Newsroom Law Blog

Florida Bill Limiting Access to 911 Calls Moves Forward

Charles Coble — Sat, 13 Mar 2010 20:42:02 -0500

A committee of the Florida legislature this week approved on a party-line vote a bill that would require a court order to access 911 call recordings. This development follows on the heels of efforts in several other states to curtail access to 911 calls under state sunshine laws, a trend on which we previously reported.

On Wednesday, the Government Affairs Policy Committee of the Florida House of Representatives approved by an 8-5 vote proposed committee bill 10-03a, with all Republicans on the committee voting for it and all Democrats voting against. The bill would exempt "Any recording of a request for emergency services or report of an emergency using an emergency communications E911 system" from the public disclosure requirements of Florida's public records laws, including Section 119.07(1) and Section 24(a) of Article I of the Florida State Constitution. A 911 recording could be released pursuant to a court order finding good cause for disclosure. Upon request, a person could obtain a transcript of a 911 call, after 60 days and with all personal identifying information redacted.

The Miami Herald has reported that the 911 bill is a top priority of the Speaker of the Florida House, Larry Cretul, who took the unusual step of stacking the Government Affairs Policy Committee meeting Wednesday with an extra Republican to ensure passage. A powerful ally of Speaker Cretul has urged Cretul to secure passage of such a law after he lost his son and subsequently heard a recording of the 911 call on a news broadcast.

The Florida bill therefore follows a pattern we noted in other states where similar bills are under consideration -- anecdotal evidence of the broadcast of wrenching 911 calls is cited in support of sweeping measures that would eliminate access to 911 recordings in most cases. These bills appear driven more by a misguided desire to exercise editorial control over the use of 911 recordings by news organizations than by any genuine problem associated with access itself. In fact, the Florida bill recites as a policy basis the notion that "there are those persons, who, for personal, private gain or for business purposes, would seek to capitalize on individuals in their time of need."

This bill and others like it underscore a prominent person upset with the use of a public record in a particular circumstance can succeed in having legislative bodies consider wholesale changes to everyone's access to public records. This is a troubling trend.

The Florida bill faces an uncertain fate, as it is opposed by Florida Democrats and Governor Crist, and it must pass by a supermajority vote. We will continue to follow the progress of this bill.

Newsroom Legal Fights Go On, Even in Bad Economy

Eric David — Sat, 27 Feb 2010 15:48:43 -0500

The New York Times ran an interesting report on how the bad economy has impacted newspapers' decisions on whether to litigate public record and access issues. The bottom line, according to the Times -- while smaller, regional news organizations are scaling back their legal efforts, large national outlets "have been quietly ramping up."

The Times cited in particular Hearst and the Associated Press as two organizations that have been as aggressive as ever in pushing state and federal officials on public record and access issues. According to the story, both are dealing with tighter budgets by bringing more of their legal work in-house, rather than using outside counsel.

Eve Burton, vice president and general counsel at Hearst, told the Times that Hearst was at an all-time high in the number of access cases it was pursuing. Hearst's most high-profile fight is in Texas, where it has sued the governor's office for records relating to the 2004 execution of Cameron Todd Willingham, a man many death penalty opponents believe may have been innocent.

The A.P. and Bloomberg News have also been in high-profile legal fights with Treasury Department officials over Freedom of Information Act requests they have filed, the Times reported.

Unfortunately, the Times found, smaller news organizations are choosing to forgo possibly expensive legal fights because their budgets simply will not allow them.

This reluctance only highlights the importance of attorneys' fees provisions in public records statutes, as they are often the only way to truly hold government officials accountable when they improperly withhold public records.

States Move to Curtail Access to 911 Calls

Charles Coble — Thu, 25 Feb 2010 20:15:14 -0500

The Associated Press reported this week of efforts underway in several states to limit access to 911 calls under state sunshine laws. According to the report, legislatures in Alabama, Ohio, and Wisconsin are considering bills that would pull back from the traditional availability of 911 recordings. Missouri, Pennsylvania, Rhode Island, and Wyoming currently exempt 911 calls from the operation of public records statutes.

In Alabama, HB 159 passed the Alabama House earlier this month. The bill, if enacted, would prevent the disclosure of 911 calls to the public without a prior order from a judge, who would consider "whether right of the public to the release of the recording outweighs the privacy interests of the individual who made the 911 call or any persons involved in the facts or circumstances relating to the 911 call."

Under SB 105, a bill introduced this session in the Ohio General Assembly, 911 calls would remain public records but members of the broadcast media would be barred from "play[ing] a recording of a 9-1-1 call that has been made available as a public record over a broadcast medium such as radio, television, or the internet." Transcripts of 911 calls could be read over the air. Violation of the provision would subject the broadcaster to a $10,000 fine.

In Wisconsin, AB 612 as originally introduced would prevent disclosure of 911 audio recordings, with transcripts remaining available for copying. The bill was subsequently amended in committee to permit inspection but not copying of 911 recordings.

These bills appear to be driven by the reaction of some to isolated editorial choices made by television stations. As the AP article recounts, the sponsors of these bills cite anecdotal accounts of a person who suffered a traumatic loss later hearing a 911 recording made in connection with the loss. The problem with these moves to curtail access to 911 calls is that they allow the tail of a few questionable decisions by news editors to wag the dog of access to government records generally. Police incident reports, arrest reports, and 911 recordings provide important sources of information for reporters to cover local law enforcement agencies, and 911 recordings in particular provide a way of monitoring the responsiveness of 911 call centers.

The principle that government records should be freely available, no less so than the First Amendment's protections to free speech, comes with consequences. Sometimes people say things that hurt; sometimes reporters broadcast stories their viewers don't like. However, these consequences should not cause legislatures to lose sight of the greater societal value of government transparency.

N.C. Court of Appeals Holds Libel Complaint Sanctionable

Charles Coble — Tue, 23 Feb 2010 20:42:54 -0500

Earlier this month, the North Carolina Court of Appeals affirmed the Rule 12(b)(6) dismissal of a defamation action, holding that the filing of the complaint was sanctionable under Rule 11. In Ward v. Jett Properties, LLC, the plaintiff filed an action pro se, contending that his landlord defamed him in a letter sent to a representative of the homeowners association of the development where the plaintiff lived.

The matter started with a letter the plaintiff sent to the defendant, complaining about various actions by neighboring tenants. In response, the defendant wrote back, threatening to evict the plaintiff, to direct the homeowners association to take over his parking spot, and to report him to local law enforcement for failing to obtain North Carolina tags on his vehicle. The plaintiff contended that the letter was delivered to the homeowners association as well.

The plaintiff filed a lawsuit, alleging that the letter was libelous per se and per quod, in that it accused the plaintiff of, among other things, engaging in "continued harassment" and "pestering behavior," "stalking" others in the neighborhood, being a "nuisance," lodging "irritating and unwarranted complaints," and causing "trouble" and "problems."

