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July 18, 2013

Congress and DOJ React to Subpoena Scandal

In May of 2013, the Associated Press received troubling notice from the U.S. Department of Justice (DOJ). A year prior, the DOJ subpoenaed Verizon and received phone records for more than 20 telephone lines, including AP offices and journalists’ home and cell phones. No advance notice or opportunity to quash the subpoena was offered. Though no reason was given, the AP suspected that the subpoena was prompted by a 2012 story based on an anonymous source revealing a foiled bombing attempt in Yemen. This subpoena came on the heels of another scandal in which the DOJ seized records of Fox News phone lines used by correspondent James Rosen to locate a similar government leak, inciting outrage from Fox and from correspondents industry-wide.

Currently, federal regulations govern the issuance of subpoenas from the DOJ relating to news media. Any subpoena for the phone records of news media must be approved by the U.S. attorney general, and should be issued only after reasonable attempts are made to obtain information from alternate sources. Prior notice is only given if the attorney general determines it would not threaten the integrity of an investigation. In all cases, however, subpoenas should be reasonably limited in their scope.

News outlets argue that the DOJ violated these regulations because their subpoenas were not limited in scope. In the case of the AP, the records spanned two months and included a line which is out of use — a sign, the AP has said, that little care was put into narrowing this search. Gary Pruitt, president and CEO of the AP, sent a public letter to Attorney General Eric Holder protesting the “massive and unprecedented intrusion by the Department of Justice into the newsgathering activities of the Associated Press.” Other news groups and organizations, such as the Newspaper Association of America, released similar statements as well.

Although the DOJ has defended its actions as necessary to protect national security, Attorney General Holder conducted an internal investigation at the bequest of the President. On July 12th, he announced that the DOJ would adjust its internal policies and encourage open dialogue with the news media. Most significantly, these new policies will call for the DOJ to give notice whenever it seeks access to news media records, except in rare cases.

In the wake of the DOJ’s recent actions, however, some members of Congress are unsatisfied with an internal review. Efforts in both the House and the Senate to adopt a federal statutory reporter shield law, known as the Free Flow of Information Act, have been reenergized. This bill has been introduced as two companion bills, Senate Bill 987 and House Bill 1962. The bipartisan bill is sponsored by Rep. Ted Poe (R-TX), and Senators Charles E. Shumer (D-NY) and Arlen Specter (D-PA). The proposal has been endorsed by 42 state attorneys general and 72 media organizations, including the New York Times, the Washington Post, and the Reporter’s Committee for Freedom of the Press. Although similar bills were introduced previously, they stalled in the Senate and have since lost momentum.

These bills would make several critical changes to how the DOJ can issue subpoenas for reporters’ records. First, the standard for compelling information would be strengthened, requiring that information be “essential.” This determination would be made by a federal court, rather than by the attorney general. The bill would require notice to the news agency before the subpoena is issued, allowing it an opportunity to contest. Although the bill would create exceptions to the notice requirement when there is clear and convincing evidence that notice would threaten national security or intelligence gathering, a government agency would still have to alert the news outlet targeted within 45 days after seizing information—a marked change, as the DOJ requirements give no timeline for delayed notice. 

Importantly, these protections would also apply to communications service providers who serve the news media. Under the proposed act, providers would be under no obligation to disclose information until ordered by a federal court or authorized in writing by the covered news entity.

Both bills were referred to committee in May. Although similar bills have historically passed the House, the Senate has not previously voted on a version of this bill. Media and White House support of the bill is strong. It remains to be seen if this third iteration of the Free Flow of Information Act will meet the fate of its predecessors, or if it will truly redefine the relationship between the media and the DOJ.

Keywords: litigation, First Amendment, media litigation, Associated Press, Fox News, DOJ, Verizon, shield law, Free Flow of Information Act, Eric Holder, Gary Pruitt

A. Marie Salter, Northwestern University School of Law and Kristen C. Rodriguez, Dentons US LLP, Chicago, IL


July 17, 2013

Reporters Committee and Media Companies Back Google, Microsoft in FISA Court

In a historic move for The Reporters Committee for Freedom of the Press (RCFP), the organization has filed an amicus brief with the secretive Foreign Intelligence Surveillance Court (FISA) to support the free-speech rights of Google and Microsoft. The July 15, 2013 action marks the first time RCFP has both filed with the FISA Court and backed the First Amendment interests of Internet companies.

The RCFP has provided free legal advice, resources, support, and advocacy to journalists for more than 40 years.  It is joined in the brief by the following media companies: The Associated Press, Bloomberg L.P., Dow Jones & Company, Inc., Gannett Co., Inc., Los Angeles Times, The McClatchy Company, National Public Radio, Inc., The New York Times Company, The New Yorker; The Newsweek/Daily Beast Company LLC, Reuters America LLC, Tribune Company, and the Washington Post.

In June, both Microsoft and Google filed petitions with the FISA Court seeking permission to publish data on national security requests they received and which had been authorized by the court. The same month the American Civil Liberties Union (ACLU) and the Media Freedom and Information Access Clinic at Yale Law School filed a brief with the FISA Court requesting that it publish its opinions on the meaning, scope, and constitutionality of Section 215 of the Patriot Act.

That section authorizes the government to obtain “any tangible thing” relevant to foreign-intelligence or terrorism investigations.  It was the legal basis for an April FISA Court order requiring Verizon to turn over “on an ongoing daily basis” to the National Security Agency all call logs “between the United States and abroad” or “wholly within the United States, including local telephone calls.” The order was revealed by U.K.-based newspaper The Guardian in early June.

The amicus filing by RCFP and the coalition of news-media organizations supports the ACLU arguments that the court should release decisions that interpret the FISA laws and create binding precedent. However, the RCFP  brief emphasizes a related point: that the public has a First Amendment right to know both about the secretive court’s core activities and receive information from Google and Microsoft. The brief describes the two companies as “speakers” with significant free-speech interests who want to provide the public with information about the government surveillance programs in which they have been required to participate.

“In addition to implicating their rights as speakers, the Google and Microsoft cases raise important concerns relating to the interests of the public in receiving information, an interest that the Supreme Court has long recognized as a separate component of the speech and press freedoms under the First Amendment,” the brief argues. “Where the communications providers are willing speakers, the public has a heightened interest in hearing their speech. That interest is heightened even more when the government is itself choosing to provide information to the public regarding issues central to the Google and Microsoft cases.”

The information Google and Microsoft want to share with the public is not prohibited by law, the media coalition states, and this information “will better explain the nature of their participation in these (government-surveillance) programs and correct popular misconceptions about the operation of key antiterrorism initiatives undertaken by the government.”

The brief continues that the issues raised in the petitions are vitally important to both national security and civil liberties: “They inevitably and rightfully are going to be the subject of public reporting and debate, and secrecy is preventing the public and the press from having even the rudimentary information needed for the kind of informed discussion that the country deserves.”

Keywords: litigation, First Amendment, media litigation, free speech, Microsoft, Google, Foreign Intelligence Surveillance Court, Reporters Committee for Freedom of the Press, ACLU, The Guardian, Patriot Act

Gail Appleson, Armstrong Teasdale LLP, St. Louis, MO


July 11, 2013

Fourth Circuit Affirms Lexington's Right to Ban Confederate Flags

Once the government opens up space for members of the public to speak, is the government free to pull the plug and shut down the space at any time—even if motivated by disapproval of a speaker’s message?

In the view of a panel of the Fourth Circuit U.S. Court of Appeals, the answer appears to be “yes.” The court’s July 5, 2013 ruling, in a dispute over the display of Confederate emblems along a parade route, raises significant questions about whether a “designated public forum” has any significance if the government may close it for any reason, even a retaliatory reason.

