Digital Media and Data Privacy Law Blog

The past 20 months have created a lot of transitions in how people work. Some companies still have the majority of their employees working remotely and intend to keep it that way permanently. Other businesses have tried to come back fully in-person only to send workers home again as new variants emerge and COVID cases begin to rise again.

We have seen an increase in cybersecurity incidents with such a dispersed workforce. Changes in working conditions, home systems that are less secure, and the general stress we are all under as the pandemic drags on have all likely contributed.

A survey ... Read More 

The past 15 months have been extremely challenging for every industry, but that is especially true of educational institutions. Every level of education—from local school districts to the largest universities—has had to work to balance the safety of students, faculty and staff with their mission to provide high-quality education all the while knowing that every decision would be highly scrutinized and criticized. During this time of turmoil and uncertainty, many schools faced a challenge they were not expecting – a cyber attack.

Schools collect all sorts of personal and ... Read More 

As COVID-19 has spread throughout the world and within the United States, companies of all sizes have had to make quick decisions about how to implement work-from-home procedures. While many businesses are accustomed to having some of their employees work remotely at any given time, the sudden shift to a majority of the work force being away from controlled office networks and environments presents a unique and heightened set of technical and cybersecurity challenges.

To access the full article, click here.Read More 

A ruling by the highest court in the European Union regarding the common practice of putting a Facebook “Like” button on a website could have repercussions for American companies doing business overseas.

In late July, the Court of Justice of the European Union ruled that the owner of a website is jointly responsible, with Facebook, for any data that is shared with the social media giant by embedding a social media plugin, such as Facebook’s “Like” button. This means that websites must now get explicit permission to share information with social media sites and show they have a ... Read More 

When news of a major data breach, like the recent one at Capital One, makes headlines, the first response of many business owners may be to breathe a big sigh of relief that it wasn’t them. However, it’s critical that companies use these publicized breaches as a reminder to review their own systems and to see what lessons, if any, they can learn to improve their own data security.

In late July, Capital One announced that approximately 100 million people in the United States and approximately 6 million in Canada had been impacted when an individual gained unauthorized access to its ... Read More 

Brooks Pierce attorney Will Quick recently spoke to Raleigh television station WRAL about the intersection of privacy law and home surveillance technology, particularly doorbell cameras, used by private citizens.

While most people use these types of cameras legitimately to help protect their property, with any new technology there is a risk of misuse, whether intentional or not. Quick explained the use of home surveillance cameras is generally covered by well-established privacy law that holds that people have a reasonable expectation of privacy in certain places.

The full ... Read More 

The contributors to Brooks Pierce’s Digital Media & Data Privacy Law comprise our firm’s digital media & data privacy practice group.

We have successfully represented broadcast and print clients in First Amendment and other media litigation in state and federal courts across the country. Our practice includes defending against libel, defamation, and privacy claims, prosecuting open meetings and public records actions, pursuing courtroom and court docket access cases and claims, resisting subpoenas directed to reporters and media organizations, and litigating ... Read More 

On Friday, Sept. 28, 2018, California Governor Jerry Brown signed into law first-in-the-nation legislation requiring that manufacturers include “reasonable security features” on any device that is “capable of connecting to the Internet”—commonly known as an “Internet of Things” (IoT) device.  California Assembly Bill 1906 and Senate Bill 327, which contain identical text, won’t go into effect until Jan. 1, 2020, but most manufacturers of IoT devices are going to need that lead time (if not more) to ensure the devices they put out into the market are compliant ... Read More 

Zounds, right?  But that is arguably what the U.S. Court of Appeals for the Ninth Circuit said about the Computer Fraud and Abuse Act in Facebook v. Power Ventures, Inc. on July 12^th.  Let’s get to it.

Facts

Power Ventures and its CEO Steven Vachani operated a social network called Power.com. The concept was simple. People using other social networking sites could create a Power account to aggregate the user’s social networking information. The users could keep track of a variety of social networking friends through a single program and click through the central Power website to ... Read More 

When we last left David Nosal, he had escaped liability under the Computer Fraud and Abuse Act after convincing some of his former colleagues at executive search firm Korn/Ferry to use their log-in credentials to download source lists, names and contact information from a confidential database and transfer that information to Nosal.  The U.S. Court of Appeals for the Ninth Circuit held that violating Korn/Ferry’s policy against disclosing confidential information did not amount to violations of the CFAA, and overturned his convictions under that law. 

But the government ... Read More 

We don’t usually talk about four-year-old court decisions in the first instance here.  But the Ninth Circuit has issued a pair of noteworthy opinions interpreting the Computer Fraud and Abuse Act in the last few weeks.  And to understand those it will help to understand United States v. Nosal, 676 F.3d 854 (9th Cir. 2012), an en banc opinion authored by Judge Kozinski.

Facts

The facts are mercifully short.  David Nosal used to work for Korn/Ferry, an executive search firm.  Shortly after he left the company, he convinced some of his former colleagues who were still working for ... Read More 

Like many people, Aaron Graham and Eric Jordan carried cell phones around in 2011. Unlike most people, Graham and Jordan were convicted of crimes arising from their participation in a series of armed robberies[1] in that period, and were soon sorry that they had their cell phones on them when those robberies happened.  Sitting en banc, the U.S. Court of Appeals for the Fourth Circuit just made them sorry last Tuesday in United States v. Graham, No. 12-4659 (4th Cir. May 31, 2016).

