Newsroom Law Blog

Supreme Court Rejects Constitutional Challenge to Virginia Public Records Law

Charles Coble — Mon, 29 Apr 2013 16:53:38 -0500

In a unanimous decision authored by Justice Alito, the U.S. Supreme Court today turned away a constitutional challenge to residency requirement of the Virginia Freedom of Information Act. As we previously reported, the Court granted certiorari in a case brought by non-Virginians challenging that requirement under the Privileges and Immunities Clause and the dormant Commerce Clause of the U.S. Constitution. The Court's decision today affirmed a ruling by Fourth Circuit.

Under Section 2.2-3704(A) of the Virginia FOIA statute,

all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records.

Citizens of other states therefore do not have a general statutory right under the Act to access public records in Virginia.

The case was brought by citizens of Rhode Island and California. One sought documents relating to a state agency's delay in filing a child support petition on his behalf. His request was denied because he was not a Virginia citizen, though he later obtained most of the information he wanted from another agency. The other petitioner operates a business that collects real estate tax records. His request for tax records from a particular county in Virginia was likewise denied because of his location.

The petitioners filed suit under Section 1983, contending that the residency requirement of the Virginia FOIA statute was unconstitutional. The Court ultimately rejected those challenges. With respect to the Privileges and Immunities Clause, the Court emphasized that its protection extends only to privileges and immunities that are "fundamental." It went on to hold that the opportunity to pursue a business, the ability to own and transfer property, and the ability to access courts, while fundamental, were not abridged by the FOIA provision at issue. As the Court held,

the [Privileges and Immunities] Clause does not require that a State tailor its every action to avoid any incidental effect on an out-of-state tradesman.

With respect to access to courts, the Court noted that all persons have access to judicial records in Virginia, as they do to information about himself or herself compiled by a Virginia agency.

In addition, the Court held that access to public information, as a general matter, is not a fundamental matter protected by the Privileges and Immunities Clause. The Court observed that it

has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.

In the absence of a long-standing right to access government documents writ large--a statutory right the Court pointed out is of fairly recent vintage--states are not required place citizens and non-citizens on equal footing under their public records laws.

Finally, with respect to the petitioners' dormant Commerce Clause argument, the Court found that nothing about the residency requirement in the Virginia FOIA statute was driven by a desire for economic protectionism. Thus, the act did not regulate or burden interstate commerce in violation of the dormant Commerce Clause.

The upshot of this ruling is that the agencies of government in Virginia may continue to deny public records requests made by out-of-state persons or companies. This result may lead to businesses in Virginia that specialize in making requests for non-Virginians. Such a service may be of particular importance to out-of-state media organizations.

Kozinski Concurrence Questions Anti-SLAPP Application

Eric David — Wed, 24 Apr 2013 10:30:41 -0500

We wrote recently about Sherrod v. Breitbart and O’Connor, the case argued last month in the D.C. Circuit that asks the Court to decide, among other questions, whether the District of Columbia’s anti-SLAPP statute should be applied in federal court.

The federal courts of appeals that have analyzed this question have all agreed that state anti-SLAPP statutes should be applied—at least to some degree—in federal court. Those cases point to the Ninth Circuit’s 1999 decision in Newsham v. Lockheed Missiles & Space Co., in which the Court held that California’s anti-SLAPP law was substantive, not procedural, and therefore should be applied by a federal court.

The Ninth Circuit recently issued an opinion in Makaeff v. Trump University that faithfully followed the Court’s precedent in Newsham, applying California’s anti-SLAPP statute to strike a counterclaim claim brought in federal court by Trump University against a woman who had filed a class-action claim against the program founded by Donald Trump to offer real estate investment seminars and training programs.

The bulk of the Court’s opinion focused on whether Trump University was a “public figure,” as required by California’s anti-SLAPP law. The Court reversed the trial court, holding that it was a “limited public figure.”

Perhaps more interesting, however, were two concurrences written by Judge Kozinski and Judge Paez arguing that Newsham was wrongly decided and that state anti-SLAPP statutes should not apply in federal court. Both concurrences argue that anti-SLAPP statutes are, in fact, largely procedural, and therefore should not be applied in federal court to supplant federal procedural rules. Judge Kozinski, known for his sharp writing, called Newsham “a big mistake” that had been “foolishly followed” by the First Circuit and Fifth Circuit. Judge Kozinski and Judge Paez clearly want the Ninth Circuit to re-examine Newsham en banc.

