Newsroom Law Blog

Federal Appeals Court Strikes Down Ban on Political and Issue Advertisements by Public Broadcasters

Charles Coble — Wed, 18 Apr 2012 10:51:00 -0500

Last week, a federal court based in California issued a surprising and sure to be controversial decision finding the Communication Act’s ban on the airing of political and issue advertisements by public broadcasters to be a violation of their First Amendment rights. The decision is available here. By a two-to-one majority, the court held that the ban on all paid public issue and political speech by public broadcasters is an unconstitutional content-based restriction on speech because the statute permits paid promotional messages by non-profit advertisers on these same stations. While the court struck down the ban on issue and political advertisements, the court upheld the statute’s ban on advertisements for goods and services by for-profit entities.

Should this decision be affirmed on what would appear to be an inevitable appeal, the effect of the court’s decision will be to permit public broadcasters to carry paid political and issue advertisements but not regular commercial advertisements. It should be emphasized that this decision does not require public broadcasters to air political and issue advertisements, but, rather, it simply permits public broadcasters to accept such ads if they choose to do so. Public broadcasters remain exempt under a separate provision of the Communications Act from “reasonable access” claims by federal candidates.

The case raises important questions about the nature of public broadcasting, as it threatens to blur the lines between commercial and public broadcasting—at least as to political and issue advertisements.

The decision came in response to a challenge to the law by Minority Television Project (“Minority”), a nonprofit California corporation that operates the San Francisco public broadcast station KMTP-TV. On August 9, 2002, pursuant to a complaint by another broadcaster, the FCC determined that Minority had violated Section 399b approximately 1,900 times over a three-year period by broadcasting paid promotional messages from for-profit corporations. Minority was fined $10,000 by the FCC, which it paid, and then filed a complaint in the Northern District of California federal court seeking reimbursement of the $10,000 and declaratory relief. After losing at the district court level, Minority appealed to the Ninth Circuit.

The Ninth Circuit panel concluded that the ban on all paid public issue and political speech was not narrowly tailored to the substantial government interest of ensuring high-quality educational programming on public broadcast stations, and was therefore unconstitutional. In particular, the court found there was no evidence in the record before Congress at the time of the statute’s enactment connecting the ban on issue and political ads to the government’s interest in maintaining certain types of “niche” programming offered by public broadcasters. The court also found there was no evidence that public issue and political advertisements are more harmful than promotions for goods and services by non-profits, which are allowed by the statute.

By contrast, in upholding the statute’s ban on regular commercial advertising, the court concluded there was ample evidence before Congress of a connection between the airing of advertisements for for-profit entities and a threat to public broadcast stations’ “niche” programming.

The decision raises numerous complexities for public broadcasters, including the following.

Public broadcasters cannot be assured that the decision will be binding in courts outside of the Ninth Circuit. (The Ninth Circuit includes the far western states—AK, AZ, CA, HI, ID, MT, NV, OR, and WA.) Therefore, unless and until the FCC provides notice that it will no longer enforce the ban on issue and political ads for public broadcasters, public broadcasters in states outside of the Ninth Circuit’s jurisdiction are potentially subject to enforcement proceedings notwithstanding the Ninth Circuit decision.
For public broadcasters that are licensed to state governmental entities, there may be separate state law restrictions on their ability to air issue or political advertisements.
The decision does not overturn any private contractual restrictions that may exist as a condition of receipt of funding or programming affiliation. To the extent that such conditions prohibit issue or political ads, those conditions will remain enforceable.
Public broadcasters will wish to consider the potential tax implications of accepting issue and political ads with respect to nonprofit or tax-exempt status. For example, under the tax laws, tax-exempt Section 501(c)(3) corporations may not “. . . participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” Such entities will need to consider whether they are permitted to accept political advertisements within the parameters of this prohibition.
To the extent that a public broadcaster accepts political ads, it will be required to offer such ads at the “lowest unit charge” consistent with the rules applicable to broadcasters generally. How these rules will be applied to a station that does not air regular commercial advertising is not clear at this point.

There are several options for further review of the Ninth Circuit’s panel decision. The government may seek rehearing of the decision by the full Ninth Circuit court; it could seek review by the U.S. Supreme Court; or it could ask Congress to revisit this issue. Given these options, and the likely controversy flowing from the decision, it is quite possible that the Ninth Circuit panel decision will not be the final word on this issue.

CNN Must Defend Lawsuit over Online Captioning

Charles Coble — Wed, 18 Apr 2012 09:19:48 -0500

A California court recently ruled that a lawsuit in which a group representing deaf citizens contended that CNN must provide captioning for videos uploaded to its website may proceed. The group, The Greater Los Angeles Agency on Deafness, brought suit under the California's Unruh Civil Rights Act and the California Disabled Person's Act. The court's decision is available here.

CNN responded to the suit by moving to dismiss under California's Anti-SLAPP statute, Section 425.16 of the California Code of Civil Procedure, contending that the claims arise from its newsgathering activities and dissemination of the news, both of which are protected activities under the free speech and free press clauses of the First Amendment to the U.S. Constitution.

The case was filed in federal court in the Northern District of California, and, in a lenghty written decision, the court denied CNN's motion, which means that the plaintiffs' lawsuit may move forward. The basis for the court's decision was its finding that CNN failed to make a prima facie showing that its refusal to provide captioning for online content is "conduct . . . in furtherance of" its broadcast activities. That meant the Anti-SLAPP statute did not apply.

The court first rejected CNN's argument that the Anti-SLAPP statute applied because all of CNN's business activities are in furtherance of its broadcast speech. The court concluded that a categorical rule that all activities by any media defendant would trigger the statute was too broad and exceeded its plain language. The court then found that the particular conduct at issue here -- CNN's refusal to provide captioning for its online video content -- likewise did not constitute acts in furtherance of speech. In reaching this conclusion, the court noted that the plaintiffs "do not assert a right to change CNN's broadcast or expressive content or otherwise interfere with CNN's editorial decisions." Finally, the court rejected CNN's argument that the plaintiffs' claims fell within the scope of the Anti-SLAPP statute because they impacted an editorial decision it made (related to the accuracy of captioning) and would increase its costs.

This case is interesting because it presents a wrinkle to the FCC's captioning rules, which apply to on-air broadcasts but not to internet distribution of content. Notwithstanding the non-applicability of those rules to the facts of this case, it will be interesting to follow how CNN fares in defending against state statutory civil rights claims. We will continue to monitor the progress of this case.

Primary Lineup Set in North Carolina

Charles Coble — Wed, 21 Mar 2012 11:32:50 -0500

The primary election in North Carolina is Tuesday, May 8, 2012, with a second primary (if needed) being either June 26 or July 17The second primary will be June 26 if no second primary is needed for U.S. Representative races and it will be July 17 if there is a second primary for those federal races. Since there are a number of multi-candidate primaries in the Congressional races, odds are that the second primary will be July 17 If no candidate receives 40% of the vote in the first primary, the second-place finisher can--but doesn't have to--call for a second primary.

We have covered disputes and issues relating to political advertising during prior election seasons With this year's contested primaries in North Carolina and with the presidential election in the fall, we expect to have plenty to report on this year. To kick it all off, we'll run down the primaries slated in North Carolina.

Federal Races

President

President Obama has no named opposition in the primary but consistent with State law, there is a line for "no preference" on the May 8 primary ballot. There will also be such a line on the Republican presidential primary ballot.

The four major Republicans pursuing the White House are all on the North Carolina primary ballot--Newt Gingrich, Ron Paul, Mitt Romney and Rick Santorum.

U.S. House

Congressional candidates this year will run in new districts drawn by the 2011 North Carolina General Assembly, and, in many cases, the lines are substantially different than the last election. In fact, some incumbents did not run again in large part due to the redistricting.

Democratic incumbents G.K. Butterfield (1st), David Price (4th), Mike McEntyre (7th), Larry Kissell (8th) and Mel Watt (12th) are seeking re-election and face opposition. Butterfield, Price and Watt are favored for re-election while the 7th and 8th districts are highly competitive.

Republican incumbents Renee Elmers (2nd), Walter Jones (3rd), Virginia Foxx (5th), Howard Coble (6th) and Patrick McHenry (10th) are running again and are favored to win.

Two Democratic incumbents chose not to run for re-election--Brad Miller, who currently represents the 13th district but who was put in the 4th district with Price when the lines were redrawn, and Heath Shuler, who currently represents the 11th district, which was redrawn to be much less favorable to a Democrat. Republican incumbent Sue Myrick from the 9th district chose to retire after many years in Congress.

Three other districts do not have an incumbent running and lean Republican based on the new lines. They are the 9th district (Myrick's current seat), the 11th district (Shuler's current seat) and the 13th (Miller's current seat). All have both Democratic and Republican candidates with contested primaries in the 9th (11 Republican candidates), the 11th (3 Democrats and 8 Republicans) and the 13th (2 Democrats and 3 Republicans).

Statewide offices

Governor

There 6 Democratic candidates for Governor with the best known being Lt. Governor Walter Dalton, former Congressman Bob Etheridge and Representative Bill Faison.

There are 6 Republican candidates with former Charlotte Mayor Pat McCrory being the strong favorite against a field of lesser-known candidates.