Because in their investigation, federal agents sought the cell-site location information (or “CSLI” as ... Read More 

I’ve long thought that sending faxes was a pretty silly means of communication.  Don’t send me a fax.  I don’t want it.  At some point I’m hoping that even my kids’ doctor’s office will get dragged into the 20^th century and drop their insistence on faxing.  In the meantime a pdf will be fine, thanks.  In addition to the many reasons faxes are antiquated and annoying, the SEC has just provided us another reason to avoid them: they encourage violations of Reg. S-P!

The Rule

Reg. S-P’s Safeguards Rule requires that every broker-dealer registered with the SEC adopt policies and ... Read More 

You may be too young for this to have been a big thing to you, but almost 30 years ago, D.C. Circuit Judge Robert Bork was nominated to the Supreme Court, and Washington, D.C. went into a tizzy.  Coming as it did just a year after Antonin Scalia joined the Court in 1986, Judge Bork’s nomination had many people very excited and very motivated: some to have him on the Court, and some to keep him off.  In the midst of this hooha, a writer at the Washington City Paper thought it would be cool if Bork’s local video store would share a list of the judge’s rentals.  It did.  And at the time it was completely ... Read More 

If you’ve ever attended the SEC Speaks conference, you know that the official program is an intensely uninteresting collection of short speeches by SEC officials who don’t have a lot of incentives to say groundbreaking things.  But occasionally there are exceptions.  I think Deputy Director Stephanie Avakian’s discussion of cybersecurity cases on Friday was one of those.

Avakian broke those cases down into three categories.

1. Failures of registered entities to safeguard information.  She cited the R.T. Jones Capital Equities Management case from September of last year as an ...

The FCC has been flexing its muscles in 2015 when it comes to enforcing data security requirements.  In April, it reached a $25 million settlement with AT&T Services, Inc. for failing to safeguard customers’ personal information.  In July, it reached a $3.5 million settlement with TerraCom, Inc. and YourTel America, Inc. to resolve similar claims.  Earlier this month, the FCC announced it had reached a $595,000 settlement with Cox Communications, Inc. (“Cox”) to resolve the Enforcement Bureau’s investigation into whether Cox failed to properly protect its customers’ ... Read More 

Lawyers and compliance professionals constantly tout the importance of internal information security policies, particularly in light of data privacy problems that are reported almost daily in the media.  Admittedly, drafting such policies as a proactive measure can be a pain because there is always a tendency to worry that, unless you’ve suffered a data breach, you are the proverbial “solution in search of a problem.”

But it’s not.  In fact, in some cases, it’s actually required.  HIPAA (for protected health information), Gramm-Leach-Bliley (for financial ... Read More 

Over the last couple years, the SEC’s cybersecurity bark has been worse than its bite.  Its Office of Compliance, Inspections, and Examinations issued examination priorities in 2014.  Commissioner Aguilar warned public company boards that they had better get smart about the topic a few months later.  The results of OCIE’s cybersecurity exam sweep were released in March of this year.  And the Investment Management Division said words, not many words, about investment advisers’ responsibilities in this area in July.

Alleged Facts

What it hasn’t done recently is sue somebody ... Read More 

Ed. Note: This entry is cross posted from Cady Bar the Door, David Smyth's blog offering Insight & Commentary on SEC Enforcement Actions and White Collar Crime.

Lots of agencies and organizations want to boss you around about cybersecurity.  In April, the SEC and the Justice Department published more directions on the issue.  We’ll cover the very brief guidance issued by the SEC’s Division of Investment Management first, and then turn to DOJ in a later post.

First, as with everyone else, the IM Division thinks cybersecurity is very, very important for investment companies and ... Read More 

I haven’t yet turned to a life of crime, so far be it from me to criticize actual criminals’ profit-maximizing strategies. It’s easy for me to nitpick, but I’m not the one strapping on my mask and trying to earn a (dis)honest dollar every day. But have a look at this Reuters story from Tuesday. 

In it, we learn that the SEC and the Secret Service are investigating a sophisticated computer hacking group known as “FIN4” that allegedly “has tried to hack into email accounts at more than 100 companies, looking for confidential information on mergers and other market-moving ... Read More 

Over the past months, my experiences with physician practices have made me realize that many practices do not understand how HIPAA applies to subpoenas for medical records.  More worrisome, I suspect that many practices nationwide routinely violate HIPAA when they receive a subpoena.

Here’s what I’ve observed:  Practices receive state court subpoenas that are signed by lawyers and that demand the production of medical records, and the practices automatically assume they must produce the records.  This is a dangerous assumption—the production of the records may very well ... Read More 

Suffering a data breach is bad enough. As often as it appears to happen, companies that are affected by a breach still shoulder a considerable burden. Management must stop the trains to identify the cause and scope of the breach—and then prepare for the aftermath. Lawyers are involved. The company’s brand is at risk. And the costs—employee time, legal fees, security consultants—quickly escalate.

But what if you determine that your company didn’t really need the information that was exposed? Suppose you find out that the breach involved a file that contained ... Read More 

Ed. Note: This entry is cross posted from Cady Bar the Door, David Smyth's blog offering Insight & Commentary on SEC Enforcement Actions and White Collar Crime.

We’re behind on this, but better (a little bit) late than never. Last month the SEC’s Office of Compliance, Inspections and Examinations released the first results of its Cybersecurity Examination Initiative, announced in April 2014. As part of the initiative, OCIE staff examined 57 broker-dealers and 49 investment advisers to better understand how these entities “address the legal, regulatory, and compliance ... Read More 

Ed. Note: This entry is cross posted from Cady Bar the Door, David Smyth's blog offering Insight & Commentary on SEC Enforcement Actions and White Collar Crime.