Judge Kozinski is an influential jurist across the country, and one cannot help but wonder whether his concurrence at this point was also intended to send a message to the D.C. Circuit as it considers Sherrod. Of course, if the D.C. Circuit were to hold that D.C.’s law does not apply in federal court, there would be a circuit split on that question that might draw the attention of the Supreme Court.

A Salute to Anthony Lewis

Eric David — Thu, 28 Mar 2013 12:20:57 -0500

We would be remiss if we failed to note the recent passing of Anthony Lewis, long-time columnist and Supreme Court reporter for the New York Times. Lewis died on March 25 at the age of 85.

Lewis won two Pulitzer Prizes and is the author of two of the most widely read books on Supreme Court history – “Gideon’s Trumpet,” which detailed the Court’s 1963 decision in Gideon v. Wainwright guaranteeing legal representation to criminal defendants charged with serious crimes and “Make No Law,” which described the Court’s seminal 1964 decision in New York Times v. Sullivan. Of course, the latter case is near and dear to the heart of any journalist or media lawyer.

Our colleague, Mark J. Prak, who served as an adjunct professor at Duke University’s Law School and Sanford School of Public Policy, notes that he required his students to read “Make No Law” for some 20 years. His comments on the book are an appropriate elegy for Lewis:

“Make No Law” is the best book about the First Amendment ever written. Period.

If you care about the First Amendment and have not read the book, you have some homework to do. But it will be enjoyable homework. Several generations of lawyers and students of the First Amendment have benefitted from Lewis’ fulsome description of the people, institutions, and societal forces at play in the story that gave rise to the great case. Lewis’ detailed account of the Court’s work in Times v. Sullivan and his description of the metamorphosis of the First Amendment throughout the history of the Court is unparalleled and, above all, a great read.

Timing is Everything -- Breitbart Case Highlights Deadline Issue

Eric David — Mon, 25 Mar 2013 14:33:41 -0500

Last week, we made our first foray into Sherrod v. Breitbart and O’Connor, which was argued in the D.C. Circuit several weeks ago and which will, hopefully, address the question whether the District of Columbia’s new anti-SLAPP statute should be applied by a federal court sitting in diversity.

In that post, we noted that the case also presented an interesting timeliness question. In denying the defendants’ motion to dismiss brought pursuant to the D.C. anti-SLAPP statute, the district court held that the motion was not timely filed. It is important to understand the unique timeline of this case to understand the court’s ruling.

The complaint was filed on February 11, 2011. D.C.’s anti-SLAPP statute, which had been passed three months earlier, did not go into effect until March 31, 2011, after a mandatory review period by Congress.

Under typical circumstances, the rules require the defendants to either answer or move to dismiss the complaint within 21 days of being served. Of course, most defendants seek, and are granted, additional time to respond to the complaint. In this case, the defendants sought two extensions of their deadline to respond. Both were granted by the court, with the consent of the plaintiff, pushing the defendants’ deadline to respond until April 18, 2011.

Importantly, the anti-SLAPP statute requires a defendant moving under the statute to file their motion within 45 days of service of the complaint. In this case, 45 days fell on March 29, 2011, two days before the anti-SLAPP statute was in effect. Thus, when the defendants did file their motion to dismiss on April 18, 2011, it was several weeks past the statutory deadline. In denying the anti-SLAPP motion, the district court held that this was untimely, though the court did not address the fact that it had entered two orders granting the defendants extensions of their deadline to “answer, move or otherwise plead in response to Plaintiff’s Complaint.”

In their opening brief to the D.C. Circuit, the defendants argue that by granting these extensions, the court was, in effect, extending the deadline set out in the anti-SLAPP statute in addition to the deadline to respond under the Rules of Civil Procedure. In any event, the defendants argue, the legislative history of the D.C. statute and case law from other courts indicate that litigants with pending cases can move pursuant to anti-SLAPP statutes that become effective during the course of the litigation.

In her responsive brief, the plaintiff notes that in seeking the extensions, the defendants did not notify either the plaintiff or the Court that it was seeking to extend the anti-SLAPP deadline, not just the deadline under the Rules of Civil Procedure. Thus, the plaintiff asserts, the orders granting the extensions were not intended to extend the anti-SLAPP deadline. This seems to be the view of the district court, as well.

