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The 9th United States Circuit Court of Appeals in San Francisco has made the decision that the First Amendment’s free speech clause was violated by the Federal Communications Commission’s ban on political advertising on radio stations and public television.  In the main opinion, Judge Carlos Bea wrote, “Public issue and political speech in particular is at the very core of the First Amendment’s protection.”  He continued to state that “public issues and political advertisements pose no threat of ‘commercialization’ and that such advertisements do not encourage viewers to buy commercial goods and services.”  The rules laid out by the FCC banning for-profit advertising were kept intact by the court.

The FCC argued the government has an interest in airing educational programming and that these programs often run on Public Broadcasting stations.  The court found that the FCC ban was too broad and that the educational nature of the programming would not be threatened by lifting the ban on political advertising.

Norman Ornstein, at the American Enterprise Institute, said the decision could “fundamentally change the character of public television and radio.” He said that this would occur by letting political and other organizations with deep-pockets to begin “swooping” onto the public airwaves to spread their messages.

The Federal Communications Commission (FCC) is actively promoting a proposal that would require local television stations to post information about political advertising on an FCC central website. Local television stations are currently required to maintain public files at their offices for inspection by members of the public. The files normally include information about programming, staffing, and spending on political advertisements. The problem is that few people know about the filing requirement and therefore very few people access the files. The FCC proposal seeks to provide broader access to the public by requiring the television stations to upload the files to an FCC-operated website. Critics assert that the change would be an unnecessary financial burden for local stations and does not clearly benefit the public. However, advocates for the proposal claim that the requirement will make it easier to access public information and provides greater transparency about the political advertisements during political campaigns. In addition, the FCC notes that initial uploading of the files will cost less than $1,000 for most television stations and will save television stations money in the long run by avoiding printing and storage costs. The FCC is expected to vote on the proposal at an April 27 meeting and it seems likely that the measure will pass.

Britain’s Home Secretary, Theresa May, will introduce legislation next month in an attempt to allow Britain’s law-enforcement to “check in” on citizens using their Twitter, Facebook, email and Skype accounts.

The proposed legislation, the ‘Snoopers’ Charter,’ would allow for “on demand” knowledge in “real time” of who speaks to whom.  The agencies that would be able to receive the information gathered include MI5 and GCHQ. The Home Office stated, “the new law would keep crime-fighting abreast of developments in instant communications – and that a warrant would still be required to view the content of messages.”   The data gathered that would not require a warrant may include time and duration of citizens use of various media.  May  feels confident that the new law will be enacted because normally strong supporters of civil liberties, the Liberal Democrats, are backing the new law.

The proposed law has its critics.  Nick Pickles, director of the Big Brother Watch Campaign Group,  stated, “This is an absolute attack on privacy online and it is far from clear this will actually improve public safety.”  Pickles continued to describe the law as “an unprecedented step that will see Britain adopt the same kind of surveillance as in China and Iran.”

 

The city of Boston recently settled a federal civil rights suit in which the city will pay Simon Glik $170,000 for damages and legal fees. In 2007 Glik used his cellular phone to videotape Boston police officers arresting a man on Boston Common. The Boston police then arrested Glik and he was charged with illegal wiretapping, aiding the escape of a prisoner, and disturbing the peace. After a Boston Municipal Court judge dismissed the criminal charges, Glik filed a civil rights suit with the assistance of the American Civil Liberties Union against the city of Boston and the arresting officers in federal court. In Glik v. Cunniffe 655 F.3d 78 (2011), the First Circuit held that the First Amendment protects the right to record police carrying out their duties in a public place. Glik’s attorney, David Milton, explains that the case is highly important because there have been a number of incidents in recent years involving citizens who were arrested for recording police officers performing their official duties in public. Milton notes, “As we see all around the country and world, images captured from people’s cellphones can have a remarkably important effect on public debate of public information. It is ultimately a tool of democracy.” In addition, the case will likely cause more police departments to instruct their officers on how to handle situations involving individuals who videotape police officers performing their official duties. For example, the city of Boston has developed a training video based on facts similar to the Glik case.