Lt. Governor

Two Democrats are running--Senator Eric Mansfield, who is an medical doctor from Fayetteville, and Linda Coleman, current State Personnel Director and a former Legislator and County Commissioner from Wake County.

There are 5 Republican candidates including Representative Dale Folwell from Forsyth County, Dan Forest (son of Congresswoman Sue Myrick) of Raleigh, Tony Gurley, Wake County Commissioner, and Grey Mills, a Representative from Mooresville.

Other Statewide offices

Attorney General Roy Cooper (D) is unopposed.

Incumbents State Auditor Beth Wood (D), Agriculture Commissioner Steve Troxler (R), Insurance Commissioner Wayne Goodwin (D), Labor Commissioner Cherie Berry (R), Secretary of State Elaine Marshall (D), Superintendent of Public Instruction June Atkinson (D) and Treasurer Janet Cowell (D) are all running for re-election and have contested races.

General Assembly

The Republicans currently hold margins of 31-19 in the Senate and 68-52 in the North Carolina House over Democrats. In addition to allowing them to control activity at the Legislature, these margins are important related to gubernatorial vetoes. A margin of 60% of those present and voting is necessary for Legislators to override a veto and thus Republicans currently have a "veto proof majority" in the Senate if all Senators vote by party, whereas they do not in the House. Thus, both parties are competing not only for party control but also are closely watching the numbers related to future vetoes.

It appears that Republicans drew Legislative lines during the 2011 redistricting process that will best position them to maintain control of the General Assembly after the 2012 election. There is still litigation challenging the redistricting but the May primary is going forward using the new lines and many observers expect the lines drawn last year to be the ones used for this year's election.

In addition, a number of senior leaders in both chambers and both parties chose not to run again, some of them due to being "double bunked" with other incumbents in the same new district. Senators that chose not to seek re-election and that are not running for other offices include Republican Senators Richard Stevens of Wake County, Harris Blake of Moore County and Jean Preston of Carteret County and Democrats Bill Purcell of Scotland County, Linda Garrou of Forsyth County and Bob Atwater of Chatham County.

House members not running again or for other offices include Republicans Phillip Frye of Mitchell County, Carolyn Justice of Pender County, Mark Hilton of Catawba County and Bill McGee of Forsyth County. Democrats in this category include former Speaker Joe Hackney of Orange County, Bill Owens of Pasquotank County, Phil Haire of Jackson County, Jennifer Weiss of Wake County and Maggie Jeffus of Guilford County.

State Senate

A number of incumbents are unopposed. Unopposed Republicans include Senators Harry Brown (Onslow), Louis Pate (Wayne), Andrew Brock (Davie), Tommy Tucker (Union), Fletcher Hartsell (Cabarrus) and Kathy Harrington (Gaston). The two unopposed Democrats are Wake County Senators Dan Blue and Josh Stein.

As for incumbents with opposition, 11 are Democrats and 20 are Republicans. There are 11 seats that are open with no incumbent running.

State House

A couple of dozen incumbents (about the same number from both parties) are unopposed. They include influential Republicans Ruth Samuelson of Charlotte and Tim Moore of Shelby and long-time Democratic members Paul Luebke and Mickey Michaux of Durham and Deborah Ross of Raleigh.

There are about 30 seats that are "open" (no incumbent running). Although the new district lines are different from the old ones, similar districts were formerly held by 6 Democrats and 12 by Republicans, with the rest not held by an incumbent.

FCC Denies Political Advertising Complaint

Elizabeth Spainhour — Fri, 10 Feb 2012 09:48:12 -0500

In the final hours of the last business day before the Super Bowl, the Chief of the FCC's Media Bureau released an order denying the "reasonable access" complaint of Randall Terry against a Chicago television station.

Terry's campaign had been seeking to place ad buys on stations around the country leading up to and during the game. He claimed he was a "legally qualified candidate" for the Democratic nomination for President. The ads featured disturbing images of aborted fetuses that would be potentially disturbing to some audiences.

As we wrote previously, a "legally qualified candidate" for federal office is entitled to certain benefits under federal law, including "reasonable access" to broadcast facilities. Terry's complaint was based on a denial of access---Chicago TV station WMAQ-TV refused to grant the campaign's request to place a Terry spot during the Super Bowl.

The Bureau's decision to deny the Terry complaint was based on two rationales.

First, the Bureau found Terry had not made a substantial showing that he was a "legally qualified candidate" entitled to access.

Evidentiary issues were important to this aspect of the decision and are worth mention. FCC rules and precedent have long held that it is the candidate's burden to make a substantial showing of candidacy. And, when the FCC reviews access complaints, it will examine the evidence made available to the station at the time access is sought (not evidence later submitted with a complaint) in determining whether the station acted reasonably in denying access. While not dispositive, the Bureau noted that the station had received a letter from the Democratic National Committee stating that the DNC did not consider Terry an actual candidate for its presidential nomination and that Terry could not satisfy its presidential candidate requirements.

Second, the Bureau determined that even if Terry had been a "legally qualified candidate" entitled to access, WMAQ-TV was justified in refusing to place spots during the Super Bowl game. While legally qualified candidates are entitled to "reasonable access" to broadcast air time, no candidate is entitled to "particular placement of his spots in a particular program on a station's broadcast schedule." Stations may reasonably take into account limited spot inventory for highly rated annual programs and the fact that there may be no "equivalent broadcasts" should an opposing candidate seek equal opportunities after the fact.

Television stations in particular should keep the Terry decision in mind as we enter into this season of college basketball tournaments and awards shows. While the decision is not an invitation to ignore ad buys from candidates during the most sought after programming (or to ignore buys from candidates based on disturbing content in the ad), it does offer insight into who qualifies as a "legally qualified candidate" and what kinds of things a station can consider when evaluating requests for time in highly rated annual broadcasts.

Photojournalist Has No Privacy Protection Act Claim Where Search Was Supported By Probable Cause

Elizabeth Spainhour — Wed, 01 Feb 2012 14:05:01 -0500

In a decision released this week, a panel of the Fourth Circuit affirmed the decision of the Eastern District of Virginia holding that a photojournalist had no claim under the federal Privacy Protection Act for a search of the journalist’s home conducted pursuant to a warrant, where law officers had probable cause to believe the journalist was involved in a crime.

The plaintiff in Sennett v. U.S., No. 11-1421 (4th Cir. Jan. 30, 2012), was a photojournalist who routinely covered protests, political demonstrations, and acts of “grassroots activism” and published her images under the name “Isis.” In her complaint, she alleged that her work was published in the mainstream media as well as on her own blog and on other websites.

In April 2008, the plaintiff was covering what she believed to be a demonstration at the International Monetary Fund’s annual meeting at a hotel in Washington, D.C. Acting on a tip, she arrived at the scene at approximately 2:30 a.m. and videotaped the demonstration.

Ultimately, the protest became criminal, though the plaintiff claimed no knowledge of the protesters’ plan to destroy private property. The protesters entered the hotel lobby, set off firecrackers and pyrotechnics, threw paint-filled balloons, and shattered a large glass window, causing an estimated $200,000 or more in damage.

Officials with the FBI Joint Terrorism Task Force investigating the incident reviewed surveillance video from the hotel and noticed a woman wearing a light beret, black combat boots, and a dark backpack and carrying a small handheld camera, apparently photographing the incident. The woman was seen arriving at the same time as the protesters, standing outside the hotel with some in the group while other protesters entered the lobby, and leaving with or in the same general direction as the protesters. After watching video of earlier demonstrations and seeing a woman in similar clothing, and relying on two confidential informants, law officers identified the woman as the plaintiff.

Officials sought and received a warrant to search the plaintiff’s home and seize any items related to the IMF protest as well as clothing and virtually any device that would store video or photographs. Several items were seized, including a hard drive containing thousands of photos.

The plaintiff was never charged or arrested as a result of the investigation.

The plaintiff later filed a claim against the federal government and the officer who sought and obtained the search warrant alleging violations of the Privacy Protection Act, 42 U.S.C. § 2000aa et seq.

Generally speaking, the PPA prohibits the federal government from conducting searches and seizing "any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication." The law is designed to prevent, among other things, newsroom searches.

Congress enacted the PPA in response to a 1978 decision of the U.S. Supreme Court, Zurcher v. Stanford Daily, 436 U.S. 547, which held, essentially, that journalists have no more protection against unreasonable searches and seizures under the Fourth Amendment than do ordinary citizens. In Zurcher, the Supreme Court held that the Fourth Amendment did not prohibit the search of a newspaper office (the Stanford University student paper) for photos revealing the identities of people who assaulted police officers during a demonstration. This was so even though no one from the newspaper was suspected of involvement in the incident.

However, the PPA does not give journalists unlimited protection against searches and seizures. Among the exceptions in the statue is the “suspect exception,” which the government relied on in Sennett. This exception provides that “police can avoid the constraints of the [statute] . . . when the person possessing the materials is a criminal suspect, rather than an innocent third party.”

The Fourth Circuit panel affirmed the lower court’s decision on summary judgment that officials had probable cause to believe, under the totality of the circumstances, that the plaintiff had committed a criminal offense relating to the hotel incident. For example, she arrived with the protesters at the hotel and left the scene with or in the same general direction as the protesters. While there may have been an innocent explanation for the plaintiff’s actions at the hotel---she was covering the incident as a journalist---according to the Fourth Circuit, this did not eliminate the existence of probable cause under the governing totality of the circumstances test.