When I was at the SEC and online broker-dealers’ customers were the victims of hacking incidents, I used to wonder, why don’t the broker-dealers require multi-factor authentication to gain access to accounts? It was a silly question. I knew the answer. Multi-factor authentication is a pain and nobody likes it.

Do you know what it is? Here’s what Wikipedia says, so it must be true:

Multi-factor authentication ... Read More 

Unless you have been completely disconnected from all media, you are probably already aware that on Sunday, February 15, 2015, the FAA announced the release of its long-awaited rules to govern commercial sUAS (small unmanned aircraft systems) operations in the United States. The FAA’s proposed sUAS rules arrived like a barely-late valentine or box of candy, with the recipients hoping to read loving prose and enjoy fresh, rich chocolates. At this point, of course, the rules are merely a proposed regulatory regime (as embodied in a document that is called a “Notice of Proposed ... Read More 

You have probably heard about the recent data breach at Sony; after all, it’s not often that Kim Jong Un and Angelina Jolie are mentioned as part of the same story. Unlike other recent high profile hacks, the recent Sony hack appears to be somewhat different in character: the hackers appear to care most about using the information stolen from Sony to bring shame and scorn to the company, rather than for their own pecuniary gain.

And the story appears to continue down the proverbial rabbit hole, with reports of a tongue-and-cheek offer of investigative cooperation from the North Koreans ... Read More 

by Forrest Campbell, Health Law Attorney, fcampbell@brookspierce.com 

In December 2014, the U.S. Department of Health and Human Services ("HHS") and Anchorage Community Mental Health Services ("ACMHS") settled alleged HIPAA violations for $150,000.

Don't be misled--this settlement is not important just for parties subject to HIPAA. It's important to anyone who maintains confidential information in electronic form.

Here's what happened according to HHS. ACMHS failed to regularly update its IT resources with available patches, and ACMHS used outdated, unsupported ... Read More 

by Forrest Campbell, Health Law Attorney, fcampbell@brookspierce.com

In light of the Ebola outbreak, HHS's Office for Civil Rights ("OCR") issued a bulletin to accomplish two things: (i) ensure that HIPAA covered entities and business associates understand how PHI may be shared in emergency situations, and (ii) remind parties that HIPAA's privacy requirements are not set aside during an emergency. The bulletin can be accessed through this ... Read More 

In remarks delivered at the 2014 BAA Marketing Law Conference, Jessica Rich, director of the FTC’s Bureau of Consumer Protection, confirmed that, when it comes to privacy, the FTC is focusing on mobile technologies in a big way.   

This is nothing new—the FTC has brought a number cases in the past couple of years.  2014 was an especially active one, though.  For example, the FTC and Apple settled a complaint alleging Apple billed consumers for millions of dollars of charges racked up by children in kids’ mobile apps without first getting parental consent for those purchases.  The FTC ... Read More 

The U.S. Federal Trade Commission usually gets much of the glory for policing privacy and data security issues. For example, just a few months ago the FTC achieved a settlement requiring Fandango and Credit Karma to establish comprehensive data security programs and biennial security assessments following charges that the companies misrepresented to consumers the level of security of their mobile apps and failed to secure the transmission of consumers’ sensitive personal information. And who could forget the FTC’s Google Buzz settlement from 2011?

But recently the FTC ... Read More 

by David Smyth, Securities Enforcement Attorney

On October 31^st, the Federal Trade Commission sued St. Petersburg, Florida-based debt broker Bayview Solutions and two of its principals for posting the debt portfolios of 28,000 consumers online, including their bank account numbers and other identifying information. The “facts” that follow come from the FTC’s complaint. They may not be true!

Bayview’s Business

Bayview buys and sells portfolios of charged-off consumer debt for eventual collection by third-party debt collectors. One means of its business is ... Read More 

The right of journalists to refuse to testify regarding information or sources obtained as part of the news-gathering process, known as the reporter’s privilege, has been recognized by 49 of the 50 states and the District of Colombia. However, these existing protections are only applicable in state court. Federal law offers no statutory reporter’s privilege, leading to high-profile federal court cases in which a journalist is forced to choose between revealing confidential sources or spending time in jail for contempt of court.

The most prominent recent example is the case of ... Read More 

The next time you go for a long hike in a national forest with no cell phone service, you might want to take a drone with you so that you can send for help when you break your leg, dehydrate, and need help.

While you, as a non-commercial drone “hobbyist” or “modeler,” might—emphasis on might—not violate any state or federal law if you were to send a drone to facilitate your rescue, the same cannot be said for many other potential drone operators.  In fact, law enforcement in some states may not be able to send a drone to determine your specific location or provide you with medication ... Read More 

The U.S. Court of Appeals for the Second Circuit denied today a petition for review, en banc, of an earlier decision by a three-judge panel of the Court that had ruled in favor of Aereo and against broadcasters in a case that originated in the Southern District of New York.

On April 1, 2013, the panel concluded in the case that Aereo’s service did not violate the broadcasters’ exclusive right to “publicly perform” their copyrighted television programs. Broadcasters asked the full Second Circuit Court to review that decision, but a majority of judges declined to rehear the ... Read More 

Many journalists, constitutional lawyers, and plain old average Americans have expressed alarm at recent revelations about the Obama Administration’s “unprecedented number of leak investigations.”  Perhaps most notably, James Goodale, who represented the New York Times in the Pentagon Papers case, has argued that the President is on his way to surpassing Richard Nixon as “the worst president ever on issues of national security and press freedom.”