In considering whether these allegations stated a claim for libel per se, the Court of Appeals first set out the four categories of libel per se:

a publication which, when considered alone without explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person's trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace.

The plaintiff contended that the letter at issue satisfied the fourth category.

The Court of Appeals disagreed, holding that the statements in the letter, understood "as ordinary people would understand them," were not libelous per se because they amounted to rhetorical hyperbole. In particular, the court held that accusations of dishonesty, harassing behavior, and unfavorable or disreputable personal habits cannot support a per se claim for defamation. The court concluded that the trial court therefore properly dismissed the plaintiff's claim at the Rule 12(b)(6) stage:

In this case, defendant's letter was sent in response to a demand letter by plaintiff, accusing defendant of misconduct. In this context and after reading the entire document, defendant's characterization of plaintiff's conduct as harassment, pestering, threatening, irritating, and nonsense amounts to statements of opinion or rhetorical hyperbole that are not actionable as libel per se.

The plaintiff's per quod claim likewise failed to state a claim because the plaintiff failed to allege any pecuniary loss from the letter at issue.

The Court of Appeals also affirmed the trial court's finding that the filing of the complaint was sanctionable under Rule 11. The trial court rested its sanction on a finding that the plaintiff had filed at least four previous complaints against the defendant, all of which had been dismissed, and had filed a number of other actions against others. The Court of Appeals held that these findings were sufficient to satisfy the standard under Rule 11 for imposing a sanction. However, the court remanded the matter for further findings of fact with respect to the $2,000 sanction imposed.

New York Court Rejects Effort to Identify Anonymous Internet Speaker

Charles Coble — Sat, 13 Feb 2010 20:01:32 -0500

In yet another data point on the status of anonymous Internet speech, a New York judge this week quashed a subpoena seeking the identity of a person who had posted comments on a newspaper website.

We have covered this topic in a number of prior posts, for example here, here, and here, as courts have grappled in the past year with the question of when to enforce subpoenas to media organizations that would compel the identification of an anonymous Internet speaker. Such subpoenas have been examined both from a First Amendment perspective, in terms of the constitutional right to speak anonymously, and from a shield law perspective, as many of these subpoenas are problematic under state laws giving media organizations a qualified right to resist subpoenas. Surveying these cases reveal that context matters -- is the party seeking disclosure a would-be defamation plaintiff seeking the identity of a defamer or a routine civil litigant; is the party a law enforcement agency or grand jury seeking information in connection with a criminal investigation.

In the recent New York case, an Orange County, New York grand jury issued a subpoena to the Chronicle, a weekly serving Chester and Goshen, New York. The grand jury was apparently investigating comments that appeared on the Chronicle's website concerning the former superintendent of the Chester school system. Because grand jury proceedings are secret, other aspects of its investigation are not publicly available.

At the hearing on whether to enforce the grand jury's subpoena, the presiding judge took the comments at issue into chambers and reviewed them with the district attorney. According to local reports, after reviewing the comments, the judge indicated he did not believe they were criminal in nature. Accordingly, he quashed the subpoena, concluding that the identity of the person or persons who posted the comments at issue was not critical to the matter being investigated by the grand jury. Although the case was apparently argued from a First Amendment anonymous speech perspective, the court's approach is also consistent with the standard found in many shield statutes, which often require the party serving the subpoena upon a reporter to establish that the information sought is essential to a claim or defense in the pending matter.

The court appropriately recognized that in order to overcome the First Amendment right to anonymous speech, the party serving the subpoena must articulate a compelling justification. If the party cannot establish that the sought-after information -- here the identity of the speaker -- is critical to a pending proceeding or investigation, then by definition no compelling justification exists.

We will continue to monitor court decisions in this area.

Judge Closes Hearing over John Edwards Sex Tape

Charles Coble — Sat, 06 Feb 2010 09:04:03 -0500

The presiding judge closed a hearing Friday on whether to hold Andrew Young and his wife in contempt for failing to turn over a sex tape purportedly showing Rielle Hunter and disgraced former presidential candidate John Edwards consummating their much-publicized affair. The hearing was held in Chatham County, North Carolina, and it was set in a lawsuit brought by Hunter to recover possession of the tape from Young. Young, a former aide to Edwards, was apparently part of Edwards's misbegotten scheme to cover up his fathering of a child with Hunter, as Young originally claimed the child was his. In a book he recently published, Young says he found the tape in the home where Hunter lived with Young's family for a period of time.

The tawdry story has blanketed tabloids and dailies, but on Friday it gave occasion to consider an important newsroom law issue. At the hearing on whether to hold Young in contempt for not turning over the tape in response to a prior order, the judge without prior notice announced that he would hear argument in chambers, outside the presence of reporters and members of the public. As was reported in the Raleigh News & Observer, the judge heard argument for approximately one hour before emerging and issuing his ruling that Young and his wife were in contempt and would be jailed if the tape is not turned over by 2:00 pm on Wednesday.

Although the trial court administrator contended that closing the hearing was within the judge's "discretion," summarily closing the hearing without notice, without affording the press an opportunity to object, and without entering factual findings supporting closure and reflecting the consideration of alternatives violated North Carolina law.

The North Carolina Constitution specifically provides that "all courts shall be open." This provision entitles members of the press and public to a qualified right to attend civil proceedings, such as the matter between Hunter and Young. Based on the media reports of the hearing, there is no evidence that the judge considered alternatives to conducting the hearing in private or articulated any interests in secrecy that would overcome the presumption of access.

Unfortunately, it appears that none of the phalanx of media representatives who were present invoked a special North Carolina statute that provides a mechanism for gaining access to closed proceedings and sealed documents. In particular, N.C. Gen. Stat. 1-72.1 provides:

Any person asserting a right of access to a civil judicial proceeding or to a judicial record in that proceeding may file a motion in the proceeding for the limited purpose of determining the person's right of access.

Once a motion is made under the statute, the court must convene a hearing "before conducting any further proceedings" relating to the matter in question. Following the hearing, the court must

rule on the motion after consideration of such facts, legal authority, and argument as the movant and any other party to the action desire to present. The court shall issue a written ruling on the motion that shall contain a statement of reasons for the ruling sufficiently specific to permit appellate review. The order may also specify any conditions or limitations on the movant's right of access that the court determines to be warranted under the facts and applicable law.

The ruling is subject to immediate appellate review. It is unfortunate that in this case the court's decision to close the proceeding was not put to the test under G.S. 1-72.1. Nevertheless, the episode provides an important opportunity for reporters and editors to learn of this special procedural right they enjoy in North Carolina to challenge the closing of a courtroom or the sealing of a court record.