Moreover, while the plaintiff claimed that officials knew she was a photojournalist and failed to reveal this in the affidavit supporting their request for a search warrant, according to the Fourth Circuit panel, even if true this cannot destroy the existence of probable cause without more. Quoting the district court, “to accept [plaintiff’s] argument that her status as a photojournalist is a game changer in the probable cause analysis . . . is tantamount to doing what Congress declined to do, namely exclude journalists from the PPA’s ‘suspect exception.’”

While the plaintiff’s job explained her presence on the surveillance video, the court found that other facts permitted officers to reasonably conclude she was involved in the vandalism of the hotel.

Additionally, the fact that she was never charged did not defeat the existence of probable cause, which is judged at the time the search is conducted---not later.

Journalists and photographers should keep the Sennett case in mind when covering protests and demonstrations against the financial industry, some of which have allegedly turned criminal. While the PPA offers some protection from searches and seizures, the PPA does not immunize the media from searches where officers have probable cause to believe the journalists have committed or participated in criminal acts. The Sennett case makes clear that, in the view of the Fourth Circuit panel, someone's status as a journalist does not automatically render him or her above suspicion in a criminal investigation.

Federal Candidate Ad Entitled to Air Time; Cannot Be Censored

Elizabeth Spainhour — Mon, 30 Jan 2012 10:03:45 -0500

National news outlets are reporting that the NBC Network has asked presidential candidate Mitt Romney to stop using a television ad attacking Newt Gingrich that features former NBC News anchor Tom Brokaw. The ad is available on the Mitt Romney campaign website and features Brokaw's reporting on ethics violations.

Some say the spot gives the impression that NBC is biased against Gingrich or in favor of Romney. As reported in the Wall Street Journal, Brokaw has said he is “extremely uncomfortable with the extended use of my personal image in this political ad. I do not want my role as a journalist compromised for political gain by any campaign.”

So why can’t NBC owned and operated stations, or NBC-affiliated stations, simply say no to the ad and take it off the air?

The reason is two-fold—first, Romney is entitled to “reasonable access” to station air time, and second, the “no censorship” rule applies to the Romney spot.

Federal law requires radio and TV stations to provide “legally qualified candidates” for federal office—including candidates for the offices of President and Vice President, the U.S. Senate, and the U.S. House of Representatives—with “reasonable access” to their broadcast facilities. “Reasonable access” does not require stations to give free time to federal candidates, but it means that a station may not have a policy of refusing to sell or give a “reasonable” amount of time to federal candidates.

Additionally, the “no censorship” rule applies to a “use” by a “legally qualified candidate.” A “use” means any positive appearance of a candidate whose voice or likeness is either identified or readily identifiable. In this case, consistent with FCC staff decisions on the issue, Romney’s appearance and voice in the sponsorship identification at the end of the spot is sufficient to render this ad a “use” to which the “no censorship” rule applies.

Under the “no censorship” rule, unless the material broadcast is legally obscene or indecent, a station may not censor the content of a candidate’s broadcast even if it is libelous, a copyright violation, inflammatory, or otherwise offensive. A station can insist on a compliant sponsorship identification to be included if it has not been (for example, “paid for by” and the name of the sponsor), but otherwise it may not censor or alter the spot (unless it is legally obscene or indecent).

The “no censorship” rule would seem to put stations in the difficult position of being required to air political advertisements that expose them to legal liability—for example, for defamation or invasion of privacy. On the contrary, under federal law, TV and radio stations cannot be held liable for the content of a “use” by a “legally qualified candidate.”

Accordingly, stations are obligated to grant the Romney campaign committee “reasonable access” to their air time until the Romney campaign chooses to pull the spot.

Third Circuit Reaffirms Ruling on "Wardrobe Malfunction" Case

Charles Coble — Wed, 02 Nov 2011 14:53:32 -0500

Today, the federal Third Circuit Court of Appeals issued an opinion in the Janet Jackson indecency case reaffirming its earlier decision that CBS owned and operated stations were not liable under the "indecency" statute for the broadcast of Janet Jackson’s "wardrobe malfunction."

The Third Circuit heard oral argument in the case more than a year ago, after the U.S. Supreme Court vacated the Third Circuit’s original decision and sent the case back to the Third Circuit for further consideration in light of the Supreme Court’s ruling in FCC v. Fox Television Stations, Inc., a case involving fleeting expletives.

By a two to one majority, the Third Circuit held today, as it had before, that the FCC’s sanction against CBS for the fleeting nude image was a departure from its policies on actionable indecency. In a win for broadcasters, the Court vacated in its entirety the Commission’s $550,000 penalty against the CBS owned stations.

Courts Block "Stream of Commerce" Jurisidiction Claims

Eric David — Sun, 11 Sep 2011 13:35:58 -0500

Back in March, we reported on a North Carolina federal court's dismissal of a defamation claim brought against two out-of-state publishers and an out-of-state author based on a lack of personal jurisdiction. In that case, Judge Louise W. Flanagan rejected plaintiff's argument that simply because a handful of books had been sold in North Carolina in the "stream of commerce," the court could exercise jurisdiction over the defendants.

Judge Flanagan wrote that:

"[t]o permit a state to assert jurisdiction over any person in the country whose product is sold in the state simply because a person must expect that to happen destroys the notion of individual sovereignties inherent in our system of federalism."

Since that decision, the "stream of commerce" argument has garnered substantial attention from the courts. In June, the United States Supreme Court reversed 9-0 a decision by the North Carolina Court of Appeals that allowed a North Carolina state court to exercise jurisdiction over several foreign affiliates of Goodyear based on a stream of commerce argument much like the one Judge Flanagan rejected. In that case, Goodyear Dunlop Tires Operations, S.A. v. Brown, Justice Ginsberg write for the Court:

Under the sprawling view of general jurisdiction urged by respondents and embraced by the North Carolina Court of Appeals, any substantial manufacturer or seller of goods would be amenable to suit, onany claim for relief, wherever its products are distributed.

Finally, in August, the North Carolina Business Court in Charlotte dismissed a libel claim brought in North Carolina against, among others, a TV network from Chennai, India called Sun TV. The complaint alleged that Sun TV, which broadcasts its programs on Dish Network, caused defamatory statements about the plaintiffs to be broadcast to North Carolina subscribers. Alleging that it owned no property in North Carolina, did no business in North Carolina, and did not contract with anyone in North Carolina, Sun TV moved to dismiss for lack of personal jurisdiction.

Citing Goodyear Dunlop Tires, the court rejected plaintiffs' argument that jurisdiction was appropriate because Sun TV broadcasts its signal knowing that it might reach Dish subscribers in North Carolina. More specifically, the court held that while the "stream of commerce" argument had been applied in product liability cases, it had never been applied in North Carolina to a defamation action. The court declined to be the first.

This flurry of personal jurisdiction cases has affirmed the principle that in defamation cases, plaintiffs cannot simply rely on the theory that the publication at issue "ended up" in the forum state. This is an important defense for defamation defendants to remember.

U.S. Supreme Court to Hear Indecency Cases

Charles Coble — Tue, 28 Jun 2011 10:34:27 -0500

As expected, the U.S. Supreme Court announced yesterday that it has agreed to hear the Fox (fleeting expletives) and ABC (fleeting nudity) cases in the next term. The Court has agreed to determine whether the FCC’s current indecency enforcement policy violates the free speech rights of broadcasters or is unconstitutionally vague. Justice Sotomayor did not participate in the decision to accept the cases for review.

We have previously written about the Supreme Court's initial decision in the Fox case, which centered upon whether the FCC's policy concerning fleeting expletives passed muster under the Administrative Procedure Act (the Court ruled that it did, in a 5-4 decision). The Supreme Court's action yesterday means it will now take up the First Amendment implications of the FCC's indecency regime, which the Court did not address in its initial decision.

We will follow the progress of this case closely.

Exercising the Right to Record the Police May Lead to Obstruction Charges

Elizabeth Spainhour — Sun, 05 Jun 2011 12:36:40 -0500

We previously wrote here and here about cases involving wiretapping prosecutions as a result of recording police activities. In addition to running afoul of wiretapping statutes, citizens or journalists who videotape or record the police have also been arrested for violating state obstruction statutes, in certain circumstances. Two such cases are discussed below.

For example, in Berglund v. City of Maplewood, two journalists who hosted a public access cable program were arrested for videotaping their own arrest. The journalists refused to pay a $15 fee to attend a public event, which they intended to film and show on their cable program, and they were asked to leave by the police because they refused to pay. The police department alleged that a verbal and physical altercation with the journalists ensued and that force was necessary to subdue at least one of them. The journalists were charged with disorderly conduct and obstructing legal process.

The journalists captured the altercation on videotape. The police confiscated the tape at the scene without a warrant. Later that evening, the police viewed the tape and made a copy to give to the journalists, keeping the original as evidence. Two days later, one of the journalists obtained the copy from the police. The video was shown on the journalists' cable program a few days later.

