacco Control Act of 2009 [PDF] that gave the FDA authority to regulate tobacco products and directed the agency to require the new labels. The FDA rule creates nine new labels that included textual warnings as well as the images that were to cover the top half of the front and back of cigarette packages. These new warnings were to have been in place by September 22, 2012.

Five tobacco companies sued over the image requirement, arguing that the new rule unconstitutionally compels speech that they would not otherwise make. The only exception would be if the required warnings were factual and uncontroversial in nature.

“It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking—an objective wholly apart from disseminating purely factual and uncontroversial information,” Leon wrote in his 29-page opinion.

The plaintiffs had asked Leon to quickly delay the effective date of the rule while its constitutionality is decided. Otherwise the tobacco companies would have had to spend millions of dollars to begin implementing the requirements as soon as this month or next.

The judge agreed, finding that the companies would suffer irreparable harm if they were forced to follow the mandated rule before the courts decided the challenge. The U.S. Department of Justice has said it is reviewing the decision, and lawyers expect the government will appeal.

“Judge Leon’s ruling ignores the overwhelming scientific evidence about the need for the new cigarette warnings and their effectiveness. It also ignores decades of First Amendment precedent that support the right of the government to require strong warning labels to protect the public health,” Matthew Myers, president of the Campaign for Tobacco-Free Kids, said in a press release.

Myers said this precedent led U.S. District Judge Joseph McKinley Jr. of Kentucky to rule last year that cigarette makers could be forced to put graphic images and warnings on the top half of their packages. Commonwealth Brands, Inc. et al v. United States of America et al [PDF]. Both sides appealed certain aspects of the ruling, and oral arguments were held before the U.S. Court of Appeals for the Sixth Circuit in July.

Keywords: litigation, First Amendment, tobacco, cigarettes, FDA, R.J. Reynolds, Commonwealth Brands

—Gail Appleson, Armstrong Teasdale LLP, St. Louis, Missouri

November 10, 2011

Supreme Court to Hear Military Honors Lying Case

Should lying about earning military honors be a federal crime, or does it simply amount to a white lie protected by the First Amendment? On October 17, 2011, the U.S. Supreme Court agreed to make that decision. United States v. Alvarez [PDF], 617 F.3d 1198 (9th Cir. 2010).

The case arose from a false statement made by Xavier Alvarez after he was elected to the Three Valley Water District Board of Directors in Southern California. At a July 23, 2007, public meeting, Alvarez introduced himself by saying, “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

Alvarez had never been awarded the Medal of Honor, nor had he even been a Marine.

Later, when a woman notified the Federal Bureau of Investigation (FBI) about Alvarez’s lies concerning military service, the agency obtained a recording of the meeting in which Alvarez lied about his background. Alvarez was ultimately indicted on two counts of violating the Stolen Valor Act, 18 U.S.C. § 704(b), (c), which makes it a crime for an individual to knowingly and falsely represent that he or she has received certain military honors, including the Congressional Medal of Honor.

The district court found that the First Amendment did not protect statements the speaker knows to be false and sentenced Alvarez to three years of probation, 416 hours of community service, a $5,000 fine, and a $100 special assessment. Alvarez appealed on First Amendment grounds.

On appeal, the Ninth Circuit Court of Appeals reversed and remanded. Finding that the Stolen Valor Act did not meet strict scrutiny because it was not narrowly tailored, the appeals court declined to “enlarge the scope of existing categorical exceptions to First Amendment protection.” The court found that the Stolen Valor Act regulated and imposed criminal penalties on pure speech without any “additional elements that serve to narrow what speech may be punished.” It reasoned that upholding the Stolen Valor Act as constitutional might lead to the criminalization of little white lies told about one’s personal appearance on online dating websites or fibbing to “one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on a freeway.”

After the Ninth Circuit denied en banc review, the U.S. Solicitor General filed a petition for writ of certiorari, arguing that the law “plays a vital role in safeguarding the integrity and efficacy of the government’s military honors system.”

The Supreme Court is expected to hear arguments in the case early next year, with a ruling possible by the end of June.

Keywords: litigation, First Amendment, Stolen Valor Act, United States v. Alvarez

—Bobbie K. Ross, Michel & Associates, P.C., Long Beach, California

October 26, 2011

Virgin Islands Issues Its First Defamation Decision

The Virgin Islands Supreme Court first began hearing cases five years ago. In September 2011, it issued its first decision addressing the law of defamation. The court’s decision in Kendall v. Daily News Publishing Co. [PDF], 2011 WL 4434922 (V.I. Sept. 21, 2011), affirmed a trial court’s ruling directing a verdict in favor of the Virgin Islands’ largest newspaper in a case brought by a former judge. The court’s decision represents a straightforward application of the U.S. Supreme Court’s actual malice jurisprudence, but it represents a strong statement about the protections afforded to the press when reporting on public officials.

In the case, Judge Leon A. Kendall claimed that the Virgin Islands Daily News and two of its reporters defamed him in 15 reports about his bail decisions and the fallout from those decisions, an editorial calling on him to resign, and a report on his retirement announcement. The case went to trial in March 2010. At the trial, a jury found for one of the reporters, and the trial court then entered a directed verdict in favor of the newspaper and the other reporter. See Kendall v. Daily News Publ’g Co. [PDF], 2010 WL 2218633 (V.I. Super. Ct. May 27, 2010). In that decision, the trial court held that Judge Kendall had failed to meet various burdens imposed by the law, including his burden of proving that the publications were materially false and defamatory and that they were published with actual malice. The trial court also ruled that certain articles were protected by the fair-report privilege and that the editorial contained constitutionally protected opinion.

On appeal, the Supreme Court ruled on more narrow grounds. First, it held that Judge Kendall could not prove that the Daily News had published the reports and editorial with actual malice nor could he prove that it had intended the defamatory implications alleged in his complaint. In reaching these conclusions, the court conducted the independent review mandated by U.S. Supreme Court precedent, carefully considering the testimony and evidence presented at trial. Ultimately, it determined that the evidence Judge Kendall proffered could not meet his constitutional burden of establishing the requisite state of mind by clear and convincing evidence. For example, in discussing an article reporting on a standoff between police and a defendant whom Judge Kendall decided not to remand to prison following his conviction for rape, the court held that, “while further investigation may have allowed [the reporter] to more accurately report the specific circumstances surrounding [the defendant’s] release,” this alleged failure to investigate did not establish actual malice.

Second, the Court ruled that the editorial at issue reflected protected speech. Applying long-standing precedent, the Court determined that the statements in the editorial were either pure opinion, such as the charge that Judge Kendall “display[ed] an arrogance that we’ve not seen from any other judge,” or were supported by accurate facts disclosed in the editorial.

The Virgin Islands Supreme Court’s decision in the Kendall case represents a strong statement about the high hurdles that public official plaintiffs face when bringing defamation claims. While the ruling applied black-letter law governing such suits, it is a significant precedent in the Virgin Islands, where several public officials have filed libel claims in recent years.

Keywords: litigation, First Amendment, Virgin Islands, defamation, actual malice, opinion

—Michael D. Sullivan and Michael Berry of Levine, Sullivan, Koch & Schulz, LLP. The authors, along with Kevin Rames of the Law Offices of K.A. Rames, P.C., represent the Daily News and its reporters.

October 26, 2011

Floyd Abrams: WikiLeaks Isn’t Journalism

First Amendment lawyer Floyd Abrams says WikiLeaks isn’t journalism, but government backlash against the “reckless” publication of secret documents by the self-proclaimed whistleblower website could end up harming journalists.

Abrams gave the keynote address October 4, 2011, at a First Amendment seminar sponsored by the Media Institute, a nonprofit research group on communications policy issues.

Abrams noted that this year marks the 40th anniversary of the Supreme Court’s landmark decision in the Pentagon Papers case (New York Times Co. v. United States, 403 U.S. 713 (1971)), which he argued before the Court on the Times’ behalf.

Abrams drew a distinction between the newspaper’s handling of 7,000 pages of a highly classified Vietnam War history and WikiLeaks’ actions in posting online hundreds of thousands of pages of secret government documents. He said the Times journalists sifted through the Pentagon papers, “determining what was fit to print, and what was not,” and considered concerns raised about some of the material both by Pentagon and Nixon administration officials and by the district judge hearing the case, who was a former Army intelligence officer. WikiLeaks, by contrast, posted secret documents online without reviewing most of them and without regard for the damage they might cause, Abrams said.

“No journalistic entity . . . releases to the world an elephantine amount of information they haven’t read,” Abrams said. It’s important to refute WikiLeaks’ claim to the mantle of journalism, he added. “It’s worth making a distinction between what journalists do and what others do, even though both are protected by the First Amendment.”

Abrams said WikiLeaks’ misconduct could harm journalists if it prompts the government to attempt prosecutions for making the documents public, such as under the Espionage Act, 18 U.S.C. § 792, et. seq. Courts have yet to determine whether a third-party recipient of classified information can be prosecuted for publishing government secrets under the 1917 law, nor have courts ruled on the state of mind required for a conviction, Abrams explained.

“Any conviction under the Espionage Act of WikiLeaks could strike a serious blow against journalists.”

Keywords: litigation, First Amendment, WikiLeaks, Espionage Act, Pentagon Papers, Floyd Abrams

—Matt Kelley, Levine, Sullivan, Koch & Schulz/George Washington University Law School

October 26, 2011

Is the Supreme Court Friendly to Free Expression?

Recent Supreme Court decisions upholding the right to protest at funerals and to sell violent video games show that the Court is friendly to free expression, and the decisions are a positive sign as the justices take up a challenge to federal broadcast indecency standards, according to media law experts.

The current Court has taken “a very muscular approach to the First Amendment,” showing an “aversion to having government decide” what speech is permitted, said Katie Fallow, a partner at Jenner & Block. Fallow represented the computer gaming industry in Brown v. Entertainment Merchants Association [PDF], 131 S. Ct. 2729 (2011), where the Court invalidated a California law that would have restricted sales of violent games to children.

Fallow was one of a panel of First Amendment attorneys discussing the Court’s current First Amendment jurisprudence at a seminar October 4, 2011, sponsored by the nonprofit Media Institute.

Many people think of the Court as an institution that decides cases with an overarching purpose, but it’s really more like an amoeba that morphs and adapts to cases as they come, said Lee Levine of Levine, Sullivan, Koch & Schulz. That said, the Court’s general direction is promising because it has rejected content-based regulations, not only of video games, but also of other speech many find offensive, such as the military funeral protest at issue in Snyder v. Phelps [PDF], 131 S. Ct. 1207 (2011), Levine said.

“We get press law by accident” because the Court has eschewed taking news media cases, Levine said. Still, the Court’s recent First Amendment rulings are helpful for media litigants. For example, the Court’s expansive definition in Snyder of what constitutes speech about an issue of “public concern”—and thus gets the most stringent First Amendment protection—will be “used in press cases for years to come,” Levine said.

Supreme Court scholar Steve Wermeil of American University was the panel’s contrarian, saying he was of the “glass-half-empty school” on the Court’s direction on First Amendment cases. Wermeil, the author of a biography of the late Justice William Brennan, said he was troubled by the willingness of four justices to uphold the California video game restrictions in some form and the Court’s avoiding the issue in Snyder of whether the fringe protestors could be liable for intentional infliction of emotional distress for posting an online rant directed at the plaintiffs.