Recently, a verdict was rendered in the cyber bullying case involving a former Rutgers University student.  On March 16, a New Jersey jury found Dharun Ravi guilty of numerous charges, including bias intimidation, hindering apprehension, witness tampering, and tampering with physical evidence.  These convictions could place Ravi in jail for up to ten years.  Ravi might also be deported after he completes his sentence.

Dharun Ravi was found to have viewed webcam footage of his roommate, Tyler Clementi.  The footage captured Clementi having an intimate encounter with another man.  Ravi then tweeted he saw his roommate kissing another man. Days later, Clementi committed suicide by jumping off the George Washington Bridge into the Hudson River.

CNN legal analyst Paul Callan calls the verdict “unprecedented,” adding that the verdict “sends a message to people across the rest of the country about the potential consequences of unauthorized webcam use.”  Rutgers University released this statement after the verdict. “This sad incident should make us all pause to recognize the importance of civility and mutual respect in the way we live, work and communicate with others.”

The recent Rush Limbaugh controversy has generated two interesting developments in media law. The controversy began about two weeks ago when Limbaugh referred to Sandra Fluke, a Georgetown law student, as a “prostitute” and a “slut” after she testified to congressional Democrats regarding the health care mandate’s coverage of birth control. Shortly after her testimony, Limbaugh said on his talk radio show, “What does it say about the college coed … who goes before a congressional committee and essentially says that she must be paid to have sex? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex.” The first interesting development in media law is that Gloria Allred is leading an effort for Limbaugh to be charged with defamation over the comments. Allred, a well-known celebrity lawyer, recently sent a letter to the Palm Beach County Attorney’s Office saying prosecutors should consider charging Limbaugh under an 1883 law making it a misdemeanor to question a woman’s chastity. Allred explains, “He [Limbaugh] has personally targeted her and vilified her, and he should have to bear the consequences of his extremely outrageous, tasteless and damaging conduct.” The second development is that Jane Fonda, Gloria Steinem, and Robin Morgan are calling for the Federal Communications Commission (FCC) to prevent Limbaugh from continuing his show. In a recent editorial, the three activists argued that if enough listeners complain about Limbaugh, then the stations that carry him could be denied license renewal. One commentator notes that the FCC effort is likely futile because (1) it is logistically difficult based on the nature of the FCC license renewal process; (2) the effort would raise serious First Amendment concerns; and (3) the effort could create a political backlash.

The conservative blogger, Andrew Breitbart, passed away due to natural causes outside of his Los Angeles home.  Breitbart gained notoriety by being the first to post semi-nude photographs of Anthony Weiner.  The postings lead to Weiner’s resignation from his position as a congressman. More recently, Breitbart has been the lead defendant in a closely-watched defamation lawsuit in Washington. Former U.S. Department of Agriculture official Shirley Sherrod sued Breitbart and Larry O’Connor, accusing them of making defamatory claims of racism against her by posting a edited clip of a speech she gave to a NAACP group.  O’Connor, Editor-in-Chief of Breitbart.tv and Breitbart denied the alleged wrongdoing, claiming the posted clip was protected under the First Amendment.

In house counsel for Breitbart’s Big Journalism Joel Pollack suggests in an interview that even though Breitbart has passed away, he believes this will not have much of an effect on the defense against the suit brought by Sherrod. Michael Rothberg of  the firm Dow Lohnes said, “If the defendant had a very good story to tell, and would be a very good witness, then not being able to tell that story to a jury is going to be harmful.” It is clear that the death of Andrew Breitbart will have an impact on the defense against Sherrod’s defamation suit, but since there is a co-defendant that might be able to tell Breitbart’s story, it is unclear what the impact will be.