U.S. Supreme Court to Consider Access to Identities of Ballot Initiative Supporters

Charles Coble — Fri, 29 Jan 2010 21:31:23 -0500

January has been a prolific month on the U.S. Supreme Court docket for cases raising First Amendment or other media issues. In addition to the Citizens United and Presley decisions addressing limits on corporate political speech and access to jury voir dire proceedings, the Supreme Court earlier this month agreed to hear a case out of the Ninth Circuit involving public access to the petitions that put in place a controversial Washington ballot initiative. The petitions were sought under a state sunshine law in an effort to learn the identities of those who supported placing the initiative on the ballot. The case therefore presents an interesting collision of the First Amendment rights to speak anonymously and to peaceably assemble and state sunshine laws.

We previously reported on the Doe v. Reed case, which the Supreme Court stayed while considering the petition for certiorari it ultimately granted this month. The case relates to Referendum 71, a ballot initiative that appeared on the November 2009 ballot in the State of Washington and was intended as a vehicle for overturning a law, passed earlier in 2009 by the Washington legislature, that granted legal rights to domestic partners equivalent to those enjoyed by married couples. The initiative passed with slightly above 53% of the vote, a result that upheld the law.

The dispute in Doe v. Reed involves the question of whether the signed petitions that ultimately allowed Referendum 71 to appear on the ballot constitute public records are subject to disclosure under Washington law as public records. Nearly 138,000 names appear on these petitions. The plaintiffs brought suit in federal court, contending that those who had requested the petitions had indicated they would publish the list of names on the Internet. Making the list available under public records laws, according to the plaintiffs, threatened to chill the First Amendment activity of supporters of Referendum 71. The plaintiffs assert that those who petitioned to include Referendum 71 on the November ballot would face harassment from opponents of the ballot measure if their names were made publicly available.

The district court issued a preliminary injunction barring release of the names, concluding that "supporting the referral of a referendum is protected political speech, which includes the component of the right to speak anonymously." The Ninth Circuit reversed, holding that signing one of the petitions at issue does not constitute anonymous speech because the petitions are not created in a way that is designed to protect confidentiality. It held further that the district court erred in applying strict scrutiny to Washington's sunshine law, and, when intermediate scrutiny is applied, the sunshine law passes muster because "each of the State’s asserted interests is sufficiently important to justify the PRA’s incidental limitations on referendum petition signers’ First Amendment freedoms."

The fact that the Supreme Court agreed to hear the case may signal that the Ninth Circuit ruling's days are numbered. If that occurs, a sweeping decision affirming the right to speak anonymously would appear to be an important First Amendment victory. However, the outcome here -- in which a third party has asserted a constitutional challenge to a sunshine law -- has troubling implications for those in the newsroom. Reporters face enough trouble securing materials under state public records statutes without interference from third parties. Reversal of the Ninth Circuit's decision may encourage court challenges to public records laws by third parties such as public employees or private entities contracting with or seeking money from public agencies. We will watch closely for the outcome in this case, which is set to be argued in April.

U.S. Supreme Court Strikes Down Limits on Corporate Political Speech on First Amendment Grounds

Charles Coble — Fri, 22 Jan 2010 17:26:56 -0500

Yesterday, the United States Supreme Court ruled in Citizens United v. Federal Election Commission that corporations (and labor unions) may make unlimited expenditures to directly advocate for the election or defeat of a Federal candidate at any point in the election cycle. The crux of the Court’s decision is that the First Amendment prohibits Congress from banning certain types of political speech based on the corporate identity of the speaker. The decision opens the way for greatly increased participation by corporations—large and small, for-profit and non-profit—in the election process.

Prior to yesterday’s decision, federal law, as amended by the Bipartisan Campaign Reform Act of 2002 (“BCRA,” informally referred to as the McCain-Feingold law), prohibited corporations and labor unions from purchasing ads that either expressly advocate the election or defeat of a Federal candidate or amount to an “electioneering communication”—that is, a communication that (1) “refers to a clearly identified candidate for Federal office,” (2) is made within 30 days of a primary election or within 60 days of a general election, and (3) is publicly distributed. Since BCRA, corporations and labor unions have been permitted to engage in express advocacy and electioneering communications only through their political action committees (PACs).

The Supreme Court previously upheld the ban on corporate electioneering communications in 2003 in McConnell v. Federal Election Commission, relying on its holding in an earlier case, Austin v. Michigan Chamber of Commerce, that restrictions on corporate political speech are permissible in light of the Government’s interest in preventing “the corrosive and distorting effects of immense aggregations of wealth” by corporations.

In January 2008, Citizens United, a non-profit corporation, released a documentary entitled “Hillary: The Movie” about then-Senator Hillary Clinton, a candidate in the Democratic Party’s 2008 Presidential primary. Citizens United wished to make the documentary available through video-on-demand service within 30 days of the 2008 primary elections but feared that the film (and a series of three advertisements encouraging viewers to purchase the film through the on-demand service) would trigger the BCRA ban on electioneering communications because the film and ads “referred to” a Presidential candidate. Citizens United sued in federal court seeking a declaration that the BCRA ban on electioneering communications is unconstitutional. After a three-judge panel of the federal district court denied Citizens United’s requests for relief, Citizens United sought review in the Supreme Court.

The Supreme Court, in a 5-4 decision, yesterday held that “[t]he Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.” In so holding, the Court overruled Austin (which allowed the Government to restrict corporate political speech) and invalidated BCRA’s ban on electioneering communications. Citizens United reflects the Court’s adherence to the principle that the Government cannot suppress political speech based on the speaker’s corporate identity.

Beginning with the premise that BCRA erects an outright ban on core political speech by corporations and unions, the Court applied “strict scrutiny” to the ban, requiring the Government to demonstrate that the law furthers a compelling interest. The BCRA ban did not withstand that scrutiny: the Court found “no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers,” including corporations.

The Court addressed and rejected all three “interests” proposed by the Government to support the electioneering communications ban: (1) the “anti-distortion” theory adopted by Austin, (2) an interest in preventing corruption, and (3) and an interest in protecting “dissenting shareholders.”

The Court first declared that First Amendment protections cannot turn on a speaker’s financial ability (that is, “immense aggregations” of corporate wealth) to engage in political speech. On that point, the majority was particularly troubled by the prospect that the anti-distortion rationale for the BCRA ban could be used to prohibit political speech by media corporations, which are currently exempted from the ban on electioneering communications. The Court likewise rejected the anti-corruption rationale because independent expenditures simply do not present the same risk of quid pro quo corruption (or the appearance of corruption) as do direct contributions to candidates and parties. And it rejected the shareholder protection rationale—that shareholders should not be compelled to fund corporate political speech with which they disagree—as both underinclusive (because the statute only bans some corporate speech at certain times) and overinclusive (because it applies even to single-shareholder corporations).

The Court concluded that “the First Amendment does not permit Congress to make categorical distinctions based on the corporate identity of the speaker and the content of the political speech.” With Austin thus set aside, the Court rejected the ban on corporate independent expenditures (for both electioneering communications and for express advocacy), because the law’s “purpose and effect are to silence entities whose voices the Government deems to be suspect.” Given the primacy of political speech in our representative democracy, the Court said, “political speech must prevail against laws that would suppress it.”

