Tag Archive: First Amendment


Colorado Bill Would Strengthen State Media Shield Law

In response to pressure applied to Jana Winter, a New York-based Fox News reporter, to divulge her source regarding information about the 2012 Aurora, Colorado theater shootings, Colorado state senator Bernie Herpin has authored a bill which would strengthen Colorado’s media shield law.

Jana Winter learned of a notebook the Aurora gunman, James Holmes, sent to his psychiatrist before the shooting took place in July 2012.  Winter discussed the notebook in an article originally published on July 25, 2012.  James Holmes’ attorneys requested a Colorado District Court to compel Winter to travel to Colorado to testify who provided her with the information about the notebook.  Further, since Winter worked and lived in New York, Holmes’ attorneys instituted the proper proceedings in New York, seeking a subpoena be issued compelling Winter to testify.  Ultimately a New York Court of Appeal denied Holmes’ request, relying on New York’s media shield law, which is considered one of the strongest in the nation.

Under the current Colorado media shield law, Winter could be compelled to divulge her confidential sources or be held in contempt and face jail time if she refused.  Sen. Herpin’s bill would not only raise the burden of proof from ‘a preponderance of the evidence’ to the ‘clear and convening’ standard; it also creates a requirement that the party requesting the subpoena show the following four elements:

(1)   “the newsperson did not obtain the information in confidence;”

(2)   “the news information is highly material and relevant to a substantial issue involved in the proceeding;”

(3)   “the news information is critical or necessary to the maintenance of a party’s claim, defense, or proof of an issue material thereto; and”

(4)   “the news information is not obtainable from any alternative source.”

Sen. Herpin’s proposal would make it much more difficult to compel reporters to reveal their sources.  The Colorado Legislature’s Senate Judiciary Committee originally heard the bill on January 15, 2014, but lawmakers, wanting more time to debate the bill, delayed a vote.  During the hearing, Sen. Herpin read a statement by Winter, who wrote, “[n]o journalist should have to go through what I did, simply for doing his or her job and working to protect the public’s right to know.”

On January 27, 2014, Sen. Herpin’s bill was debated again by the Judiciary Committee and ultimately brought to a vote.  The majority of the lawmakers on the Judiciary Committee voted against the proposal, thus killing the bill.  Sen. Herpin said that he was disappointed following the vote, stating, “I think that freedom of the press acting as watchdogs of government is very important.”

Equality House: Westboro Baptist and Its New Neighbor

Based in Topeka, Kansas, Westboro Baptist Church has recently been brought back into the public spotlight for something other than protesting deceased military personnel funerals.  A non-profit supporting gay rights, Planting Peace, purchased a home across the street from the often-hated church and painted it rainbow colors which serves as a symbol for the support of gay rights protected by the First Amendment as freedom of expression. The house purchased across the street from Westboro is named the “Equality House.”

Westboro Baptist Church has been in the practice of gathering for anti-gay protests at the funerals of American military heroes since 1991. In 2011, the Supreme Court was faced with the question of whether or not the First Amendment to the United States Constitution protected the church in their protests. The Court in a 8-1 holding, determined that the First Amendment did protect the church and stated, “Freedom of speech is so central to the nation that it protects cruel and unpopular protests – even, in this case, at the moment of a family’s most profound grief.”

Although Westboro’s protests are protected by the First Amendment, many including Planting Peace, want to combat these messages of hate projected by members of Westboro Baptist with their own form of expression secured by the First Amendment. Aaron Jackson and his non-profit are attempting to spread the message of equality and compassion with a goal of “promoting equality.”

Members of Westboro have responded to the Equality House with statements such as, “We thank God for the sodomite rainbow house…It is right across the street from the only church that loves people enough to tell them the Bible truth about the filthy, soul-damning, Nation destroying sin of sodomy.” Jackson believes that the energy being put into Westboro’s beliefs and the attention they receive will be used and turned into something positive for the through the Equality House for the Lesbian, Gay, Bi-Sexual, and Transgender (LGBT) community.