The Supreme Court’s seminal pronouncement on the First Amendment rights of speakers who use government property, Perry Education Association v. Perry Local Educators’ Association (1983), recognized a category of public space that—while not traditionally held open for indiscriminate expressive use in the way that a park or a sidewalk is—was “designated” as a “public forum” by an express government dedication or by practice.

Once a property is designated as a public forum, the Perry Education court decided, any regulation of content must be “narrowly drawn to effectuate a compelling state interest.”

The Court did not grapple in Perry Education with exactly how a designated public forum comes into—or goes out of—existence. The justices said only, in dicta, that “a state is not required to indefinitely retain the open character of the facility(.)” In the 30 years since Perry Education, only a handful of courts have confronted complaints alleging that a designated public forum was “undesignated” to punish a disfavored speaker or to prevent an unwanted message from being heard. Those courts have reached diverging results.

The Fourth Circuit’s recent ruling in Sons of Confederate Veterans v. City of Lexington is the most direct instance yet of a court confronting the closure of a forum in response to an unpopular viewpoint. The case arose after the Sons of Confederate Veterans, Virginia Division (SCV), staged a January 2011 parade through Lexington. As part of the parade, the SCV obtained a permit to affix banners bearing versions of Confederate flags to city-owned lampposts, under a city policy that opened the flagpoles to private users.

Although SCV was allowed to proceed, a few weeks later the Lexington city council enacted an ordinance revoking the policy of allowing non-city displays on the lampposts. The Sons sued in the Western District of Virginia, alleging (among other claims) violation of their First Amendment rights by the retaliatory closure of a designated public forum.

A federal district judge dismissed the First Amendment claim in June 2012, finding that the ordinance passed the test of being reasonable and content-neutral because it applied equally to all speakers. Discounting the SCV’s claim of a retaliatory motive, the district court wrote: “Absent some discriminatory effect, allegations regarding the city’s motivation in enacting the ordinance do not alter the court’s analysis.”

On July 5, a unanimous Fourth Circuit panel affirmed dismissal of the First Amendment claim.

Even accepting that the SCV’s display was the motivating factor for the ordinance, and that the city’s express intent was to prevent the Sons from again displaying their message on the city’s property, the Fourth Circuit declined to second-guess the city’s decision. “The city was entitled to listen to the public and to enact ordinances that are constitutional in text and in operation, and that are supported by the electorate . . . . A government is entitled to close a designated forum to all speech,” Judge Albert Diaz wrote.

Refusing to examine the motive for closing a forum raises real questions about whether the category of “designated public forum” retains any practical meaning. If courts are forbidden from inquiring into motivation, then the “designated public forum” is vulnerable to viewpoint-motivated manipulation. While it would run afoul of the Perry Education line of precedent for a city to, for example, designate a public space as a place for “expression of viewpoints favorable to the mayor’s administration,” the same result could be accomplished by closing the forum as soon as a mayoral opponent attempted to use it.

The City of Lexington ruling is in tension with an earlier Fourth Circuit decision, involving the censorship of a student newspaper at North Carolina Central University. In that case, Joyner v. Whiting (4th Cir. 1973), the court decided that a college president’s order freezing funding for a student newspaper because of a disagreement over news- coverage decisions was unconstitutional. There, the court held that “if a college has a student newspaper, its publication cannot be suppressed because college officials dislike its editorial comment.”

The court in City of Lexington made little effort to reconcile the apparent inconsistency with Joyner and with a handful of nonbinding district court cases, discounting them as cases that “do not involve a government property forum analysis(.)” Joyner, however, was in function (though not in name, because Perry Education had not yet coined the phrase “designated public forum”) a case about the closing of a designated public forum. It thus will be unclear, until the en banc court resolves the inconsistency or the Supreme Court takes it up, whether proof of a retaliatory purpose can ever give rise to a First Amendment claim by a speaker denied the use of an “undesignated” public forum.

Keywords: litigation, First Amendment, media litigation, designated public forum, Lexington, Sons of Confederate Veterans, Perry Education, Fourth Circuit

Frank LoMonte, executive director, Student Law Press Center, Arlington, VA


December 07, 2012

Student Free-Speech Rights Discussed at Section of Litigation CLE Conference

Youth issues in the law, including student free-speech rights, were among key topics discussed at the ABA Section of Litigation’s Continuing Legal Education Conference held in Washington, DC. during April 2012. Among the highlights was a panel discussion entitled “Student Free Speech in the Age of Social Media, Texting, and Sexting,” hosted by The First Amendment and Media Litigation Committee.

The discussion made clear that the law governing application of the First Amendment to student speech is in a state of flux and confusion in light of the explosion of student speech online. The program, which was moderated by professor Mary-Rose Papandrea of Boston College included the following panelists: Thomas Wheeler, a partner at Frost Brown Todd; Frank LoMonte, executive director of the Student Press Law Center; Hayley Gorenberg, deputy legal director of Lambda Legal; and Lourdes Rosado, associate director of the Juvenile Law Center.

The conversation began with West Virginia Board of Education v. Barnette, the 1943 Supreme Court case establishing that students cannot be forced to say the pledge of allegiance. The program continued with a closer look at other Supreme Court cases addressing the speech rights of students, including Tinker v. Des Moines School District, Bethel v. Fraser, Hazelwood v. Kuhlmeier, Morse v. Frederick, and JS v. Blue Mountain School District.  The panelists then discussed recent decisions of the Second, Third, and Fourth Circuits that have attempted to synthesize the holdings of these cases and apply them in the context of student speech that originates beyond the schoolhouse gate.

One issue the courts are struggling with is how to define what occurs “off campus” and what occurs “on campus.”  For example, so-called “mean girl” rants on the Internet may be accessed by students at school, even if written off-campus.

The courts are also divided on the determination of what constitutes the kind of “disruption” the Supreme Court has held, beginning in Tinker, that permits schools to act. This issue also divided the panelists. Some argued that schools are too quick to punish offensive student Internet speech. They felt schools lacked creative options to suspension and expulsion for dealing with unwanted behavior. These panelists noted that such punishments are racially disproportionate in their application, and that often the better approach is to involve parents more actively in the disciplinary process.  Others bemoaned the tension between the law, which narrowly circumscribes what schools can do when speech originates off-campus, and the fact that schools are being told they must prevent harassment—specifically including cyberbullying—that often occurs online.

The panel also briefly addressed the problem of youth “sexting,” the practice of sending or posting sexually suggestive language or images via Internet or cell phone.  Zero-tolerance disciplinary policies imposed by schools and criminal statutes enacted by state legislatures to address the issue are contributing to what is known as the “school-to-prison-pipeline,” according to the panel.

To learn more about the law of student speech rights, please visit the “Programs and Materials” section of this Committee’s website, which contains the written materials presented to those who attended the program in April.

(The First Amendment & Media Litigation Committee News and Development item “Appeals Panel Upholds Graphic Cigarette Labels” discusses earlier rulings and “Tobacco Suit Challenges Graphic Warning Mandate” provides an analysis of the issues.)

Keywords: litigation, First Amendment, media litigation, free speech, cyberbullying, sexting, texting, social media

Jessalyn Schwartz is a third-year student at Northeastern University School of Law in Boston, Massachusetts.


October 22, 2012

U.S. Appeals Courts Split Over Graphic Cigarette Labels

Two federal appellate courts are now split over whether the government can force the tobacco industry to place graphic warning labels on cigarette packages. The division between the two circuits, which disagree on the level of scrutiny this regulation of commercial speech must meet, raises expectations that the matter will go before the U.S. Supreme Court.

The controversy centers on the 2009 Family Smoking Prevention and Tobacco Control Act, which gives the Food and Drug Administration (FDA) authority to regulate tobacco products and directed the agency to require the new labels. The FDA rule created nine new labels that included textual warnings as well as images that were to cover the top half of the front and back of cigarette packages.