Of primary concern appears to be the Justice Department’s investigation of Fox News reporter James Rosen.  As is ... Read More 

In a unanimous decision authored by Justice Alito, the U.S. Supreme Court today turned away a constitutional challenge to residency requirement of the Virginia Freedom of Information Act.  As we previously reported, the Court granted certiorari in a case brought by non-Virginians challenging that requirement under the Privileges and Immunities Clause and the dormant Commerce Clause of the U.S. Constitution.  The Court's decision today affirmed a ruling by Fourth Circuit.

Under Section 2.2-3704(A) of the Virginia FOIA statute,

all public records shall be open to inspection and ...

We wrote recently about Sherrod v. Breitbart and O’Connor, the case argued last month in the D.C. Circuit that asks the Court to decide, among other questions, whether the District of Columbia’s anti-SLAPP statute should be applied in federal court.

The federal courts of appeals that have analyzed this question have all agreed that state anti-SLAPP statutes should be applied—at least to some degree—in federal court.  Those cases point to the Ninth Circuit’s 1999 decision in Newsham v. Lockheed Missiles & Space Co., in which the Court held that California’s anti-SLAPP ... Read More 

We would be remiss if we failed to note the recent passing of Anthony Lewis, long-time columnist and Supreme Court reporter for the New York Times.  Lewis died on March 25 at the age of 85.

Lewis won two Pulitzer Prizes and is the author of two of the most widely read books on Supreme Court history – “Gideon’s Trumpet,” which detailed the Court’s 1963 decision in Gideon v. Wainwright guaranteeing legal representation to criminal defendants charged with serious crimes and “Make No Law,” which described the Court’s seminal 1964 decision in New York Times v. Sullivan.  Of ... Read More 

Last week, we made our first foray into Sherrod v. Breitbart and O’Connor, which was argued in the D.C. Circuit several weeks ago and which will, hopefully, address the question whether the District of Columbia’s new anti-SLAPP statute should be applied by a federal court sitting in diversity.

In that post, we noted that the case also presented an interesting timeliness question.  In denying the defendants’ motion to dismiss brought pursuant to the D.C. anti-SLAPP statute, the district court held that the motion was not timely filed.  It is important to understand the unique ... Read More 

Sherrod was ousted from her job as an Agriculture Department rural-development official in 2010 after Breitbart posted an edited video of Sherrod, who is black, supposedly making racist remarks. She ...

The North Carolina Supreme Court last week split 3-3 on an appeal presenting important questions concerning the state’s Public Records Act, apparently leaving it for the General Assembly to close a gap in the law concerning the applicability of the records statute to campus police departments.

The case, Ochsner v. Elon University and North Carolina Attorney General Roy Cooper, presented, among other things, the question whether the campus police department of a private university is subject to the Public Records Act, where that department was certified and authorized pursuant ... Read More 

Last week, the United States Supreme Court agreed to hear an important case involving Virginia's public records law.  The case, McBurney v. Young, involves a challenge to a provision of the state law that says that "public records shall be open to inspection and copying by any citizens of the Commonwealth . . . " (emphasis added).  In other words, citizens of another state need not apply.

A challenge to this provision limiting the availability of public records to Virginia citizens was brought by, among other plaintiffs, a citizen of Rhode Island who used to live in Virginia and had his ... Read More 

A recent Idaho state court opinion ordering an Idaho newspaper to unmask the identity of an anonymous commenter on the newspaper's website demonstrates, among other things, the pitfalls that come with a clumsily worded retraction.

The case, Jacobson v. Doe, arose from a blog entry posted in February 2012 on the Spokesman-Review's website about Tina Jacobson, the chair of the county Republican Central Committee.  The post included a picture of Jacobson posing with then-Presidential candidate Rick Santorum and other local Republicans.  In an anonymous comment to the story, a ... Read More 

North Carolina Superior Court Judge Howard Manning recently ruled on the scope of protection for documents related to the highly-publicized investigation of irregularities in the University of North Carolina football program. The Court held that the majority of communications among attorneys are protected from disclosure, but that other categories of investigative documents must be disclosed as public records of a public agency. The Court also ruled that portions of former UNC football coach Butch Davis’ personal cell phone records must be disclosed.  The Court's rulings ... Read More 

Today, the U.S. Court of Appeals for the Second Circuit ruled in favor of broadcasters and content owners against the streaming service ivi, which previously captured and retransmitted broadcast programming over the Internet. The Second Circuit held that ivi is not a cable system and therefore is not entitled to the cable statutory copyright license under Section 111 of the Copyright Act.

Broadcasters initiated the lawsuit alleging that ivi violated the Copyright Act by streaming broadcast programming live over the Internet without consent. ivi argued that it was an online cable ... Read More 

Earlier this summer, the U.S. Supreme Court released during the last week of its 2011 term its long-awaited opinion in the broadcast indecency cases FCC v. Fox Television Stations, Inc. and FCC v. ABC, Inc. This decision represents an important victory for broadcasters, but, as explained below, leaves several important questions unresolved.

Background

The Fox case arose from the 2002 and 2003 Billboard Music Awards shows, in which Cher used the F-word during the live broadcast of the 2002 show and Nicole Richie used both the F-word and the S-word during the 2003 show. Its ... Read More 

A California court recently ruled that a lawsuit in which a group representing deaf citizens contended that CNN must provide captioning for videos uploaded to its website may proceed.  The group, The Greater Los Angeles Agency on Deafness, brought suit under the California's Unruh Civil Rights Act and the California Disabled Person's Act.  The court's decision is available here.

