US Freedom of Expression and Media Law round-up – 27 August 2012 – Gervase de Wilde

27 08 2012

The boom in litigation which features social media, both as a means of publication, and where its use plays a part in other proceedings, continues throughout the American court system. This phenomenon was highlighted here when Northcliffe Media tried and failed, in a California court last month, to force Twitter to reveal the identity of an anonymous poster behind a spoof account. Judges at all levels grapple with the difficulties presented by new technology and their decisions, as evidenced in the links below, receive more comment and scrutiny than ever.

Supreme Court

The First Amendment has featured in several Supreme Court decisions given since our last round-up in late April, but generally on their periphery rather than front and centre. This useful First Amendment Center summary describes them as “overshadowed by other matters and… predictable”.

In Reichle, et al., v. Howards (11-262 ) the plaintiff alleged that Secret Service agents who arrested him when he berated the then Vice President Dick Cheney had violated his First Amendment rights, holding him in retaliation for the expression of his opinions. The Court neatly ducked the issue, focusing on the fact that it was not clear at the time of the incident that an arrest supported by probable cause could give rise to a violation. The question of whether or not it is constitutional to arrest a citizen who is exercising their free speech rights remains for another day.

Amid wardrobe malfunctions, raised middle fingers and other Super Bowl sensations, the nature of what is too “indecent” for prime time broadcast is hotly contested, particularly since standards are applied more stringently to radio and TV than other media. In FCC v. Fox Television Stations, et al. (10-1293), broadcasters challenged the Federal Communications Commission’s ban on fleeting swearwords and momentary nudity on daytime TV as a violation of their free speech rights.

In the end, as the Volokh Conspiracy blog points out, the case was decided on narrow grounds, which focused on a lack of fair notice (a principle similar to that which is articulated by the ECHR as the need for restrictions on rights to be “prescribed by law”). Volokh speculates that this narrowness may have been rooted in potential divisions in an eight-member court. The New York Times bemoans an approach “which leaves broadcasters with little real grasp of what is allowed and what is not”.

The United States’ Stolen Valor Act criminalized lies about the receipt of a military decoration. The Court held that this was unconstitutional in the unusual case of United States v Alvarez (11-2010 06/28/12), in which a local official in California had claimed to have been awarded the Congressional Medal of Honor, when he had not even undertaken military service.  As this analysis on the Concurring Opinions blog points out, the decision relies heavily on the “marketplace of ideas” theory of the First Amendment (the idea that “the truth will out” where there is an opportunity for it to be heard). Volokh assesses the decision in the wider context of when knowing falsehoods can be sanctioned by the government.

Defamation

The most eye-catching libel judgment in recent months, especially given the ongoing debate about the use of juries in libel trials in this country, is the award by a jury of $13.8 million in damages to a Texas couple following an anonymous online campaign against them. The comments on an internet forum were made around the time that Mark and Rhonda Lesher were accused, and subsequently acquitted, of sexual assault. The judge later overturned the jury’s award, finding that the verdict for the Leshers was not supported by evidence. The Citizen Media Law blog focuses on “the tough questions about damage caused by online statements or how they divided damages between reputational injury and emotional distress” which the case raises.

Another Texas decision, in Forth Worth, involved an award to the founder of a Bat Sanctuary of $6.1 million in damages. The defendant (who had been the subject of three previous defamation actions) was a former intern at the charity who had spread what the judge described as “egregious, malicious and intentional defamatory statements” online against her former employer. An interesting feature of the case was the use of “Google-bombing” to place the results for the material high in search rankings. This significant aspect of online reputation, rarely mentioned in the High Court in London, appears to be one that is only now being fully considered in the course of litigation.

In spite of the more limited remedies available to public figures in defamation actions in the US, figures from public life inevitably continue to be involved in libel litigation. An appellate court in North Carolina held that allegations made about the political sympathies of a sitting judge were not constitutionally protected, and could meet the “actual malice” standard required to proceed to a full jury trial. The Reporters Committee for Freedom of the Press has more information and a link to the opinion.

A libel suit brought by Florida billionaire and one-time senatorial candidate Jeff Greene against the Tampa Bay Times was dismissed by a circuit judge, as the paper itself reports. The judge stated that the plaintiff had “injected himself, even if for a limited time, into the public arena” by means of his candidacy.

The New York Law Journal reports on a case in Albany in which an appellate court rejected the idea, well established in other Appellate Division departments, that saying that someone is gay is defamatory per se. In Yonaty v. Mincolla (512996), the court ruled that such a statement was no longer to be aligned with those that are, such as falsely charging someone with a serious crime. The judge held that the authorities were “based on the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual”.

The question of whether liability arises for links to defamatory material online continues to be asked throughout the common law world in the wake of the Canadian decision in Crookes v Newton (2011 SCC 47). In Philadelphia, in Re: Philadelphia Newspapers LLC et al (11-3257) an Appellate Court held that it does not, rejecting a claim for libel based on a newspaper’s linking to allegedly defamatory material.