The warnings include color graphic images of, among other things, a dead man's body with staples lining his chest, decaying teeth, and a man breathing through a hole in his neck.

In the most recent ruling, dated Aug. 24, 2012, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit held that the FDA labels violate tobacco companies’ First Amendment rights. R.J. Reynolds Tobacco Co. v. Food & Drug Administration. In doing so, it upheld a decision by Judge Richard Leon of the U.S. District Court for the District of Columbia, who found that the regulations failed to satisfy a strict-scrutiny analysis.

In writing for the D.C. Circuit’s majority, Judge Janice Rogers Brown, joined by Senior Circuit Judge A. Raymond Randolph, said the FDA labels failed to satisfy Central Hudson Gas & Electric Corp. v. Public Service Commission criteria for restrictions on commercial speech. Under that intermediate standard, the government must assert a substantial interest justifying a commercial-speech regulation and also establish that the regulation directly advances its goal and is no more extensive than necessary.

The D.C. Circuit rejected application of the less rigorous standard provided in Zauderer v. Office of Disciplinary Counsel, finding that the labels are not purely factual and uncontroversial statements designed to correct deceptive advertisements. “In fact, many of the images do not convey any warning information at all, much less make an ‘accurate statement’ about cigarettes,” according to the opinion. It said, for example, that there is no information about the health effects of smoking contained in the images of a woman crying, a small child, and the man wearing a T-shirt emblazoned with the words “I QUIT.”

And the “1-800-QUIT-NOW” number, when presented without any explanation about the services provided on the hotline, hardly sounds like an unbiased source of information. These inflammatory images and the provocatively-named hotline cannot rationally be viewed as pure attempts to convey information to consumers. They are unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat consumers into quitting.

Applying the Central Hudson test, the D.C. Circuit held that the FDA failed to meet its burden of proving that the labels would accomplish its asserted aim of reducing smoking rates. “FDA has not provided a shred of evidence . . . showing that the graphic warnings will ‘directly advance’ its interest.”

Circuit Judge Judith W. Rogers dissented, saying the panel should have applied the more lenient Zauderer standard due to the tobacco industry’s long-term efforts aimed at hiding the health risks of smoking and the government’s interest in “effectively conveying information about the negative health consequences of smoking to consumers.”

“Because the warning labels present factually accurate information and address misleading commercial speech, as defined in Supreme Court precedent, Zauderer scrutiny applies, and the government need show only that the warning label requirement is reasonably related to its stated and substantial interest in effectively conveying this information to consumers,” Rogers wrote in dissent. Rogers agreed, however, that the Central Hudson test applied to the mandatory inclusion of the 1-800-QUIT-NOW hotline on each label and that this requirement was unconstitutional.

On October 9, 2012, the FDA asked for a rehearing by the full court, arguing that the panel’s 2–1 decision was wrong and conflicts with an earlier U.S. Sixth Circuit Court of Appeals opinion upholding the federal government’s right to require the warnings. Discount Tobacco City & Lottery v. United States. In Discount Tobacco City, the Sixth Circuit rejected Big Tobacco’s facial challenge to the law and ruled that the key requirement calling for color graphics is constitutional under the Zauderer standard.

(The First Amendment & Media Litigation Committee News and Development item “Appeals Panel Upholds Graphic Cigarette Labels” discusses earlier rulings and “Tobacco Suit Challenges Graphic Warning Mandate” provides an analysis of the issues.)

Keywords: litigation, tobacco, cigarettes, FDA, smoking, labels, R.J. Reynolds, Discount Tobacco City; Zauderer; Central Hudson Gas

Gail Appleson, Armstrong Teasdale LLP, St. Louis, MO


July 18, 2012

The Supreme Court Decides FCC v. Fox Television Stations

After one of the most closely watched media cases of recent years, FCC v. Fox Television Stations, was argued in January, there was speculation about the myriad possible outcomes. The Court was already in an unusual alignment. Justice Thomas in a prior procedural ruling [PDF] had already declared his sympathy for the most sweeping result: scrapping the Pacifica case that had served as the foundation for the Federal Communications Commission’s (FCC) regulation of “indecent” broadcast programming for more than 30 years. Would the Court go that far? Would it instead declare that the First Amendment forbade only the policy of sanctioning fleeting expletives and nudity, which the FCC had made an enforcement priority since 2004, leaving the FCC’s remaining authority under Pacifica intact? Would it decide whether the FCC’s entire indecency standard was too subjective and unconstitutionally vague, as the Second Circuit [PDF] had determined? Would there be a 4–4 split, given that Justice Sotomayor had recused herself on account of her prior service on the Second Circuit?

In the end, the Supreme Court chose none of the above. In a unanimous opinion [PDF], the Court focused on the timing of the FCC’s campaign against fleeting expletives in broadcasting, which began with its March 2004 ruling that found that Bono’s use of the F-word during an acceptance speech at the Golden Globe awards was indecent. The broadcasts before the Court—two other awards show comments on Fox that contained profanity and an episode of ABC’s NYPD Blue that briefly showed the bare buttocks of a female detective—each predated that ruling. The Court held that the broadcasters did not have prior notice that these incidents would result in sanctions (in ABC’s case, a fine of $1.24 million, and in Fox’s case, the possibility of future fines and reputational damage). The Court found that the lack of fair notice to broadcasters ran afoul of the due-process clause, which requires government standards to be stated with precision to prevent arbitrary or discriminatory enforcement and to allow regulated parties to steer clear of trouble. “When speech is involved,” the Court wrote, “rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.”

The Court took pains to point out, however, that it was not passing judgment on how the FCC’s current indecency regime squared with the First Amendment. It deemed it “unnecessary” to reach that issue because the notice point resolved the case. It did mention that the FCC was “free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements,” but it gave no indication what those legal requirements might be. Justice Ginsburg, in a short concurrence, stated that she felt that Pacifica was wrong when it was decided in 1978 and, agreeing with the prior pronouncement of Justice Thomas, stated that “[t]ime, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.”

The practical impact of the decision is narrow but still significant. Fox and ABC won’t be on the hook for any fines arising out of those particular broadcasts, and the decision vacates the Second Circuit’s ruling, which had invalidated the FCC’s entire indecency regime and put a halt to indecency enforcement. There are hundreds of cases based on broadcasts since the 2004 Golden Globe decision still sitting unresolved at the FCC’s enforcement bureau, some of which resulted from fleeting nudity or expletives. It’s not clear how the FCC will resolve those or how the courts would view any sanctions the FCC may impose. Meanwhile, the most famous FCC indecency case, the “wardrobe malfunction” during the 2004 Super Bowl halftime show, was separately resolved last week when the Supreme Court denied certiorari in a Third Circuit case [PDF] that had voided the fines against CBS on procedural grounds. In a separate concurrence to that certiorari denial [PDF], Justice Roberts cast doubt on the Third Circuit’s logic, suggesting that it would not prevent the FCC from sanctioning fleeting nudity in future broadcasts.

The FCC could revert to the policy it to which it adhered for decades before the Golden Globe decision, which primarily sanctioned programming that contained repeated expletives, particularly graphic sexual descriptions or crude innuendo, but whether the FCC will announce any major policy changes during a presidential election year is unclear. Today, the scope of the FCC’s authority to regulate indecency under the First Amendment remains uncertain.

Keywords: litigation, First Amendment, media litigation, Supreme Court, Federal Communications Commission, indecency

Townsend Davis, assistant chief counsel, ABC, Inc., New York, New York

The views expressed in this article are solely those of the author and do not represent those of his employer.


July 5, 2012

Montana Law Violates Corporate Political-Speech Rights

Holding that the First Amendment protects political speech by corporations, a divided U.S. Supreme Court struck down a century-old Montana law that restricted business spending on election campaigns. In doing so, the court affirmed its landmark 2010 Citizens United decision that limitations on outside campaign spending by corporations and labor unions are unconstitutional.