There has been increased criticism of the Obama administration for the use of the Espionage Act against whistleblowers. The Act was enacted against the backdrop of World War I in 1917 to punish those who gave aid enemies of the United States. The Act was used three times in all the prior administrations to bring cases against government officials accused of providing classified information to the media but has been used six times since President Obama took office in 2009. In a recent controversial case, John Kiriakou, a former C.I.A. agent who became a Democratic staff member on the Senate Foreign Relations Committee, was charged under the Act with passing on disclosed information to the media about C.I.A. interrogation methods. Mark Corallo, who served as the Justice Department’s spokesman in the George W. Bush administration, said he was “sort of shocked” by the volume of leak prosecutions under President Obama. “We would have gotten hammered for it,” he said. Dan Kennedy, an assistant professor at Northeastern University’s School of Journalism, notes, “I suspect Obama and Attorney General Eric Holder have gotten a pass from many liberals because they believe a Republican president would be even worse on such matters.” Kennedy also notes that the administration’s use of the Act “has led to a virtual war on journalism and free expression.” The Obama administration has defended its aggressive approach by stating that the higher volume of prosecutions is just happenstance. The administration rejects assertions that the volume of prosecutions is politically-motivated. This aggressive approach will likely mean that government officials (both current and former) will use more secretive ways of providing information to the media.

Facebook is used by approximately 845 million people across the world.  Individuals use Facebook, among other reasons, to keep up with friends and as a method of self-expression, but now you can add one more use to that list.

In the northern German city of Hanover, which is the capital of the German state of Lower Saxony, the social media tool is being used to catch criminals.  Six months ago, Hanover police set up a Facebook account in an effort to use the help of the public in solving cases.  The Facebook group “Polizei Hannover” with some 23 thousand friends, and with 1.6 million hits over the past month, has helped in clearing cases involving missing persons, a break-in, and auto theft.  The state’s interior minister, Uwe Schuenemann, said in a statement regarding its use of Facebook, “Our successes so far clearly show that the police must not shut themselves off from this medium.”  Saxony’s successes include clearing up a missing persons case after the suspects’ images were circulated on the Lower-Saxony Police fan page.  The use of suspects’ pictures on Facebook in Germany raises issues of great concern among data protection groups.  Their concern arrises from the fact that once outside of Europe, the European Union data protection laws don’t apply.  Governments are starting to use Facebook in novel ways to identify criminals and help to solve criminal cases.

The Federal Communications Commission (FCC) is considering a proposal that would eliminate the sports blackout rule which bars cable and satellite systems from carrying a sporting event that is blacked out on local broadcast television stations. In other words, a local broadcaster is required to black out a game because tickets didn’t sell out 72 hours in advance. Unfortunately, this rule usually means that fans are not allowed to watch that game any other way. This rule has been in effect for 36 years and is aimed at ensuring that enough fans attend games. February 13 marked the last day for the FCC to receive comments. The FCC has reportedly received about 100 comments; an overwhelming majority of the comments favor eliminating the rule. The Sports Fans Coalition, a nonprofit fan advocacy organization, and other public interest groups filed a petition for rulemaking asking the FCC to eliminate the blackout rule. The petition asserted that sports economics and the technological means of distributing games have rendered these [blackout] rules obsolete.” Sports Fans Coalition Executive Director Brian Frederick argues that the blackout rule punishes “fans who physically cannot attend games or who cannot afford to go and they decrease fan interest, thus compounding the problem.” National Football League (NFL) Commissioner Roger Goodell has defended the policy by noting that the NFL only had 16 blackouts in 2011. In addition, Goodell has noted that the NFL is required to balance between making games available on free TV with encouraging fans to come to the stadium. Perhaps a reasonable compromise the FCC should consider is to reduce the 72 hour requirement to 48 or 24 hours. The announcement of the FCC’s decision is not certain and the agency does not have a deadline to act.