Bob Corn-Revere, the Davis Wright Tremaine partner slated to argue the television networks’ case against broadcast indecency regulations to the Court this term, said that, in his view, the glass is not half full, but overflowing. He noted that several recent rulings, such as Sorrell v. IMS Health Inc. [PDF], 131 S. Ct. 2653 (2011),have indicated the Court’s willingness to provide broader protections to commercial speech.

Fallow and Levine said they were optimistic that the Court would strike down the Federal Communications Commission’s indecency rules. One key question, Levine said, is whether the Court would decide the case on narrow grounds or use the opportunity to overturn FCC v. Pacifica Foundation, 438 U.S. 726 (1978), in which the Court upheld the agency’s ability to police the use of expletives in broadcast media at times when children were likely to be part of the audience.

Keywords: litigation, First Amendment, Supreme Court, video games, commercial speech, broadcast indecency

—Matt Kelley, Levine, Sullivan, Koch & Schulz/George Washington University Law School

October 26, 2011

Panel Discusses Free Expression in New Digital Media

The challenges confronting digital media were the subject of a panel at the Media Institute’s First Amendment seminar on October 4, 2011. Moderated by Cliff Sloan, a partner at Skadden Arps, the four panelists weighed in on editorial practices for user comments, the implications of the “right to be forgotten” for news organizations, and the uncertainties of the business model for online news content.

In his introductory remarks, Sloan noted that it was the 15th anniversary of the U.S. Supreme Court’s decision in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), in which the Court unanimously struck down provisions of the Communications Decency Act criminalizing the transmission of indecent or obscene material to minors. In so doing, the Court affirmed the principle that Internet speech should be accorded the full and vigorous protection of the First Amendment and rejected the notion that a lower standard should apply to expression in cyberspace.

Following that introduction, the panelists addressed the topic of user comments to articles and commentary published online. Tim Jucovy, associate counsel for the Washington Post; Bruce Gottlieb, general counsel for Atlantic Media Co.; and Ashley Messenger, associate general counsel for National Public Radio, indicated that the online editions of their respective publications largely refrain from editing user comments, but do filter abusive or extreme comments. The Washington Post also categorizes a small number of comments that editors have deemed to be particularly informative as “top comments,” and the default article view places these responses at the beginning of the complete comments archive. Each publication also solicits comments from readers on specific topics, although Messenger stated that this practice is more labor-intensive for NPR, as it requires extensive review by editors to identify useful comments. Jucovy confirmed that responses to explicit “call-outs” are also reviewed carefully at the Washington Post.

Panelist Adonis Hoffman, the chairman of the American Business Leadership Institute and a professor at Georgetown University, highlighted another dimension of user comments. Beyond providing additional perspectives on particular topics, or enhancing reporting in some circumstances, user comments are invaluable to advertisers and marketing organizations who consider this the “new currency” of the web, according to Hoffman.

Gottlieb also said that some writers for the Atlantic have adopted an interactive approach to commenters. James Fallows, for instance, often engages responses to articles in subsequent blog posts and sometimes asks commenters to serve as guest bloggers when he is on vacation.

The panelists also addressed the impact of other jurisdictions’ laws upon digital media. According to Messenger, the recently enacted federal SPEECH Act, which prohibits state and federal courts from recognizing foreign libel judgments that are inconsistent with the First Amendment, may render defamation actions less of an issue than in years past.

However, she indicated the “right to be forgotten,” proposed in legislation in the European Union last year may have far-reaching implications for any news organization doing business in the European Union and subject to its data privacy directives. This doctrine would permit individuals to challenge information about them that can be easily “Googled” and have the information removed from the web. Jucovy agreed that the doctrine raises pressing ethical concerns. The Washington Post does not revise articles in light of new developments, although it will sometimes run follow-up articles. Jucovy said the doctrine is often implicated when an individual seeks to delete information from the web that he or she believes will have negative reputational consequences.

In response to Sloan’s query about issues “that keep them up at night,” Jucovy and Gottlieb said they worried about what form an online business model for news organizations might take, but indicated they had no clear answers to this question. Jucovy wondered whether consumers would pay for online content or whether advertising revenue can continue to support online publications.

Messenger said she was fearful about new regulations that could affect the media industry. One example she cited was the dramatic reversal in access to autopsy records after the death of NASCAR driver Dale Earnhardt. Hoffman echoed the data-protection concerns raised earlier in the discussion, stating that as a parent, he worried about his children’s unguarded perceptions of data privacy.

Keywords: litigation, First Amendment, digital, Communications Decency Act, online, data privacy, right to be forgotten, comments

—Amba Datta, Levine, Sullivan, Koch & Schulz, Washington, D.C.

October 3, 2011

Judge Unseals Rielle Hunter-Andrew Young Motions

In a right-of-access victory for more than half a dozen print and broadcast journalists, a North Carolina judge has decided to unseal all motions filed in connection with the litigation between Rielle Hunter, the mistress of former U.S. senator and presidential candidate John Edwards, and ex-Edwards aide Andrew Young.

When the Youngs subpoenaed Edwards, the court entered an order prospectively designating Edwards’ deposition as confidential and forbidding the parties from disclosing the contents of the deposition. After Edwards was deposed, the Youngs filed a sealed motion to compel further discovery from him, at which point the media coalition moved to unseal that motion and to ask the court to lift the confidential designation it had placed on Edwards’ deposition. After a 2½-hour hearing on April 29, 2011, Superior Court Judge Carl Fox unsealed two prior motions that had been filed under seal (the Youngs’ motion to compel discovery from Edwards and Edwards’ motion for a protective order) and also ordered that, going forward, any motions to seal must be filed and adjudicated before anything can be permanently sealed.

In a case that has garnered widespread media attention, Hunter is suing Young to reclaim certain materials she claims were taken from her, including an alleged sex tape purportedly showing her with Edwards. Meanwhile, since 2009, a federal grand jury in North Carolina has also been investigating payments made to Hunter and Young, who both worked for Edwards’ 2008 presidential campaign.

A coalition of national and local media outlets filed a motion to unseal court records and to modify the protective orders previously entered in Hunter’s civil case against the Youngs. The coalition argued that, consistent with well-established North Carolina and federal constitutional principles, the case, like all cases, should be litigated in open court, as there was no compelling reason for sealing court filings or barring disclosure of Edwards’ deposition. The media organizations did not seek access to the alleged sex tape or any intimate photographs that might exist.

In its motion, the coalition first argued that the sealing of court filings violated the public’s constitutional right to see civil court records under article I, section 18 of the North Carolina Constitution, which states that “[a]ll courts shall be open.” Under the state constitution, civil court records and proceedings are presumed to be open to the public. That presumption can only be overcome by a compelling public interest and then only after alternatives to sealing are considered and specific findings of fact are placed on the record.

Second, the coalition sought to vacate provisions in the protective order requiring all documents containing information designated by the parties as confidential to be filed under seal. Instead of the presumption of sealing set forth in the protective order, the coalition urged the court to enforce the strong presumption in favor of public access and to require notice and an opportunity to be heard if a party sought to overcome that presumption. Finally, the coalition contended that Edwards had not shown, and could not show, good cause for requiring the parties to keep his deposition confidential. As the media’s motion explained, the public interest in Edwards’ testimony was particularly high given its direct relation to his presidential campaign and the ongoing criminal investigation, while Edwards’ privacy interest was minimal in light of his status as a public figure and the fact that the parties had widely and openly discussed the facts underlying the lawsuit.

Judge Fox ruled from the bench in the coalition’s favor, unsealing all motions previously filed under seal. Nevertheless, he withheld a decision on whether Edwards’ deposition could be made public until that deposition resumes. That decision remains pending because Edwards was subsequently indicted on criminal charges and the resumption of his deposition has been postponed pending the conclusion of the criminal case.

Keywords: litigation, First Amendment, public access, John Edwards

—Shaina D. Jones, Levine Sullivan Koch & Schulz, LLP (LSKS), Washington, D.C. LSKS represented the media coalition in this matter.

September 8, 2011

First Circuit Affirms Right to Videotape Police

On August 26, 2011, the First Circuit Court of Appeals issued an opinion in Glik v. Cunniffee confirming that citizens within its jurisdiction have the right to videotape police officers and other government officials when in public and performing their duties.

In October 2007, Simon Glik was arrested for filming Boston, Massachusetts, police officers with his cell phone video camera as they arrested a young man in Boston Common. Concerned that the officers might have been using excessive force, Glik stood approximately 10 feet away and used his phone to make an audio and video recording of the scene before him. Police then arrested Glik for, inter alia, unlawful audio recording in violation of a Massachusetts state wiretapping statute. He was taken to a South Boston police station, where officers confiscated Glik’s cell phone and a computer flash drive.

After filing an unsuccessful internal affairs complaint with the Boston Police Department, Glik ultimately filed a lawsuit against three officers and the City of Boston alleging malicious prosecution and violations of his civil rights under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act (Mass. Gen. Laws ch. 12, § 11I).

When the defendant officers claimed qualified immunity and argued that the right to record law enforcement officers was not clearly established, the district court disagreed and found that, in the First Circuit, “the First Amendment right to record the activities of police officers on public business has been established.” Glik v. Cunniffe, No. 10-1764, slip op. at 5 (1st Cir. Aug. 26, 2011). The defendant officers appealed to the First Circuit.

The issue on appeal was whether qualified immunity protected the officers. For the doctrine of qualified immunity to apply, two things must be shown: The facts shown must make out a clear violation of a constitutional right, and that constitutional right must have been “clearly established” at the time of the violation.

The First Circuit declared that “[t]he filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [the] principles” set forth by the Supreme Court in Houchins v. KQED, Inc., 438 U.S. 1, 11 (in other words, there is undoubtedly a right to gather news from any source by lawful means). This position has been recognized by other courts as well, including the Seventh, Ninth, and Eleventh Circuits.

The fact that Glik was a private individual as opposed to a reporter to was insignificant to the analysis of his First Amendment claim, especially given the myriad of news stories that are broken by bloggers and other non-press individuals in today’s social-media and Internet age. However, the First Circuit did note that the right to film government officials is not unlimited and may be subject to reasonable time, place, and manner restrictions.

The First Circuit held that the defendant officers were not entitled to qualified immunity given the facts of the case, finding that police officers are expected to be able to endure “significant burdens” that result from citizens exercising their First Amendment rights and that when making a determination for whether a right was “clearly established” at the time of the violation for qualified immunity purposes, a case directly on point is not required.

Keywords: Litigation, First Amendment, First Circuit, Simon Glik, Cunniffee, Boston, police, videotape

—Bobbie K. Ross, Michel & Associates, P.C., Long Beach, California

September 1, 2011

Judge Halts Missouri Facebook Ban; Governor Seeks Overhaul

Controversial sections of a Missouri law that limit teachers’ ability to communicate with students through Facebook and other social-networking sites are unlikely to ever take effect in their current form. A Missouri judge has temporarily blocked the enforcement of the prohibitions on First Amendment grounds, and Governor Jay Nixon will seek revisions of the language during a special legislative session starting September 6, 2011.