No matter how the D.C. Circuit comes out on this question, this very unique case does raise an interesting practice point. It would seem that, if you are a litigant planning to take advantage of the protections of an anti-SLAPP statute, you would be well-advised to either respond within the deadlines set out in the statute or, when moving for an extension of time, specifically reference the anti-SLAPP statute to opposing counsel and the court.

D.C. Circuit Considers Anti-SLAPP Case

Eric David — Thu, 21 Mar 2013 17:08:19 -0500

Until now, we have not yet waded into the legal and political morass that is Shirley Sherrod v. Andrew Breitbart and Larry O’Connor. In case you have not picked up a newspaper in the past three years, this is a complaint brought by a former official with the U.S. Department of Agriculture against Andrew Breitbart and one of his employees. The Washington Post described the case as follows:

Sherrod was ousted from her job as an Agriculture Department rural-development official in 2010 after Breitbart posted an edited video of Sherrod, who is black, supposedly making racist remarks. She sued Breitbart, his employee Larry O’Connor and an unnamed defendant for defamation and emotional distress after USDA officials asked her to resign and the video ignited a racial firestorm. . . .

The video on Breitbart’s Web site turned out to be edited, and when Sherrod’s full speech to an NAACP group earlier that year came to light, it became clear that her remarks about an initial reluctance to help a white farmer decades ago were not racist but rather an attempt at telling a story of racial reconciliation. Sherrod received public apologies from the administration — including one from President Obama — and an offer to return to her job, which she declined.

Sherrod brought suit in the District of Columbia. The defendants removed the case to federal court, and then filed a motion to dismiss pursuant to D.C.’s relatively new anti-SLAPP act, which had been passed just a year before and had gone into effect at the end of March 2011. We first wrote about anti-SLAPP statutes in 2009.

In February 2012, the district court denied the motion to dismiss on a number of grounds, including: (1) the complaint had been filed before the effective date of D.C.’s anti-SLAPP law and could not be applied retroactively; (2) even if it could be applied retroactively, the law would then be considered procedural and therefore could not be applied by a federal court sitting in diversity; and (3) even if it could be applied in federal court, by seeking several extensions of their deadline to respond to the complaint, the defendants had missed the statutory deadline in which to file a motion under D.C.’s law (45 days).

The defendants appealed that decision to the United States Court of Appeals for the District of Columbia Circuit, arguing, among other things, that denial of an anti-SLAPP motion to dismiss is immediately appealable. Oral argument in that appeal took place on March 15, 2013, and a decision is likely to be issued sometime this summer.

If the D.C. Circuit agrees that it has jurisdiction to hear this interlocutory appeal—meaning an appeal that comes before the final resolution of the case at the trial court level—and according to reports of oral argument that is no sure thing, the court will answer several critical questions of first impression about D.C.’s anti-SLAPP law.

Of primary importance to media defendants is whether a state (or District of Columbia) anti-SLAPP statute can be applied in federal court. The general rule is that statutes or rules that are procedural (i.e., they govern how an action proceeds through the court system) are not applied by federal courts, but statutes or rules that are substantive (i.e., they govern the merits of the cause of action) are to be applied by federal courts.

This question is crucial, because if plaintiffs could avoid the effect of an anti-SLAPP statute by bringing their case in federal court (by either adding a federal cause of action or creating diversity among defendants), many might choose to do so.

A coalition of media organizations filed an amicus curiae brief in the D.C. Circuit urging the court to align itself with the First, Fifth, and Ninth Circuits, which have all held that anti-SLAPP statutes are substantive, and therefore should be applied by a federal court sitting in diversity. Indeed, the amici asserted that every Circuit Court to examine the question has agreed that such statutes are substantive.

In the coming days, we will have another post about one of the other important questions raised by the Sherrod case—whether the defendants’ motion to dismiss was untimely.

Of course, we will keep you posted when the court issues its decision.

Important N.C. Public Records Question Left Unanswered

Eric David — Tue, 12 Mar 2013 13:25:02 -0500

The North Carolina Supreme Court last week split 3-3 on an appeal presenting important questions concerning the state’s Public Records Act, apparently leaving it for the General Assembly to close a gap in the law concerning the applicability of the records statute to campus police departments.