CNN responded to the suit by moving to dismiss under California's Anti-SLAPP statute, Section 425.16 of the California Code of Civil Procedure, contending that the claims arise from its ... Read More 

Last week, a federal court based in California issued a surprising and sure to be controversial decision finding the Communication Act’s ban on the airing of political and issue advertisements by public broadcasters to be a violation of their First Amendment rights.  The decision is available here.  By a two-to-one majority, the court held that the ban on all paid public issue and political speech by public broadcasters is an unconstitutional content-based restriction on speech because the statute permits paid promotional messages by non-profit advertisers on these same ... Read More 

The primary election in North Carolina is Tuesday, May 8, 2012, with a second primary (if needed) being either June 26 or July 17. The second primary will be June 26 if no second primary is needed for U.S. Representative races and it will be July 17 if there is a second primary for those federal races.  Since there are a number of multi-candidate primaries in the Congressional races, odds are that the second primary will be July 17. If no candidate receives 40% of the vote in the first primary, the second-place finisher can, but doesn't have to, call for a second primary.

We have covered disputes ... Read More 

In the final hours of the last business day before the Super Bowl, the Chief of the FCC's Media Bureau released an order denying the "reasonable access" complaint of Randall Terry against a Chicago television station.

Terry's campaign had been seeking to place ad buys on stations around the country leading up to and during the game.  He claimed he was a "legally qualified candidate" for the Democratic nomination for President. The ads featured disturbing images of aborted fetuses that would be potentially disturbing to some audiences.

As we wrote previously, a "legally ... Read More 

In a decision released this week, a panel of the Fourth Circuit affirmed the decision of the Eastern District of Virginia holding that a photojournalist had no claim under the federal Privacy Protection Act for a search of the journalist’s home conducted pursuant to a warrant, where law officers had  probable cause to believe the journalist was involved in a crime.

The plaintiff in Sennett v. U.S., No. 11-1421 (4th Cir. Jan. 30, 2012), was a photojournalist who routinely covered protests, political demonstrations, and acts of “grassroots activism” and published her ... Read More 

National news outlets are reporting that the NBC Network has asked presidential candidate Mitt Romney to stop using a television ad attacking Newt Gingrich that features former NBC News anchor Tom Brokaw.  The ad is available on the Mitt Romney campaign website and features Brokaw's reporting on ethics violations.

Some say the spot gives the impression that NBC is biased against Gingrich or in favor of Romney. As reported in the Wall Street Journal, Brokaw has said he is “extremely uncomfortable with the extended use of my personal image in this political ad.  I do not want my role as ... Read More 

Today, the federal Third Circuit Court of Appeals issued an opinion in the Janet Jackson indecency case reaffirming its earlier decision that CBS owned and operated stations were not liable under the "indecency" statute for the broadcast of Janet Jackson’s "wardrobe malfunction."

The Third Circuit heard oral argument in the case more than a year ago, after the U.S. Supreme Court vacated the Third Circuit’s original decision and sent the case back to the Third Circuit for further consideration in light of the Supreme Court’s ruling in FCC v. Fox Television Stations, Inc., a case ... Read More 

Back in March, we reported on a North Carolina federal court's dismissal of a defamation claim brought against two out-of-state publishers and an out-of-state author based on a lack of personal jurisdiction.  In that case, Judge Louise W. Flanagan rejected plaintiff's argument that simply because a handful of books had been sold in North Carolina in the "stream of commerce," the court could exercise jurisdiction over the defendants.

Judge Flanagan wrote that:

"[t]o permit a state to assert jurisdiction over any person in the country whose product is sold in the state simply because a ...

As expected, the U.S. Supreme Court announced yesterday that it has agreed to hear the Fox (fleeting expletives) and ABC (fleeting nudity) cases in the next term. The Court has agreed to determine whether the FCC’s current indecency enforcement policy violates the free speech rights of broadcasters or is unconstitutionally vague. Justice Sotomayor did not participate in the decision to accept the cases for review.

We have previously written about the Supreme Court's initial decision in the Fox case, which centered upon whether the FCC's policy concerning fleeting expletives ... Read More 

We previously wrote here and here about cases involving wiretapping prosecutions as a result of recording police activities.  In addition to running afoul of wiretapping statutes, citizens or journalists who videotape or record the police have also been arrested for violating state obstruction statutes, in certain circumstances. Two such cases are discussed below.

For example, in Berglund v. City of Maplewood, two journalists who hosted a public access cable program were arrested for videotaping their own arrest. The journalists refused to pay a $15 fee to attend a public ... Read More 

Jeff Greene, who was recently routed in his bid to win the Democratic nomination for the open U.S. Senate seat in Florida, has filed a massive -- in more ways than one -- defamation suit against the St. Petersburg Times and the Miami Herald.  The complaint, which was filed on September 1 and checks in at 54 pages, seeks $250 million in compensatory damages and $250 million in punitive damages.

According to the complaint, Greene's claim arises, in part, from a series of stories discussing a real estate deal Greene was involved in.  One of the other parties to the deal has been indicted by a federal ... Read More 

North Carolina federal district court Judge Louise Flanagan offered a helpful reminder to lawyers last week that the first month of Civil Procedure class really does matter.   The result of her Order in Dutcher v. Eastburn, Da Capo Press, LLC, and Perseus Books, Inc. was that a libel claim brought in North Carolina against two out-of-state publishers and an author from Colorado was dismissed, relieving the defendants from the substantial cost of taking depositions and attempting to get the case dismissed on summary judgment.

