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.
Archive for March, 2012
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.