Stop the Presses…or Not: Scandal Gives Rise to Competing Legal Interests

Courts often engage in the practice of balancing the interests of an individual’s right to privacy with the right of the press to disseminate what may be newsworthy information about that individual, particularly when publicizing information pertaining to a public official.  In the second season premiere of the ABC’s hit television show Scandal, a Rhode Island congressman by the name of Jacob Shaw was changing the batteries to his desktop clock in his office when he discovered a hidden motion-activated camera.  The video contained footage of the congressman engaging in sexual activity.  The video footage was obtained unlawfully by an unknown source and subsequently leaked to a right wing website that planned on releasing the sex tape on the internet.   An effort to get an injunction to stop the release of the sex tape failed even though the congressman believed that allowing the release of this video footage violated his right to privacy.  Thus the issue at bar is why a court would refuse to grant an injunction thus allowing a media entity to release unlawfully acquired video footage of a public official’s private sexual conduct in the privacy of his own office.

The United States Supreme Court noted in Bantam Books, Inc. v. Sullivan that any prior restraint on speech, such as an injunction, bears a heavy presumption against its constitutional validity.  Thus an individual seeking a court injunction enjoining speech carries a heavy burden of showing justification for imposition of such restraint in addition to a showing that the individual will suffer irreparable harm if the injunction is denied.  Although public officials have a diminished expectation of privacy as it relates to matters of public concern, it surely could be argued there is justification for a court to enjoin the release, by the media, of an unlawfully obtained sex tape recorded in a place where one has a reasonable expectation of privacy and that a public official’s sex life is not a matter of public concern.  Thus, congressman Shaw could bring a cause of action for intrusion, one of the four tort elements under a breach of the right of privacy, where he could show that he had a reasonable expectation of privacy that was breached in a manner that is highly offensive to any reasonable person.  The problem Shaw faces is that the media entity planning the release the video footage took no part in any breach of his privacy.

It has been well established by the United States Supreme Court that the press has freedom to expose and criticize information regarding public officials as it relates to matters of public concern.  Thus the other side of the argument is that the private lives of public officials are indeed matters of public concern if citizens are to entrust them in running their government.  The effect of the media entity not having any part in the illegal conduct as it pertains to its acquisition of the tape is illustrated in Bartnicki v. Vopper, where the United States Supreme Court noted its consistency in holding that where a media defendant “lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need … of the highest order.”  In Bartnicki, conversations between a teacher’s union and local school board attempting to negotiate contracts was intercepted by an unknown source.  The recorded conversation was leaked to a radio host who aired the tape on his radio show.  Even though the conversation had been illegally intercepted, and the radio host had knowledge the tape was a product of illegal conduct prior to airing it, the Court held a stranger’s illegal conduct does not remove the First Amendment shield from speech about a matter of public concern.  Where a media entity has taken no part in the illegal conduct used to obtain the information it seeks to disseminate a court will not grant an injunction, particularly where the information pertains to a public official on matters of legitimate public concern.

Thus it appears that even though congressman Shaw’s sex life was a private matter to him, this fact was not enough of a justification for the court to restrain the right of the press to disseminate information it obtained through no illegal conduct on its part as it pertains to the congressman’s conduct due to his status as a public official, and the implications this status has on what parts of his life are now a matter of public concern.

Anti-Muslim Film Actress Loses Legal Challenge to Remove Movie from YouTube

An actress who had a role in the controversial anti-Muslim film Innocence of Muslims that sparked global riots in the Muslim world lost her legal challenge to get a judge to order the movie taken off YouTube. The controversial 14-minute video portrays Muhammad as a “womanizer, religious fraud, and child molester.” The actress, Cindy Lee Garcia, filed suit in a California Superior Court in Los Angeles and requested that Judge Luis Lavin order the movie to be removed from YouTube. Garcia claimed she was duped by the film’s producer and filmmaker. Specifically, Garcia said that producer and filmmaker Nakoula Basseley Nakoula (also known as Sam Bacile) initially characterized the film as a historical adventure that contained nothing about Islam and did not attack Mohammed. However, Garcia claims that the title of the movie was originally Desert Warrior but had been changed to Innocence of Muslims and that her lines were altered by the time the film had been uploaded to YouTube. Garcia’s attorney argued that Garcia “did not sign on to be a bigot.”