While some free-speech advocates praised the highest court’s action, the ruling dashed hopes by reform advocates that Citizens United would be reconsidered after triggering an explosion in corporate spending on elections. Several amicus briefs were filed in the case, including those from more than 20 states and many politicians hoping for stricter regulation of political contributions.

“In Citizens United v. Federal Election Commission, this Court struck down a similar federal law, holding that ‘political speech does not lose First Amendment protection simply because its source is a corporation,’” the court said in its unsigned 5–4 decision. The succinct ruling, which contained only two paragraphs, was issued on June 25, 2012, in American Tradition Partnership v. Bullock [PDF].

“The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does,” the court said in its order. “Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.”

The ruling overturned a decision by the Montana Supreme Court, which had upheld the state law in December 2011.

At issue in the Montana case was a 1912 law aimed at curbing the influence of mining companies on state elections and public officials. In 2010, Western Tradition Partnership along with the gun-rights group Montana Shooting Sports Association and the family-owned Champion Painting sued Montana’s attorney general to overturn the law, which the plaintiffs argued was invalidated by the Citizens United case. Western Tradition Partnership is now known as American Tradition Partnership, which describes itself as “a grassroots organization dedicated to fighting the radical environmentalist agenda.”

The Montana Supreme Court disagreed with the plaintiffs. In its ruling, the court said Montana’s law was different and that the ban was needed due to a “distinct history of corruption” in the state. The Montana court cited language in Citizens United suggesting that independent political expenditures might be limited if evidence showed such spending corrupted the democratic process.

U.S. Supreme Court Justice Stephen Breyer, who wrote the dissenting opinion in American Tradition Partnership, sided with the Montana court. His opinion reiterated the minority’s unhappiness with Citizens United and the resulting role of corporate money in politics. Citizens United was also a 5–4 decision.

“Given the history and political landscape in Montana, that court concluded that the State had a compelling interest in limiting independent expenditures by corporations. Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so,” Breyer wrote.

Keywords: litigation, First Amendment, media litigation, campaign spending, Citizens United, Montana

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


June 11, 2012

Second Circuit Upholds Reporter's Privilege

The Court of Appeals for the Second Circuit has ruled that a subpoena to the news media must be evaluated not solely on the basis of what the subpoenaing party may ask the journalist, but also on the expected cross-examination by other parties to the underlying lawsuit or criminal case. The ruling makes it less likely that reporters will be forced to sit for depositions even if the testimony sought is partially unprotected by the New York (or other) Shield Law, and it makes clear that the examination of all parties, and not simply the subpoenaing party, will be relevant to the court’s analysis.

In Baker v. Goldman Sachs & Co. [PDF], the court affirmed the decision of the Southern District of New York quashing the subpoena addressed to Jesse Eisinger, a Pulitzer Prize-winning reporter who wrote and co-wrote a series of articles published in the Wall Street Journal regarding Belgian speech technology company Lernout & Hauspie (L&H) in 2000.

The interest of the plaintiffs, Janet and James Baker, was spurred by the fact that the articles cast a skeptical eye on the claims L&H made in 2000 to the effect that it had a lucrative market in Southeast Asia. In fact, it later became clear that the market was not as L&H had portrayed it. L&H ultimately was found to have markedly overstated its income, and a Securities and Exchange Commission (SEC) investigation, a declaration of bankruptcy, and criminal convictions quickly followed. All of this, however, came after the Bakers agreed to merge their company, Dragon Systems, a leading voice-recognition software company, with L&H. The merger, which was guided by Goldman Sachs, involved a stock swap worth approximately $300 million. Very quickly after the merger, L&H’s stock became worthless, causing the Bakers to claim losses of more than $300 million in their lawsuit against Goldman Sachs.

In the view of the Bakers, Goldman Sachs should have learned what the Journal had discovered—that L&H was apparently falsifying market data—before Dragon agreed to the merger with L&H. The Bakers personally sued Goldman Sachs in federal court in Boston, claiming a host of tort and statutory violations. Last year, the Bakers served a subpoena originating from the Southern District of New York on Eisinger, seeking a videotaped deposition for use at trial. Eisinger moved to quash the subpoena, citing the New York Shield Law, N.Y. Civ. Rights L. § 79-h, which provides a qualified privilege protecting unpublished information and an absolute privilege for information that is unpublished and confidential. To overcome the qualified privilege, the party seeking testimony must make a “clear and specific showing” that the information sought is relevant to the claims at issue, crucial to the outcome of a claim or defense, and unavailable from any other source.

The Bakers argued, first, that they did not seek any unpublished information but only wished to have Eisinger confirm that he and his colleagues took the steps outlined in the articles to obtain the published information. The problem with this, however, was that the articles provided very little description of the newsgathering activities and did not identify who undertook them. The Bakers also asserted in the alternative that, to the extent that they sought unpublished information, they were able to overcome the qualified privilege protecting unpublished information. Eisinger argued that they could not.

District Judge Barbara Jones agreed with Eisinger. At oral argument, she repeatedly asked plaintiffs’ counsel to state the questions he would ask at the deposition. She later concluded that answers to each of the questions he proposed would necessarily touch on unpublished information. Observing that it was “even doubtful Mr. Eisinger’s testimony would be relevant,” Judge Jones found that the plaintiffs had “not demonstrated how testimony about a journalist’s investigative techniques and process of reporting are a relevant comparison to Goldman Sachs’ duty of care in this situation. The fact the Wall Street Journal conducted an investigation into L&H sheds no light on the scope of Goldman’s obligations to Dragon and the Plaintiffs.” She therefore granted the motion to quash. In re Subpoena to Jesse Eisinger, No. 11-mc-00060 (S.D.N.Y. Apr. 12, 2011).

The Bakers appealed to the Second Circuit, and there, as the court stated in its opinion, the plaintiffs’ “counsel took a new tack,” and said he would ask only a single substantive question regarding whether the published information was accurately reported. Even that seemingly innocent and discrete question could not save the plaintiffs here for three reasons. First, the court held that such a question seeks an opinion, and that, pursuant to Rule 701 of the Rules of Evidence, would require testimony regarding its factual foundation to be admissible into evidence at trial. In addition, the court observed that the subpoena would permit both direct and cross-examination and that there could be no doubt that Goldman’s cross-examination would be extensive and attempt to elicit privileged information. The court reasoned, “With regard to testimony generally, the adversary has the right to cross-examine within the scope of the direct examination, Fed. R. Evid. 611, and as to issues relating to credibility.” Finally, the court ruled that “the application of the privilege turns on the subject matter of the inquiry and does not distinguish between direct and cross-examination.” The court observed that to rule otherwise would

turn the statute on its head by allowing an evasion of the privilege through a question deliberately framed to be (supposedly) outside the scope of the privilege to have the effect of compelling testimony on cross-examination within the privilege. We decline to follow a route leading to this result.

Baker v. Goldman Sachs & Co., 669 F.3d 105 (2d Cir. 2012).

Keywords: litigation, First Amendment, media litigation, Second Circuit, reporter’s privilege, cross-examination

Gayle C. Sproul, Levine Sullivan Koch & Schulz, LLP, Philadelphia. She, Jason Conti of Dow Jones & Company, and Amanda Leith, formerly at LSKS in New York City and now in-house at NBC Universal, represented Eisinger in this matter.


May 16, 2012

Court Dismisses Libel Suit Against TV Station

Drawing on Virginia common law, the First Amendment, and even Thomas Jefferson, a federal court recently dismissed a $5 million lawsuit against a Virginia television station brought by the owner of a tax service who alleged he was libeled in a news story about unscrupulous tax preparers. Hanks v. WAVY Broadcasting, LLC [PDF].