The Court did not go so far as to strike down the BCRA disclaimer and disclosure requirements. In the Court’s view, while more political speech enhances the political process, that speech should be transparent, so that the public can better evaluate the political message and the potential bias of the speaker.

The Citizens United decision is breathtaking in scope.

First, the content of political expenditures by corporations and unions is no longer at issue, because corporations and unions are no longer limited to engaging in so-called “issue advocacy.” Rather, they may now purchase advertising that includes a direct appeal to vote for or against a Federal candidate. The distinction between “issue” and “express” advocacy by corporations and unions—which has muddled campaign finance law for so long—is dissolved.

Second, the timing of political expenditures by corporations and unions is no longer at issue. After the Supreme Court held that corporate and union political expenditures are no longer limited to issue advocacy, it also struck down the BCRA prohibition on “electioneering communications”—and, with it, the 30- and 60-day windows that governed corporate political ads. As a result, the Supreme Court’s test for distinguishing between permissible and prohibited electioneering communications articulated in 2007 in Federal Election Commission v. Wisconsin Right to Life is already a relic of campaign finance law.

Third, the number of entities that benefit from the decision is enormous. The decision applies to all corporations and unions regardless of size or tax status. This means that both traditional for-profit corporations and tax-exempt political organizations—e.g., Section 527 organizations such as Moveon.org and Club for Growth—may make unlimited political expenditures to expressly advocate for the election or defeat of a Federal candidate.

Fourth, the Court’s reasoning calls into question similar campaign finance laws enacted by nearly half the States.

Yesterday’s ruling does not, however, alter the longstanding bar on direct corporate contributions to federal political candidates. Corporations and unions continue to be prohibited from making contributions to federal candidates from their general treasuries.

* * *

The Citizens United decision has already generated a massive volume of commentary, some positive, some negative. President Obama, for his part, has vowed to "develop a forceful response" to the decision, which he asserted gives "a green light to a new stampede of special interest money in our politics." The U.S. Chamber of Commerce hailed the ruling, stating that it "protects the First Amendment rights of organizations across the political spectrum, and is a positive for the political process and free enterprise."

As the Court itself acknowledged, the decision undoubtedly ushers in a new era of campaign finance in America, namely pairing corporate independent expenditures with disclosure requirements. It remains to be seen whether Congress will make a renewed effort to limit participation in the political process by corporations.

Supreme Court Affirms Right to Attend Jury Selection

Charles Coble — Tue, 19 Jan 2010 21:12:59 -0500

The U.S. Supreme Court today issued a 7-2 per curiam opinion summarily reversing a Georgia Supreme Court decision that had found no error in a lower court ruling that emptied a courtroom during jury selection in a criminal case. The case was notable in the short work the majority made of the notion that the Sixth Amendment right to a public trial somehow may not include the voir dire process or that applicable test is not clear. The case therefore represents an important victory for access to court proceedings.

The case, Presley v. Georgia, involved a criminal trial in which a single person was present in the courtroom during the voir dire of potential jurors. The presiding judge asked who the man was, and he answered he was the defendant's (Presley's) uncle. The judge then instructed the man to leave while the jury was being picked, over the objection of the defendant's counsel, suggesting there "just isn't space for them to sit in the audience." The judge made clear that the defendant's uncle could return "once the trial starts." After Presley was convicted, he moved for a new trial based on the exclusion of his uncle, presenting evidence that there had been adequate room for members of the public to attend voir dire. The trial court denied the motion, and, on appeal, the intermediate and highest courts of Georgia found no error.

The focus of the case was on whether the trial court was obligated to consider alternatives to closure despite the fact that Presley's counsel had not suggested any.

The Supreme Court began its discussion by reaffirming that the right to a public trial flows not just from the Sixth Amendment rights of the accused, but also from the free-speech protections of the First Amendment. The Court then explained that in the Press Enterprise I case, it had held that the First Amendment requires access to voir dire. Despite the fact that Presley was asserting a violation of his Sixth Amendment rights, the Court held "there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has."

The Court went on to acknowledge that under both the First and Sixth Amendments, there may be exceptions to the right to insist that voir dire be public; however, "such circumstances will be rare," and "the balance of interests must be struck with special care." The test sets a high bar, in that the party seeking to close the proceedings must "advance an overriding interest that is likely to be prejudiced," "closure must be no broader than necessary," and the judge "must consider reasonable alternatives to closing the proceedings" and "make findings adequate to support closure."

The Court brushed aside the suggestion from the Georgia Supreme Court that a court need not consider alternatives if the party opposing closure fails to suggest them. The Court underscored that the teaching of Press Enterprise I was clear -- "the public has a right to be present whether or not any party has asserted the right." Thus, "[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials." In Presley, the Court explained, the trial judge not only failed to make any attempt to accommodate public attendance, it also failed to articulate an overriding interest in closure through specific findings. There was no evidence in the record that the presence of the defendant's uncle in the courtroom gallery threatened the fairness of the trial or the impartiality of the potential jurors.

In dissent, Justices Thomas and Scalia complained that the majority summarily disposed of the case, without Presley even asking that they do so. Justice Thomas, who wrote the dissenting opinion, went on to argue that there was some lingering question after Press Enterprise I and its progeny as to the Sixth Amendment right to public juror selection proceedings and therefore that the majority should not have ruled summarily.

Justice Thomas, a Georgia native, appears to have been motivated to dissent in part by a desire to defend jurists from his home state. He closed his dissent by accusing the majority of "belittl[ing] the efforts of our judicial colleagues who have struggled with these issues in attempting to interpret and apply the same opinions upon which the Court so confidently relies today." However, while he and Justice Scalia may have felt that Presley presented a close constitutional question, the other seven Justices clearly did not. It is heartening to see a healthy majority of the Court act with dispatch to correct the failure of a state court to apply the clear holdings of Press Enterprise I and other courtroom access cases. The Supreme Court deserves high marks for its summary treatment of the issues in Presley.

Fourth Circuit Affirms Section 230 Immunity on Motion to Dismiss

Elizabeth Spainhour — Tue, 12 Jan 2010 10:12:59 -0500

With 2009 drawing to a close, a panel of the Fourth Circuit affirmed a decision by the Eastern District of Virginia holding that the website Consumeraffairs.com was an “interactive computer service” entitled to immunity under Section 230 of the Communications Decency Act with respect to 20 website postings concerning a class-action lawsuit against an auto dealer. The Fourth Circuit’s opinion in Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. is linked here.

The Fourth Circuit panel’s majority opinion is largely procedural, but it offers an important lesson about how the court views Section 230 immunity. A plaintiff in the Fourth Circuit seeking to avoid a website defendant’s Section 230 immunity by characterizing the defendant as an “information content provider” at the motion to dismiss stage of litigation must provide more than conclusory statements and speculation to state a claim.