“The Court finds that the statute would have a chilling effect on speech,” said Cole County Circuit Judge Jon Beetem in issuing a preliminary injunction on August 16, a few days before the law was to go into effect. Missouri State Teachers Association v. State of Missouri [PDF]. The Missouri State Teachers Association (MSTA) had filed suit on August 19, 2011.

In blocking the enforcement of the law until at least February, Beetem said the “breadth of the prohibition is staggering.” He noted that social media is “often the primary, if not sole manner, of communications between the Plaintiffs and their students.” The ruling also pointed out that the statute would “prohibit all teachers from using any non-work-related social networking sites,” thus blocking communication between teachers who are parents and their own children.

On the same day as the court ruling, Nixon said he would ask the legislature, which unanimously passed the law earlier this year, to repeal specific provisions because of the “confusion and concern” among educators, students, and families.

“In a digital world, we must recognize that social media can be an important tool for teaching and learning. At the same time, we must be vigilant about threats posed to students through the Internet and other means,” he said in a statement released by his office.

The provisions at issue are part of the broader Amy Hestir Student Protection Act that was passed to prevent teachers from sexually abusing students. The bill is named after a woman who was abused by a junior-high-school teacher in the 1980s, long before Facebook existed.

Jane Cunningham (R-Chesterfield), the sponsor of the bill, had defended the social-media component, saying the aim was to stop sexual misconduct, not communication between teachers and students. However, she said her office has been working with teachers’ groups to clarify and eliminate ambiguity in the language.

“I am prepared to work with my colleagues to introduce and pass compromise language both protecting our students online, while enabling our teachers to continue to use technology as a teaching tool.” she said in a statement.

The controversial section specifically bars teachers from having “exclusive access” online with current students or former students who remain minors. This means that any communication on social networking sites must be done in public rather than through private messages. “Exclusive access” is defined by the bill as any website that requires mutual consent by both the teacher and student to access information, making the range of the bill extremely broad, according to critics.

The MSTA suit says the law prohibits teachers from interacting with students on social-networking sites that they commonly use for online classes, distance learning, and dealing with educational issues such as when a student has difficulty with a classroom assignment. Teachers also use these sites to stay in contact with students during emergencies and to deal with other problems, such as identifying bullying.

In addition to the MSTA suit, the American Civil Liberties Union (ACLU) of Eastern Missouri has filed a class-action case, Thomas v. Ladue School District [PDF], in the U.S. District Court for the Eastern District of Missouri, challenging the language that would prohibit teachers, who are also parents, from using social-networking sites to communicate with their own children. Christina Thomas, the named plaintiff in the ACLU suit, is a teacher who is also a parent.

Keywords: litigation, First Amendment, Facebook, teachers, social networking, Amy Hestir, Missouri, Jay Nixon, Cole County Circuit Judge Jon Beetem, Jane Cunningham

— Gail B. Appleson, Armstrong Teasdale, LLP, St. Louis, Missouri

August 22, 2011

Teachers, ACLU File Suits to Stop Missouri Facebook Ban

The Missouri State Teachers Association and The American Civil Liberties Union (ACLU) of Eastern Missouri say a new law that limits teachers’ ability to communicate with students through Facebook and other social-networking sites violates educators’ First Amendment rights, and the groups have filed two separate suits to stop the legislation from going into effect on August 28, 2011.

Both suits were filed on August 19. The ACLU suit seeks class-action status on behalf of all teachers employed in the state’s school districts. It was filed in the U.S. District Court for the Eastern District of Missouri. Thomas v. Ladue School District [PDF]. The defendants in that case are the Ladue School District and members of the Missouri State Board of Education. The MSTA suit was filed in Cole County Circuit Court against the State of Missouri, its governor, and its attorney general. Missouri State Teachers Association v. State of Missouri [PDF].

The suits target a section of the law that makes it unlawful for teachers in elementary, middle, or high schools to have non-work-related websites or any other social-networking sites that allow exclusive access with current or former students.

“The Act is so vague and overbroad that the Plaintiffs cannot know with confidence what conduct is permitted and what is prohibited and thereby ‘chills’ the exercise of First Amendment rights,” the MSTA suit states.

The provisions at issue are part of the broader Amy Hestir Student Protection Act that was passed to prevent teachers from sexually abusing students. The bill is named after a woman who was abused by a junior-high-school teacher in the 1980s, long before Facebook existed.

Jane Cunningham, (R-Chesterfield), the sponsor of the bill, has defended the social media component and has said that legislators are not trying to stop communication between teachers and students. According to published reports, she has said that the social-networking restrictions were imposed because they have been found to be an “early pathway to sexual misconduct.”

The controversial section specifically bars teachers from having “exclusive access” online with current students or former students who remain minors. This means that any communication on social-networking sites must be done in public rather than through private messages. “Exclusive access” is defined by the bill as any website that requires mutual consent by both the teacher and student to access information, making the range of the bill extremely broad, according to critics.

The MSTA suit says the law prohibits teachers from interacting with students on social-networking sites that they commonly use for online classes, distance learning, and dealing with educational issues such as when a student has difficulty with a classroom assignment. Teachers also use these sites to stay in contact with students during emergencies and to deal with other problems, such as identifying bullying.

Another problem with the bill’s language is that it would prohibit teachers, who are also parents, from using social-networking sites to communicate with their own children if they are students, according to the suit.

Christina Thomas, the named plaintiff in the ACLU suit, is a teacher who is also a parent.

“Plaintiff and other teachers at Ladue School District were notified in writing that because of the statute they will be prohibited from communicating exclusively through Facebook or other social-networking sites with their own children or members of their Sunday School classes, athletic teams, or scout troops ‘unless or until exceptions are enacted’,” the ACLU suit states.

Facebook is also looking into the implications of the law.

“Everyday, there are more stories of innovative teachers using social networks as a valuable educational tool—from answering simple homework questions online to helping identify bullying,” Tucker Bounds, Facebook spokesman, said in a written statement. “It is imperative that this law does not limit schools’ and teachers’ ability to use technology in this way to educate Missouri’s students.”

Keywords: litigation, First Amendment, Facebook, teachers, social networking, Amy Hestir Student Protection Act, Missouri

— Gail B. Appleson, Armstrong Teasdale, LLP, St. Louis, Missouri

August 19, 2011

Second Circuit Affirms Right of Access to Transit Hearings

In an opinion with great significance for the development of the constitutional access right, the U.S. Court of Appeals for the Second Circuit ruled last month that the press and the public’s First Amendment right of access extends to administrative hearings conducted by the New York City Transit Authority. The decision in New York Civil Liberties Union v. New York City Transit Authority [PDF] affirmed the district court’s injunction against a policy that gave individuals charged with a violation of transit rules the right to exclude the public from a hearing on those charges.

The city’s transit rules prohibit fare evasion, vandalism, and other misconduct. In their first 20 years, these rules were enforced in criminal court, but, since 1986, a police officer has had the option to instead send an alleged violator to an administrative proceeding within the Transit Authority. The Transit Authority conducts hearings “very much like a court of first instance,” although its “powers and procedures are not the same as a court’s.” But while court proceedings are presumptively open to the public, transit adjudications were closed to outsiders unless the alleged violator consented.

The New York Civil Liberties Union (NYCLU) challenged this policy, arguing that it violated the First Amendment right of access to government proceedings. The district court agreed, issuing a permanent injunction that the Second Circuit affirmed.

The court rejected the Transit Authority’s threshold argument that the public-access right recognized in Richmond Newspapers v. Virginia is limited to court proceedings. “The public’s right of access to an adjudicatory proceeding does not depend on which branch of government houses that proceeding.” Writing for the panel, Judge Guido Calabresi explained that the “First Amendment . . . does not distinguish between criminal and civil proceedings; nor does it distinguish among branches of government. Rather, it protects the public against the government’s ‘arbitrary interference with access to important information.’” The court thus joined the Third and Sixth Circuits in applying the “experience and logic test” to government proceedings beyond the judiciary.

The Second Circuit held that these two prongs are “complementary” considerations that, in this case, both “lead clearly to the conclusion that the [Transit Adjudication Bureau] is subject to a First Amendment right of access.” The court explained that the “experience” prong “does not involve asking whether the proceedings in question have a history of openness dating back to the Founding”: “First Amendment principles” do not “require centuries of openness for validation.”

The court noted that “the tradition of openness in formal administrative adjudicatory proceedings generally has amply demonstrated the ‘favorable judgment of experience.’” And the court recognized that a presumptively public hearing has been a characteristic of the administrative state in this country since its infancy, as several agency statutes required from the outset that “all proceedings shall be public.” Hughes, Inc. v. FTC, (D.C. Cir. 1933). Moreover, a “fair and open hearing” was long ago deemed an essential requirement of due process in administrative adjudications. Morgan v. United States (1938). In light of this, the court noted that “the history of quasi-judicial administrative proceedings includes [a] strong tradition of public access” analogous “to open court proceedings.”

The court found a tradition of public access for the specific transit hearings at issue because this type of hearing “was presumptively open” since the system’s inception in 1966, “when such proceedings were heard only in open criminal courts,” and because the hearings remain functionally equivalent to the parallel criminal court proceedings.

Turning to the logic prong, the court held that transit hearings, which involve factfinding and legal decision-making, are “subject to the same dangers—whether willful or accidental—as a trial, dangers that can be reduced significantly by the kind of ‘public scrutiny . . . [that] enhances the quality and safeguards the integrity of the factfinding process.’” Public access, the Second Circuit explained, “serves larger purposes of accountability, legitimation, and democratic governance. . . . In doing so, it has systemic effects not only on government proceedings but on perceptions of their legitimacy.” The court reasoned that “the importance of access to public participation and to government accountability—values . . . that are central to democracy”—is equally significant in the administrative context, “especially so when the administrative process at issue so closely resembles that of the courts.” The “principles governing adjudication do not lose validity when the adjudication moves to another branch of government.”

Indeed, the significant positive role public access can play in transit hearings has already been demonstrated. By observing hearings opened under the district court’s injunction, the NYCLU found that those charged with violations were often denied interpreters to help them plead their case and understand the proceedings, prompting the Transit Authority to take steps to provide translation services.

Keywords: litigation, First Amendment, public access, Second Circuit, NYCLU

— David A. Schulz and Jacob P. Goldstein, Levine, Sullivan, Koch & Schulz, LLP, New York, New York. The authors filed an amicus brief on behalf of 12 news organizations in support of the NYCLU’s position.

June 20, 2011

Supreme Court Rejects Challenge to Nevada Ethics Statute

On June 13, 2011, the Supreme Court unanimously declined to invalidate a Nevada ethics statute requiring elected officials to refrain from voting on matters in which they might have a conflict of interest. In doing so, the Court rejected a city councilman’s argument that the statute unconstitutionally burdened his First Amendment rights.

The ruling in Nevada Commission on Ethics v. Carrigan [PDF] reversed a ruling by the Nevada Supreme Court applying strict scrutiny to the recusal statute on the grounds that it represented a content-based restriction on elected officials’ speech.