The U.S. District Court for the Eastern District of Virginia ruled on February 7, 2012, that the plaintiff failed to prove that the alleged defamatory statements were “of and concerning” him. In addition, the court held that the statements were expressions of opinion and therefore constitutionally protected speech.

In April 2010, the defendant, WAVY, a LIN Media station, and its sister station, Fox 43 in Hampton Roads, Virginia, broadcast a news story about tax preparers and the looming tax-filing deadline. WAVY also published a substantially similar text story on the television station’s website. According to the complaint, the newscast informed viewers to “stay tuned, and we are going to show you how to avoid unscrupulous tax preparers,” and allegedly warned, “If you’re one of the many who have waited until the last minute to file, you could run the risk of working with unscrupulous preparers.” The web article also stated, “[i]f you’re one of the many who have waited until the last minute to file, you could run the risk of working with unscrupulous preparers or even increasing you chances of mistakes.” Notably, a video embedded in the website did not use the term “unscrupulous.”

After discussing the potential dangers associated with tax preparation in general terms, the newscast and the web article included an interview with a consumer whose tax preparer had made a mistake on his return, causing him to owe more taxes than he was initially led to believe. The stories quote the consumer as saying, “I gave you $400. You’re only going to give me $54 back of the $400 I paid you all. I said that’s not fair.”

The newscast identified the tax preparer as Reliable Tax, which is a Virginia corporation owned by the plaintiff, Timothy Hanks, its president. Reliable Tax was not a plaintiff.

The plaintiff sued in federal court alleging counts for both libel per se and libel per quod. He claimed the defendants had falsely implied that “the plaintiff was an ‘unscrupulous tax preparer’ who had unlawfully converted customers’ income tax refund payments, or unlawfully withheld payments owed to customers, or fraudulently filed false tax returns for customers.”

The court ruled the complaint should be dismissed on a number of grounds. First, the complaint failed to satisfy Virginia’s requirement that the allegedly defamatory statements be “of and concerning” the plaintiff. The plaintiff sued in his individual capacity, but the stories referenced only his company, Reliable Tax. The court drew on Virginia precedent, holding that owners and employees lack standing to sue for injuries sustained by corporations. In addition, the court recognized that references to a broader class of which the plaintiff is a member (such as “tax preparers”) are generally insufficient to sustain a cause of action for defamation.

The second ground for dismissal was constitutional. After quoting Thomas Jefferson’s adage that courts should not regulate opinion “where reason is left free to combat it,” the court cited a series of Virginia cases that indicated that “characterizations of a business’s performance or a professional’s character are generally considered to be expressions of opinion and are thus protected speech.” Taking into account the immediate context of the article as well as the broader social context of the impending tax-filing deadline, the court concluded that the alleged use of the term “unscrupulous” “was a broad, unfocused, and wholly subjective comment” and not capable of defamatory construction.

Finally, the court concluded that dismissal was warranted due to the complaint’s pleading defects. According to Virginia precedent, “where a private individual alleges defamation by a new-media defendant involving a matter of public concern, presumed damages cannot be awarded in the absence of actual malice.” These presumed damages are what distinguish libel per se from libel per quod, both of which were alleged in the complaint. While the plaintiff made “boilerplate” allegations of actual malice in asserting a libel per se claim, the court found that simply including “a recitation of the New York Times v. Sullivan standard” is insufficient to state a claim for defamation against a media defendant reporting on matters of public concern. With regard to the libel per quod count, the court found that the complaint’s failure to plead special damages—in other words, damages that are not presumed but relate to the “special character, condition, or circumstances of the person wronged”—was similarly fatal.

The court dismissed the complaint with prejudice.

Keywords: litigation, First Amendment, media litigation, libel, defamation, WAVY, tax preparers

Thomas J. McIntosh, Holland & Knight, LLP, Washington, D.C. He and Charles D. Tobin represented WAVY Broadcasting and LIN Television in the case discussed here.


May 16, 2012

Protecting Anonymous Internet Speakers

Two recent developments strengthen the growing nationwide protection of the right to communicate anonymously over the Internet.

Indiana Adopts Qualified Privilege
In a matter of first impression in Indiana, the state’s court of appeals adopted a qualified privilege [PDF] under the U.S. and Indiana constitutions that protects the identity of an anonymous Internet communicator. In re Indiana Newspapers, Inc., 963 N.E.2d 534 (Indiana App. 2012). The court unanimously reversed the trial court’s order compelling the Indianapolis Star to turn over documents that would have revealed the commenter’s identity.

The dispute arose in a lawsuit brought by former Junior Achievement of Indiana CEO Jeffrey Miller. In 2010, the Star published an article about Junior Achievement’s financial condition, which included statements made by current Junior Achievement leadership and partner organizations regarding unaccounted-for grant money. An anonymous commenter posted on the Star’s website, below the article, “This is not JA’s responsibility. They need to look at the FORMER president of JA and others on the board. The ‘missing’ money can be found in their bank accounts.” In response to the article, Miller filed a complaint claiming defamation against the individuals and organizations quoted in the story.

Miller then moved to compel disclosure of the commenter’s identity, and the trial court granted the motion and ordered the Star to comply with the subpoena. The Star appealed. Reversing the trial court’s order, the Indiana Court of Appeals adopted a stringent balancing test ensuring that anonymous speakers are not unjustifiably stripped of their anonymity, holding that “while we do not want defamatory commenters to hide behind the First Amendment protection of anonymous speech, we must balance the prospect of too readily revealing the identity of these anonymous commenters.”

To strike the appropriate balance, the court adopted a modified version of the test from the seminal case, Dendrite International, Inc. v. Doe No. 3, which holds that, to strip a speaker of his anonymity, a plaintiff must first notify the person whose identity is sought, identify the allegedly defamatory statements, and produce prima facie evidence supporting every element of the plaintiff’s cause of action. Then the court must “balance the First Amendment right of anonymous free speech against the strength of the prima facie case presented.”

Indiana’s modified test slightly alters the third prong, requiring plaintiffs to “produce prima facie evidence to support only those elements of their cause of action that are not dependent on the commenter’s identity.” By doing so, the Indiana court specifically exempted the requirement that a plaintiff establish “actual malice” under the test. Indiana defamation law requires proof of actual malice on all matters of public concern, in cases involving private and public plaintiffs alike. The Indiana Court of Appeals returned the case to the trial court to apply the new test.

D.C. Clarifies What Is Needed to Reveal Speaker’s Identity
The D.C. Court of Appeals, its highest court, recently reinforced the need for corporate-defamation plaintiffs to show actual lost business to sustain a defamation claim, holding [PDF] that they must do so to satisfy their burden to strip a speaker of anonymity in the same case in which the court first articulated that burden.

The dispute began in May 2005, when an informant submitted an online report to the Software and Information Industry Association (SIIA) alleging that Solers, Inc, was pirating software. SIIA operates an anti-piracy program that encourages people to report incidents of software piracy, investigates the reports, and decides whether to pursue enforcement. SIIA contacted Solers about the informant’s allegations, but the company denied the report.

Solers sued the “John Doe” informant for defamation and issued a subpoena to SIIA seeking the informant’s identity. In a 2009 decision [PDF], the D.C. Court of Appeals established a First Amendment test to protect anonymous Internet communications and remanded the case to allow Solers to present evidence in support of its defamation claim. That test required that Solers must show evidence of each element of its defamation claim within its control, which included how it was damaged by John Doe’s statement to SIIA. However, in the trial court, Solers proffered damage only by attesting that it had devoted executive time and incurred legal fees investigating the informant’s allegations in the amount of $7,144. The trial judge found that the informant had not harmed Solers’ reputation, but nevertheless ruled that Solers was entitled to learn the informant’s identity.