The case arose from the publication in late 2007 of a book ... Read More 

The United States Court of Appeals for the Ninth Circuit recently revived a defamation suit brought by a prominent California preacher against ABC and reporter John Stossel.  The case, which had been dismissed by the District Court under California's anti-SLAPP statute, arose from a broadcast of ABC's 20/20 in which Stossel reported on the financial dealings of ministers like the plaintiff Frederick Price.  In particular, Stossel's story focused on whether money donated to some churches was being put to good use or simply lining the preacher's own pockets.

The Ninth Circuit ... Read More 

In two recent posts, linked here and here, we discussed wiretapping arrests for videotaping or recording the police. One of the potential results of such an arrest is a Section 1983 lawsuit based, in part, on a violation of the arrestee’s First Amendment rights. It is in these cases that the “right to record the police” has been most directly confronted by the courts. 

As discussed below, in some cases courts have looked favorably on such claims, while in others cases they have not.

The U.S. Court of Appeals for the Third Circuit dealt with the issue in the recent case Kelly ... Read More 

In an earlier post, we began analyzing whether there is a recognized “right to record the police.” We looked at judicial decisions in Maryland and in Illinois involving each state’s wiretapping statute. In this post, we examine a decision issued in 2007 by the First Circuit Court of Appeals in Jean v. Massachusetts State Police.

Jean presents a slightly different twist on wiretapping prosecution cases than those we examined earlier. In Jean, a political activist posted a videotape on the Internet of a warrantless search of a private residence by the state police. The videotape ... Read More 

According to one recent judicial opinion, Ickes v. Borough of Bedford (W.D. Pa. Dec. 3, 2010), "the issue of police officers arresting citizens for recording them in public has recently been brought to the forefront of the cultural Zeitgeist." From the “don’t taze me, bro” video to lesser known incidents, YouTube and other video content sharing sites are rife with examples of recorded videos of interactions between police and arrestee/detainees. Moreover, the “right” to record or film police officers has received much attention in the news media and the ... Read More 

Earlier today, the federal district court in the Southern District of New York issued a preliminary injunction prohibiting ivi.tv from streaming the programming of the plaintiffs' television stations over the Internet or to mobile phones. The plaintiffs include television stations in New York and Seattle, the major television networks, major television studios, and Major League Baseball.

ivi.tv began live Internet streaming of the programming of television stations located in New York and Seattle on September 13, 2010, to subscribers located anywhere in the United States ... Read More 

The Charlotte Observer was recently on the receiving end of a wave of criticism in response to public records requests it made to local government bodies in the Charlotte area.  The criticism did not stem from what it asked for per se, but rather who did the asking and why.  

As reported by Julie Rose of WFAE in Charlotte, the newspaper compiled tens of thousands of private email addresses by making public record requests of the City of Charlotte, Mecklenburg County, and other localities, seeking the addresses of those who had signed up for local government email updates.  Such email updates ... Read More 

A bill introduced this week in the North Carolina General Assembly would enshrine the value of government transparency into North Carolina's Constitution.  North Carolina, like many states, provides citizens with a statutory basis for inspecting government records through its Public Records Act, N.C. Gen. Stat. 132-1 and for attending official meetings of public bodies through its Open Meetings Law, N.C. Gen. Stat. 143-318.9.  However, the commitment to public access embodied in these laws is undermined by their numerous exceptions, such as exceptions in the Public ... Read More 

I’m going to devote a few posts over the next several weeks to some intriguing cases from 2010 that you might have missed.

One such case is a fascinating decision from the Fourth Circuit, Ostergren v. Cuccinelli, 615 F.3d 263 (2010), in which the Court found a Virginia statute making it unlawful to intentionally publish a person’s social security number over the Internet violated the First Amendment. Judge Duncan’s thoughtful and thorough analysis offers insight into how the Supreme Court’s holdings in Cox Broadcasting v. Cohn, Smith v. Daily Mail Publishing, and The Florida ... Read More 

Sorry, this blog post is not about the Duke-UNC rivalry.  Instead, it is about a First Amendment decision handed down by a trial judge last month that qualifies as being on the lighter, if not cleaner, side.  The case involved North Carolina's antiquated -- and quirky -- anti-profanity statute.  The 98-year old statute made it a crime to utter profanity on a public highway, but with two of North Carolina's 100 counties exempted -- Pitt County in the east and Swain County in the west.

Judge Allen Baddour ruled in January that Samantha Elabanjo could not be prosecuted for a misdemeanor ... Read More 

A trial court judge in Charlotte ruled Thursday that a defendant in a murder case is not entitled to unaired footage from the A&E series The First 48.  The case presented an interesting twist on shield law issues.

Jonathan Fitzgerald has been charged with the murder of Oscar Alvarado Chavez, who was stabbed to death in his car in August 2010 in Charlotte.  The Charlotte-Mecklenburg Police Department has entered into a contract with the producers of The First 48 to give the show access to officers investigating homicides.  The premise of the show is that if a suspect is not identified within the ... Read More 

The North Carolina Court of Appeals earlier this week made an important statement in favor of courtroom access, affirming a lower court ruling that had declined to close proceedings in a family law dispute.  The decision, in the case of France v. France, was significant in that the parties had sought to close proceedings on the basis of a confidentiality provision in a separation agreement.