The journalists later filed a Section 1983 claim against the city and the police officers alleging the officers violated the journalists’ First, Fourth, and Fourteenth Amendment rights by, among other things, seizing the videotape, viewing and copying the tape, preventing the plaintiffs from gathering and disseminating information, refusing to return the tape, and controlling the tape’s publication.

With regard to the alleged First Amendment violation, the U.S. District Court for the District of Minnesota held that there was no violation. The court recognized that the First Amendment protects the right to gather information, but stated that the right is not absolute. (Other courts have held that newsgathering activities receive First Amendment protection.) The court reasoned, as the U.S. Supreme Court had before it, that the First Amendment does not guarantee the media a special right of access to information that is not available to the public generally. The court wrote:

Here, plaintiffs had no greater right than the public to gather information at this event. Like all other members of the public, plaintiffs only had access to the information at the event if they paid the $15 attendance fee. Because they refused to pay the $15 attendance fee, they had no right to the information at the event under the First Amendment. Thus, defendants did not violate plaintiffs’ First Amendment right by seizing the videotape and removing plaintiffs from the event.

The court granted summary judgment in favor of the defendants on all the plaintiffs’ claims, including the First Amendment-based claim.

Berglund illustrates the application of obstruction laws to a particular situation where journalists videotaped the police in the course of their public duties. In Berglund, the obstruction statute applied in part because the plaintiffs tried to assert a greater right to be at an event than the general public. Of course, the U.S. Supreme Court has long been hostile to the view that the press enjoys greater First Amendment protection than the general public. See, e.g., Branzburg v. Hayes.

A recent North Carolina case also involves application of a state obstruction statute to a citizen who videotaped police conduct. The Salisbury Post reported in August 2010 that a woman in Salisbury, N.C., was found guilty of resisting, obstructing, and delaying an officer after she refused an officer’s order to go inside her home while she filmed a traffic stop from her front porch. (Video of the incident is posted here.) According to the Salisbury Post’s coverage, the judge reasoned that the woman could have observed the incident from inside her home and should have respected the officer’s request. The Rowan County District Court sentenced the woman to 6 months of probation and community service.

Presumably, this Salisbury woman was charged with violating N.C. Gen. Stat. § 14-233, which provides, “[i]f any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor.” The elements of the offense are: (1) that the victim was a public officer; (2) that the arrestee knew or had reasonable grounds to believe that the victim was a public officer; (3) that the victim was discharging or attempting to discharge a duty of his office; (4) that the arrestee resisted, delayed, or obstructed the victim in discharging or attempting to discharge a duty of his office; and (5) that the arrestee acted willfully and unlawfully, that is intentionally and without justification or excuse.

According to the U.S. District Court for the Eastern District of North Carolina in Bostic v. Rodriguez, the purpose of § 14-233 is “'to enforce orderly conduct in the important mission of preserving the peace, carrying out the judgments and orders of the court, and upholding the dignity of the law." The statute “‘is concerned with acts threatening a public officer with injury only insofar as they interfere with the performance of his official duties.’”

Section 14-233 has been found not to apply to communications simply intended to assert rights, seek clarification, or obtain information in a peaceful way. Indeed, “merely remonstrating with an officer . . . or criticizing or questioning an officer while he is performing his duty, when done in an orderly manner, does not amount to obstructing or delaying an officer in the performance of his duties.” However, actual physical force or assault, or permanently preventing the officer from discharging his duties, are not necessary to violate § 14-233. The state must merely prove that “the officer was obstructed or interfered with, and that such obstruction or interference was willful on the part of the defendant.” State v. Burton, 108 N.C. App. 219, 225, 423 S.E.2d 484, 488 (1992).

It appears that § 14-233 may be used in a manner that limits the right of citizens to record the police (to the extent there is such a right recognized by the courts) in those instances where the recording hampers the officer’s ability to perform his duties—for example, hampering the officer in safely executing a traffic stop. The application of the statute appears to require a case-by-case analysis of the facts of the particular incident.

In the case of the Salisbury woman, it appears that her refusal to heed the officer’s order to go inside her home while the officer dealt with two occupants of a car that had previously given chase was sufficient evidence of obstruction. Unfortunately, neither a transcript of the hearing nor a copy of the written order explaining the court’s analysis of the case were available.

The Berglund and Salisbury cases demonstrate that journalists or citizens who record the police may have to contend not only with wiretapping statutes, as we discussed earlier, but obstruction statutes, as well.

Section 1983 Claims and the Right to Record the Police

Elizabeth Spainhour — Mon, 02 May 2011 09:08:13 -0500

In two recent posts, linked here and here, we discussed wiretapping arrests for videotaping or recording the police. One of the potential results of such an arrest is a Section 1983 lawsuit based, in part, on a violation of the arrestee’s First Amendment rights. It is in these cases that the “right to record the police” has been most directly confronted by the courts.

As discussed below, in some cases courts have looked favorably on such claims, while in others cases they have not.

The U.S. Court of Appeals for the Third Circuit dealt with the issue in the recent case Kelly v. Borough of Carlisle. In Kelly, the plaintiff filed a civil lawsuit under 42 U.S.C. Section 1983 claiming that his constitutional rights were violated when he was arrested for filming with his hand-held video camera a police officer during a traffic stop. The plaintiff was a passenger in the truck that was stopped for speeding and violating a bumper height restriction, and he turned on the video camera (which he claimed was visible in his lap) during the course of the traffic stop after, he claimed, the officer began yelling at the driver. Toward the end of the traffic stop, the officer informed the plaintiff and the driver that he was taping their interaction using a car-mounted video camera and a microphone on the officer’s shirt. The officer then observed the plaintiff was recording him. Believing the recording by the plaintiff was a violation of the Pennsylvania wiretapping statute, the officer ordered the plaintiff to turn over the camera, which the plaintiff did. After returning to his patrol car and speaking to an assistant district attorney, the officer called for additional police assistance and arrested the plaintiff for violating the wiretap statute.

The charges against Kelly were later dropped, but he filed a Section 1983 lawsuit alleging First and Fourth Amendment violations by the officer and the city. The district court granted the defendant-officer’s summary judgment motion based on qualified immunity and granted the defendant-city’s summary judgment motion based on the plaintiff’s failure to present facts sufficient to establish municipal liability.

The first issue addressed by the Third Circuit on appeal was whether qualified immunity applied to the officer’s actions. For qualified immunity to apply, and shield the government officer from liability for civil damages, his conduct must not have violated “‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Therefore, with respect to the alleged First Amendment violation, the question for the Third Circuit in Kelly was whether there is a “clearly established” right to videotape the police.

In reaching its conclusion, the Third Circuit analyzed cases from district courts within the Third Circuit as well as federal courts in other jurisdictions (these decisions are discussed below). It ultimately found there was insufficient case law demonstrating a “clearly established” right to record the police at the time the defendant was arrested.

The court further stated that its decision on the First Amendment question was supported by the fact that none of the cases reviewed involved traffic stops—an activity the U.S. Supreme Court has found to be “inherently dangerous.” Thus, the court determined that the right to videotape police officers during traffic stops was not clearly established, and the police officer was entitled to qualified immunity on the alleged First Amendment violation.

In synthesizing earlier precedents, the Third Circuit in Kelly found a distinction between videotaping with an expressive purpose, which may be protected by the First Amendment, and videotaping without an expressive purpose, which may not be protected.

For example, the Third Circuit in Kelly cited Robinson v. Fetterman, in which the U.S. District Court for the Eastern District of Pennsylvania held that there is a free speech right to film police officers in the performance of their public duties. This case involved a citizen who videotaped state troopers conducting truck inspections on a local road because the citizen was concerned about the safety of the inspections. The citizen filmed the troopers from about 20 to 30 feet away, without interfering in their activities, and with the permission of the landowner from whose property he conducted his videotaping activities. Nevertheless, the troopers arrested him for harassment under a state statute. At trial, the citizen was found guilty of harassment, but the charges were dismissed on appeal, and he later filed a Section 1983 lawsuit against the troopers.

In analyzing the Section 1983 claims made by the plaintiff in Robinson, the district court stated the following:

The activities of the police, like those of other public officials, are subject to public scrutiny. Indeed, “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” Although Robinson need not assert any particular reason for videotaping the troopers, he was doing so in order to make a visual record of what he believed was the unsafe manner in which they were performing their duties. He had previously talked to . . . a Representative in the Pennsylvania General Assembly, about his concerns. Robinson’s right to free speech encompasses the right to receive information and ideas. He also has a First Amendment right to express his concern about the safety of the truck inspections to the appropriate government agency or officials, whether his expression takes the form of speech or conduct. Videotaping is a legitimate means of gathering information for public dissemination and can often provide cogent evidence, as it did in this case. In sum, there can be no doubt that the free speech clause of the Constitution protected Robinson as he videotaped the defendants on October 23, 2002.

Therefore, the district court found the troopers liable for violating Robinson’s First Amendment right to videotape police conduct. The Third Circuit in Kelly recognized this case as suggesting a “broad right to videotape the police.”