Nemet did not dispute in its amended complaint that Consumeraffairs.com was an “interactive computer service” generally entitled to immunity under Section 230. Instead, Nemet alleged that the defendant was an “information content provider” subject to liability under Section 230 with respect to 20 complaints posted on the website. The Fourth Circuit panel disagreed. The nut of the majority opinion is encapsulated in this quote:

[The Federal Rules of Civil Procedure] require[] “more than conclusions” to “unlock the doors of discovery for a plaintiff.” Viewed in the correct “factual context,” Nemet’s stark allegations are nothing more than a “formulaic recitation” of one of the elements of its claims. A plaintiff must offer more than “[t]hreadbare recitals of the elements of a cause of action” and “conclusory statements,” however, to show its entitlement to relief.

Section 230 defines an “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” Based on the governing precedent, the Fourth Circuit panel reviewed the Nemet case to determine “whether the facts pled by Nemet, as to the application of CDA immunity, make its claim that Consumeraffairs.com is an information content provider [subject to liability under Section 230] merely possible or whether Nemet has nudged the claim ‘across the line from conceivable to plausible.’”

In support of its claim for defamation and tortious interference with business expectancy, Nemet argued that Consumeraffairs.com was an “information content provider,” because of (1) the structure and design of the Consumeraffairs.com website or (2) Consumeraffairs.com’s participation in preparing the 20 complained of consumer complaints. Nemet argued that the defendant’s actions to solicit the consumer complaints, steer the complaints into specific categories, contact customers to obtain more information about their complaints, help draft or revise their complaints, and promise recovery by joining a class-action lawsuit rendered Consumeraffairs.com responsible, in whole or in part, for the creation or development of the posts. In other words, these actions moved Consumeraffairs.com into the “information content provider” category.

At first blush, it would seem that Nemet had a plausible argument. But, reviewing Nemet’s amended complaint, the majority found the plaintiff did not allege sufficient facts to demonstrate the defendant’s status as an “information content provider.” The majority wrote, “[e]ven accepting as true all of the facts Nemet has pled as to Consumeraffairs.com’s liability for the structure and design of its website, the amended complaint ‘does not show, or even intimate,’ that Consumeraffairs.com contributed to the allegedly fraudulent nature of the comments at issue.”

The majority distinguished this case from the FHC v. Roommates.com case, in which the Ninth Circuit held Roommates.com liable as the developer of unlawful website content because Roommates.com required users to disclose their sex, family status, and sexual orientation, as well as those of the users’ desired roommates, using a list of pre-determined responses. According to the Fourth Circuit, “the Ninth Circuit did not hold that a website operator becomes an information content provider because the information posted on its website may be developed in a way unrelated to its initial posting, such as its potential to further a class-action lawsuit. Roommates.com merely adopted a definition of 'development,' for purposes of § 230(f)(3), that includes 'materially contributing' to a given piece of information’s alleged unlawfulness.”

The Fourth Circuit also rejected Nemet’s argument that Consumeraffairs.com became an “information content provider” by asking questions about consumer complaints against Nemet or by helping consumers draft or revise their complaints. With respect to drafting or revising complaints, the majority noted that the Fourth Circuit’s standards required Nemet to allege action “more than a website operator performs as part of its traditional editorial function” to render it an “information content provider.”

Finally, the panel majority rejected Nemet’s claim that Consumeraffairs.com fabricated eight of the 20 website posts. If the defendant made up these complaints, then, presumably, the court would have to find Consumeraffairs.com the creator of—and, therefore, “information content provider” of—the fabricated content. Nemet’s primary evidence of the fabrication was the fact that its own internal dealership records did not match the dates, car models, and first names associated with these eight complaints. The majority found this allegation to be “pure speculation and a conclusory allegation of an element of the [Section 230] immunity claim. . . .” (Chief District Judge Jones dissented from the majority on this issue, writing that the majority held Nemet to too high a pleading standard for these eight complaints.)

Thus, Nemet stands for the proposition that to make it past the initial pleadings stage, a plaintiff must allege facts and offer more than mere conclusory statements and speculative inferences about how a defendant qualifies as the developer or creator of website content.

Third Circuit Schedules Oral Argument in Janet Jackson Indecency Case

Elizabeth Spainhour — Wed, 06 Jan 2010 09:05:58 -0500

Broadcasting & Cable is reporting that the Third Circuit has scheduled oral argument in the Janet Jackson "wardrobe malfunction" case for February 23, 2010, at 1:30 p.m.

The case involves review of the FCC's determination that the Super Bowl half-time broadcast of less than one second of Janet Jackson's bare breast was actionably indecent. In July 2008, the Third Circuit vacated and remanded the FCC's decision, finding that the Commission's action was arbitrary and capricious because the material at issue was "fleeting" and, at the time of the broadcast, the FCC's policy was not to sanction the broadcast of "fleeting nudity." The FCC appealed the Third Circuit's decision to the U.S. Supreme Court.

However, the Second Circuit's "fleeting expletive" case made it to the Supreme Court before the Third Circuit's case and, as reported earlier, the Supreme Court in Fox v. FCC upheld the FCC's decision in that case on procedural grounds. But the Supreme Court remanded the Fox case to the Second Circuit to determine whether the FCC can regulate "fleeting expletives" without violating the free-speech protections of the First Amendment.

Shortly after the Supreme Court issued its Fox opinion, it vacated the Third Circuit's Janet Jackson decision and remanded the case for further consideration in light of Fox. Just as the oral argument scheduled before the Second Circuit on January 13 in Fox, the Third Circuit oral argument on February 23 is expected to explore whether the FCC's "fleeting nudity" indecency policy can survive First Amendment scrutiny.

We will keep you informed of developments in these two important cases.

Massachusetts Trial Court Dismisses Defamation Claims, Holds There Was "No Continuing Duty to Investigate" News Reports Posted on Defendants' Website

Elizabeth Spainhour — Wed, 30 Dec 2009 13:18:40 -0500

The Volokh Conspiracy recently blogged about a 2008 Massachusetts Superior Court order granting a libel defendants’ motion to dismiss defamation and business defamation claims because the defendant had “no continuing duty to investigate the accuracy” of a news article that was posted by the defendant on its website. The case, Jenzabar, Inc. v. Long Bow Group, Inc., No. 2007-2075H (Mass. Super Ct., Aug. 5, 2008) is linked from the Volokh site here.

The case is an interesting one, first, for its treatment of the fair report privilege and, second, because it is another example of an unusual and constitutionally troubling Massachusetts state statute that is apparently still on the books.

According to the Superior Court’s order, one of the plaintiffs in the Jenzabar case (Chai Ling) was a student leader during the 1989 Tiananmen Square protests in China who later moved to the United States and founded Jenzabar, a software company. The defendant, Long Bow, Inc., was a documentary production company that produced a film chronicling the Tiananmen Square protests. According to at least one news article, the film included an interview with Chai Ling.