Writing for the majority, Justice Antonin Scalia found no First Amendment infirmity because the act of casting a legislative vote is not “speech.”

“[A] legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it,” Scalia wrote. He explained that legislators often cast votes for reasons unrelated to their own beliefs—because they are doing the perceived will of their constituents or because they were instructed by a party “whip”—so that the casting of a vote communicates no underlying message.

“[T]he act of voting symbolizes nothing. It discloses, to be sure, that the legislator wishes (for whatever reason) that the proposition on the floor be adopted, just as a physical assault discloses that the attacker dislikes the victim. But neither the one nor the other is an act of communication,” he wrote.

The Scalia opinion rested largely on the 200-year history of conflict-of-interest prohibitions dating back to 1789—contemporaneous with Congress’ enactment of the First Amendment itself—and the widespread acceptance of such prohibitions as constitutionally permissible.

Open-government advocates were closely watching Carrigan because of its potential to cloud the constitutionality of state open-meetings laws.

Several times in recent years, elected officials have challenged the constitutionality of open-meetings laws when sanctioned for discussing government business in private. They have argued that a requirement that they deliberate in public compromises their First Amendment right to speak anonymously.

Two indicted city council members in West Texas attempted this argument in Rangra v. Brown, a case originating in 2006 in the Western District of Texas. They argued that the Texas Open Meetings Act cannot be applied to penalize closed-door discussion of public business. A Fifth Circuit panel agreed that strict scrutiny should apply, saying, “The First Amendment’s protection of elected officials’ speech is full, robust, and analogous to that afforded citizens in general.” The en banc Fifth Circuit took the case and, in September 2009, vacated the panel’s opinion as moot because the plaintiffs had left the council and were no longer subject to the act’s regulations.

The Carrigan ruling appears to foreclose the Rangra argument because the Court upheld not merely the Nevada statute’s prohibition on voting when a conflict exists, but also the statute’s prohibition against “advocating” during council deliberations where a conflict exists. The Court held that any legal entitlement to address the council was limited to those eligible to vote, which Carrigan was not.

“We are pleased that the Supreme Court recognized the implications of confusing governance with speech, and that the justices acted so decisively to protect the First Amendment,” said Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press, which filed an amicus brief [PDF] joined by 14 professional news organizations.

The Carrigan case arose in the town of Sparks, Nevada, a fast-growing suburb of Reno, where Michael Carrigan serves on the five-member city council. In 2005, the council was asked to vote on a land-use application for a casino resort, the Lazy 8, submitted by a developer that employed Carrigan’s longtime confidant and campaign manager as its lobbyist.

Carrigan acknowledged the potential conflict, but voted anyway (on the developer’s side, which lost). The Nevada Commission on Ethics censured Carrigan for failing to abstain under a state law that requires recusal where the official’s vote would benefit a close family member, a business partner, or someone standing in a “substantially similar” relationship.

The trial court, applying the balancing test coined by the Supreme Court in Pickering v. Board of Education [PDF], found no First Amendment violation. On appeal, the Nevada Supreme Court declined to apply Pickering and instead struck down the statute as unconstitutionally vague, applying strict scrutiny.

At the April 27 oral argument, Carrigan’s counsel—perhaps sensing the adverse tide against his free-speech argument—instead emphasized the impact of the recusal statute on the First Amendment right of association. Carrigan’s attorney, E. Joshua Rosenkranz, told the Court that the recusal standard unduly burdens social and political affiliations because a would-be candidate will hesitate to form relationships with people who might one day have business before him as an elected official, and a political activist will hesitate to volunteer in a campaign for fear of getting his favored candidate disqualified from voting on the activist’s causes.

The Court declined to reach that issue, finding it was not sufficiently raised below.

Concurring in the outcome, Justice Samuel Alito nonetheless argued that the Nevada statute does burden First Amendment expression.

Alito called the majority’s reasoning inconsistent with the Court’s 2010 ruling in Doe v. Reed, in which a citizen’s signature on a referendum petition was recognized as an act of expression even though it also had a functional component (causing the referendum to be placed on the ballot). “Just as the signing of a petition is not deprived of its expressive character when the signature is given legal consequences,” he wrote, “the act of voting is not drained of its expressive content when the vote has a legal effect.”

He concluded that the Nevada statute could be sustained despite its effect on free expression because the long history of recusal statutes demonstrates that whatever burden recusal imposes on speech is constitutionally tolerable.

Keywords: litigation, First Amendment, Supreme Court, conflict of interest, recusal

— Frank D. LoMonte, executive director of the Student Press Law Center, Arlington, Virginia. The Student Press Law Center joined the Reporters Committee for Freedom of the Press amicus brief in this case.

May 26, 2011

Second Circuit Upholds Right to Censor Student Newspapers

In a setback for the free-expression rights of students in public schools, the U.S. Second Circuit Court of Appeals ruled on May 18, 2011, that school administrators have broad discretion to censor “lewd” speech, even in a publication that has been established as a “limited public forum.”

The court’s 3–0 ruling in R.O. v. Ithaca City School District [PDF] upheld the dismissal of student editors’ First Amendment claims stemming from the censorship of the February 2005 issue of the Ithaca High School student newspaper, The Tattler, and a March 2005 alternative paper, The March Issue.

Exercising his power to review The Tattler before publication, Principal Joseph Wilson ordered students to remove an editorial cartoon that used stick figures posed in sexual positions to ridicule the school’s sex-education program. The students appealed to Superintendent Judith Pastel, who upheld the decision.

Pastel then refused to allow students to distribute the cartoon as part of an independently financed “underground” newspaper that was prepared without using school resources. She told Student Editor Robert Ochshorn in a letter that the cartoon “would cause material and substantial interference with the educational operation” of the school and was “unfit” for a student audience.

Ochshorn and seven classmates challenged both the censorship of the cartoon and the imposition of a new set of publication rules in January 2005. The rules required the faculty adviser to preapprove all editorial content before publication. Chief U.S. District Judge Norman A. Mordue of the Northern District of New York granted summary judgment in the school’s favor on all claims except for the challenge to the publication rules, which were not a part of the Second Circuit appeal.

In a unanimous opinion written by Judge Jose A. Cabranes, the Second Circuit held that neither the censorship of the official campus publication nor of the independent publication violated the First Amendment because the school has the authority under Bethel School District No. 403 v. Fraser (1986) to restrict “lewd” speech in either venue.

Some courts have interpreted Fraser, which involved a bawdy speech given at a mandatory school assembly, to be limited to the “captive audience” setting in which the message could be perceived as part of an official school function, but the Second Circuit recognized no such limitation.

“Although the Supreme Court has not clarified the extent to which the Fraser doctrine applies in contexts beyond the facts of that case . . . we have not interpreted Fraser as limited either to regulation of school-sponsored speech or to the spoken word,” Judge Cabranes wrote.

While the court found Fraser equally applicable to both publications—the official one and the unofficial one alike—the court did recognize differing levels of First Amendment protection for the two papers.

As to The Tattler, the court held that the school’s censorship was to be reviewed under the highly deferential standard of Hazelwood School District v. Kuhlmeier (1988). Under Hazelwood, when a publication operates as an official part of the school’s curriculum, school officials may overrule the student editors’ choice of editorial content so long as they can point to a justification “reasonably related to legitimate pedagogical concerns.”

The court found that the “underground” The March Issue was governed by the more demanding standard of Tinker v. Des Moines Independent Community School District (1969), which applies to independent, noncurricular student speech. Under Tinker, censorship is permissible only if the speech is unlawful or is reasonably likely to provoke a substantial disruption of school.

Judge Cabranes wrote that, nevertheless, the distinction did not give students a First Amendment right to use The March Issue to publish the banned cartoon. “[D]rawings of stick figures in sexual positions clearly qualify as ‘lewd’—that is, ‘inciting to sensual desire or imagination.’”

The Second Circuit’s view of the on-campus Tattler newspaper is in tension with the Supreme Court’s assertion in Hazelwood that, while minimal First Amendment protection adheres to “curricular” publications, greater protection applies if the newspaper is operated as a public forum for “some segment of the school community, such as student organizations.”

In R.O., the Second Circuit found that The Tattler did operate as a “limited public forum,” but said that status afforded no enhanced protection absent a showing that its pages were held open for students’ “indiscriminate” use. In reality, the court found, the faculty adviser did exercise a gatekeeping function, removing certain objectionable content and on one occasion firing three editors who defied her.

As a limited public forum, the court held, content in The Tattler could be regulated in any reasonable, viewpoint-neutral manner.

The ruling is likely to reignite efforts to enact stronger state-law protections fortifying student journalists’ rights. Seven states have statutes reversing the impact of Hazelwood and restoring the rights of students to the Tinker level of protection, even in school-funded publications. Such bills have been proposed unsuccessfully in each of the Second Circuit states in recent years, most recently in 2009 in Connecticut.

Keywords: litigation, First Amendment, Second Circuit, censorship

— Frank D. LoMonte, executive director of the Student Press Law Center, Arlington, Virginia, which filed an amicus brief on behalf of the Journalism Education Association and the National Scholastic Press Association in support of the student editors

April 4, 2011

Judge Sues Lawyer for Spreading News of Complaint

In an article entitled “Judge Sues Lawyer over Publication of Judicial Conduct Complaint,” Litigation News reports that a Texas judge has filed a defamation lawsuit against an attorney for complaining to the State Commission on Judicial Conduct and forwarding the complaint to others.

Keywords: litigation, First Amendment, defamation

— Jacob P. Goldstein, Levine, Sullivan, Koch & Schulz, LLP, New York, New York

April 4, 2011

Kansas, Wisconsin Enact Shield Laws; Debate Continues

In an article entitled “Reporter’s Privilege Receives Increasing Attention from States,” Litigation News reports that Kansas and Wisconsin have enacted shield laws for reporters, and the debate is continuing in Congress.

Keywords: litigation, First Amendment, shield laws

— Jacob P. Goldstein, Levine, Sullivan, Koch & Schulz, LLP, New York, New York

March 17, 2011

The Roberts Court and the Fight for First Amendment Freedoms

In Snyder v. Phelps, et al. [PDF], the Supreme Court showed a remarkable willingness to protect free speech—reminiscent of the Warren Court. By an 8-1 vote, the Court, led by Chief Justice John Roberts, held that the First Amendment protects even the hateful and delusional rants of a fringe religious sect. As the opinion emphasized, such expression may not be punished “simply because it is upsetting or arouses contempt.”

With philosophical poignancy, Roberts explained that “[s]peech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain.” Nevertheless, the Court stressed that under the First Amendment, the government “cannot react to that pain by punishing the speaker.” As a nation, Roberts added, “we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

This is the third decision since 2010 in which the Court has invalidated laws or barred a jury’s award of damages based on the First Amendment. Last April, in United States v. Stevens [PDF], the Court struck down a federal law criminalizing videos depicting animal cruelty. In Citizens United v. Federal Election Commission [PDF], the Court voided a federal prohibition on political expression funded by corporations or unions in the periods before primaries and general elections.

Each of these decisions is controversial. Citizens United ignited a firestorm of protest among those who believe that electioneering communication by corporations and unions subverts the political process. Animal rights groups decried Stevens for protecting expression lacking redeeming social value. And few, if any, have sympathy for Fred Phelps and his church’s protests at military funerals and elsewhere.