SIIA appealed, and the D.C. Court of Appeals overturned the decision. The court clarified that a corporate defamation plaintiff must show “damages suffered as a direct consequence of the alleged defamation—for example, lost profits or customers deterred from dealing with the company.” Refusing to presume damages and finding no evidence that the informant had actually harmed Solers, the court held that Solers could not “bootstrap” its way into a defamation claim through such self-imposed costs. “[T]o accept Solers’ argument (that these costs constitute special damages) would mean that a corporate plaintiff may overcome a speaker’s First Amendment right to anonymity with little more than an allegation of defamation and its own decision to expend money in response.”

The court of appeals sent the case back down to the trial court, where it is now pending for the third time.

Keywords: litigation, First Amendment, media litigation, Internet, anonymity

Drew Shenkman, Holland & Knight LLP, Washington, D.C. He represented the Indiana-media amici curiae and SIIA in these matters.


May 1, 2012

Suits Target Schools for Blocking LGBT Websites

First Amendment litigation against school districts is drawing attention to the practice of blocking access to websites that provide support and encouragement to lesbian, gay, bisexual, and transgender (LGBT) kids, a practice criticized as impermissible viewpoint discrimination.

On February 15, 2012, a U.S. district judge ordered the Camdenton, Missouri, school district to revise its website-filtering practices so as not to discriminate “against websites expressing a positive viewpoint toward LGBT individuals.”

The order in Parents, Families, and Friends of Lesbians and Gays, Inc. v. Camdenton R-III School District [PDF] was the result of a federal civil-rights suit brought by the American Civil Liberties Union (ACLU) of Eastern Missouri and its St. Louis counsel, Thompson Coburn LLP.

The ACLU sued on behalf of three nonprofit advocacy organizations for LGBT students and a “Jane Doe” female student at Camdenton High School, who said school computer filters prevented her from accessing material about gay, lesbian, and transgender people.

U.S. District Judge Nanette K. Laughrey ruled that the district’s “blacklisting” system was viewpoint discriminatory because virtually all websites providing information about gay, lesbian, and bisexual topics were consigned to the category of “sexuality” sites, which school computers were automatically set to block. Websites expressing a negative view of homosexuality made it past the screen, because they were classified as “religion” sites.

Laughrey found that the discrimination was intentional because the district used filtering software known to be ineffective and because the district ignored two warning letters from the ACLU.

The system was not redeemed by a mechanism allowing students doing bona fide research to submit unblocking requests, Laughrey found, because the request system did not effectively guarantee the requesters’ anonymity and because the need to submit a request itself imposed a “stigma” on LGBT-friendly sites.

After Laughrey granted the plaintiffs’ motion for an injunction ordering the district to relax its filtering, the district and the ACLU reached a negotiated settlement. The settlement requires the district to stop blocking the sites, to submit to 18 months of monitoring to ensure compliance, and to pay $125,000 in attorney fees, the ACLU announced March 28.

The litigation resulted from a nationwide campaign of the ACLU and Yale Law School—“Don’t Filter Me”—launched in February 2011. The project urges students to use school computers to visit the websites of well-known organizations that support gay and lesbian youth, such as the Gay Straight Alliance Network, to test whether school filters impede their access. If a “blocked” response results, students are asked to send a screenshot of the response to the ACLU, which will issue a warning letter to the school district.

Under the Children’s Internet Protection Act, schools forfeit their eligibility for specially discounted rates on technology (E-rate) if they fail to block access to websites with content that is obscene, pornographic, or “harmful to minors.” The statute’s definition of “harmful” content is analogous to the Miller v. California test for obscenity and requires the blocking of only content that “lacks serious literary, artistic, political, or scientific value as to minors.” A website providing information or advice about grappling with sexual identity would not qualify as “harmful” under the statute, even if it contained explicit discussion of sexual topics.

The Camdenton litigation was the second such case brought by the ACLU in recent years.

In May 2009, ACLU attorneys filed suit against two Tennessee school districts, alleging that their schools obstructed access to the websites of gay-supportive organizations while allowing access to organizations promoting religious-based “reparative therapy” to “convert” people to heterosexuality.

The case, Franks v. Metropolitan Board of Public Education, was brought in the Middle District of Tennessee on behalf of three high-school students and a school librarian. The plaintiffs claimed that the screening system used by the Metropolitan Nashville Public Schools and Knox County Schools violated both the First Amendment and the Equal Access Act, 20 U.S.C. § 4071 et seq., which requires nondiscrimination in access to school facilities. The plaintiffs, all involved in their schools’ Gay Straight Alliance, said they could not even access the website of the national organization with which their club was affiliated.

According to the ACLU, a 17-year-old, high-school senior in Knoxville discovered the blocking when he was unable to reach websites offering information about college scholarships to gay and lesbian students.

The case settled in August 2009 before the court could rule on the plaintiffs’ request for declaratory and injunctive relief. An ACLU announcement said the vendor used by an estimated 107 Tennessee school districts, Education Networks of America, agreed as part of resolving the case to provide a replacement filtering system permitting access to websites discussing homosexuality from all viewpoints.

Keywords: litigation, First Amendment, ACLU, LGBT, Camdenton School District, Children’s Internet Protection Act

Frank D. LoMonte, executive director of the Student Press Law Center


March 28, 2012

Supreme Court Hears Arguments in Stolen Valor Act Case

On February 22, 2012, the U.S. Supreme Court heard arguments in United States v. Alvarez, a case challenging the constitutionality of the Stolen Valor Act of 2005, 18 U.S.C. § 704, which makes it a federal crime to lie about receiving a military medal or honor. The issue before the Court was deftly summarized by Chief Justice Roberts at oral argument: “[W]hat is the First Amendment value in a . . . pure lie?”

The case arose from a First Amendment challenge to the Stolen Valor Act brought by Xavier Alvarez, who was prosecuted for falsely representing that he had won the Medal of Honor at a public meeting in California. When the district court rejected his challenge to the act, Alvarez pleaded guilty on the condition that he be permitted to appeal the constitutionality of the act on First Amendment grounds. On appeal, a divided panel of the Ninth Circuit struck down the law and subsequently denied en banc review with seven judges dissenting.

United States v. Alvarez tests the Supreme Court’s willingness to recognize a new category of speech unprotected by the First Amendment. Recently, the justices have declined to do so, upholding First Amendment protection for videos depicting graphic scenes of animal abuse, funeral protestors, and violent video games.

At oral argument, the justices confronted Solicitor General Donald Verrilli Jr. and Deputy Public Defender Jonathan D. Libby, representing Alvarez, with hypothetical falsehoods to determine the limits of the government’s power to ban lying. Justice Kennedy questioned whether the government could penalize lying about earning a college degree, Justice Kagan asked if false statements about extramarital affairs could be prohibited, and Justice Ginsburg queried whether a denial that the Holocaust occurred would constitute a false factual statement.

In response, Verrilli argued that the government has a substantial interest in prohibiting lying about military medals specifically because false representations of valor diminish the value of military honors. The act, he asserted, applies only to a “carefully limited and narrowly drawn category of calculated factual falsehoods” and therefore provides “breathing space” to protected speech. Underscoring the act’s narrow application, Verrilli said that it only prohibits knowingly false statements made by a person about himself regarding a military medal, and it only applies to statements that are intended to be understood as true, and not to parodies or satire.

Libby argued that the First Amendment protects a false factual representation about oneself, provided it does not cause imminent harm to another person or government function. Therefore, he asserted that the act is an impermissible, content-based regulation of speech that cannot withstand strict scrutiny.

Libby struggled, however, to differentiate the Stolen Valor Act from other constitutionally permissible regulations of false speech, including defamation, perjury, and lying to a federal agent. The degree of harm attached to falsehoods in those contexts, he said, is greater than the minimal harm arising from false claims about military medals. But Justice Sotomayor underscored the difficulty of distinguishing between false statements based on harm, stating that, while she takes offense at lies about military honors, she also “take[s] offense when someone I’m dating makes a claim that’s not true.”

