US Round Up: First Amendment and Media Law in the Courts, the Senate and on Campuses – Joseph Williams

29 11 2015

usa_mapThe major Supreme Court media law case heard in the October Term 2014 was Elonis v United States. The judgment [pdf] was handed down on 1 June 2015, and reversed and remanded the Third Circuit. The case is the first which the Supreme Court has heard on the question of speech on social media.

The case concerned the criminal conviction of Anthony Douglas Elonis for threats made in the form of rap lyrics on Facebook, under the pseudonym “Tone Dougie”. At trial, Elonis requested a jury instruction that the Government was required to prove that he intended to communicate a “true threat.” Instead, the District Court told the jury that Elonis could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat. The court overturned the lower court’s ruling by a margin of 8-1 (Justice Thomas dissenting, Justice Alito concurring in part).

This was an unusual test case for the Supreme Court on freedom of expression in social media, concerning as it did the issue of a “true threat”, which quite definitively falls outside the realm of the First Amendment. Indeed Chief Justice Roberts, who gave the judgment of the court, did not think it necessary to consider any First Amendment issues at all. The case was decided on the issue of the jury direction in the context of criminal law. The majority decided that the conviction could not stand, on the grounds that the “reasonable person” standard was not appropriate for a criminal case and “[f]ederal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” (Elonis v United States, 16).

The impact of Elonis is therefore somewhat limited. The criminal statute in question has only been applied a handful of times and the court did not expand on what would meet the threshold in a social media context. The absence of a First Amendment determination means that the ruling does not have any impact on restricting speech outside the criminal context. However, it does establish that threats on social media will not be assessed differently than other forms of threat, and suggests that freedom of expression online is granted a similarly high threshold as elsewhere.  Full details of the case can be found on the SCOTUS blog.

Two First Amendment cases have been filed for the October Term 2015 but do not yet have a scheduled date for argument.

  • Friedrichs v California Teachers Association concerns freedom of association. First it seeks to overrule the conclusion in the 1977 case Abood v Detroit Board of Education (431 US 209) that non-union members can be assessed dues for collective bargaining, though not ideological or political purposes. If the court finds in favour of the applicant, non-union members would not be eligible for assessed dues. The second issue is whether it violates the First Amendment to require that public employees affirmatively object to subsidising nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent.
  • Heffernan v City of Paterson seeks to determine whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate. The Appellant, Jeffrey Heffernan, is a police officer in Paterson, New Jersey, who was demoted after being observed obtaining a local mayoral candidate’s campaign sign at the request of his mother. (Heffernan v City of Paterson (2015) 3rd Cir No 14-1610) Both cases will likely be heard sometime in the New Year.

Freedom of Information

An increasingly absurd freedom of information battle between local media and local politics is playing out in California. On 1 July 2015, the mayor of Sacramento, former professional basketball player Kevin Johnson, sued the Sacramento News & Review (SN&R) in an attempt to prevent them obtaining emails under the California Public Records Act. The emails requested concern Johnson’s 2013 takeover of the National Conference of Black Mayors, which he declared bankrupt and resigned from before founding the competing African American Mayors Association. The city attorney’s office determined that the communications were part of the public record but rather than publishing them, turned them over to Johnson and a law firm working on his behalf. Johnson’s attorneys warned the SN&R reporter that a lawsuit would ensue unless the request was amended to exclude any NCBM-related communication.

This was justified on the somewhat curious grounds that, in spite of the emails being held on city-controlled public servers, the 40 people privy to the emails – including the entirety of the Sacramento mayoral staff – are protected by attorney-client privilege. On 17 September 2015, SN&R reported that a request on the part of Gawker Media to intervene as a party of interest on the grounds that it has submitted a similar freedom of information request was refused by the City of Sacramento, a co-defendant in the case. This is a SLAPP lawsuit of the most egregious kind, gagging the press and circumventing freedom of information provisions to undermine the public interest in political transparency. The next motion hearing in the case is scheduled for April 2016.

Copyright Law

On 18 May 2015, the 9th Circuit, sitting en banc, handed down a judgment in Garcia v Google [pdf]. Ms Garcia had made a motion for a preliminary injunction requiring Google to remove the film The Innocence of Muslims from all of its platforms, notably Youtube. The case concerned a copyright claim she had over a five-second acting performance which, unbeknownst to her, had been turned by a movie producer into part of a blasphemous video proclamation against the Prophet Mohammed. The video was watched by millions and credited in news outlets as a source of violence in the Middle East. The attention led to Garcia receiving death threats. Garcia sought the injunction on the grounds that she had a copyright claim in her five-second performance. The 9th Circuit overturned the injunction, as Judge McKeown succinctly put it, on the grounds that “a weak copyright claim cannot justify censorship in the guise of authorship.” (Garcia v Google, 7)

On 22 September 2015 a federal court judge ruled that all copyright claims over the song “Happy Birthday” over the last 80 years were invalid. Judge King in Marya v Warner/Chapell Music determined that the copyright filed by Summy Co. in 1935 granted the rights to the specific piano arrangements of the music, not the music itself. The judge did not however go so far as to say that Happy Birthday is in the public domain. Whether the copyright claim invalidation amounts to much the same thing will remain to be seen.