Such decisions are not, however, endorsements of the underlying speech. The Court was not expressing approval of animal cruelty or the hateful tactics of funeral protestors like Phelps, or even the political messages of corporations. First Amendment cases are not really about the speech at issue—they are about power. Freedom is preserved when the government is denied the power to decide who can speak.

Revealing a gift for understatement, Chief Justice Roberts observed that the message of the Westboro Baptist Church “may fall short of refined social or political commentary.” Nevertheless, the Court warned against silencing ideas simply because they are offensive. Even stupid or hateful views may, in their own curious way, contribute to the marketplace of ideas by providing, as John Stuart Mill put it, a “clearer perception and livelier impression of truth, produced by its collision with error.”

The Westboro Baptist Church believes the nation’s losses are divine retribution for our tolerance of homosexuality. That is the “idea” they would have others embrace. But most are repulsed by this brand of virulent homophobia. Such cruel messages produce humane responses about respect for the dead and rekindle patriotism among those who view these messages as heartless denunciations of America. This is how the marketplace of ideas works.

Snyder v. Phelps also reminds us that the Constitution does not take sides in political or religious disputes. The First Amendment protects firebrand priests and Vatican critics alike, just as it protects civil rights activists and white supremacists. It likewise shields those who speak for or against a woman’s right to terminate a pregnancy. And it protects dissidents who burn American flags and veterans who display them with pride.

Snyder and Stevens counsel against labeling the Roberts Court as politically conservative or liberal when it comes to the First Amendment. With the exception of Justice Samuel Alito, the lone dissenter in both cases, justices from across the political spectrum voted to reaffirm important First Amendment principles.

Still, there have been some notable instances in which the Court denied First Amendment claims—e.g., in a student speech rights case [PDF], a government employee case [PDF], and in a case concerning attempts to provide humanitarian support to groups tagged terrorist organizations by the government [PDF]. Of the more than two dozen free-expression cases the Roberts Court has decided, it has denied First Amendment claims in just over half. Hence, the current Court’s free-expression record is mixed at best.

Nonetheless, the Court and the country should remember what Chief Justice Roberts wrote in Stevens: “The First Amendment . . . reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.” Indeed.

Keywords: litigation, First Amendment, Supreme Court, Snyder v. Phelps

— Robert Corn-Revere is a partner at Davis Wright Tremaine. He filed an amicus brief in Snyder v. Phelps on behalf of 22 media organizations and was co-counsel in United States v. Stevens. Ronald K.L. Collins is the Harold S. Shefelman scholar at the University of Washington Law School.

March 1, 2011

First Amendment Protects Amazon's Customers' Choices

Amazon will not have to divulge the reading, listening, and viewing choices of hundreds of thousands of the company’s North Carolina customers to that state’s tax authorities in the wake of a ruling by a Seattle federal judge.

U.S. District Judge Marsha J. Pechman held that an information request issued by the North Carolina Department of Revenue as part of a tax audit of Amazon violated the First Amendment and the Video Privacy Protection Act (VPPA). Amazon.com, LLC v. Lay, 2010 WL 4262266 (W.D. Wash. 2010).

Like other Internet retailers, Amazon does not collect sales tax from customers unless the company has a connection to or presence in the customer’s state. In late 2009 and early 2010, the North Carolina Department of Revenue sent Amazon information requests to determine whether the company has an obligation to collect sales tax from state residents.

The requests included a demand that Amazon turn over “all information for all sales” to North Carolina customers for the past seven years. Amazon complied and provided records for nearly 50 million transactions, the majority of which involved the purchase of books, movies, and music.

But Amazon refused to disclose the names and addresses of its customers. Amazon contended furnishing this additional customer information would reveal the personal reading, viewing and listening choices of its customers, choices as personally revealing as Bipolar Disorder: A Patient and Family Guide or He Had It Coming: How to Outsmart Your Husband and Win Your Divorce.

Amazon filed a preemptive federal lawsuit in Seattle, seeking a declaration that the department’s request for “all information for all sales,” including the names and addresses of Amazon’s North Carolina customers as well as the titles of the expressive material they purchased, violated the First Amendment. Amazon also alleged that compliance with the department’s demands would result in a violation of the Video Privacy Protection Act.

The department responded, declaring publicly that “information revealing personal consumer preferences, such as book titles” was “not required to calculate the tax due.” Outside the public eye, the department categorically reserved its right to compel production of the same information in the future.

The American Civil Liberties Union (ACLU) was subsequently granted leave to intervene in the lawsuit on behalf of seven Amazon customers (six anonymous) whose expressive choices would have been disclosed had Amazon complied with the Department’s request in full.

Three days after the department moved to dismiss the lawsuit, Amazon moved for summary judgment. Amazon argued bookstores, music stores, and video stores—whether on Main Street or on the Internet—provide constitutionally protected forums for the exchange of ideas. Some individuals wish to remain anonymous as they browse and purchase expressive material. The First Amendment right to express oneself anonymously is well established.

Amazon argued that, when the government’s demand for private information collides with First Amendment rights, the government must make a heightened showing of need for the information. The government also must show there is no less restrictive alternative.

Judge Pechman agreed. She rejected the justiciability arguments advanced by the department in support of its motion to dismiss and granted the declaratory relief requested by Amazon.

“The First Amendment protects the disclosure of individual’s reading, listening, and viewing habits,” wrote Judge Pechman. Although the department claimed “it could not possibly match the names to the purchases,” the court determined the department’s “promise of forbearance” did not make the First Amendment issue moot.

Nor did the department show a “compelling need” for the information. But even if it had, the “requests are not the least restrictive means to obtain the information.” The court declared in no uncertain terms that “[t]he request is overbroad.” To the extent that the department’s request “demands that Amazon disclose its customers’ names, addresses or any other personal information, it violates the First Amendment and [the VPPA]” but “only as long as the [department] continues to have access to or possession of detailed purchase records obtained from Amazon.”

The court also determined the VPPA prohibits Amazon from disclosing customer video or audiovisual purchases “except in limited circumstances.” Because the requests required “Amazon to disclose the personally identifiable information about its customers to the government,” the department’s demand ran afoul of the act.

Following the decision, the department destroyed the CD Amazon had provided containing the records of customers’ expressive choices and agreed not to appeal. As part of a settlement with Intervenors, North Carolina agreed to stop asking for personally identifiable customer information in combination with details about the titles of customers’ purchases from Internet retailers.

Keywords: litigation, First Amendment, Video Privacy Protection Act, Amazon, North Carolina

—Laura R. Handman, Robert G. Scott Jr., Steven Caplow, and Elizabeth Soja, Davis Wright Tremaine, LLP. Tremaine represented Amazon in this case.

February 25, 2011

Mississippi Overturns Prior Restraint Orders Against TV Station

In a First Amendment victory for an NBC television affiliate, the Mississippi Supreme Court has ruled that Raycom-owned WDAM-TV may air a videotape showing juvenile detainees being abused by guards at a county youth center. A Hattiesburg-based youth court had twice ordered that WDAM could not air the video without that court’s prior consent. However, on January 27, 2011, the state’s highest court vacated the orders. WDAM had the support of 31 amici curiae media organizations.

The case began in December 2010, when WDAM received a video from a former Forrest County Youth Center employee showing guards’ abuse of juveniles detained in the Youth Center. After receiving the video, WDAM interviewed the former detainees and their parents, all of whom agreed to appear on camera to discuss the abuse.

The WDAM reporter then called the Forrest County sheriff’s office, which administers the Youth Center, for comment. In response, counsel for the sheriff’s office and several other Forrest County legal officers told WDAM’s news director that airing the video would violate Mississippi’s youth court statute that bars the disclosure of the identity of a youth in the juvenile justice system. The counsel said WDAM could not air the video without the prior approval of the Forrest County Youth Court.

In less than 24 hours, WDAM was served with an ex parteorder from the Forrest County Youth Court barring disclosure of “any audio, video, or photographic image that depicts a juvenile while in the Forrest County Detention Center” by WDAM or “any other person or agent of other media outlets.”

Despite the youth court’s injunction, WDAM decided to air stories on the alleged abuse at the Youth Center. In these stories, WDAM told its viewers it was unable to show or describe the incidents appearing on the video or identify the former juveniles that it had interviewed.

Meanwhile, WDAM filed a motion with the youth court asking it to dissolve its order, arguing that it constituted an illegal prior restraint and that the video did not identify any children because of its poor quality. The station also stated it would blur the faces of any juveniles. On January 11, 2011, the court disagreed with the station, filing a final order granting injunctive relief” that held that WDAM had not presented evidence of a “need” to disclose the video and that WDAM had not properly applied to the youth court for permission to show the video. The youth court also implied that because the former youth court employee had taken the video from the Youth Center without permission, WDAM’s proposed airing of it was tainted because the station did not “acquire [the video] in a legal fashion.”

Instead of pursuing a conventional appeal, WDAM decided to file an emergency petition for writ of mandamus directly to the Mississippi Supreme Court. WDAM’s petition argued that the youth court’s orders constituted a clear prior restraint on publication that violated the U.S. and Mississippi Constitutions; under Bartnicki v. Vopper, 532 U.S. 514 (2001), the circumstances surrounding the former Youth Center employee’s acquiring of the videotape were irrelevant to the question of whether WDAM, who played no role in her conduct, could air it; and the video could not be a youth court record because no juveniles could be identified from it.

On January 20, 2011, 31 media companies and organizations, including all of the Mississippi-based press organizations, the Reporters Committee for Freedom of the Press, and the Society of Professional Journalists, filed a brief supporting WDAM’s petition. The amici focused on the breadth of the injunction’s language purporting to bar “any other media outlet” from airing the video, and on how the youth court’s finding that WDAM failed to “demonstrate a need” to show the video conflicted with the First Amendment’s protection of editorial independence.

After ordering a response from the youth court, the Mississippi Supreme Court entered a one-page order on January 27, 2011, granting WDAM’s petition and vacating both youth court orders. WDAM aired a story including the video on that evening’s news.

Keywords: litigation, First Amendment, media, Mississippi, youth court, video

—Enrique Armijo, Covington & Burling, LLP. Covington & Burling represented the media organization amici in this case.

February 10, 2011

Highly Publicized NLRB Facebook Case Settles

The ambulance company that fired a worker after she criticized her supervisor and employer on Facebook has settled a complaint issued by the National Labor Relations Board (NLRB). Under the accord, which was announced this week in an NLRB press release, American Medical Response of Connecticut, Inc., agreed it would change its “overly broad rules” to ensure it does not restrict employees’ speech while they are away from work.

The NLRB’s unfair labor practice complaint against American Medical Response was originally scheduled for a hearing on January 25, 2011, but was reportedly delayed so that the parties could finalize a settlement. The formal settlement announcement came one day before the rescheduled hearing was to begin.

This was the NLRB’s first complaint against an employer for taking action against a worker for social media postings made from a personal computer.