Libby made two significant concessions in his argument. First, he admitted that the Stolen Valor Act does not suppress or chill protected speech, a comment that undermined his position because the Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), established that false factual statements do not have constitutional value but may be protected by the First Amendment to the extent they implicate protected speech.

Second, Libby acknowledged that the act would be constitutional if it were amended to require that the individual making the false claim to a medal intended to receive a benefit from the lie. This concession instigated further questions from the justices, who asked what benefits would qualify under the statute. Indeed, Justice Alito drew laughter when he asked if “a date with a potential rich spouse” would be an item of sufficient value to come within the definition of the statute.

However, Libby successfully underscored the stiff penalty that the Stolen Valor Act imposes on lying about military honors. When Justice Scalia suggested individuals who falsely represent that they have won medals should be given a “Medal of Shame,” Libby agreed that that would be an appropriate sanction. “[T]here is a significant difference,” he said, “between a criminal sanction that puts someone in prison versus simply exposing them for what they are, which is a liar.”

Keywords: litigation, First Amendment, Stolen Valor Act, military, lying, Supreme Court

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


March 28, 2012

Texas Sonogram Law Provokes Clash over First Amendment

A First Amendment challenge to a Texas law imposing disclosure obligations on physicians providing abortions prompted sharp disagreement between the U.S. District Court for the Western District of Texas and a panel of the U.S. Court of Appeals for the Fifth Circuit in Texas Medical Providers Performing Abortion Services v. Lakey.

Texas House Bill Number 15 (H.B. No. 15) requires a physician performing an abortion to provide a detailed explanation of sonogram images and to describe and make audible the fetal heartbeat to the pregnant woman as a prerequisite for a woman’s informed consent to an abortion.

The Center for Reproductive Rights filed a motion in the U.S. District Court for the Western District of Texas requesting that enforcement of H.B. No. 15 be enjoined for violating the First Amendment and other constitutional provisions.

The district court struck down the required disclosure provisions of the law on the grounds that they compel speech in violation of the First Amendment, but the Fifth Circuit panel reversed, concluding that the law was consistent with U.S. Supreme Court precedent.

A central issue in the case was whether Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), which found that the informed consent requirements of a Pennsylvania law did not impose an undue burden on a woman’s right to terminate a pregnancy, foreclosed constitutional challenges to Texas’s law.

On August 30, 2011, district court Judge Sam Sparks granted the plaintiffs’ motion for a preliminary injunction on their First Amendment claims, concluding that they had demonstrated a likelihood of success. Applying strict scrutiny, the court held that the disclosures required by H.B. No. 15 were not “particularly relevant to any compelling government interest.” The court ruled that the law infringed on the First Amendment by requiring doctors to provide explanations about sonograms and the fetal heartbeat that they might disagree with or deem medically unnecessary. Additionally, by requiring pregnant women who wished to opt out of the description of the sonogram to certify their status as a victim of sexual assault or another enumerated category, the law impermissibly compelled speech. See Texas Medical Providers Performing Abortion Services v. Lakey [PDF], No. A-11-CA-486-SS (W.D. Tex. Aug. 30, 2011).

A three-judge panel of the Fifth Circuit vacated the district court’s order. In an opinion by Chief Judge Edith Jones, the Fifth Circuit held that the required explanations were “truthful, non-misleading, and relevant” disclosures deemed constitutional by Casey. The appellate court did not apply strict scrutiny because it found that H.B. No. 15 was within the state’s power to regulate the practice of medicine and did not compel ideological speech. The court also upheld the certification requirement, stating it was no different from any informed-consent form required for a medical procedure. See Texas Medical Providers Performing Abortion Services v. Lakey [PDF], No. 11-50814 (5th Cir. Jan. 10, 2012).

On remand, Judge Sparks applied the Fifth Circuit panel’s decision but stated that “the panel has effectively eviscerated the protections of the First Amendment in the abortion context,” See Texas Medical Providers Performing Abortion Services v. Lakey, No. A-11-CA-486-SS (W.D. Tex. Feb. 6, 2012). Judge Sparks’s February 6 opinion identified three significant analytical errors made by the circuit court. First, the Fifth Circuit relied substantially on Casey, thereby importing the analytical framework from a Fourteenth Amendment Due Process case about a woman’s right to an abortion into a First Amendment compelled-speech challenge. The district court had concluded in its August 30, 2011, opinion that Casey was not dispositive because Pennsylvania’s law is far less burdensome than Texas’s law. Texas requires physicians to provide detailed explanations about “the presence of cardiac activity” and the “presence of external members and internal organs” in the fetus. By contrast, Pennsylvania requires doctors to describe the risks of an abortion and the probable gestational age of the unborn child and to inform the woman of the availability of state-published materials describing the fetus and alternatives to abortion.

Second, Judge Sparks also disputed the standard of review employed by the Fifth Circuit panel, which concluded that strict scrutiny was not appropriate. The district court determined that Texas’s law requires physicians to engage in speech they may not agree with, thereby triggering strict scrutiny. Accordingly, the district court believed it was necessary to analyze the “fit” between the government’s interests and the law.

Third, even within the context of informed consent, doctors’ First Amendment rights have force. “Texas may be free to craft a law that imposes restrictions on women seeking abortions,” Judge Sparks wrote in his February 6 opinion, “but that does not mean it is equally free to craft a law that imposes affirmative duties on those who come into contact with them.”

Keywords: litigation, First Amendment, abortion, doctors, informed consent, Fifth Circuit

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


March 28, 2012

Appeals Panel Upholds Graphic Cigarette Labels

The legal battle over graphic cigarette-package labels has taken another turn with the U.S. Sixth Circuit Court of Appeals upholding the federal government’s right to force tobacco companies to display the warnings. The March 19, 2012, ruling came just weeks after a federal judge in Washington, D.C., held the policy violates Big Tobacco’s First Amendment rights.

Lawyers following the challenges predict the matter will eventually go before the U.S. Supreme Court.

At issue is the 2009 Family Smoking Prevention and Tobacco Control Act [PDF], which gives the Food and Drug Administration (FDA) the authority to regulate tobacco products and directs the agency to require the new labels. The FDA rule creates nine new labels that includes textual warnings as well as images that are to cover the top half of the front and back of cigarette packages. These new warnings are to be in place by September 22, 2012, according to the act.

The warnings, which were formally unveiled by the FDA on June 21, 2011, include color, graphic images of, among other things, a dead man’s body with staples lining his chest, decaying teeth, and a man breathing through a hole in his neck.

In the most recent decision, Discount Tobacco City & Lottery v. United States [PDF], Sixth Circuit Judge Jane Stranch and U.S. District Judge Michael Barrett (sitting with the Sixth Circuit by designation) rejected Big Tobacco’s facial challenge to the law and ruled that the key requirement calling for color graphics is constitutional under the Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), standard for commercial speech disclosures.

“Ample evidence establishes that current warnings do not effectively inform consumers of the health risks of tobacco use and that consumers do not understand these risks,” the ruling states. “It is beyond cavil that adolescents are a target of the marketing expertise of Tobacco Companies, a targeting that exists precisely because of intertwined advantages—or for the young, disadvantages—the coupling of immaturity of risk perception with the evidence that the vast majority of regular smokers made the decision to begin smoking as an adolescent.”

The opinion said those risks include “the undisputed fact” that tobacco products kill up to half of smokers that use them as intended.

“Against this backdrop, the Act requires graphic and textual warnings that convey the factual health risks of smoking to provide consumers with truthful information as they make decisions about purchasing and using tobacco products,” the majority stated. “We hold that the Act’s warnings are reasonably related to the government’s interest in preventing consumer deception and are therefore constitutional.”