Judge Lavin rejected Garcia’s request to have YouTube remove the film because Nakoula had not been served a copy of the lawsuit. Judge Lavin also noted that Garcia was not able to produce any agreement she had with the makers of the film. Furthermore, Judge Lavin cited a federal law that protects third parties from liability for content they disperse. Judge Lavin noted that the video, although incendiary, does not violate YouTube’s terms of service regarding hate speech. In response to Judge Lavin’s ruling, Garcia and her attorney claim that they will acquire more evidence to strengthen their case before returning to court in the next few weeks.

The controversial movie has reportedly sparked anti-American riots in several Muslim countries and was supposedly a catalyst in the killing of embassy officials in Libya, including U.S. Ambassador Christopher Stevens. YouTube has blocked users in Saudi Arabia, Libya, Indonesia, India, and Egypt from viewing the anti-Muslim movie, because it violates laws in those countries. Garcia says she has received death threats and is no longer allowed to provide childcare for her grandchildren because of fear for their safety. There have been other efforts to have the video removed from YouTube. A week earlier, the White House had asked YouTube to take the video down but the company refused, explaining that the “video doesn’t violate its content standards.”

Garcia’s suit raises some interesting legal issues because the actress claims that the filmmaker and producer deliberately concealed the film’s purpose and content when Garcia was recruited. Moreover, Garcia alleges that important changes were made after filming was completed, most notably altered lines. The fraud claim against the filmmaker is similar to claims made by those who said they were tricked by actor Sacha Baron Cohen during the making of Borat. Cohen, a British comedian, was unsuccessfully sued by some non-actors who appeared in his film Borat who weren’t familiar with his unusual character. In the film, Cohen pretended to be a foreign journalist named Borat from Kazakhstan. The movie set up fake scenarios featuring non-actors whose interactions with Cohen’s character were filmed under the impression that the individuals were taking part in a documentary about the U.S. Specifically, the suit involved fraternity members from a South Carolina college who appeared intoxicated. The students made insulting comments about women and minorities to Cohen’s character. After the film’s release, the students brought suit against the filmmakers and producers claiming that they were duped; the students sought an injunction to stop the studio from displaying their image and likeness. The students had signed waivers but argued that the waivers were ambiguous and limited to a documentary-style film; the students also argued that the filmmakers got them drunk before they signed the forms. That suit was dismissed because the students had failed to show a reasonable probability of success on the merits of their case or that monetary damages would be insufficient to resolve their claims. Comparing the Borat case with the Innocence of Muslims case, Jeremiah Reynolds notes, “Although this is a much more serious situation, the (legal) analysis should be the same…It’s an act that is protected by the First Amendment.”

Public Broadcasting and Political Advertisements: Ninth Circuit Decides FCC Ban Violates Free Speech

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 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.

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.

Breitbart: Defense After Death

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.

Increased Criticism of Obama Administration’s Use of the Espionage Act

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.

Fourth Circuit Upholds Law Denying Out-of-State Media Organizations the Right To Request Public Records

The Fourth Circuit U.S. Court of Appeals on Feb. 1 ruled that out-of-state news organizations do not have the right to request public records from Virginia agencies. The ruling upheld the constitutionality of Virginia’s existing Freedom of Information Act (VFOIA). In the suit, two out-of-state records requesters challenged the statute after state and local agencies, declined their requests. The two out-of-state appellees unsuccessfully argued that the citizens-only provision barring access to non-residents violates their fundamental rights under the dormant commerce clause and the privileges and immunities clause.

Filing a brief amici curiae, a group comprised of more than 20 reputable media and open government groups argued that the law unconstitutionally restrains the majority of journalists’ right to public records, thereby hindering their role as a government watchdog.

VFOIA allows out-of-state news organizations to submit requests only if they have circulation or broadcasts in or into Virginia, which the amici argued hinders non-citizen journalists from reporting on national concerns involving operations of government. Included in the brief are examples of these national concerns such as the 2007 Virginia Tech shootings, investigations of politicians, and economic news.  In all these examples, the current Virginia law prohibits a majority of journalists from access to these records.

The Court did not discuss the important First Amendment issue of freedom of the press, which the amici addressed. The denial of the ability to request public records affects not only media outlets from other states, but also Internet journalists and bloggers.  Particularly with the heightened use of the Internet, society prizes its ability to find and share information — especially public information — freely. By not addressing this issue, the Court skirts around discussing the increasingly important and contested relationship between the Internet, media, and freedom of information.




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