The gist of the plaintiffs’ defamation claims was that beginning in May 2004, the defendant’s website referred to news articles that “‘reported certain concerns third parties expressed with respect to Chai Ling and Jenzabar.’” One such article was an excerpt from an August 2003 story published by the Boston Globe, which stated that “‘five former executives have sued Jenzabar, including the former CEO, who accused Chai and [a third person, apparently Chai Ling’s husband] of ‘a number of unethical, inappropriate, and/or illegal actions.’” The plaintiffs in Jenzabar alleged the Boston Globe article (as republished by Long Bow) was false because the former CEO had retracted his allegations. However, it appears that the defendant first posted the Boston Globe article before the former CEO’s lawsuit had been dismissed.

The critical question for the court with respect to the defamation claim based on the Boston Globe article was “whether [the defendant] had any kind of continuing duty to investigate the accuracy of the Boston Globe article, i.e., whether [the former CEO] was still accusing the plaintiffs of inappropriate actions.” Ultimately, the court held that “there is no such duty.” Accordingly, the court dismissed the defamation claim based on the Boston Globe article.

Interestingly, the plaintiffs apparently tried to use the fair report privilege as formulated in the Restatement (Second) of Torts, Section 611 to argue that the defendant had a duty to publish a “follow-up” to the Boston Globe story about the CEO’s lawsuit. In so arguing, Jenzabar relied on Comment f of Section 611, which states, “‘when a newspaper publishes from day to day the report of a judicial proceeding, it may not, after reporting derogatory parts, fail to publish the further proceedings that tend to vindicate the person defamed.” However, the Superior Court stated in a footnote that this example from Comment f “is intended to apply to ongoing coverage of proceedings such as trials, and does not impose a duty on Long Bow (or the Boston Globe) to publish the fact that [the former CEO] dropped the suit.” (Long Bow raised the fair report privilege in support of its motion to dismiss).

With respect to articles other than the Boston Globe story, the plaintiffs claimed the articles were defamatory because the defendant “has provided this material [on its website] in a manner that purports to be balanced and fair but, in reality, is biased and deceptive.” However, and notably for the court, the plaintiffs did not allege these other articles were false. Rather, the plaintiffs relied on Mass. Gen. Laws ch. 231, § 92, which provides, “[t]he defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libelous; and the truth shall be a justification unless actual malice is proved.” Citing the Massachusetts Supreme Judicial Court, the Superior Court stated that “application of that statute to a truthful statement concerning a matter of public concern violates the First Amendment. Allegations of improper business practices are a matter of public concern. To survive this motion to dismiss, the plaintiffs must allege falsity, which they have not.”

Earlier, we wrote about this troubling Massachusetts statute as applied in Noonan v. Staples. In that case, a panel of the First Circuit held that a defamation claim could move forward, based on Mass. Gen. Laws ch. 231, § 92, even though the allegedly defamatory statements were true or substantially true. The First Circuit found proffered evidence that the sender of the allegedly defamatory e-mail harbored ill will toward the plaintiff raised a triable issue of fact regarding whether the sender acted with common-law malice toward the plaintiff. Later, as reported here, a federal jury returned a verdict of no liability in favor of the defendant on this defamation claim.

Although the Superior Court dismissed the defamation claims in Jenzabar, it allowed other trademark and unfair business practice claims to move forward. According to Long Bow’s website, the legal dispute over those claims remains ongoing.

Second Circuit Sets Oral Argument in Fox v. FCC

Elizabeth Spainhour — Mon, 21 Dec 2009 10:19:32 -0500

The U.S. Court of Appeals for the Second Circuit has scheduled to hold oral argument in the Fox v. FCC indecency case on January 13, 2010, at 3:00 pm.

The Fox case involves review of the FCC's determination that Cher's use of the F-word during the 2002 Billboard Music Awards show and Nicole Richie's use of the F-word and S-word during the 2003 Billboard Music Awards show (both broadcast by the Fox Network and its affiliates) were actionably indecent. We previously reported about the Supreme Court's decision in the Fox case here.

Although the Second Circuit previously ruled that the FCC had not provided a "reasoned basis" for changing its prior indecency enforcement policy and imposing liability for a single, "fleeting" expletive, the Supreme Court reversed the Second Circuit and upheld the FCC's decision on procedural grounds. The Supreme Court found that the FCC had provided a "reasoned basis" for its decision. The case was then remanded to the Second Circuit with instructions to that court to determine whether the FCC can regulate “fleeting expletives” without violating the First Amendment.

On remand, the First Amendment question is now directly in front of the Second Circuit. Therefore, the oral argument scheduled for January 13 is expected to address whether the FCC's "fleeting expletive" indecency policy can survive First Amendment scrutiny.

We will continue to follow this important case and provide updates.

FCC Takes Steps to Study "State of Media"

Elizabeth Spainhour — Fri, 18 Dec 2009 09:14:05 -0500

FCC Chairman Julius Genachowski recently announced what the Commission is billing as an “agency-wide initiative to assess the state of media in these challenging economic times and make recommendations designed to ensure a vibrant media landscape.” The Chairman has appointed Steven Waldman to lead the effort. Waldman most recently served as President and Editor-in-Chief of Beliefnet.com, a faith-oriented website, and was a regular columnist for the online edition of the Wall Street Journal. According to an FCC News Release, Waldman will work with FCC bureaus to “lead an open, fact-finding process to craft recommendations to meet the traditional goals of serving the public interest and making sure that all Americans receive the information, educational content, and news they seek.”

In launching this initiative, the Commission is apparently responding to requests for FCC action by the Knight Commission on the Information Needs of Communities in a Democracy and a report on the “dire circumstances” of newspapers prepared by the Pew Project for Excellence in Journalism. Chairman Genachowski declared this a “pivotal moment in the history of media and communications” because of the development of new technologies and the financial downturn. According to the Chairman, “it is important to ensure that our [policies] promote a vibrant media landscape that furthers long-standing goals of serving the information needs of communities.” However, Genachowski acknowledged that the agency must be “scrupulous” about adhering to First Amendment principles that prohibit the government from dictating content.

At this stage, it is too soon to tell the level of resources the FCC will devote to this endeavor and whether any formal action will result. It is also unclear if this effort to assess the “state of media” has any relationship to a “state of journalism” document that Commissioner Copps was reportedly circulating in July. We reported on that document here. (According to news reports, Commissioner Copps’s item “examines the decline of broadcast journalism . . . and tries to explain why traditional forms of journalism have declined while other, newer forms have been on the rise.” No action has been taken on that item.)

We will update you as this initiative continues to develop.

Pyrrhic Victory in Convertino Case?