Regulation of Speech

On 30 September 2015, a First Amendment judgment was handed down by the Federal District Court of Eastern Kentucky in the case of Rosemond v Kentucky Board .[pdf] The judge granted an application to John Rosemond against the Kentucky Board of Examiners of Psychology. Rosemond is the writer of a nationally syndicated “Dear Abby-style” advice column. His byline describes him as a “family psychologist”. Rosemond is not a licensed psychologist in Kentucky, but holds a master’s degree in psychology and is licensed as a psychological associate in North Carolina.

On 7 May 2013, he received a cease-and-desist letter from the aforementioned Kentucky Board, on the grounds that his advice that parents of a teenager confiscate their son’s cell phone as a “wake up call” amounted to professional services rendered and constituted professional speech. The court described this as an “exercise of regulatory zeal” (Rosemond v Kentucky Board, 1), and while it found that the speech was neither commercial nor professional, it would in any case be excessive for the Board to restrict on the grounds that the power of the Board is not unlimited. (Rosemond v Kentucky Board, 19) The Board failed to provide an example of any actual harm, ever, resulting from Mr Rosemond’s behaviour. (Rosemond v Kentucky Board, 20) Not only did the court declare in favour of Mr Rosemond, it enjoined the Kentucky Board from attempting any further interference with the publication. The concluding remarks of the judgment put this in no uncertain terms, stating that to permit the state to halt this lawful expression “would result in a harm far more concrete and damaging to society than the speculative harm which the State purportedly seeks to avoid, and perhaps that is the “wake up” call best drawn from the facts of this case.” (Rosemond v Kentucky Board, 20 – 21)

The Consumer Review Freedom Act (S.2044) was referred to the Senate Committee on Commerce, Science and Transportation on 16 September, and approved on 18 November 2015. If passed, the bill will make a provision of a form contract void from inception if it prohibits or restricts an individual party to the contract from engaging in reviews, assessments or analyses of the product, services or conduct of a person that is also a party to the contract. It would also prohibit the imposition of penalties or fees against individuals for their reviews, as well as voiding the transfer of intellectual property rights in any otherwise lawful communication. This bill is a legislative response to the continued practice of businesses who issue fines and even proceed with litigation against those who leave negative reviews on websites such as Yelp. Such practice is already clearly incompatible with the First Amendment, but its continued existence in the private sphere suggests that the act may be necessary to create awareness and shift norms in favour of freedom of expression.

University Protests: Fighting Bias or Media Censorship?

Universities around the country have erupted in protest over racial tensions, leading to the resignation of several high profile administrators and stoking a debate regarding the role of media coverage. The University of Missouri at Columbia has been a lightning rod for these issues, though campuses nationwide have been affected. The protests largely stem from perceived inaction on the part of administrators of the university to deal with race issues, and in particular a series of racially-motivated acts of harassment towards students.

On 10 October 2015, protesters at the University of Missouri blocked the car of the university president Tim Wolfe during a homecoming parade. His car tapped a protester before the demonstration was broken up by police, who were subsequently accused of using excessive force to do so. Events escalated following this incident, leading to a hunger strike, a student boycott and finally on 8 November, black football players refusing to practice or play until  Wolfe resigned. Wolfe handed in his resignation the following day,9 November 2015.

On 12 November 2015, Mary Spellman, the Dean of Students at Claremont McKenna College also resigned after she wrote an email to a student in response to an article in the student newspaper dealing with the marginalisation of minority students. A number of subsequent solidarity protests have taken place across the country. While this is a manifestation of the legitimate First Amendment right to protest and associate freely, the protests have come under criticism from certain quarters of the media for their attempts to shut out media coverage on the grounds that it is biased and insensitive.

On 10 November 2015, student journalist Tim Tai was challenged and blocked from filming the protesters’ camp at the University of Missouri, as seen in a video subsequently uploaded to Youtube under the name “#ConcernedStudent1950 vs the media.” This led to national debate about media censorship. Laura Newberry reporting for Mass Live on 19 November 2015, wrote that activists at Smith College barred reporters from a sit-in of 300 to 500 students on the grounds that the media has “historically painted radical black movements as violent and aggressive.” The issue of media bias, particularly with regard to black Americans, is significant and ought to be addressed. However, censoring media coverage is unlikely to achieve anything other than a less informed media and a more entrenched bias.


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