However, Judge Eric Clay dissented, finding the color graphics requirement to be constitutionally flawed. While he agreed that current tobacco warning labels fail to convey health information effectively, he said the government had not adequately shown that the inclusion of color, graphic warning labels is “a properly or reasonably tailored response to address that harm.” Judge Clay objected to the graphic warnings as not simply factual disclosures but a government effort “to flagrantly manipulate the emotions of consumers.”

On February 29, 2012, Judge Richard Leon of the U.S. District Court for the District of Columbia also sided with tobacco companies in their as-applied challenge to the graphic images, granting them summary judgment in R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Administration. Judge Leon held that the graphic warnings regulations must satisfy a strict scrutiny analysis rather than the more lenient Zauderer standard. He said the rule violates the First Amendment because the government failed to carry its burden of demonstrating a compelling interest and demonstrating that the rule was narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech. The government is appealing his decision.

The First Amendment & Media Litigation Committee News & Development item “Court Blocks Graphic Cigarette Warnings; Appeal Expected” discusses the earlier ruling, and the article “Tobacco Suit Challenges Graphic Warning Mandate” provides an analysis of the case.

Keywords: litigation, First Amendment, tobacco, cigarettes, FDA, smoking, labels

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


March 6, 2012

Virginia to Consider What Qualifies a Blog as Advertising

In a widely watched test of lawyers’ free-speech rights, a Virginia court will consider whether the First Amendment prohibits the Virginia State Bar from regulating a lawyer’s blog that appears on his firm’s website.

At issue is whether the blog postings are protected political speech, as the lawyer argues, or whether they are advertising, which can be regulated as commercial speech, as the state bar holds. The case grows out of an appeal by Horace Hunter, a criminal defense lawyer who was admonished by the state bar in November for violating ethics rules by, among other things, failing to include an advertising disclaimer on his blog posts.

Hunter’s case began in March of 2011, after the bar investigated a site hosted by his firm, Hunter & Lipton, PC. The site’s blog, “This Week in Richmond Criminal Defense,” included recaps and reflections on cases on which Hunter had worked, as well as other litigation across the country. It also addressed a variety of issues ranging from the criticism of former Attorney General Alberto Gonzalez for the firing of eight U.S. attorneys to descriptions of the content and operation of state and federal laws. The content was similar to what you’d find scripted by other legal bloggers.

On the conclusion of its investigation, the Virginia Bar found the postings constituted advertising because they discussed Hunter’s specific cases and because “Hunter admitted that his postings were for marketing purposes.” The bar expressly noted that Hunter’s blog “contained commentary on some cases and on some issues,” but ruled that “the inclusion of this commentary does not change the inherent nature or purpose of the posting as advertising.”

Because of this, the bar said Hunter violated Virginia State Bar Rules of Professional Conduct 7.1 and 7.2 “by disseminating case results in advertising without the required disclaimer.” Hunter was publicly admonished by the bar, which required him to put a disclaimer “on all postings which are cumulative case results” and “to also comply with Rule 7.2(a)(3) for all future postings.”

Hunter will argue his case before the appellate court on June 5, 2012, and says he “feels strongly about his appeal.” Before the oral argument, Hunter will speak about the case at an ABA seminar called “Is Your Legal Blog Compliant” on April 25, 2012, at 1:00 p.m. EST.

Keywords: litigation, First Amendment, media litigation, Virginia, blogs, advertising

Victoria R. Watkins, assistant to the mayor of the city of Chicago, Illinois


February 24, 2012

Eighth Circuit Upholds CBS Victory in Defamation Case

The Eighth Circuit recently affirmed summary judgment in favor of CBS and a WCCO-TV reporter in a defamation action arising from a news broadcast that raised questions about a $1.8 million home giveaway. Concluding that the plaintiff, Paul Stepnes, was a limited-purpose public figure, the Eighth Circuit agreed with the district court that Stepnes had failed to proffer sufficient evidence of actual malice to withstand summary judgment. Stepnes v. Ritschel [PDF], 663 F.3d 952 (8th Cir. 2011).

In May 2008, Stepnes, a self-described Minnesota real-estate developer, devised a plan to recoup the costs he had incurred to build a $1.8 million house near Minneapolis’ famed Lake of the Isles and redeem the home from foreclosure. Stepnes launched what he dubbed the “Big Dream House Giveaway” contest. For $20, entrants would guess the number of nails, screws, and other fasteners in a container. The contestant stating the closest number (without going over) would “win” the house.

In July 2008, WCCO’s Esme Murphy reported that Stepnes had been arrested, that police believed the contest was illegal, that the prize home was in foreclosure (a fact that had not been revealed on the contest website or in other contest publicity), that the charitable foundation supposedly associated with the contest did not exist, and that an advertised “weekly prize” had never been awarded. Stepnes responded by canceling the contest—claiming it could not proceed successfully in light of the WCCO-TV report—and filing a lawsuit, asserting civil-rights claims against the City of Minneapolis arising from his arrest and defamation claims against CBS and Murphy arising from the broadcast.

The district court held that because Stepnes was a voluntary participant in the ongoing controversy over the legality of the contest and sought to influence its outcome, Stepnes was a limited-purpose public figure and therefore bore the burden of proffering evidence of actual malice. Because Stepnes had failed to proffer evidence of actual malice in connection with an earlier motion to add a claim for punitive damages pursuant to Minnesota law, the district court determined that the issue of actual malice had already been resolved in CBS’s favor and granted CBS and Murphy summary judgment.

The Eighth Circuit Weighs In
On appeal, Stepnes contended that the district court erred in deeming him a public figure and that the record was replete with evidence of actual malice. The Eighth Circuit, however, easily agreed that Stepnes was a limited-purpose public figure for purposes of his claims against the CBS defendants:

A public controversy existed at the time of Murphy’s broadcast because Stepnes’s contest and arrest had already been debated in the local press, and both of those issues had ramifications beyond the contest participants. Stepnes also played a meaningful role in the controversy and had access to effective channels of communication to counteract allegedly defamatory statements: he sought publicity for his contests through engaging public relations personnel, he spoke to the local press following his arrest, and he granted Murphy an interview for her broadcast against the advice of his public relations personnel. Furthermore, all of the allegedly defamatory statements related to the contest and his arrest.

The Eighth Circuit also rejected Stepnes’s contention that he engaged in such activities merely to defend himself, noting that Stepnes’s conduct “went beyond defending himself” and that, as the CBS defendants pointed out, “he chose to grant an interview to Murphy because ‘ratings were high on [that] station.’”

The Eighth Circuit concluded further that there was no evidence of actual malice in the record. First, the court determined that statements allegedly implying that Stepnes would go to jail were not actionable because he had been arrested and a spokesperson for the city attorney’s office had indicated that the case was still under investigation. Second, the court found that “minor inaccuracies” did not change the gist or sting of the broadcast, and thus the statements were not false, let alone sufficient to demonstrate actual malice. Third, the Eighth Circuit determined that there was insufficient evidence of actual malice with regard to the claimed overall defamatory implication of the broadcast, which was “that Stepnes was not open with potential contestants regarding the foreclosure.”

The Eighth Circuit also affirmed the district court’s decision to deny Stepnes’s motion for spoliation sanctions based on CBS’s allegedly purposeful destruction of a videotape of Murphy’s interview with Stepnes and his counsel. There was no evidence “that CBS intentionally destroyed the tape or acted with bad faith or gross negligence in respect to it.” Rather, CBS took steps to preserve all relevant materials and “conducted an extensive search for the tape.” On February 3, 2012, the Eighth Circuit denied Stepnes’s petition for en banc rehearing.

Keywords: litigation, First Amendment, media law, Eighth Circuit, defamation, limited-purpose public figure

Jeanette Melendez Bead, partner, Levine, Sullivan, Koch & Schulz, LLP, Washington, D.C. She, along with Michael Sullivan and Chad Bowman, represented CBS and Murphy in the case discussed here.


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.

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.

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