The case, Ochsner v. Elon University and North Carolina Attorney General Roy Cooper, presented, among other things, the question whether the campus police department of a private university is subject to the Public Records Act, where that department was certified and authorized pursuant to state law.

The Court of Appeals answered that question in the negative, affirming the trial court’s dismissal of a complaint brought by a reporter from Elon University’s campus television news program seeking access to a complete copy of an incident report generated by the campus police when it arrested a student in March 2010. The campus police had refused to give the reporter the full incident report, instead turning over an arrest report and the first page of the incident report.

The Public Records Act, however, specifically makes public certain information concerning police investigations, including:

(1) The time, date, location, and nature of a violation or apparent violation of the law reported to a public law enforcement agency.

(2) The name, sex, age, address, employment, and alleged violation of law of a person arrested, charged, or indicted.

(3) The circumstances surrounding an arrest, including the time and place of the arrest, whether the arrest involved resistance, possession or use of weapons, or pursuit, and a description of any items seized in connection with the arrest.

It so happens that this was exactly what the reporter requested from the campus police, a request the department refused.

In affirming the trial court’s dismissal, the Court of Appeals had held that even though state law gives police departments operated by private universities the power to arrest, the Public Records Act does not cover those departments. The North Carolina Supreme Court agreed to hear the case, but split evenly, 3-3. Justice Barbara Jackson had recused herself because the reporter, Nick Ochsner, had worked on her re-election campaign. The split leaves the Court of Appeals’ decision intact but without any precedential value for future courts.

The gap in the law identified by this case appears to be the result of changes in the law surrounding the certification of campus police departments that were not carried through to the Public Records Act. More specifically, when the statute certifying campus police departments changed in 2005, the new statutory cite was not added to the list of what constitutes a “public law enforcement agency” under the Public Records Act.

With the Supreme Court deadlocked on this issue, a legislative fix has been proposed in the General Assembly. House Bill 142 would amend the law authorizing campus police departments to expressly make public the same information concerning police investigations that is public under the Public Records Act.

Supreme Court Agrees to Review Virginia Records Law

Eric David — Wed, 10 Oct 2012 13:29:15 -0500

Last week, the United States Supreme Court agreed to hear an important case involving Virginia's public records law. The case, McBurney v. Young, involves a challenge to a provision of the state law that says that "public records shall be open to inspection and copying by any citizens of the Commonwealth . . . " (emphasis added). In other words, citizens of another state need not apply.

A challenge to this provision limiting the availability of public records to Virginia citizens was brought by, among other plaintiffs, a citizen of Rhode Island who used to live in Virginia and had his divorce and child custody case litigated in Virginia. When McBurney's ex-wife defaulted on her child support obligations, McBurney submitted a public records request to the state Division of Child Support Enforcement for certain documents relating to his family's case. The department denied his request, citing, among other things, that he was not a Virginia citizen.

McBurney challenged this basis in federal court, asserting that limiting the scope of the law to Virginia citizens violated the Privileges and Immunities Clause of the U.S. Constitution.

Meanwhile, a second plaintiff -- a California resident operating a tax assessment records business that relied on access to Virgina records -- had brought a separate case challenging the same provisions. This plaintiff also asserted a P & I claim, but added a "dormant" Commerce Clause claim, asserting that the law improperly burdened interstate commerce.

As to the P & I claims, the district court held that no fundamental right was at issue, and therefore the P & I Clause was not violated. As to the Commerce Clause, the district court denied the claim, holding that the statute does not "implicate principles of economic protectionism" and therefore is constitutional.

The United States Court of Appeals for the Fourth Circuit affirmed the district court's decision, and the plaintiffs sought Supreme Court review.

Seeking Supreme Court review is not without risk for media organizations. After all, a ruling from the Supreme Court affirming the validity of Virginia's law might open the door to states across the country adding similar provisions to their public records laws, in hopes of limiting access. Such a development would require out of state media organizations to ask a resident "proxy" to make a request on the organization's behalf.

We will keep you posted as the Supreme Court considers this case.

Beware the Clumsy Retraction, and Other Lessons from Idaho

Eric David — Sun, 16 Sep 2012 10:32:00 -0500

A recent Idaho state court opinion ordering an Idaho newspaper to unmask the identity of an anyomous commenter on the newspaper's website demonstrates, among other things, the pitfalls that come with a clumsily worded retraction.