The Third Circuit in Kelly also examined the Eleventh Circuit’s decision in Smith v. City of Cumming, which involved a couple who filed a Section 1983 lawsuit alleging that the city police harassed them and prevented them from videotaping police actions. Here, the Eleventh Circuit stated that the plaintiffs enjoyed a “First Amendment right, subject to reasonable time, manner and place restrictions, to photograph and videotape police conduct.” The court continued, citing a long string of federal trial and appellate court cases, “[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” Although the Eleventh Circuit clearly recognized the First Amendment right to videotape police activities, the court affirmed the lower court’s grant of summary judgment in favor of the defendants because the plaintiffs failed to show the defendants had violated that right. However, as in Robinson, the Third Circuit recognized the Eleventh Circuit in Smith announced a broad right to record the police.

The Third Circuit in Kelly also analyzed the Ninth Circuit’s decision in Fordyce v. City of Seattle, in reaching its conclusion. Fordyce involved a Section 1983 plaintiff, an activist and "amateur journalist," who was arrested for violating a Washington state wiretap statute when he videotaped (using audio and video) a public march without obtaining the consent of the bystanders he recorded. Ultimately, the Ninth Circuit held that qualified immunity applied to the officer’s arrest of the plaintiff because a reasonable officer could have believed the plaintiff/arrestee was recording a private conversation in violation of the statute. But in doing so, the court suggested that there is a First Amendment right to “film matters of public interest.” Police conduct in the course of carrying out their public duties would, presumably, qualify as a matter of public interest.

In spite of these cases that support a First Amendment right to record the police, the Third Circuit in Kelly found persuasive other cases that would limit that right (if any). The U.S. District Court of the District of New Jersey in Pomykacz v. Borough of West Wildwood held that photographing a police officer in connection with a citizen’s political activism was protected by the First Amendment. The Section 1983 plaintiff, suspecting an inappropriate romantic relationship between a police officer and the mayor of West Wildwood that created a potential conflict of interest, nepotism, and preferential treatment, took photographs of the officer and the mayor, and was then arrested for stalking. In evaluating the defendants motion for summary judgment, the district court found sufficient evidence that the plaintiff, a self-proclaimed “citizen-activist,” was a concerned citizen “who at times spoke her mind to Borough officials and other citizens about her concerns regarding the official conduct of the police department and the mayor. Such speech is clearly protected by the First Amendment.” However, the district court declined the invitation to rule that videotaping or photographing the police in the course of their duties is, per se, protected by the First Amendment. In a footnote, the court wrote:

Pomykacz makes the blanket assertion that “the observation and monitoring of public officials is protected by the [F]irst [A]mendment.” The Court does not necessarily agree. An argument can be made that the act of photographing, in the abstract, is not sufficiently expressive or communicative and therefore not within the scope of First Amendment protection—even when the subject of the photography is a public servant. . . . Indeed, the Third Circuit has stated, albeit in dicta, that “videotaping or photographing the police in the performance of their duties on public property may be a protected activity. . . . [P]hotography or videography that has a communicative or expressive purpose enjoys some First Amendment protection.” However, in this case the record supports the conclusion that Pomykacz’s photography and monitoring was part and parcel of her political activism and that Officer Ferentz and Mayor Fox knew as much. Pomykacz expressed her concerns about construction at the municipal building and the relationship between Officer Ferentz and Mayor Fox. She was arrested because, among other things, she took a picture of Officer Ferentz in the municipal building while Mayor Fox was there. Thus the photography was tightly intertwined with Pomykacz’s speech and it is appropriate to address her speech and conduct together.

The district court in Pomykacz ultimately denied the defendants’ summary judgment motion with respect to the plaintiff’s Section 1983 claim based on the First Amendment violation.

Finally, the Third Circuit in Kelly also considered its own earlier decision in Gilles v. Davis. Gilles involved two plaintiffs—one a campus evangelist and the other a member of his campus ministry who videotaped the other man preaching provocatively to a group of students. After they were arrested for disorderly conduct, they brought a Section 1983 claim against the arresting officers. Their First Amendment claim based on the videotaping activity was dealt with in a footnote. The Third Circuit wrote in dicta: "[V]ideotaping does not constitute a protected First Amendment activity. But videotaping or photographing the police in the performance of their duties on public property may be a protected activity. More generally, photography or videography that has a communicative or expressive purpose enjoys some First Amendment protection."

In other words, the Third Circuit suggested in Gilles that videotaping the police in the course of carrying out their public duties may be a protected activity—but is not absolutely so. The determinative factor for the Third Circuit was whether the videotaping was done with a communicative or expressive purpose.

In summary, the Third Circuit in Kelly relied on cases such as Robinson, Smith, Fordyce, Pomykacz, and Gilles, as a collective, for the proposition that videotaping the police with an expressive purpose may be protected by the First Amendment, while videotaping the police without an expressive purpose may not be protected. The Third Circuit did not offer any test or standard to determine when a videotape is made with an expressive purpose, so, presumably, the purpose of the filming must be analyzed based on the facts of each particular case.

For the average citizen, demonstrating that videotaping the police was done with an expressive purpose may be a challenge, but, presumably, posting video to a blog or YouTube would meet the threshold. For a journalist, demonstrating an expressive purpose would presumably be easier as taking video is part of the newsgathering and publication process.

Whether or not other circuits concur with the Third Circuit’s analysis in Kelly remains to be seen as case law develops further.

* * *

Now that we have explored wiretapping arrests following incidents when citizens record police activity, and the Section 1983 claims that sometimes follow such arrests, in our next and final post on recording police activity, we will discuss another potential obstacle to exercising the right to record the police—state obstruction statutes.

Jean v. Massachusetts State Police and the Right to Record the Police

Elizabeth Spainhour — Mon, 25 Apr 2011 09:03:00 -0500

In an earlier post, we began analyzing whether there is a recognized “right to record the police.” We looked at judicial decisions in Maryland and in Illinois involving each state’s wiretapping statute. In this post, we examine a decision issued in 2007 by the First Circuit Court of Appeals in Jean v. Massachusetts State Police.

Jean presents a slightly different twist on wiretapping prosecution cases than those we examined earlier. In Jean, a political activist posted a videotape on the Internet of a warrantless search of a private residence by the state police. The videotape, taken by the home owner's “nanny-cam,” was assumed by the court to have been taken illegally, in violation of the Massachusetts state wiretapping statute, Mass. Gen. Laws ch. 272 § 99(B)(4)—both audio and video were recorded without the knowledge or consent of the police, and the state wiretapping statute required the consent of all parties in order to record conversations.

Following publication of the video on Jean's website, the state police wrote to Jean and told her to remove the audio portion of the material because it was in violation of the wiretapping statute or face action by legal authorities. Jean then sought a temporary restraining order and preliminary and permanent injunction against the state police’s threatened prosecution under the wiretap statute, citing her right to free speech under the First Amendment.

The trial court granted the plaintiff’s request for preliminary injunction, citing the U.S. Supreme Court’s decision in Bartnicki v. Vopper, 532 U.S. 514 (2001). Bartnicki involved the application of the federal wiretapping statute, 18 U.S.C. § 2511, to the news media’s reporting on an illegally recorded conversation that was legally obtained by the media. Ultimately, after balancing the interests of the government and the news media at stake, the Supreme Court held in Bartnicki that state officials may not constitutionally punish publication of truthful information that was lawfully obtained, “absent a need . . . of the highest order.”

The First Circuit affirmed the trial court’s application of Bartnicki to the facts of Jean. The state wiretapping statute was deemed content neutral, so, to determine the outcome of the case, the court balanced the interests of the state police in criminalizing the plaintiff’s conduct, and the interests of Jean and the public in the “publication of truthful information of public concern.” The state advanced the interest of the government in protecting the privacy of citizens and encouraging the uninhibited exchange of ideas and information among private parties. The court found this interest “virtually irrelevant” as the intercepted communication at issue involved a search by police officers of a private citizen’s home in front of that individual, his family, and several other officers. The second asserted government interest in punishing a subsequent publisher of intercepted information because interceptors were rarely known and could not generally be prosecuted was likewise discounted as the identity of the interceptor (the home owner) was already known.

On the public interest side, the government did not dispute that the videotape involved a matter of public concern. The only way to distinguish the case from Bartnicki, according to the First Circuit, was if the plaintiff obtained the videotape illegally. The court assumed that she did but still held that Bartnicki compelled the conclusion that the plaintiff’s publication on her website of an illegally recorded conversation and search by the police was protected by the First Amendment.

The outcome in Jean is important in particular for those who post videotapes of police altercations filmed by others. Bartnicki stands for the proposition that, absent the highest government interest, the First Amendment bars the government from criminalizing the publication of truthful information about a matter of public concern that is lawfully obtained. Jean appears to go one step further and holds that the First Amendment bars criminalizing the publication of truthful information about a matter of public concern, absent the highest government interest, even if that information was unlawfully obtained—for example, obtained in violation of the wiretapping statute. Either scenario could potentially apply to a citizen or journalist who videotapes (or posts videotape online) of the police in the course of carrying out their official duties.

Of course, unlike the cases we discussed in our earlier post, Jean also involves political speech and express criticism of the government. Jean was an activist and had posted the “nanny-cam” video of the warrantless police search on her website—a website dedicated to criticism of a former district attorney. This kind of government criticism falls into the category of “core” political speech, where First Amendment protection is generally at its highest.

* * *

We have now examined several cases involving the conflict between recording police activity and state wiretapping statutes. In a post to follow, we will examine Section 1983 claims asserting First Amendment violations following wiretapping arrests for recording the police. In a final post, we will also explore whether citizens or journalists may run afoul of state obstruction statutes when they record police activity.