On November 8, 2009, Dawnmarie Souza, an emergency medical technician and member of Teamsters Local 443, was asked by management to complete an incident report after the ambulance service company received complaints from clients that Souza had been rude. In response to the company’s request, Souza asked for union representation, which she was denied. On that same day, Souza posted disparaging comments on her Facebook page about her boss and also criticized the company, insinuating that it allowed a “psychiatric patient” to be a supervisor. The Facebook posting drew comments from Souza’s coworkers, to which she responded with additional posts. Three weeks later, Souza’s employment was terminated.

In addition to protecting employees’ rights to form unions, the National Labor Relations Act (NLRA) prohibits employers from disciplining employees for discussing working conditions, regardless of whether or not the employees are members of a labor union. On October 27, 2010, the NLRB issued an unfair labor practice complaint (No. 34-CA-12576-001) against the ambulance service, alleging that the company violated the NLRA when it discharged Souza for violating the company’s social media policy and by denying her union representation. The NLRB took the position that the company’s social media policy was overly broad and that terminating Souza’s employment was a violation of the NLRA because she and her coworkers were simply discussing their working conditions. In other words, the NLRB believed the employees were engaging in concerted activity protected under the act.

American Medical Response’s social media policy sought to prevent employees from disparaging the company or its management, as well as prohibiting the depiction of the company “in any way” on the Internet without the company’s express permission. The company indicated that the real reason Souza’s employment ended was because it had received two complaints about her “rude and discourteous service” over a 10-day period.

According to the news release issued by the NLRB’s Office of the General Counsel, the settlement approved by NLRB Hartford Regional Director Jonathan Kreisberg requires that the company revise and narrow its social media policy so that it does not restrict employees from discussing their wages, hours, and working conditions with coworkers and others while not at work and so that it will not discipline or discharge employees for engaging in such conduct. The company also agreed not to deny union representation in the future, nor threaten employees with discipline for requesting such representation. The company reached a separate, confidential agreement with Souza.

— Mark G. Jacobs, Armstrong Teasdale, LLP

December 7, 2010

Supreme Court to Decide if California May Regulate Video Games

In a case pitting the First Amendment against what some states say is the welfare of children, the U.S. Supreme Court will determine whether California may ban the sale or rental of violent video games to minors. Schwarzenegger v. Entertainment Merchants Association, et al., Docket No. 08-1448.

The California law imposes a civil penalty of up to $1,000 for the sale or rental to a minor of a video game deemed to be “violent” and requires the labeling of any “violent video game” imported into or distributed in California.

California sought review by the high court after the Ninth Circuit struck down the law on First Amendment grounds. Video Software Dealers Association v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009). The Ninth Circuit ruled that the law was subject to strict scrutiny under the First Amendment, rejecting the State’s arguments for the “variable obscenity” standard from Ginsberg v. New York, 390 U.S. 629 (1968). Applying strict scrutiny, the court held that California failed to establish “that violent video games cause psychological or neurological harm to minors,” and, even assuming it had, there are less restrictive alternatives available. The Ninth Circuit further held that the labeling requirement was impermissible compelled speech.

Once review was granted, the case generated tremendous interest around the country. Each side was supported by amici briefs from several states. Those challenging the law were also supported by the Reporters Committee for Freedom of the Press and other news organizations, as well as a group of well-known First Amendment scholars. A full listing of the briefs may be found on the ABA Division of Public Education page.

During oral arguments on November 2, Justice Antonin Scalia questioned California Assistant Attorney General Zackery Morazzini on the meaning of “deviant” violent video games in the state statute and the standards used to distinguish between deviant and normal violence.

Noting that violence has been part of children’s stories throughout time, Justice Scalia asked why video games should be singled out from other media intended for youngsters, such as movies and comic books.

Morazzini argued that video games are different because of their interactive nature and their relatively low redeeming social value. But Justice Sonia Sotomayor responded that regulating speech based on its purported low value was exactly what the Court will not do in the First Amendment field, as it recently held in United States v. Stevens, 130 S. Ct. 1577 (2010).

A more flexible First Amendment standard is appropriate when considering the California law because the ban only applies to minors, Morazzini said. However, Justice Sonia Sotomayor asked why California could not seek to apply the same logic to ban violent rap lyrics. Morazzini maintained that violent video games are more directly harmful to the development of minors than other media.

Justice Scalia emphasized his interest in the sanctity of the freedom of speech protections, noting that the Court historically has treated obscenity, with its purely sexual content, as the only form of expression not covered by the First Amendment. He appeared most troubled by California’s suggestion that the Court should, for the first time, expand that category of excluded expression to include violence.

Several Justices also cited the difficulty of distinguishing which violent games should be banned because they were deemed “deviant” or “morbid” under the act. Morazzini said this could be determined by juries based on the statutory definitions and the Miller standard. In another area of concern, Justices Alito and Ruth Bader Ginsburg were troubled by the act’s failure to differentiate between 17-year-old minors and those much younger.

Paul M. Smith, arguing for the Entertainment Merchants, was questioned by a number of justices who appeared troubled by his insistence that no law could be crafted to limit minors’ access to violent video games, regardless of the child’s age or the level of violence depicted. Although earlier First Amendment precedents have struck down other related legislation for being overly broad, Chief Justice John Roberts pointed out that the Court clearly had suggested that perhaps more narrowly tailored legislation could pass constitutional muster.

While there is a long tradition of protecting the right to free speech, Chief Justice Roberts said there is no tradition of protecting the right to expose children to scenes of people “hitting schoolgirls over the head with a shovel so they’ll beg for mercy, being merciless, decapitating them, shooting people in the leg so they fall down.”

— David Schoen is a solo practitioner in New York and Alabama.

November 18, 2010

Supreme Court Declines to Hear Case Questioning the Limits of Grand Jury Subpoenas

Siobhan Reynolds’s husband suffered through his last years in chronic pain, as he was prevented from getting medication that could alleviate his suffering by the strict regulation of pain-relieving drugs. When, after her husband’s death, Reynolds began a campaign advocating looser restrictions on this medication, she had little reason to suspect that she might become the target of an investigation whose breadth and secrecy would force her to request the relief of the Supreme Court.

Background
The case centers on Reynolds’s support for Dr. Stephen Schneider and his wife, Linda, a nurse, who were indicted in 2007 on charges of illegal drug trafficking at their Kansas clinic. After her husband’s death, Reynolds became an outspoken critic of what she saw as the misguided policy of keeping pain relief from those who needed it most. She founded the Pain Relief Network (PRN) and began a wide-ranging campaign of advocacy that has included numerous media appearances and a well-received documentary. Reynolds’s work has never been quiet, and when PRN turned its attention to defending the Schneiders, the prosecution took notice. PRN’s public relations campaign on behalf of the Schneiders included bumper stickers, a roadside billboard, and numerous interviews with the press. None of this endeared her to the assistant U.S. attorney, who attempted to impose a gag order on Reynolds even though she was neither an attorney nor a party in the case. The presiding judge denied the request. Shortly afterward, the prosecutor issued an expansive grand jury subpoena seeking documents, phone records, electronic messages, receipts, photographs, and videos, as well as materials relating to PRN’s billboard and documentary. After Reynolds refused to comply, the Federal District Court in Topeka imposed a fine of $200 a day on her and PRN. Reynolds and her organization paid more than $40,000 before their resources were exhausted and Reynolds, faced with time in jail, turned over the documents.

Petition
The Tenth Circuit affirmed the district court’s ruling in a secret proceeding in which it sealed not only details of the grand jury subpoena, but every aspect of the appeal. It also denied the amici’s motion to unseal their own brief, which was based on publicly available information. Reynolds, who was represented by the ACLU before the court of appeals, followed up by petitioning the Supreme Court to hear the case.

The public version of the petition for certiorari is streaked with the black redactions that were required by the lower courts’ sealing orders. This offered a dramatic challenge to the Supreme Court, whose disapproval of secrecy is well-established. Here, that disfavor was pitted against the courts’ deference to prosecutors’ discretion in grand jury investigations. The petition, which was supported by an amicus brief from the Reporters Committee for the Freedom of the Press, presented four questions: Should grand jury subpoenas that infringe First Amendment rights be reviewed with strict scrutiny? Should a presumption of regularity be applied to such subpoenas? May the government meet its burden of proof in such a review through ex parte, in camera submissions? Does the First Amendment or Federal Rules of Criminal Procedure limit a court’s authority to seal the entire docket in ancillary grand jury proceedings imposing sanctions for contempt? A motion to unseal the proceeding accompanied the petition.

Despite growing coverage of Reynolds’ plight that included pieces in the New York Times, in the Associated Press, and on National Public Radio, the Supreme Court denied her petition, and the motion to unseal the proceeding, on Monday, November 15, 2010.

— Robert Corn-Revere, Elizabeth J. Soja, and Adam Shoemaker, Davis Wright Tremaine, LLP. Corn-Revere represented Reynolds in her petition for certiorari.

October 19, 2010

Supreme Court Refuses to Hear Appeal of Pair Ejected from Bush Speech

On Oct. 12, 2010, by a 7-2 vote, the U.S. Supreme Court declined to hear an appeal by two Denver, Colorado, residents who were ejected from a speech by President George W. Bush because they arrived in a car with a bumper sticker that read “No More Blood for Oil.” Weise v. Casper, No. 10-67.

Leslie Weise and Alex Young alleged that a White House aide and two volunteers violated their First Amendment rights by preventing them from attending Bush’s 2005 speech at a Denver space museum.

Weise and Young said that Secret Service officials confirmed that they were removed because of the bumper sticker. There were no allegations that the pair had any plan or intent to disrupt Bush’s speech.

Only Justices Ruth Bader Ginsburg and Sonia Sotomayor voted to hear the case.

“I cannot see how reasonable public officials, or any staff or volunteers under their direction, could have viewed the bumper sticker as a permissible reason for depriving Weise and Young of access to the event,” Ginsburg wrote in her dissent joined by Sotomayor. “Their presence alone cannot have affected the President’s message. Therefore, ejecting them for holding discordant views could only have been a reprisal for the expression conveyed by the bumper sticker.”

The American Civil Liberties Union (ACLU) filed a certiorari petition asking the Supreme Court to hear the case after a divided U.S. Court of Appeals for the 10th Circuit dismissed the suit in January. The appeals court said the pair could not file the suit on free speech grounds because they had no plans to make statements at the event.

The appeals court found there was no precedent for “how to treat the ejection of a silent attendee from an official speech based on the attendee’s protected expression outside the speech area.”

Ginsburg disagreed and said that the only possible reason for not taking case is that the defendants were volunteers acting at the behest of White House officials and could be shielded from liability by the Volunteer Protection Act of 1997.

She left open the possibility that the matter could be reviewed by the nation’s highest court at a later date.

“Federal officials themselves, however, gain no shelter from that Act,” she wrote. “Suits against the officials responsible for Weise’s and Young’s ouster remain pending and may offer this Court an opportunity to take up the issue avoided today.”

— Gail Appleson, Armstrong Teasdale, LLP, St. Louis, Missouri

March 3, 2010

Supreme Court Reverses Second Circuit Decision in Reed Elsevier, Inc. v. Muchnick

The U.S. Supreme Court has resurrected the settlement the publishing world had arrived at in the aftermath of the Tasini case. The $12–18 million settlement is between freelance writers who claimed that their copyrights were infringed when publishers placed their articles on electronic databases without their permission, on the one hand, and the nation’s newspaper and magazine publishers and electronic database owners, on the other.