The case, Jacobson v. Doe, arose from a blog entry posted in February 2012 on the Spokesman-Review's website about Tina Jacobson, the chair of the county Republican Central Committee. The post included a picture of Jacobson posing with then-Presidential candidate Rick Santorum and other local Republicans. In an anonymous comment to the story, a commenter named "almostinnocentbystander" wrote: "Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina's blouse."

That comment drew requests from other commenters for additional details, which "almostinnocentbystander" provided in a follow up post, noting that Jacobson was a bookkeeper by profession and that "a whole Boat load of money is missing and Tina won't let anyone see the books."

Those comments were taken down by the author of the original blog post within a few hours, and after complaints from local Republicans and a request for the identity of the commenter, "almostinnocentbystander" posted an apology: "I apologize for and retract my derogatory and unsubstantiated commentary regarding Tina Jacobson."

A libel suit following in April, and a subpoena was served on the newspaper asking for the identity of the commenter. The newspaper moved to quash, claiming the commenter was a "news source" protected by the First Amendment and the Idaho Constitution. Idaho does not have a shield statute, but state courts have recognized a qualified privilege.

The court rejected the newspaper's motion, holding that the commenter was not a "source." Rather, the court held, the newspaper was "acting as a facilitator of commentary and administrator of the Blog."

Recognizing constitutional protections for anonymous speech, the court then analyzed what standard it should apply in deciding whether to quash the subpoena. This is an issue we have written about often here. In a positive move for newspapers, the court applied a three-part test, derived from the oft-cited New Jersey case Dendrite Int'l, Inc. v. Doe no. 3, 775 A.2d 756 (N.J. Super. Ct. 2001), and an unpublished Idaho federal court case.

Under that test, the court may order disclosure if: (1) the plaintiff "makes reasonable efforts to notify the defendant" of the subpoena; (2) the plaintiff "demonstrates that it would survive a summary judgment motion"; and (3) the court must then balance the commenter's First Amendment rights with the plaintiff's case and the necessity of disclosure. The application of the summary judgment standard at this stage is generally a win for the speaker.

In this case, though, the court held that the plaintiff had established that it could survive summary judgment. Key to this analysis was the court's holding that the retraction posted by the commenter demonstrated "actual malice," the standard of fault required for public figure plaintiffs.

In the absence of any evidence from the commenter, the court held that the commenter's "recanting shows that the speaker knew the falsity of the statement when he said it," or at least acted "recklessly by not only making the statement once, but on two occasions."

The court's holding should be a caution to anyone considering recanting or retracting a statement because of a fear of a defamation suit. The lesson -- it is probably best to seek legal counsel before publishing a retraction or apology. In this case, for example, stating in the retraction that the statements were "unsubstantiated" may have been problematic.

Court Rules in UNC Football Public Records Dispute

Laura Chipman — Fri, 31 Aug 2012 08:55:53 -0500

North Carolina Superior Court Judge Howard Manning recently ruled on the scope of protection for documents related to the highly-publicized investigation of irregularities in the University of North Carolina football program. The Court held that the majority of communications among attorneys are protected from disclosure, but that other categories of investigative documents must be disclosed as public records of a public agency. The Court also ruled that portions of former UNC football coach Butch Davis’ personal cell phone records must be disclosed. The Court's rulings are available here and here, and a discussion of a subsequent order entered by the Court is linked here.

Background

As a general matter, the University must disclose its records as a state agency under North Carolina’s public records laws. The dispute in this case hinged on the applicability of certain exemptions from the public records laws for attorney-client privilege or protection arising from the federal law. For example, North Carolina law exempts attorney-client privileged communications and trial preparation materials from disclosure as public records. And as a matter of federal law, the Family Educational Rights and Privacy Act (FERPA) protects most student records from disclosure as public records. In this case, the parties disputed what documents related to the UNC football investigation would fall within these exemptions.

Here, the plaintiffs (media outlets including newspapers and broadcasters) sought disclosure of several categories of documents from the University in connection with the NCAA investigation into irregularities within the UNC football program. The categories included personal and business phone records, investigative documents, and information about mentors and tutors to the athletes. Ultimately, the Court allowed the production of many of these documents as public records, with a few important exceptions.