Is There A Right To Record the Police?

Elizabeth Spainhour — Sat, 16 Apr 2011 12:02:42 -0500

According to one recent judicial opinion, Ickes v. Borough of Bedford (W.D. Pa. Dec. 3, 2010), "the issue of police officers arresting citizens for recording them in public has recently been brought to the forefront of the cultural Zeitgeist." From the “don’t taze me, bro” video to lesser known incidents, YouTube and other video content sharing sites are rife with examples of recorded videos of interactions between police and arrestee/detainees. Moreover, the “right” to record or film police officers has received much attention in the news media and the blogosphere.

The First Amendment plainly states, “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” Of course, First Amendment freedoms have never been construed by a majority of the U.S. Supreme Court as “absolute.” So, does the First Amendment provide a right to record the activities of the police in the course of performing their official duties?

The answer is familiar: Sometimes.

We will explore cases involving the right to record the police in a series of blog posts. This post focuses on whether citizens (including journalists) may, in some states, run afoul of state wiretapping statutes when they record police activities.

Maryland

When citizens or journalists wish to videotape or otherwise record the activities of the police, one possible obstacle is state wiretapping or surveillance statutes. For example, the Baltimore Sun reported that a Harford County, Maryland, man was indicted for various acts in connection with a police traffic stop, including violation of the state wiretapping statute for taping his own traffic stop and later posting it on YouTube.

A Maryland circuit court judge dismissed the videotaping and Internet posting charges. Even though Maryland’s wiretapping statute, Md. Cts. & Jud. Proc. Code Ann. §§ 10-401, 10-402, requires all parties to a conversation to consent to being recorded, the law also requires the taped material to be a “private conversation” for a violation of the statute to occur. The Harford County judge found no violation of the wiretapping statute because the officer had no reasonable expectation of privacy in the conversation. According to the Sun, the judge wrote that the defendant’s encounter “‘took place on a public highway in full view of the public. Under such circumstances, I cannot, by any stretch conclude that the troopers had any reasonable expectation of privacy in their conversation with the defendant which society would be prepared to recognize as reasonable.’” So, in this case, the citizen was entitled to record his interaction with the police, even without the consent of the police officers involved.

Illinois

In Illinois, however, the law is different. In an order issued in January 2011, the U.S. District Court for the Northern District of Illinois rejected a request for a declaratory judgment and injunctive relief filed by the ACLU of Illinois (ACLU) related to the ACLU’s proposed plan to audio record the police, without consent of the recorded officers, when the officers are performing their public duties in public places. In American Civil Liberties Union of Illinois v. Alvarez, the ACLU sought a declaration that the Illinois Eavesdropping Act, 720 ILCS 5/14, which requires consent of all parties to the recorded conversation, did not apply to the ACLU’s recording program. Members of the ACLU had been prepared to audio record the police while monitoring a Chicago Police Department program of suspicion-less container searches on Chicago’s lakefront and during a protest, but they did not do so for fear of prosecution under the eavesdropping statute. Presumably, the ACLU’s intent was to monitor the police for possible violations of law.

The case had earlier been dismissed for lack of standing, but the plaintiffs moved, in part, to alter the judgment and file an amended complaint to cure any defects in standing. Finding some standing issues to have been remedied, the Northern District of Illinois held that the ACLU had not alleged a “cognizable First Amendment injury.” The court wrote, “[t]he ACLU cites neither Supreme Court nor Seventh Circuit authority that the First Amendment includes a right to audio record.” The court, therefore, found that amending the complaint would be “futile” and denied the motion to alter the judgment and amend the complaint.

In reaching its decision, the district court rejected the ACLU’s argument based on Federal Election Commission v. Akins that a “failure to receive information may constitute a constitutional injury.” The court reasoned that Akins was inapposite as it dealt with a statute requiring the disclosure of information—according to the court, “[d]enial of access to statutorily required disclosures is not analogous to a purported First Amendment right to non-consensual audio recording of police activities.” Moreover, the court agreed with the government that a “willing speaker” must exist to implicate the First Amendment right to free speech. According to the court, “[p]olice officers and civilians may be willing speakers with one another, but the ACLU does not allege this willingness of the speakers extends to the ACLU, an independent third party audio recording conversations without the consent of the participants.” Therefore, the court found the ACLU had no standing to assert a First Amendment injury.

According to the ACLU's website, the district court's opinion has been appealed to the Seventh Circuit.

The ACLU case illustrates an important point about states that have all-party consent wiretapping statutes—i.e., statues that require the consent of all parties to the conversation prior to recording. Arguably, the case would have turned out differently (and would likely never have been brought) if Illinois had a one-party consent statute. The case also illustrates a distinction between audio recording and video recording. Had the ACLU proposed to purely video record instead of audio record the police, perhaps the case would have turned out differently. The Illinois statute, 720 ILCS 5/14-2(a)(1)(A), at issue apparently prohibits the recording of conversations, not images. (Of course, the material may have been less useful without the audio portion as well as the video.)

North Carolina

In North Carolina, although there are no reported cases on the issue, it appears that it would be difficult under the state wiretapping law to prosecute a citizen who videotapes or records the police in the course of carrying out their duties. N.C. Gen. Stat. § 15A-287 provides, in part, “[e]xcept as otherwise specifically provided in this Article, a person is guilty of a Class H felony if, without the consent of at least one party to the communication, the person: (1) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” Section 15A-287, and its definitions (as discussed below), have been interpreted to apply to audio recordings but not video recordings. See Kroh v. Kroh, 152 N.C. App. 347, 351-52, 567 S.E.2d 760, 763 (2002). Thus, the act may prohibit audio recordings where at least one party to the communication does not consent. However, even assuming that the citizen records audio in the videotape recording, it seems likely that the citizen would have (or could obtain) the consent of at least one party to the recording—either herself, if the altercation involves her, or the consent of the suspect who is in the altercation with the police.

Moreover, the definition of “oral communication” is such that it limits the application of the wiretapping statute to communications subject to an expectation of privacy. N.C. Gen. Stat. § 15A-286(17) defines “oral communication” as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation . . . .” Arguably, a police officer and arrestee/detainee would have little or no expectation of privacy during a confrontation in a public place during the course of the officer’s public duties and the arrestee/detainee’s alleged violation of law.

For all these reasons, it seems unlikely that the North Carolina wiretapping statute could be successfully used as a basis to convict a citizen or journalist for videotaping or recording the police in the course of carrying out their duties. However, as the Illinois case demonstrates, the outcome may vary from state to state.

* * *

In a post to follow, we will review a First Circuit opinion, Jean v. Massachusetts State Police, which represents a slightly different twist on the use of wiretapping statutes to prosecute citizens for recording police activities. Later posts will address Section 1983 claims made by those arrested for wiretapping statute violations when they recorded police activity and potential violations of state obstruction statutes when citizens record the police.

N.C. Federal Court Dismisses Libel Claim

Eric David — Tue, 29 Mar 2011 04:12:05 -0500

North Carolina federal district court Judge Louise Flanagan offered a helpful reminder to lawyers last week that the first month of Civil Procedure class really does matter. The result of her Order in Dutcher v. Eastburn, Da Capo Press, LLC, and Perseus Books, Inc. was that a libel claim brought in North Carolina against two out-of-state publishers and an author from Colorado was dismissed, relieving the defendants from the substantial cost of taking depositions and attempting to get the case dismissed on summary judgment.

The case arose from the publication in late 2007 of a book titled Simon Says: A True Story of Boys, Guns, and Murder, which focused on the grisly murder in rural Colorado of a high school student and his grandparents on New Year's Eve 2000. Three high school classmates were eventually sentenced for the deaths.

The plaintiff in this case was one son of the murdered grandparents, who happened to be living in North Carolina at the time the book was published. He objected to a small handful of statements about him in the book and filed suit in Wake County, North Carolina in November of 2008. In September of 2009, however, the plaintiff voluntarily dismissed that claim.

Then, in April of 2010, the plaintiff re-filed the lawsuit, again in Wake County. This time the defendants chose to remove the case to federal court and to file a motion to dismiss on the ground that the North Carolina court could not exercise personal jurisdiction over the defendants.

Personal jurisdiction is one of those law school topics that causes most students' eyes to glaze over, but every once in a while it pays to remember those lectures. The basic idea is that the Constitution requires that a defendant have a certain level of "contacts" with the state in which he or she is being asked to defend a lawsuit. Those "contacts" might arise from the incident leading to the lawsuit (i.e., a Virginia resident was driving through North Carolina and ran into another car), or they might arise from the general operations of a company (i.e., a Delaware company that has a number of stores and employees in North Carolina).

The question at issue in this case is one that has challenged courts across the country for years -- what are the limits on personal jurisdiction when dealing with the publication of a book, magazine, or newspaper by out-of-state defendants? The Supreme Court in 1984 handed down a pair of cases -- Calder v. Jones and Keeton v. Hustler Magazine -- that shed considerable light on this thorny issue.