This matter, Reed Elsevier, Inc. v. Muchnick, grew out of the litigation in Tasini v. Times where The New York Times, Time, Inc., and Newsday were sued by six freelance authors who claimed copyright infringement because their works had been placed on electronic databases. Although Judge Sotomayer, then a federal district court judge, ruled that the defendants had the right to place their articles online, even without a written agreement allowing them to do so, the Court of Appeals for the Second Circuit, and ultimately the Supreme Court, disagreed, finding in favor of the freelancers. In the aftermath of the final 2001 Tasini decision, a number of class actions in which the freelance community sued the publishers were commenced and combined into one multidistrict litigation. In 2002 negotiations seeking a “global peace” were started with the help of mediator Kenneth Feinberg. Ultimately a resolution was reached and approved by a different federal district court judge. Although, in general, the freelance community supported the resolution, a handful objected and appealed the approval of the settlement to the Second Circuit.

Rather than deal with any of the issues before it, the Second Circuit, on its own, rejected the settlement, saying the federal courts did not have jurisdiction to approve it. It reasoned that the settlement included freelance authors, some of whom had registered their copyrighted works, but the vast majority who had not. Because federal copyright law only allows copyright infringement suits after a work has been registered, the Second Circuit held that the federal court did not have jurisdiction over the non-registering authors, and hence, could not approve the overall settlement.

Tuesday, the Supreme Court, 8–0 (Judge Sotomayer did not participate, presumably because of her earlier role), unanimously reversed the Second Circuit. In a very technical and procedural opinion by Justice Thomas, it held that while registration was a prerequisite for copyright litigation, it was not a jurisdictional requirement, and, hence, decided that the Second Circuit was wrong to find that the federal court could not have ratified the settlement. It returned the case to the Second Circuit where the appeals court presumably will consider the objectors’ appeal which had been pending when it determined to tackle the jurisdiction question.

Thus, it is likely that the appellate process will go on for some time. Assuming that the courts ultimately resolve to approve the settlement, additional time will be taken to administer it. The benefits to the publishers in settling this matter—which has already gone on for 17 years since the commencement of the Tasini suit—are to enable them to put back online in electronic archives freelance articles, generally written before 2000, which were taken down because of the Tasini decision. The other advantage is certainty, because if the Second Circuit’s striking of the settlement were upheld, further litigation, with concomitant huge litigation costs, would be likely. In the meantime, most publishers have required all freelancers to sign contracts ceding rights to put their works online, thereby alleviating the problem in the future.

Ninth Circuit: Advertising Funding Scheme Does Not Violate First Amendment

On November 20, 2009, the Ninth Circuit upheld a California statutory scheme that requires grape growers to fund a centralized advertising campaign that touts the virtues of table grapes grown in California. See Delano Farms Co. v. California Table Grape Commission, No. 08-16233 (9th Cir. Nov. 20, 2009). The Ketchum Act creates a California Table Grape Commission that levies assessments against individual grape growers and uses those funds to support a variety of activities supporting the California grape industry, including the generic advertising campaign. See Cal. Food & Agric. Code §§ 65500 et seq. A group of growers filed suit and argued that the Commission’s assessments for the advertising campaign violated its First Amendment rights by compelling it to engage in speech against its will. The group of growers contended that the Commission’s advertising campaign was overly lavish and actually hurt the group’s economic interests by suggesting that all California grapes are fungible, which allegedly undermined the group’s efforts to distinguish their grapes from those of their competitors.

The Ninth Circuit rejected the growers’ First Amendment attack on the Commission’s assessment and generic advertising scheme. The court held that the advertising scheme was “government” speech, and thus immune to challenge on First Amendment grounds, relying on the Supreme Court’s decision in Johanns v. Livestock Marketing Assoc., 544 U.S. 550 (2005). The court held that the Commission’s activities constituted government speech unencumbered by the bounds of the First Amendment under both tests set forth in Johanns: (1) the Commission was itself a government entity; and (2) the Commission’s message was effectively controlled by the State. The court’s holding underscores the difficulties litigants face after Johanns in challenging state-mandated schemes to levy assessments used to fund industry-wide advertising campaigns.

— Kevin L. Vick, Bostwick & Jassy LLP, Los Angeles

Pennsylvania's Trademark Counterfeiting Statute Struck Down as Overbroad

The Supreme Court of Pennsylvania sent legislators back to the drawing board after finding the Commonwealth’s Trademark Counterfeiting Statute violated the First Amendment by criminalizing protected speech. Commonwealth of Pa. v. Omar, No. CP-14-CR-0001200 (Pa. Sup. Ct., Oct. 5, 2009).The consolidated case struck down the statute, which made it a crime to manufacture, use, display, advertise, distribute, offer for sale, sell or possess with intent to sell or distribute items or services identified by a counterfeit mark. See 18 Pa.C.S. § 4119(a). The Supreme Court recognized the heavy burden of proof placed on a party challenging the constitutionality of a statute, but ultimately decided the Trademark Counterfeiting Statue could outlaw “a substantial amount of constitutionally protected speech,” and was unconstitutionally vague and overbroad in violation of the First Amendment.

The Supreme Court examined the plain language of the Trademark Counterfeiting Statute, focusing on both the inclusion of “use” or “display” of a counterfeit mark in the definition of the underlying offense, and taking note of the statute’s broad definition of “counterfeit mark,” which includes “any authorized reproduction or copy of intellectual property.” The definition of “intellectual property” includes merely a “term” or “word” used to identify a person’s goods or services. Therefore, the Trademark Counterfeiting Statute “criminalizes not only the use of the trademark, which would include the stylized logo or name but also the mere word, without regard to font or color.” The Supreme Court held the plain language of the statute could outlaw a substantial amount of constitutionally protected speech, including any use of a “word” or “term” that praises or protests any entity with a trademarked name, for example, simply “writing the words ‘Penn State’ on a political placard or sign.” One of the cases consolidated before the Supreme Court involved the sale of t-shirts with the words “Penn State University” outside of a concert being held at the school.

The Supreme Court acknowledged the likely legislative intent behind the statute was to prohibit the unauthorized use of a trademark for profit—not to prohibit constitutionally protected speech. Nonetheless, the court was unconvinced by the Commonwealth’s attempt to apply the limiting language of “with intent to sell or distribute” to narrow the scope of the statute’s application. Ultimately, regardless of the legislature’s intent, the Pennsylvania Supreme Court found the Pennsylvania’s Trademark Counterfeiting Statute was unconstitutionally overbroad in violation of the First Amendment.

— Jacqueline Farinella, Sonnenschein Nath & Rosenthal LLP, New York

Florida Rejects False Light Tort

The Florida Supreme Court has rejected the false light tort in Florida because it is duplicative of defamation and likely to impede constitutionally protected free speech. Jews for Jesus, Inc. v. Rapp, SC06-2491 (Fla. Oct. 23, 2008); Anderson v. Gannett Co., Inc., SC06-2174 (Fla. Oct. 23, 2008). Five justices unanimously agreed to reject the tort. Two justices, new to the court since oral argument in the cases, did not participate in the decisions.

Prompted by the Fourth District Court of Appeal’s certified question in Jews for Jesus, which asked the court whether Florida recognizes the false light tort, the court surveyed false light law in Florida and other jurisdictions and stated that its research had not revealed a single case in which a false light claim standing alone had been upheld. The reason, explained the court, is that false light duplicates defamation. Both torts can be premised upon literally truthful statements that give rise to a false implication, and both torts allow for recovery of reputational and emotional distress injuries in Florida.

But the subjective “highly offensive” standard of the false light tort “runs the risk of chilling free speech because the type of conduct prohibited is not entirely clear,” the court explained. Moreover, the court noted that defamation by implication, as the tort is called when truthful statements give rise to a false and defamatory impression is constitutionally constrained by several privileges and defenses long applicable to defamation claims, including a short statute of limitations period, presuit notice in many cases, and several constitutionally-mandated privileges. The court was troubled that the same privileges and defenses might not apply to false light. Finding that the absence of a false light tort does not create any significant void in the law not already filled by defamation, and noting that a flood of recent false light claims might indicate an attempt to circumvent defamation law, the court declined to recognize a cause of action for false light invasion of privacy in Florida.

Turning to the cases at hand, the court quashed the Fourth District Court of Appeal’s decision in Jews for Jesus to the extent it had reinstated the plaintiff’s false light claim. The court also accepted the premise that a defamation claim can be predicated upon damage to reputation in the eyes of a “substantial and respectable minority of the community,” and quashed that portion of the appellate court decision that affirmed dismissal of Rapp’s defamation claim. The court did not otherwise consider the merits of the defamation claim, instead remanding the matter to the Fourth District Court of Appeals for further proceedings.

As to Anderson, the court held that its rejection of the false light tort in Jews for Jesus rendered its consideration of the statute of limitations issue presented in the Anderson case moot. Anderson argued that the court could not retroactively abolish a cause of action, so that his claim should stand. The tort, held the court, had not existed at common law and, therefore, Andersoncould not recover against Gannett on that basis. The court further disapproved of the 2001 appellate court decision in Heekin v. CBS Broadcasting, Inc. to the extent it had assumed the existence of the false light cause of action.

Both Anderson and Rapp may seek rehearing of the matter. Those motions must be presented to the court by early November. Review of these decisions by the United States Supreme Court should not be possible as they are related to issues of state law and not federal law.

— Deanna K. Shullman, Thomas & LoCicero PLP, Ft. Lauderdale, FL

Judicial Watch, CREW Lawsuits Prompt Secret Service Computer Search

Last week, two non-profit groups dedicated to improving government transparency and accountability won victories in their ongoing legal disputes seeking access to White House visitor logs. In response to lawsuits brought by Judicial Watch and Citizens for Responsibility and Ethics in Washington (CREW) under the Freedom of Information Act, the Secret Service was ordered to search its computer system for records related to visits to the White House of former lobbyist Jack Abramoff. Mr. Abramoff is currently serving a four year prison sentence for political corruption. Notably, the Secret Service was also ordered to search so-called “sensitive security records” of White House visitors whose background check had raised a red flag.

Hannah Bergman of the Reporters Committee for Freedom of the Press (RCFP) has written more extensively about these cases on the RCFP website.

» Read More from the RCFP

Prima Facie Showing of Defamation Required to Subpoena Internet Poster Identities

In Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 72 Cal. Rptr. 3d 231 (Cal. Ct. App. 2008), a California court of appeals held that a plaintiff seeking to subpoena an Internet service provider to learn the identify of anonymous posters had to first make a prima facie showing of defamation before the subpoena would issue. In Krinsky, a corporate president filed suit for damages and injunctive relief against 10 fictitiously named individuals who had posted allegedly defamatory statements on an Internet site. A subpoena was served on the custodian of records of the Internet service provider to try and learn the identity of the anonymous posters. One defendant moved to quash the subpoena, and the motion was denied by the Superior Court. The defendant appealed, and the court of appeals reversed and held that: the plaintiff had to make aprima facie showing of defamation in order for a subpoena to be issued; the plaintiff had failed to make aprima facie showing of defamation; and the president also had failed to make aprima facie showing of intentional interference with a business relationship.