Eric David — Tue, 15 Dec 2009 14:27:45 -0500

We have closely followed the twists and turns in Detroit Free Press reporter David Ashenfelter's efforts to avoid being forced to reveal his sources in the civil action against the Department of Justice brought by former federal prosecutor Richard Convertino. This spring, a federal judge in Michigan allowed Ashenfelter to invoke his rights under the 5th Amendment in order to avoid testifying under oath about his sources.

Last week, the collateral damage from Convertino's legal crusade continued to spread. This time, Convertino was seeking some 736 DOJ documents that he claimed would provide him information as to the identity of the DOJ employee who presumably leaked to Ashenfelter information about the investigation into Convertino.

In a loss for Convertino that, ironically, also constitutes a loss for media interests, D.C. federal district court judge Royce Lamberth ruled last week that all 736 documents were protected from disclosure by a variety of privileges, including the deliberative process privilege. In addition, in the same opinion, Judge Lamberth held that private emails sent by federal prosecutor Jonathan Tukel from his DOJ account were covered by the attorney-client privilege and need not be produced.

As to the first part of the opinion, the deliberative process privilege is, all too often, the exception to the Freedom of Information Act that swallows the rule. It covers “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” The privilege is easily used as a shield by government agencies to protect from disclosure all variety of internal documents that might otherwise be subject to public disclosure. While Judge Lamberth's opinion did not appear to break any new ground here, it certainly confirmed the many ways that government employees can make disclosure of records more complicated.

The second part of the opinion was more interesting, as it discussed an area of some interest to open government advocates across the country -- the status of private emails sent from a government account. In this case, Convertino argued that Tukel should not be able to invoke the attorney-client privilege for these 36 emails -- which were sent to or from his personal attorney -- because, by being sent through the government's server, they were, per se, revealed to a third party. Convertino asserted that because DOJ email policy explicitly gave the Department the right to read any DOJ email, Tuker had no reasonable expectation of privacy in these emails.

Judge Lamberth disagreed, holding that "[o]n the facts of this case, Mr. Tukel’s expectation of privacy was reasonable. The DOJ maintains a policy that does not ban personal use of the company e-mail. Although the DOJ does have access to personal e-mails sent through this account, Mr. Tukel was unaware that they would be regularly accessing and saving e-mails sent from his account."

The ruling clearly rolls back the widely held view that what is done on government computers is presumptively the property of the government, and therefore the people. Journalists in states with public records acts may now find themselves fighting in court for what was once assumed to be clearly public -- emails sent from government accounts by government employees.

Federal Shield Law Clears Senate Panel

Eric David — Thu, 10 Dec 2009 16:02:02 -0500

After weeks of debate, the Senate Judiciary Committee today amended and passed the proposed federal shield law on to the full Senate for consideration. Even with this important step, it is unclear when the full Senate will vote on the measure or how quickly the Senate version can be reconciled with the House version.

In an important victory for the media, the Senate Judiciary bill reportedly adopts a broad definition of "journalist" -- one that, at this stage, includes bloggers and other journalists with non-traditional media organizations. This aspect of the bill was the focus of much debate, with politicians from all sides pushing for a narrower definition. During the Committee's debate, one of the key opponents of the broader formulation was California Democrat Dianne Feinstein. For a webcast of the Committee's markup session, click here.

The final text of the bill that passed is not yet available, but as we reported in November, it is expected that the bill will provide for different burdens of proof in criminal and civil cases, with the journalist having to show by clear and convincing evidence that disclosure would harm the public interest in criminal cases, and the party seeking disclosure having to show that disclosure would be in the public interest in civil cases. The bill also reportedly retains a national security exception that would require disclosure if the sought-after information "would materially assist the Government in preventing, mitigating, or identifying the perpetrator of an act of terrorism or other significant and articulable harm to national security."

We will post full details of the actual Senate Judiciary bill once it becomes available. In the meantime, the Media Law Resource Center has a good collection of the various bills.

New Hampshire Supreme Court Hears Anonymous Source Dispute

Eric David — Fri, 04 Dec 2009 08:37:56 -0500

In light of our recent discussion of Bartnicki v. Vopper and the legality of publishing information that was illegally obtained by a third party, this recent case from New Hampshire drew our attention.

In early November, the New Hampshire Supreme Court heard arguments in a case involving a website's refusal to identify the author of a post that criticized mortgage lender The Mortgage Specialists Inc. The site, Mortgage Lender Implode-O-Meter, had posted a story concerning a state investigation into MSI for, among other things, allegedly forging signatures and destroying documents. The site also posted a copy of a document MSI had prepared for the state Banking Department. The document, which was provided by an anonymous source, is supposed to be confidential under state law.

In addition, someone calling themself “Brianbattersby” posted a comment on the site accusing MSI President Michael Gill of fraud.

MSI demanded that the website, owned by Implode-Explode Heavy Industries, remove the document and the anonymous comment, identify the identify of the person who leaked the document, and agree not to republish the document in the future. The website agreed to the first request, but refused the second and third.

MSI then sued in state court for both the identity of "Brianbattersby" and the person who leaked the confidential document. This spring, a county judge ordered the website to disclose the information MSI sought and enjoined the site from further publication of the confidential chart.

The trial court decision is troubling for several reasons. First, the court acknowledges, but then does not address in any substantive way, the website's argument that the statute relied on by MSI and the court only covers state authorities' conduct and does not make it illegal for a third party to publish the document at issue. Rather, the court seems to assume publication is illegal and makes much of the fact that no penalties are being assessed or sought against the website.

The United States Supreme Court in Florida Star v. BJF held that a newspaper could not be punished for publication of truthful material lawfully obtained "absent a need to further a state interest of the highest order." In the New Hampshire case, there is no allegation that the website obtained the document illegally, only that its publication was illegal. Furthermore, the fact that the website in this case is not subject to penalties seems legally irrelevant, as it is being restrained from publishing truthful, lawfully obtained, information.

Second, in forcing the website to disclose the identity of "Brianbattersby," the court engaged in no analysis of the speaker's right to post anonymously. As we have discussed previously, the clear trend nationally is to require a plaintiff seeking the identity of an anonymous speaker accused of defamation to meet some elevated pleading standard. There is no indication that anything of the sort was required here.

Finally, it is worth noting that New Hampshire is one of the few states without any kind of shield law, meaning that the website has far less legal recourse when asked to reveal the identity of its source for the document.

For links to other pleadings in this case, click here. We are awaiting a decision from the New Hampshire Supreme Court and will report on it once it's handed down.

Publication of Hacked Climate Emails Raises Legal, Policy Questions

Eric David — Tue, 01 Dec 2009 15:32:34 -0500

The release of hacked emails written by well-known climate scientists has been widely reported around the world, as those emails have raised questions about whether the science behind global warming has been overstated.