The parties to the case entered into a separation agreement in 2007, which contained various confidentiality provisions.  One obligated the parties to "use their best efforts so that any reference to ... Read More 

As the 2011 session of North Carolina's General Assembly kicks off this week, we see the first (and likely not the last) salvo seeking to curtail access to public records in North Carolina.  Representatives of the Durham Police Department have persuaded the N.C. Association of County Commissioners to lobby the legislature to revise North Carolina's Public Records Act so that it no longer provides unfettered access to 911 tapes.  Instead, police departments would have to provide only written transcripts of recordings or recordings that obscure or distort the caller's voice.

As ... Read More 

Among the cases for which the United States Supreme Court denied certiorari Monday was the case of Salzano v. North Jersey Media Group. The Court's decision not to accept the case for review allows an important fair report decision issued earlier this year by the New Jersey Supreme Court to stand.

As we previously reported, the opinion of New Jersey's highest appellate court overturned a lower court ruling that imposed a troubling limitation on the fair report privilege.  The privilege is a critical component of the battery of defenses reporters and news organizations have to fend off ... Read More 

The recent disclosure of reams of classified diplomatic cables by WikiLeaks has sparked outrage among leaders on both sides of the aisle in Washington, outrage that may negatively impact the gathering and dissemination of the news.  There are already indications that Congress could take steps to sanction the publication of certain classified information, moving beyond the current regime in which the confidential source, if exposed, faces the greatest legal exposure.

The website WikiLeaks was founded in 2006 by Julian Assange, and its purpose is to publish documents obtained from ... Read More 

A number of media outlets instituted legal action yesterday against the University of North Carolina under North Carolina's Public Records Act, seeking several categories of records relating to the much-publicized investigation into UNC's football program this fall.  The plaintiffs' complaint, which is available here, names several individual defendants, including UNC Chancellor Holden Thorp, Athletic Director Dick Baddour, and head football coach Butch Davis.

The lawsuit presents an interesting collision between the openness obligations of a public institution and the ... Read More 

In a truly unusual move, Fox News Network and one of its highest profile journalists, Chris Wallace, filed a lawsuit earlier this month against the campaign of Robin Carnahan, a candidate for U.S. Senate from Missouri.  The lawsuit, which you can read here, alleges claims for copyright infringement, invasion of privacy by misappropriation of likeness, and invasion of the right of publicity by misappropriation of identity.

Those claims arise out of Carnahan's use in a campaign ad of a 24-second clip of Wallace questioning Carnahan's opponent, Roy Blunt, in 2006.  According to the ... Read More 

On July 27, 2010, N.C. Superior Court Judge Calvin E. Murphy ruled from the bench that North Carolina’s shield law, N.C. Gen. Stat. § 8-53.11, protects a newspaper from the compelled disclosure during judicial proceedings of the identities of anonymous commenters to the newspaper’s website. Judge Murphy signed the written order in the case on August 16, and it is available here. To our knowledge, this is the first case in which a North Carolina court has ruled that the state's shield law applies to the identities of anonymous website commenters, although other states have been ... Read More 

In the early morning hours of July 10, the North Carolina General Assembly closed the 2009 session by passing a bill that adopts two important changes to North Carolina's Public Records Act.  Both represent positive developments for government transparency in North Carolina.  These changes begin with Section 18.(a) of House Bill 961.

The first set of changes expands an exception to the "personnel file" exception to the Public Records Act.  The "personnel file" exception shields from public view certain documents relating to public employees in North Carolina.  By  ... Read More 

New Jersey's highest court has overturned an intermediate appellate decision that had refused to apply the "fair report" privilege to accounts of initial pleadings filed in civil lawsuits.  The Supreme Court's decision, issued in the case of Salzano v. North Jersey Media Group, Inc., represents an important victory for the press and the public.

We previously reported on the decision of the New Jersey Court of Appeals, which took a narrow view of the application of the fair report privilege.  The privilege is critical to reporting on official statements and actions by government ... Read More 

In a case we first flagged back in October of 2009, the Supreme Court last week handed down its decision in Doe v. Reed, a case involving a First Amendment challenge to Washington state's public records act.  The case presented an interesting collision of interests for the media, but the Court held 8-1 that the First Amendment did not prevent the disclosure, pursuant to the PRA, of the identities of those citizens who signed a petition seeking to place a referendum on the ballot.

When the Court granted cert in January, we described the case as follows:

The dispute in Doe v. Reed involves the ...

A panel of the Court of Appeals for the Fifth Appellate District in Ohio has affirmed a lower court’s grant of summary judgment in favor of an Ohio radio station in a defamation and false light invasion of privacy case involving a former candidate for judicial election. The Fifth District’s opinion in Christiansen v. WCLT et al. is linked here. 

Shortly before the November 2008 general election, radio station WCLT (Newark, Ohio) aired and posted to its website a political editorial in which the station’s general manager expressed his opinion that two of three candidates were ... Read More 

In a decision with important implications for bloggers and other so-called "new media" journalists seeking to invoke the protections of their state's reporter's privilege, a New Jersey appeals court recently held that New Jersey's shield statute did not protect a woman who operated a web site dedicated to revealing "criminal activity" within the pornography industry.

The appellate court's decision in Too Much Media, LLC v. Shellee Hale affirmed a trial court decision requiring Hale to reveal her sources for a series of web postings that the plaintiffs asserted were, among other ... Read More 

The answer, of course, is a resounding no (and no, snarky readers, not because of the libel-proof plaintiff doctrine).