Statements Contributing Mental Illness Not Defamatory Per Se

In Baker v. Tremco, Inc., 2008 WL 2746511 (Ind. Ct. App. July 16, 2008), an Indiana court of appeals held that statements that someone has a mental illness are not defamatory per se. In Baker, a former employee filed suit against his former employer, listing numerous claims, including a defamation claim against his former supervisor who told a third party that the former employee suffered from a mental illness. The charge was dismissed on summary judgment, and the plaintiff appealed. The appellate court held that a claim that someone has a mental illness without more is slander per quod. Because a slander per quod claim requires a plaintiff to plead special damages, and because the plaintiff had not provided evidence of any special damages, the court of appeal affirmed the trial court's grant of summary judgment.

Third Circuit Rejects FCC's "Fleeting Images" Policy, Reverses Super Bowl Fine

On July 21, 2008, the United States Court of Appeals for the 3rd Circuit unanimously rejected the $550,000 forfeiture penalty and finding of indecency violation levied against CBS for the 2004 Super Bowl halftime show featuring Janet Jackson and Justin Timberlake. The appeal involved the live broadcast of the show, which culminated in an unscripted nine-sixteenth-second exposure of Janet Jackson's breast.

The court held that the FCC arbitrarily and capriciously departed from its prior policy of excepting fleeting broadcast material from the scope of actionable indecency. It also determined the FCC could not impose strict liability on CBS, or hold it liable for the conduct of Jackson and Timberlake because they were independent contractors and not CBS employees.

FCC's decision was arbitrary and capricious In the court's opinion, authored by Judge Scirica, the 3rd Circuit found that at the time of the 2004 Super Bowl halftime show, the FCC's policy was to exempt fleeting or isolated material-both images and words-from the scope of actionable indecency. "During a span of three decades," the court observed, "the Commission frequently declined to find broadcast programming indecent, its restraint punctuated by only a few occasions where programming contained indecent material so pervasive as to amount to 'shock treatment' for the audience." Contrary to the FCC's argument that it always treated fleeting images differently from fleeting expletives, the 3rd Circuit found that the agency's indecency enforcement history proved otherwise.

Moreover, regardless of whether the Super Bowl fine was unprecedented because the FCC had previously treated fleeting images and fleeting words the same, or because it never had had a specific policy on how it would treat fleeting images, the court held that the FCC's current policy of including fleeting images within the scope of actionable indecency is a departure from prior policy, for which the FCC failed to provide a rational explanation, and that it unfairly applied to CBS retroactively. Therefore, the fine against CBS was arbitrary and capricious under the Administrative Procedure Act and was invalid as to CBS.

FCC cannot impose liability on CBS for the acts of independent contractors The 3rd Circuit also explained that, even if the departure from precedent did not invalidate the Super Bowl forfeiture, the FCC could not impose liability on CBS for the actions of Jackson and Timberlake because they were independent contractors and not CBS employees. The court also rejected the FCC's argument that CBS had a nondelegable duty to comply with the indecency policy, because the First Amendment precludes punishing a speaker for the content of expression absent a showing of scienter, i.e., a knowing or reckless violation of indecency law. Noting that "the scienter element of the indecency provisions-as a constitutional requirement-is paramount," the court explained that "when a broadcaster endeavors to exercise proper control, but ultimately fails, to prevent unscripted indecency, it will not have acted with scienter if its actions were negligent rather than reckless," such that "when unscripted indecent material occurs during a live or spontaneous broadcast, as it did here, the FCC should show that the broadcaster was, at minimum, reckless in causing the indecent material to be transmitted."

No decision on FCC's "willful" conduct argument Finally, the 3rd Circuit did not reach a decision on FCC's alternative argument-that CBS was directly liable because its own conduct was "willful." The court determined that it would need further clarification on the FCC's interpretation of relevant provisions of the Communications Act to decide the matter. However, even if the FCC's interpretation of the statute were permissible, and CBS's conduct were held to be willful, the outcome would be the same because the court rejected the forfeiture order under the Administrative Procedure Act.

Accordingly, the court vacated the Super Bowl order and invalidated the imposition of a fine against CBS. In addition, although it cautioned that any further FCC action would be declaratory in nature, as the agency may not retroactively penalize CBS, the court remanded the case for further proceedings consistent with its opinion. On this point, Judge Rendell dissented. Although she agreed entirely with the holding that the FCC's action unlawfully constituted an unexplained departure from precedent, she dissented on the need for a remand. Judge Rendell noted that the FCC could explain any change in policy in future orders or declaratory rulings without involving CBS as a direct party in the proceedings.

California Protects Right to Free Speech in Privately Owned Shopping Mall

In Fashion Valley Mall, LLC v. N.L.R.B., 42 Cal. 4th 850 (2007), the California Supreme Court held that a shopping mall's rule prohibiting individuals from urging a boycott of certain mall merchants violated the free speech provisions of the state Constitution. In a sharply divided 4-3 opinion, the Court reaffirmed its landmark ruling in Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (1979), affirmed sub nomine Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). In Pruneyard, the California Supreme Court had held that the free speech protections of the state Constitution extended to speech occurring in private shopping malls, despite the fact the U.S. Supreme Court had previously concluded that the protections afforded by the federal Constitution did not. The Pruneyard decision generated considerable controversy in the intervening decades, as courts, scholars and practitioners debated the merits of Pruneyard as well as its doctrinal foundations.

Justice Moreno's majority opinion in Fashion Valley held that a shopping mall, while privately owned, was a "public forum" because it was open to the public, and because large shopping malls have effectively taken the place of the streets and sidewalks of central business districts that historically were centers of free speech, assembly, and discussion of public questions. While recognizing that federal constitutional jurisprudence had rejected treating private shopping malls as public forums, the majority opinion cited key differences between the free speech protections of the federal and California Constitutions. The Court went on to hold that the Fashion Valley mall's rule prohibiting speech urging a boycott violated the California Constitution because that prohibition was content-based and went beyond merely regulating the time, place and manner of the challenged speech.

Justice Chin filed a dissenting opinion in which two other Justices joined. The dissenting opinion urged that Pruneyard be overruled and that the concept of a public forum not be extended to private shopping malls. In support, the dissenters noted that the majority of other states to consider similar situations had declined to follow Pruneyard and had instead held that free speech protections did not reach private shopping malls. The dissenting opinion also argued that Pruneyard was distinguishable from the present case because the boycott was "inimical" to the very purpose of the shopping mall's existence, and urged that shopping centers should be able to impose restrictions reasonably necessary to protect their business interests.

Judge Issues, Then Lifts, Prior Restraint Shutting Down Wikileaks

A lawsuit involving a formerly obscure website, Wikileaks.org, became the focus of considerable controversy when a federal District Court Judge issued—and later lifted—a rare prior restraint shutting down the website. Wikileaks.org allows individuals to anonymously leak government and corporate documents with the stated goal of discouraging corruption and other wrongdoing. The website was created in part to provide a forum, safe from retribution, for political dissidents and journalists in countries with repressive governments. The lawsuit before the District Court, however, was brought by a Swiss bank doing business in the Cayman Islands that claimed a disgruntled former employee had posted stolen, confidential bank documents on Wikileaks.

On February 15, 2008, Judge Jeffrey S. White of the United States District Court for the Northern District of California granted an injunction disabling Wikileaks.org. This resulted in an outcry from First Amendment lawyers and scholars, who argued that the injunction constituted an unconstitutional prior restraint in violation of the First Amendment, an argument the New York Times advanced successfully decades earlier in the famous Pentagon Papers case. In response to that outcry and to a number of amicus curiae briefs, Judge White subsequently dissolved the injunction on February 29, 2008, citing "serious questions of prior restraint and possible violations of the First Amendment." Judge White's February 29, 2008 Order also noted the lack of efficacy of injunctive relief against Wikileaks.org. Indeed, the over 1 million documents formerly available at Wikileaks.org had remained available online at various "mirror" sites on th Internet with different domain names (such as wikileaks.be).The Wikileaks controversy thus highlights the general difficulty of restricting the dissemination of content on the Internet

Schools May Regulate Student Speech Advocating Drug Use

In Morse v. Frederick, 127 S. Ct. 2618 (2007), the United States Supreme Court held that a high school principal had not violated a student's First Amendment rights by forcing him to take down a banner reading "BONG HiTS 4 JESUS" at a school-sanctioned trip to watch the Olympic torch pass through the streets of Juneau, Alaska. The majority opinion, authored by Chief Justice Roberts, characterized the banner as advocating marijuana use, and held that school officials may restrict student speech at school-sanctioned events when such speech may reasonably be viewed as advocating illegal drug use.

The majority reiterated the principle, set forth in Tinker v. Des Moines Independent Community School Dist., 89 S.Ct. 733 (1969), that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. But the Court explained that student free speech rights were not coextensive with those of adults in other settings, and held that restrictions on speech advocating drug use were justified because part of a school's job is to educate children on the dangers of illegal drugs and deterring student drug use is an important and perhaps compelling interest.

Justices Kennedy filed a concurring opinion, joined by Justice Alito, stating that the Court’s decision was limited to speech advocating illegal drug use and should not be viewed as endorsing restrictions on speech concerning political or social issues, including the wisdom of the war on drugs. Justice Thomas also wrote a concurring opinion expressing his belief that Tinker should be overruled and that the First Amendment’s freedom of speech guarantee did not encompass a student’s right to speak in public school. Justice Breyer concurred in the judgment but would have avoided the First Amendment issues altogether on the grounds that qualified immunity barred the student’s suit against his principal. Finally, Justice Stevens filed a dissent, joined by Justices Souter and Ginsberg. The dissent took issue with the majority’s conclusion that the banner advocated drug use, and instead characterized the banner as ambiguous and nonsensical. The dissent also expressed concern that the majority was impinging on students’ ability to debate the wisdom of the war on drugs, and had failed to require the principal to show that the banner disrupted the school’s educational function.

Massachusetts Legislature Hears Testimony on Proposed Shield Law

On June 12, 2007, the Joint Judiciary Committee of the Massachusetts House of Representatives and the Massachusetts Senate held a public hearing regarding the adoption of a shield law. The proposed law is sponsored by Representative Alice Hanlon Peisch and would protect journalistic sources, notes, photographs, film and other materials from compelled disclosure. An exception is made for disclosure that is “necessary to prevent imminent and actual harm to public security from acts of terrorism” provided that this harm “clearly outweighs the public interest in the free flow of information.”

A number of prominent journalist testified in support of the draft legislation, including Paul A. La Camera of WBUR (the Boston affiliate of National Public Radio), Susan Wornick, WCVB-TV anchor and member of its investigative unit, and Alfred Larkin, executive vice president at the Boston Globe. The Joint Committee also heard supportive testimony from Mary-Rose Papandrea, law professor at Boston College, Alex Jones, director of the Joan Shorenstein Center on the Press, Politics and Public Policy at Harvard, and Lucy Dalglish executive Director of the Reporters Committee for the Freedom of the Press.

— Jeroen van Kwawegen, Latham & Watkins, LLP