This New York Times blog post by the paper's science reporter caused a mini-furor of its own in the blogosphere. In the post, Andrew Revkin writes of the hacked emails:

The documents appear to have been acquired illegally and contain all manner of private information and statements that were never intended for the public eye, so they won’t be posted here.

While Revkin's statement was rather unclear, some critics wondered whether this constituted a new Times policy, one that was not in effect, for example, when the Pentagon Papers were published or when various leaked documents from the Bush Administration were published. In a follow up to his post, Revkin points out that, from the beginning of the story, the Times has quoted the emails and provided links to other sites that have them posted.

Leaving aside the merits of the blogstorm in this case, the controversy does raise -- once again -- the question of how a media outlet should handle the receipt of documents that it has reason to believe were obtained illegally.

The answer, as a legal matter, is fairly simple. Since the United States Supreme Court case of Bartnicki v. Vopper, the law is clear that when a media outlet lawfully obtains information from a third party -- even if the third party obtained it illegally -- publication of that material is protected by the First Amendment. In Bartnicki, which involved the broadcast of the contents of a cell phone call that had been illegally taped, the Court recognized the important government interest in protecting the privacy interests of the public at large, but held that, "[i]n this case, privacy concerns give way when balanced against the interest in publishing matters of public importance."

Of course, the answer would be different had the radio station that broadcast the tapes actually recorded the conversations itself. The First Amendment does not immunize a reporter from his or her own illegal activity. The answer might also be different if the disclosure did not concern a matter of public importance, or if the party releasing the material had some independent legal duty not to disclose it (as was the case in Boehner v. McDermott).

The policy question for media outlets is far more complicated. Should the fact that the climate science emails contained "private" information give a media outlet legitimate pause before deciding to publish them? Perhaps, though Andrew Revkin can probably tell you that deciding when to publish and when not to publish "private" information opens you up to charges of hypocrisy.

And yet, a blanket rule favoring publication may be problematic in some cases. For example, to the degree any of these emails containing "private" information came from a government source, the Federal Privacy Act may be implicated. Thus, if the government or a private individual pursues a Privacy Act action against whoever leaked the documents, the media outlet that received those documents may find itself being forced to reveal its sources (or facing the consequences for refusing to do so).

Check back later this week for a story from New Hampshire that implicates both Bartnicki and the developing case law on anonymous internet commentary.

Illinois Court Unmasks Anonymous Blogger

Eric David — Fri, 27 Nov 2009 10:20:29 -0500

In a decision that goes against the grain of a building legal consensus around the country, an Illinois trial court has ordered the disclosure of the identity of an anonymous blogger who the plaintiff, a local politician, claims defamed her 15-year-old son.

The controversy started this spring, as local elections in Buffalo Grove Village were heating up, when an online debate between the candidate's son and "Hipcheck16" got testy. When challenged to a live debate, Hipcheck16, wrote, according to reports: "Seems like you're very willing to invite a man you only know from the Internet over to your house -- have you done it before, or do they usually invite you to their house?"

In response, the candidate, Lisa Stone, filed on behalf of her son a pre-suit subpoena seeking Hipcheck16's identity in preparation for a possible defamation claim.

As we have reported previously, most courts around the country have imposed some procedural barriers to plaintiffs seeking this sort of information. Most importantly, though the particular standard varies from state to state, the majority rule is that the plaintiff must allege enough facts to establish that his or her claim has merit. Some states have even applied a summary judgment standard to a plaintiff's claims before ordering the disclosure of an anonymous blogger's identity.

Though we do not have the text of the judge's actual decision in this case, based solely on the facts alleged in the plaintiff's motion, it is hard to imagine that the plaintiff was required to establish any facts or foundation for her possible claim. Rather, she states, without any further explication, that Hipcheck16 said something defamatory (though what he/she said is not in the petition). On this thin reed, the judge ordered Comcast to turn over Hipcheck16's name.

An attorney for Hipcheck16 has indicated that he may appeal the ruling, and, if he does, he will have ample case law from around the country affirming that the First Amendment protects anonymous speech and that plaintiff's must be required to meet some elevated pleading standard -- at the very minimum -- before those rights can be abrogated.

No matter what the actual standard courts eventually apply, a bare pleading that alleges defamation, with nothing more, should not be enough to outweigh a blogger's First Amendment rights.

Fourth Circuit Reverses $5 Million Funeral Protest Verdict

Eric David — Mon, 23 Nov 2009 11:49:03 -0500

In late September, the United States Court of Appeals for the Fourth Circuit reversed on First Amendment grounds a $5 million jury verdict against infamous Kansas preacher Fred Phelps and other members of his Westboro Baptist Church.

The claim against Phelps and his church members arose from their protest activities at the March 2006 funeral of Lance Corporal Matthew Snyder, a U.S. Marine who was killed in Iraq. At Snyder's funeral in Westminster, Maryland, Phelps and other protesters held up a variety of offensive signs decrying gays, Catholics, and Americans generally. Members of the church also posted an essay on the church's Web site called "The Burden of Marine Lance Cpl. Matthew A. Snyder." The essay contained numerous statements indicating that Snyder was a sinner and was going to hell.

Snyder's father did not actually see the protests or essay until after the funeral was over, but said that when he did, he was traumatized. He filed suit in June 2006 in federal court claiming defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy. While the district court granted summary judgment to the defendants on the defamation and publicity given to private life claims, after trial on the other three claims, the jury awarded Snyder $2.9 in compensatory damages and $8 million in punitive damages. The district court lowered the punitive damages award to $2.1 million, but the defendants appealed the entire award as violative of the First Amendment.

The Fourth Circuit, with Judge King writing for the court, not only reversed the award of damages, but elected not to remand the case to the district court at all, holding instead that "[n]otwithstanding the distasteful and repugnant nature of the words being challenged in these proceedings, we are constrained to conclude that the Defendants’ signs and [Web postings] are constitutionally protected."

Though the defamation claim was not at issue, the case law cited by the court was borrowed largely from the Supreme Court's defamation pantheon, most notably Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). Citing Milkovich, Judge King wrote: "First, the First Amendment serves to protect statements on matters of public concern that fail to contain a 'provably false factual connotation.'"

Second, Judge King wrote, again citing Milkovich, "rhetorical statements employing 'loose, figurative, or hyperbolic language' are entitled to First Amendment protection to ensure that 'public debate will not suffer for lack of imaginative expression or the rhetorical hyperbole which has traditionally added much to the discourse of our Nation.'"

With these principles in mind, the Fourth Circuit held that the district court had "failed to assess whether the pertinent statements could reasonably be interpreted as asserting 'actual facts' about an individual, or whether they instead merely contained rhetorical hyperbole." The court then examined each of the specific signs and the statements at issue from the Web site, and held that they were fully protected by the First Amendment either because they could not reasonably be read to state actual facts or because they were plainly hyperbolic and figurative.

In response to Westboro Baptist's odious activities, a number of states have passed laws sharply limiting, or banning altogether, protesting at funerals.