At earlier stages of the case, the Court determined that many documents are not protected by FERPA and are subject to disclosure under the public records laws. For example, the Court ruled that unredacted phone numbers on telephone bills for coaches’ cell phones provided by UNC—including phone numbers of UNC students—are not protected by FERPA and are a public record. The Court also ruled that parking tickets issued to 11 UNC football players are not education records and are not protected by FERPA. The University was required to produce those documents.

The Court’s earlier rulings also distinguished records (e.g., names, employment dates, and salaries) of tutors and mentors for UNC athletes based on whether the tutors and mentors were students themselves. Non-student tutors were treated by the Court as University personnel, and those records are not protected by FERPA. In contrast, active UNC students and graduate students that were employed as tutors or mentors for athletes are protected by FERPA. The University was not required to disclose the requested information about UNC student tutors and mentors.

Disclosure of Personal Phone Records

In perhaps the most anticipated portion of the case, the Court ruled that former UNC football coach Butch Davis was a public official and ordered him to disclose portions of his personal cell phone records. On August 22, 2012, Judge Manning signed an order requiring Davis to produce his personal cell phone records within 30 days. The order permits personal calls to be redacted from the records, but he ruled that information regarding University-related calls is a public record.

Judge Manning took care in his ruling to limit the protection for personal cell phones belonging to public officials. He observed that public officials “may not avoid public scrutiny. . . by using personal cell phones to conduct public business."

Disclosure of NCAA Materials

In a separate decision, Judge Manning determined the scope of protection for investigative and legal documents regarding the NCAA investigation into misconduct by UNC football coaches, players, agents, boosters, and tutors. The two primary categories of documents were (1) communications between UNC and its attorneys that may be privileged, and (2) documents submitted to NCAA in connection with its investigation.

Protected Communications and Preparation

In the first category of investigative documents, the Court ruled that certain broad categories of communications were protected from disclosure by attorney-client privilege, and that materials prepared in connection with the investigation were also protected from disclosure.

Under North Carolina public records law, written communications to a state agency are exempted from mandatory disclosure if they are:

made within the scope of the attorney-client relationship by any attorney-at-law serving such governmental body, concerning any claim against or on behalf of the governmental body or governmental entity for which the body acts, or concerning the prosecution, defense, settlement or litigation of any judicial action, or any administrative or other type of proceeding to which the governmental body is a party or by which it is or may be directly affected.

N.C. Gen. Stat. § 132-1.1(a). The law also exempts from disclosure “trial preparation material” that meets the following definition:

Any record, wherever located and in whatever form, that is trial preparation material within the meaning of [the North Carolina Rules of Civil Procedure], any comparable material prepared for any other legal proceeding, and any comparable material exchanged pursuant to a joint defense, joint prosecution, or joint interest agreement in connection with any pending or anticipated legal proceeding.

N.C. Gen. Stat. § 132.9.9(h)(2).

Here the Court concluded that the NCAA investigation was an administrative proceeding within the meaning of the North Carolina statutes, so attorney-client communications and trial preparation materials related to the investigation would be protected. Thus, communications from in-house UNC counsel, corporate counsel, or an outside law firm to the University are not public records and are exempt from disclosure. Similarly, communications from in-house UNC counsel to outside counsel are privileged and are exempt from disclosure. Communications prepared by UNC staff at the direction of in-house or outside counsel for submission to in-house or outside counsel in connection with the investigation are “trial preparation” materials and also exempt from disclosure. As a result of the Court’s findings, copies of recordings of interviews prepared in connection with the investigation will not be required to be disclosed.

Disclosure of Documents Submitted To The NCAA

Next, the Court considered whether documents submitted by the University to the NCAA in response to its investigation were protected from disclosure. The parties agreed that student-athlete information relating to academics are protected by FERPA and would not be disclosed. The parties disputed disclosure of information relating to the NCAA investigation into impermissible benefits to student athletes such as plane tickets, jewelry, clothing, shoes, automobiles, payments to cover parking tickets, monetary gifts, free meals, and so on.

The Court determined that such benefits are not academic and fall outside the scope of FERPA. Thus, the Court ruled that documents relating to investigations into impermissible benefits only (and not academic conduct) must be disclosed. This category of documents includes statements of fact submitted by UNC to the NCAA in the course of an investigation, reinstatement requests on behalf of a particular athlete submitted by UNC to the NCAA, and similar documents relating to a player subjected to penalties or sanctions by the NCAA for non-academic misconduct.