The use of links was also at issue in a case reported on by Eric Goldman, Redmond v. Gawker Media LLC ( 2012 WL 3243507), in which the plaintiff sued Gizmodo for an article on his new venture headlined Smoke and Mirrors: the Greatest Scam in Tech. Goldman suggests that the most significant part of the judgment is where it refers to the incorporation of active links to original sources. This strategy allows readers to draw their own conclusions and makes the article “nonactionable opinion”.

Privacy

The publication of photographs is often at the root of privacy disputes and, in California, the Ninth Circuit held in Marsh v. County of San Diego (2012 WL 1922193) that a plaintiff had a constitutionally protected right to privacy over images of her dead child which had been passed to the media. No damages were awarded because of the defendant’s qualified immunity.

Publication of personal pictures, in this instance of a wedding, was sanctioned on copyright grounds by an Appeal Court in Florida (Monge v Maya Magazines (10-56710)). In a case with echoes of Douglas v Hello, Puerto Rican singer Noelia sued a Spanish language gossip magazine when it published pictures of her wedding to her manager. The publication failed in its attempt to use a “fair use” defence to the claim for copyright violation.

In litigation arising out of the Occupy Wall Street Protests, Twitter has been ordered by a New York judge to give up Tweets made by a demonstrator who has been charged with disorderly conduct. The judge in New York v Harris (2011NY080152) stated that

“If  you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world”

The request, as one commentator points out, appears to extend to “DMs”, which are not published to the world at large, and subsidiary information such as IP addresses, times and dates, the combination of which appears to have disturbing implications for the extent of potential state intrusion into private life.

In a similar ruling, another New York judge said that an alleged Bronx gangster’s profile could be viewed by Federal investigators via that of an informant who was his “friend” on the social media service, reports Jeff John Roberts for Gigaom. The subject of the investigation’s legitimate expectation of privacy “ended when he disseminated posts to his “friends””, said Judge William Pauley III.

The potential for social media use to have consequences for one’s privacy was also clear in a California ruling that a juror caught writing on his Facebook page during a criminal trial must consent to a review of the posts by a trial judge. Facebook is not a party to the case – the order binds the juror, whose arguments that it violated his Fourth Amendment rights were rejected by the court.

Other cases of note

The availability and extent of online anonymity continues to come up in US court rooms, particularly in the course of defamation actions. Print and online publication The Spokesman Review reports that it has been the subject of an order to provide information to help identify an anonymous reader who left a disparaging comment about a local politician on its website.

The precise nature of a Facebook “Like” was considered in Bland v. Roberts (E.D. Va. Apr. 24, 2012), in which the plaintiffs claimed that their dismissal from the Hampton, Virginia sheriff’s office, working under Roberts, happened as a result of their “liking” his electoral opponent’s page. The judge stated that “liking” a Facebook page “is not the kind of substantive statement that has previously warranted constitutional protection”. Venkat Balasubramani comments that it’s “well off the mark” to say that the likes were not speech for First Amendment purposes, and Volokh also anticipates an appeal.

In a decision that was reported here by the Guardian’s Emily Bell, a judge in a long-running patent dispute between Oracle and Google ordered both sides to file a statement

“identifying all authors, journalists, commentators or bloggers who have reported or commented on any issues in the case and who have received money (other than normal subscription fees) from the party or its counsel during the pendency of [the] action”

 The breadth of the order is striking – it could even encompass bloggers who have received income from Google’s AdSense technology – and its ultimate purpose remains rather opaque (see Goldman for an analysis of why it would be appropriate). The broader issue which it highlights is that of transparency in journalism, a vexed issue in the technology sector, where lavish freebies for journalists, and exclusive access to heavily hyped new products, are common currency.

Those paying particularly close attention may remember a ruling in January that an Illinois reporters’ shield law did not extend to a technology news blog. However, as the Blog Law Blog reports, this decision has now been reversed: the site can keep the identity of its anonymous tipster hidden as it “is a news medium”.

With thanks to all of the blogs mentioned, which have proved invaluable in compiling this round up, particularly Volokh, Eric Goldman and the Citizen Media Law blog, and to Kyu Ho Youm, whose Twitter feed is a comprehensive guide to media law news in the US and beyond. Apologies for any significant omissions.

Gervase de Wilde is a former journalist at the Daily Telegraph and a pupil barrister.


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29 08 2012
Law and Media Mid-Summer Round Up – 29 August 2012 « Inforrm's Blog

[...] US Freedom of Expression and Media Law round-up – 27 August 2012 – Gervase de Wilde [...]

29 08 2012
US Freedom of Expression and Media Law round-up – 27 August 2012 – Gervase de Wilde | Media Law | Scoop.it

[...] The boom in litigation which features social media, both as a means of publication, and where its use plays a part in other proceedings, continues throughout the American court system. This phenome…  [...]

30 08 2012
Social Media Law » Summary of Recent Freedom of Expression and Media Cases

[...] that deal with defamation, libel, privacy, and other social media generated concerns. The article, “US Freedom of Expression and Media Law Round-Up”, provides a good synopsis of cases you should be aware [...]

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