In Calder, the Court held that an out-of-state publisher and author can only be haled into a California court to defend a defamation claim if they "expressly aimed" their activity at California. The Court held that they had done so in Calder because the entire article focused on actress Shirley Jones, a resident of California, and her career in Hollywood. The authors had placed several calls to California in reporting the story, and, in short, the story centered around California. Under those circumstances, the Court held, there were sufficient contacts to support the exercise of personal jurisdiction.

The Court also found sufficient contacts in Keeton based on on the fact that Hustler sold as many as 15,000 copies in New Hampshire every month. In Keeton, the plaintiff did not even live in New Hampshire, but had chosen that forum because it had a friendly statute of limitations.

In Dutcher, Judge Flanagan rejected the plaintiff's argument that personal jurisdiction in North Carolina was appropriate because the defendants knew the plaintiff lived in North Carolina at the time the book was published and therefore knew he might be "injured" there by allegedly defamatory statements. Judge Flanagan distinguished this case with Calder, pointing out that Simon Says had nothing to do with North Carolina and was plainly not "expressly aimed" at North Carolina.

She also rejected plaintiff's "stream of commerce" argument -- i.e., that a handful of copies of the book available for sale in North Carolina created the required "minimum contacts." Quoting Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939, 945 (4th Cir. 1994), Judge Flanagan held that:

"[t]o permit a state to assert jurisdiction over any person in the country whose product is sold in the state simply because a person must expect that to happen destroys the notion of individual sovereignties inherent in our system of federalism."

Because (1) only 14 copies of the book were sold in North Carolina; (2) no marketing activities for Simon Says were aimed at the state; and (3) the defendant publishers had published only a handful of books over the years that were "aimed" at a North Carolina audience, Judge Flanagan ruled that exercising personal jurisdiction over the defendants in this case would not comport with due process.

Combined with the plaintiff's earlier voluntary dismissal of his first lawsuit, the Court's Order means that the plaintiff's claim is now dismissed with prejudice. Dutcher has 30 days to decide whether to appeal Judge Flanagan's Order to the Fourth Circuit.

Internet Company Enjoined from Streaming Broadcast Programming over the Internet

Charles Coble — Tue, 22 Feb 2011 14:30:40 -0500

Earlier today, the federal district court in the Southern District of New York issued a preliminary injunction prohibiting ivi.tv from streaming the programming of the plaintiffs' television stations over the Internet or to mobile phones. The plaintiffs include television stations in New York and Seattle, the major television networks, major television studios, and Major League Baseball.

ivi.tv began live Internet streaming of the programming of television stations located in New York and Seattle on September 13, 2010, to subscribers located anywhere in the United States for a fee of $4.99/month. ivi claimed that it could do so because it was a "cable system" under the Copyright Act. ivi, however, claimed that it was not a "cable system" for purposes of the Communications Act and, therefore, did not need to obtain the retransmission consent of the affected stations.

The court concluded that it is "extraordinarily unlikely that ivi will ultimately be deemed a cable system" under the Copyright Act since ivi neither fit the traditional type of localized delivery systems that are entitled to rely on the statutory license nor agreed to be abide by the FCC's governing rules.

The court entered the following preliminary injunction:

Thus, plaintiffs’ motion for a preliminary injunction is granted and it is hereby ORDERED that defendants . . . and all other persons who are in active concert or participation with any of them who receive actual notice of this injunction by personal service or otherwise, are hereby ENJOINED from infringing by any means, directly or indirectly, any of plaintiffs’ exclusive rights under Section 106 (1) - (5) of the Copyright Act, including but not limited to through the streaming over mobile telephone systems and/or the Internet of any of the broadcast television programming in which any plaintiff owns a copyright.

The court's ruling remains operative during the pendency of the lawsuit.

Charlotte Observer Draws Fire for Records Request

Charles Coble — Sun, 13 Feb 2011 20:28:48 -0500

The Charlotte Observer was recently on the receiving end of a wave of criticism in response to public records requests it made to local government bodies in the Charlotte area. The criticism did not stem from what it asked for per se, but rather who did the asking and why.

As reported by Julie Rose of WFAE in Charlotte, the newspaper compiled tens of thousands of private email addresses by making public record requests of the City of Charlotte, Mecklenburg County, and other localities, seeking the addresses of those who had signed up for local government email updates. Such email updates could, for example, include notifications from cities as to when official meetings had been scheduled. An example of one of the newspaper's requests (to the Town of Davidson, North Carolina) is linked here.

As you can see from the link, the person who made the request on behalf of the Charlotte Observer was not a reporter but rather its "Director of Strategic Products and Audience Development." This led the City of Charlotte to notify its employees of the request, which then prompted much hue and cry, with many leveling the accusation that the newspaper was using the Public Records Act to obtain information for marketing and commercial purposes.

However, according to the newspaper's editor, the purpose of the request was not commercial in nature. He indicated the newspaper intended to use the information to ask persons via email "if they would like to occasionally advise us on how we're reporting and what they would like to know more from their government and more about their community." The newspaper subsequently backed away from that statement and pledged not to use the email addresses, based in part on the outcry voiced on its website and other blogs. Other negative commentary can be found here and here.

Of course, who was doing the asking and why have no legal consequence whatever under North Carolina's Public Records Act. The Act specifically provides that the requester cannot be required to disclose the purpose of a request. And if a list of email addresses is a public record -- and it is if the public body made or received the list in the course of conducting public business -- then it does not matter whether the Charlotte Observer, Duke Energy, or Jane Q. Public asks to inspect a copy of the list.

These legal conclusions, however, are entirely distinct from the reality that what is a public record today may not be tomorrow -- the General Assembly can both giveth and taketh away, and it has created new exceptions to the Act in the past when some particular circumstance or court decision motivated it to do so. So while the Charlotte Observer was no doubt within its rights to make the requests it made, that does not mean it was a good idea to do so, especially when you take into account the axiom that every action in the public records world can lead to an equal and opposite reaction from the legislative pen.

Despite the Charlotte Observer's pledge, the N.C. League of Municipalities still lists the following as one of its legislative goals for this term:

Seek legislation to protect the privacy of municipal residents by limiting public access to lists of email addresses submitted by citizens to municipalities.

We'll keep you posted on this and other legislative battles over the Public Records Act in North Carolina this year.

"Sunshine Amendment" Introduced in North Carolina

Charles Coble — Fri, 11 Feb 2011 21:27:35 -0500

A bill introduced this week in the North Carolina General Assembly would enshrine the value of government transparency into North Carolina's Constitution. North Carolina, like many states, provides citizens with a statutory basis for inspecting government records through its Public Records Act, N.C. Gen. Stat. 132-1 and for attending official meetings of public bodies through its Open Meetings Law, N.C. Gen. Stat. 143-318.9. However, the commitment to public access embodied in these laws is undermined by their numerous exceptions, such as exceptions in the Public Records Act for public employee records that are expansive by national standards.

House Bill 87, sponsored by Representatives Tim Moore and Stephen LaRoque, would set an important marker on this issue and help to stem the tide of efforts to chip away at access to government records and meetings by layering exceptions upon exceptions. The amendment would offer a broad statement of the importance of openness in government:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the State, or persons acting on their behalf, except with respect to records exempted pursuant to this Section. This Section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, governmental subdivisions, units of local government, and special districts; and every office, board, commission, or entity created pursuant to law or this Constitution.

The bill contains an analogous statement with respect to government meetings.

The amendment would fortify these statements of principle by requiring supermajority votes in both chambers of the North Carolina General Assembly -- 2/3 majorities -- to enact new restrictions on access to public records and official meetings.

Passage of this bill should be a priority for all legislators who earnestly believe Justice Louis Brandeis's famous observation that "sunshine is said to be the best of disinfectants." As co-sponsor Rep. Moore observed, “Open access to information is critical to any democracy. People have a right to know, and this protects that right.”

If the amendment passes the North Carolina House and Senate, it would be placed on the ballot in 2012.

Fourth Circuit Upholds Right to Publish Government Documents Containing SSNs

Charles Coble — Sun, 06 Feb 2011 21:49:25 -0500

I’m going to devote a few posts over the next several weeks to some intriguing cases from 2010 that you might have missed.

One such case is a fascinating decision from the Fourth Circuit, Ostergren v. Cuccinelli, 615 F.3d 263 (2010), in which the Court found a Virginia statute making it unlawful to intentionally publish a person’s social security number over the Internet violated the First Amendment. Judge Duncan’s thoughtful and thorough analysis offers insight into how the Supreme Court’s holdings in Cox Broadcasting v. Cohn, Smith v. Daily Mail Publishing, and The Florida Star v. B.J.F., all hallowed First Amendment decisions affirming the right to publish freely available public information, ought to be applied in a digital age fraught with the risk of identity theft and intrusions upon personal privacy.

The plaintiff in Ostergren is a privacy advocate. One way in which she has chosen to spread her message is by publishing on her web site public land records that reveal the social security numbers of various public officials. Virginia began placing its land records online in the 1990s. Initially, clerks of court did nothing to redact social security numbers from these records. Subsequently, the Virginia legislature required attorneys who filed instruments for recordation to ensure that social security numbers were removed before filing.

In 2007, the legislature addressed the redaction of records already available online (original land records maintained in hard copy form are not redacted). However, the record in the case demonstrated that there is an approximately 3% error rate in the redaction process, which means that even after the process is complete, over a million online records can be expected to contain unredacted social security numbers. By 2008, 105 of Virginia’s 120 counties had completed the redaction process; those that had not finished continued to make all records available online.