Importantly, the University does not have to disclose the materials unless the investigation resulted in penalties or sanctions. Documents relating to an investigation that did not result in the player being declared ineligible or subjected to other sanctions by the NCAA for an impermissible benefits rules violation are not required to be disclosed.

Judge Manning was careful to emphasize that “information relating to truly academic issues pertaining to student-athlete academic misbehavior. . . is protected from disclosure by FERPA.” So, documents relating to investigations on the basis of academic performance issues such as low GPA, academic courses, etc., are protected by FERPA as academic records and are not required to be disclosed.

On a related issue, the Court also determined the scope of protection for the University’s formal response to the NCAA (a large document dated September 29, 2011, with exhibits). The University previously released a heavily redacted version of the response. Judge Manning ruled that redactions in the public version of the document were appropriate to protect employees and academic student records. However, portions of the response relating to impermissible benefit violations resulting in sanctions and ineligibility are not protected and must be disclosed in unredacted form. In the Court’s words, “the cloak of secrecy must be lifted and the sun let in for all to see.”

Second Circuit Rules against Internet Streaming Service

Charles Coble — Mon, 27 Aug 2012 14:58:32 -0500

Today, the U.S. Court of Appeals for the Second Circuit ruled in favor of broadcasters and content owners against the streaming service ivi, which previously captured and retransmitted broadcast programming over the Internet. The Second Circuit held that ivi is not a cable system and therefore is not entitled to the cable statutory copyright license under Section 111 of the Copyright Act.

Broadcasters initiated the lawsuit alleging that ivi violated the Copyright Act by streaming broadcast programming live over the Internet without consent. ivi argued that it was an online cable operator that pays royalties in exchange for the legal right to retransmit broadcast programming under a statutory copyright license. In its decision released today, the Second Circuit agreed with the Copyright Office’s interpretation that Internet retransmission services such as ivi do not constitute cable systems entitled to the statutory copyright license. This decision affirms the district court’s grant of a preliminary injunction, which shut down ivi’s streaming service last year.

Supreme Court Review: What the Court's Indecency Decision Means for Broadcasters

Charles Coble — Mon, 27 Aug 2012 10:34:06 -0500

Earlier this summer, the U.S. Supreme Court released during the last week of its 2011 term its long-awaited opinion in the broadcast indecency cases FCC v. Fox Television Stations, Inc. and FCC v. ABC, Inc. This decision represents an important victory for broadcasters, but, as explained below, leaves several important questions unresolved.

Background

The Fox case arose from the 2002 and 2003 Billboard Music Awards shows, in which Cher used the F-word during the live broadcast of the 2002 show and Nicole Richie used both the F-word and the S-word during the 2003 show. Its counterpart, the ABC case, arose from a February 2003 episode of the award-winning prime-time drama NYPD Blue in which an actress’s bare buttocks were shown for fewer than seven seconds. The FCC found all three broadcasts indecent and imposed substantial forfeitures on 45 ABC stations for their broadcast of NYPD Blue.

In 2010, the Second Circuit Court of Appeals ruled in the Fox case that the FCC’s indecency policy was so vague that it violated the Constitution because it did not give broadcasters sufficient notice of what material the Commission would consider indecent. The Second Circuit’s decision in Fox overturned the indecency findings arising from the Billboard Music Awards broadcasts; the court later applied that decision to overturn the indecency finding against the episode of NYPD Blue. The U.S. Supreme Court heard the appeal from both lower court decisions in January and issued its decision five months later, on June 21, 2012.

The Supreme Court’s Opinion

As the opinion explained, under the FCC's more restrained indecency enforcement policy in place at the time of the challenged broadcasts, the Commission did not sanction fleeting and isolated uses of expletives but, rather, only sanctioned expletives used in a “verbal shock treatment” like George Carlin’s famous “Filthy Words” monologue. (A midafternoon radio broadcast of the Carlin monologue led to the Supreme Court’s 1978 decision in Pacifica Foundation v. FCC, which for the first time upheld the FCC’s authority to regulate the broadcast of indecent material by radio and television stations.)

The FCC’s change in its indecency policy was first announced in a decision following the 2003 broadcast of the Golden Globes awards show, during which singer Bono uttered the F-word during his acceptance speech. The Commission’s Golden Globes decision in March 2004 held, for the first time, that a single, unscripted expletive could be indecent. The FCC then applied its new “fleeting expletives” policy, after the fact, to the Fox broadcasts of the 2002 and 2003 Billboard Music Awards shows. It subsequently found the 2003 episode of NYPD Blue to be indecent.

In a unanimous opinion authored by Justice Kennedy, the Supreme Court held in June that broadcasters could not have known in 2002 and 2003 that the FCC would later find isolated expletives uttered during live awards shows or briefs displays of nudity to be indecent. Because the indecency policy in place at the time of the challenged broadcasts did not give broadcasters “fair notice” of where the line would be drawn with respect to “fleeting expletives” or brief nudity, the Due Process Clause required the indecency findings to be set aside against the broadcasters in Fox and ABC.

Because the Court was able to resolve both cases on the more limited ground that these parties did not have fair notice that these broadcasts would be deemed indecent, the Court declined to decide broader constitutional questions, including: (1) whether the Commission’s indecency policy as it now stands is, on its face, so vague and uncertain that no broadcaster could have fair notice of what speech is prohibited, and (2) whether the First Amendment prohibits the Commission from regulating constitutionally-protected indecent speech (and thus whether Pacifica should be reconsidered).

What Does This Mean Going Forward?

What does the Fox decision mean for broadcasters going forward? The Supreme Court’s opinion leaves several avenues open to the FCC. The Commission cannot impose indecency sanctions on the 2002 and 2003 broadcasts at issue in these cases, and it almost certainly cannot treat other “fleeting expletives” broadcast prior to the 2004 Golden Globes order as indecent in any other pending cases. For cases involving brief nudity, the date line is less clear, but broadcasters are presumably on notice since the FCC’s order in the 2004 Super Bowl/Janet Jackson case, as noted below.

For broadcasts that occurred after the 2004 Golden Globes decision, however, the Commission may elect to impose its current fleeting indecency standard. Should it choose to do so, broadcasters are sure to challenge that policy on the broader constitutional grounds: (1) that the policy itself is so vague that it violates the Due Process Clause because broadcasters simply cannot tell what material the Commission ultimately will deem indecent and (2) that indecency regulation, at least beyond the narrow contours of Pacifica, tramples on broadcasters’ First Amendment rights. The Second Circuit Court of Appeals has struck the current policy, so the FCC is fully aware that its existing policy is not likely to survive a further court challenge.

The 2004 Super Bowl broadcast, in which Janet Jackson’s breast was briefly revealed, was not a part of the Fox decision. In November 2011, the Third Circuit Court of Appeals threw out the $550,000 fine against the CBS stations for the broadcast of the “wardrobe malfunction” on the grounds that it was a departure from the FCC’s existing policies. Earlier this year, the government appealed the Janet Jackson decision to the Supreme Court and asked the Court to hold the appeal until Fox was decided, but the Court issued an order on June 29, 2012, declining to review the decision. The Third Circuit’s decision, which was based on procedural rather than constitutional grounds, thus stands as the final word on the Janet Jackson broadcast. In his comments accompanying the order, however, Chief Justice Roberts warned that “the brevity of an indecent broadcast—be it word or image—cannot immunize it from FCC censure,” and that “any future ‘wardrobe malfunctions’ will not be protected.” So where the law on “fleeting” expletives and pictures is headed remains unclear.

* * *

Although the Fox decision, which set aside more than a million dollars in fines imposed on the ABC stations that aired NYPD Blue, was a victory for the broadcaster parties, the narrow decision nevertheless leaves a number of important issues unresolved. The Supreme Court’s limited holding promises further proceedings, at the FCC and in the federal courts, before the contours of the Commission’s constitutional authority to regulate broadcast indecency are finally settled.

Currently there are nearly 1.5 million indecency complaints at the FCC that have remained pending in light of the Fox case. These complaints involve about 9,700 television broadcasts. Some date back to 2003 and are holding up more than 300 license renewal applications. In separate statements, both Commissioner Robert McDowell and Commissioner Ajit Pai expressed that it is now time for the FCC staff to get to work and start processing this significant backlog. How the FCC will process these complaints in light of the Fox decision will likely depend on a variety of factors. Some believe the Commission will not act until after the November elections. It is impossible to say at this time.

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.