Ostergren began advocating for reform in 2003 when she created her web site, and two years later she began her practice of publishing unredacted documents on that site. The controversy sparked by her web site led to the amendment of Section 59.1-443.2, which prohibited the intentional communication of a person’s social security number, to remove the exception for “records required by law to be open to the public.” After the Virginia Attorney General announced his intention to prosecute Ostergren under the amended statute, Ostergren brought suit under Section 1983, seeking to have the law declared unconstitutional under the First Amendment as applied to her publication of copies of public records lawfully obtained from the government.

The district court ruled in Ostergren’s favor and entered an injunction. On appeal, the Fourth Circuit affirmed the district court’s core holding under the First Amendment, while modifying the scope of its injunction.

The Fourth Circuit began by rejecting the categorical approach advanced by Virginia that social security numbers are unprotected speech that may be prohibited entirely. The Court held that “[g]iven her criticism about how public records are managed, we cannot see how drawing attention to the problem by displaying those very documents could be considered unprotected speech. Indeed, the Supreme Court has deemed such speech particularly valuable within our society.”

The Fourth Circuit then considered what level of scrutiny to apply to the Virginia statute’s regulation of protected speech. After a lengthy discussion of Cox Broadcasting, Daily Mail Publishing, and The Florida Star, the Court concluded that those decisions

make clear that Ostergren’s constitutional challenge must be evaluated using the Daily Mail standard. Accordingly, Virginia may enforce section 59.1-443.2 against Ostergren for publishing lawfully obtained, truthful information about a matter of public significance ‘only when narrowly tailored to a state interest of the highest order.’

Thus, strict scrutiny applied.

The Court then discussed the state’s interest protecting the disclosure of social security numbers. After providing an extensive history of the development of social security numbers and the risk of their misuse, the Court concluded that “Virginia’s asserted interest in protecting individual privacy by limiting SSNs’ public disclosure may certainly constitute ‘a state interest of the highest order.’” However, the Court went on to hold that it need not decide the question because it concluded, in any event, that Virginia’s restriction at issue was not narrowly tailored to the asserted interest.

In examining the question of narrow tailoring, the Court noted that the case involved a different conception of privacy than that present in Cox Broadcasting and The Florida Star. Those cases proceeded from a notion of privacy premised on secrecy, namely shielding from public view the fact that one had been the victim of rape. In Ostergren, on the other hand, secrecy was not at issue in the sense that a person is not embarrassed or humiliated, nor is their reputation harmed, by the revelation of his social security number. Instead, the privacy concern rests on ensuring proper use of and control over sensitive information, that if one’s social security number is revealed, unscrupulous persons may use the number for identity theft, bank fraud, and so on.

The Court noted another difference from the Cox Broadcasting and The Florida Star cases in that in those cases the disclosure was unintentional and could easily have been prevented. In Ostergren, the Fourth Circuit noted that it is much more difficult to ensure that not one of the millions of land records placed online contain an unredacted social security number.

Based on this analysis, the Court concluded that Virginia’s prohibition was not narrowly tailored to its asserted interest. In particular, the Court found that while the First Amendment does not necessarily require that each and every original land record be redacted before Ostergren may be prohibited from publishing them online in unredacted form,

the First Amendment does not allow Virginia to punish Ostergren for posting its land records online without redacting SSNs when numerous clerks are doing precisely that. . . . Virginia could curtail SSNs’ public disclosure much more narrowly by directing clerks not to make land records available through secure remote access until after SSNs have been redacted.

The court noted further that when documents with social security numbers slipped through the redaction process unaltered, “we leave open whether under such circumstances the Due Process Clause would not preclude Virginia from enforcing section 59.1-443.2 without first giving Ostergren adequate notice that the error had been corrected.”

On the strength of this sound analysis, the Fourth Circuit affirmed the district court’s holding that enforcement of Section 59.1-443.2 against Ostergren for posting the Virginia land records on her website would violate the First Amendment.

However, the Court went on to vacate the injunction entered by the district court on the grounds that its scope was both too narrow and too broad in certain respects. First, the Court rejected Ostergren’s argument that the injunction should protect her publication of non-Virginia public records that she had posted on her web site. Second, the Court found the injunction was too narrow in that it applied only to Virginia land records of public officials and did not include those of private individuals. Third, the injunction failed to cover Virginia land records posted by Ostergren concerning non-Virginia public officials.

To my knowledge, this is the first case to examine this issue. Look for more disputes to arise under the Cox Broadcasting/Daily Mail Publishing/The Florida Star line of cases as concern over privacy continue to clash with the public interest, embodied in the First Amendment, to permit the publication of publicly available government records.

Criminal Defendant Denied Access to Reality Show Footage

Charles Coble — Sat, 05 Feb 2011 01:13:14 -0500

A trial court judge in Charlotte ruled Thursday that a defendant in a murder case is not entitled to unaired footage from the A&E series The First 48. The case presented an interesting twist on shield law issues.

Jonathan Fitzgerald has been charged with the murder of Oscar Alvarado Chavez, who was stabbed to death in his car in August 2010 in Charlotte. The Charlotte-Mecklenburg Police Department has entered into a contract with the producers of The First 48 to give the show access to officers investigating homicides. The premise of the show is that if a suspect is not identified within the first 48 hours after a crime is committed, the likelihood of solving the crime drops precipitously.

The First 48 devoted one of its episodes to the CMPD's investigation of Chavez's murder, including the ultimate arrest of Fitzgerald. In the course of the criminal case against Fitzgerald, which is still pending, Fitzgerald requested that the district attorney produce all unaired video footage captured in connection with the production of the episode. His attorney argued that because the CMPD had the right under its contract with the producers to review a rough cut of the episode before it aired, the producers were operating essentially as an agent or investigator of the police department. This, the attorney argued, meant the footage constituted part of the file that the defendant was entitled to review under the open file discovery rules in criminal cases.

This approach, of course, allowed the attorney to sidestep North Carolina's shield law, which requires parties who subpoena journalists to pass a rigorous three-part test before they can obtain material. We've previously written about shield laws here. Thus, the case presented two interesting issues. First, whether the unaired material was in the possession of the district attorney's office for purposes of the criminal discovery statute. If not, the next question was whether the show's producers constituted journalists for purposes of the shield statute and, if so, whether Fitzgerald could overcome the qualified privilege against production.

I discussed this issue with WFAE reporter Julie Rose before the court issued its ruling. As her report indicates, my own view was that because the contact made clear that the footage was the property of the producers of the show, Fitzgerald should not be able to obtain the material from the district attorney. As to the application of the shield statute, my view was that the producers of a television show of this nature -- which focused on the activities of local law enforcement in investigating an actual high-profile crime -- fit within the broad definition of a "journalist" under North Carolina's shield statute.

It appears that the judge who heard the issue was likewise skeptical of Fitzgerald's attempt to tie the television show producers to the district attorney's office. According to the report of his ruling in the News & Observer, Judge Eric Levinson ruled that the shield statute applied and that Fitzgerald was not entitled to the footage because he could not demonstrate that it was essential to his defense of the case.

Blue Language Given Thumbs Up in North Carolina

Charles Coble — Fri, 04 Feb 2011 18:24:57 -0500

Sorry, this blog post is not about the Duke-UNC rivalry. Instead, it is about a First Amendment decision handed down by a trial judge last month that qualifies as being on the lighter, if not cleaner, side. The case involved North Carolina's antiquated -- and quirky -- anti-profanity statute. The 98-year old statute made it a crime to utter profanity on a public highway, but with two of North Carolina's 100 counties exempted -- Pitt County in the east and Swain County in the west.

Judge Allen Baddour ruled in January that Samantha Elabanjo could not be prosecuted for a misdemeanor under the statute for using the word "damn" during a run-in with police officers (apparently as part of her assessment of the cleanliness of the officers' police cruiser). N.C. Gen. Stat. 14-197 reads in its entirety:

If any person shall, on any public road or highway and in the hearing of two or more persons, in a loud and boisterous manner, use indecent or profane language, he shall be guilty of a Class 3 misdemeanor. The following counties shall be exempt from the provisions of this section: Pitt and Swain.

The trial court reached the sensible and straightforward conclusion that the law is unconstitutionally vague under the First Amendment because of the lack of clarity as to what currently constitutes "indecent or profane language."

The more interesting question, one that vexed the Associated Press reporter who penned the article linked above, is why Pitt and Swain Counties were exempted. Apparently when the law was adopted, the legislators in their wisdom concluded that there needed to be places of refuge in which highwaygoers could let their tongues fly and the expletives rip. This approach later sparked one of the more memorable speeches on the floor of the North Carolina legislature, Representative Herbert Hyde's "cursing" speech.

In his impassioned defense of retaining two cursing sanctuaries in the state, Rep. Hyde stated the following, apparently after first acknowledging that the law was likely unconstitutional:

But the folks in Swain wouldn't want me to stand on that kind of technicality and I'm not going to do that.

. . .

But there ought to be a refuge somewhere a man could go and when he really is provoked that he can say something with impunity. There's only two places left Pitt and Swain. One in the East and one in the West. I think it's most appropriate.

The link above contains the entire speech.