The surprising thing about that question, is not the answer, but rather that nearly 50 years after the United States Supreme Court's landmark defamation decision N.Y. Times Co. v. Sullivan the question still has to be asked in the context of a current lawsuit.

The lawsuit giving rise to the headline was brought by Steve Theriot, interim president of Jefferson Parish, Louisiana and by the Parish itself.  In it, the plaintiffs claim that John Does 1 through 100 -- all ... Read More 

The U.S. District Court for District of Hawaii issued an order on May 7, 2010, denying a federal candidate’s request to be included in a televised debate among the candidates for a seat in the U.S. House of Representatives. The order is available here.

Fourteen candidates are in the race to fill a vacant seat in the House. Television station KITV, Honolulu, Hawaii, in partnership with the League of Women Voters, chose three candidates to participate in the televised debate on May 7. One of the candidates who was not selected to participate filed a lawsuit against the station and ... Read More 

A bill that would generally allow electronic media coverage of U.S. Supreme Court proceedings passed the Senate Judiciary Committee on April 29. 

The bill, S. 446, provides:

The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

The bill as currently drafted would presumptively allow electronic media coverage of Supreme Court proceedings unless ... Read More 

The United States Supreme Court's recent decision  in U.S. v. Stevens, which invalidated on First Amendment grounds a federal statute criminalizing the commercial creation, sale, or possession of a "depiction of animal cruelty," has been widely discussed in the media and blogosphere.  In Stevens, the Court held 8-1 that the so-called "dog-fighting" statute was, on its face, unconstitutionally overbroad.  In so holding, the Court declined the government's invitation to create a new category of speech that did not enjoy First Amendment protection.

Our purpose here ... Read More 

Pursuant to the terms of a recent settlement between the American Civil Liberties Union of North Carolina Legal Foundation (ACLU-NCLF) and the N.C. Department of Correction (DOC), prison inmates in North Carolina may now write novels and other manuscripts and send them to publishers, even if those written materials portray criminal activity.  The ACLU-NCLF reported the settlement in a press release.

The ACLU-NCLF had filed a federal lawsuit on behalf of Victor L. Martin, a habitual felon with several theft-related convictions and whose “urban fiction” authored ... Read More 

The U.S. District Court for the Eastern District of North Carolina recently handed a victory to a former marine, now a civilian worker at Camp Lejuene, who had several anti-Islamic decals pasted to the vehicle he drove and parked on base. Senior Judge Malcolm Howard ruled that the U.S. Marine Corps base’s commanding officer and traffic court officer enforced an otherwise viewpoint-neutral regulation in an unconstitutional, viewpoint discriminatory manner when, in response to complaints from others on base, the officers forced the plaintiff to remove the decals from his car ... Read More 

In a decision that raises a host of legal and ethical questions, the Cleveland Plain Dealer today disclosed the identity of someone who had frequently posted anonymous commentary on the newspaper's web site.  According to the paper, the commenter, who used the name "lawmiss," was using the personal email account of local trial Judge Shirley Strickland Saffold and was commenting in harsh terms about cases involving Judge Saffold.

While the Plain Dealer quotes the judge's daughter as admitting to being "lawmiss," this story comes less than two weeks after Judge Saffold ordered the ... Read More 

North Carolina media organizations won a significant victory in the U.S. District Court for the Middle District of North Carolina last week when a group of the state’s media outlets convinced a federal judge to quash subpoenas that sought from the media nearly two years’ worth of news coverage of the Eve Carson murder investigation and court proceedings.

Counsel for Demario James Atwater, the defendant in the federal criminal case, issued subpoenas to media organizations across the state generally seeking all publicly aired broadcasts or published news articles regarding the ... Read More 

In late January, the Supreme Judicial Court of Massachusetts affirmed that the fair report privilege applied to information attributed to an anonymous source.  The 6-1 decision in Howell v. The Enterprise Publishing Company dismissing the plaintiff's complaint held that so long as the reporter accurately reported what the confidential source reported to him or her, the privilege applied.

As reported by the First Amendment Center, the case involved claims for defamation, intentional infliction of emotional distress and invasion of privacy brought by the former superintendent ... Read More 

A committee of the Florida legislature this week approved on a party-line vote a bill that would require a court order to access 911 call recordings.  This development follows on the heels of efforts in several other states to curtail access to 911 calls under state sunshine laws, a trend on which we previously reported.

On Wednesday, the Government Affairs Policy Committee of the Florida House of Representatives approved by an 8-5 vote proposed committee bill 10-03a, with all Republicans on the committee voting for it and all Democrats voting against.  The bill would exempt "Any ... Read More 

The New York Times ran an interesting report on how the bad economy has impacted newspapers' decisions on whether to litigate public record and access issues.  The bottom line, according to the Times -- while smaller, regional news organizations are scaling back their legal efforts, large national outlets "have been quietly ramping up."

The Times cited in particular Hearst and the Associated Press as two organizations that have been as aggressive as ever in pushing state and federal officials on public record and access issues.  According to the story, both are dealing with tighter ... Read More 

The Associated Press reported this week of efforts underway in several states to limit access to 911 calls under state sunshine laws.  According to the report, legislatures in Alabama, Ohio, and Wisconsin are considering bills that would pull back from the traditional availability of 911 recordings.  Missouri, Pennsylvania, Rhode Island, and Wyoming currently exempt 911 calls from the operation of public records statutes.

In Alabama, HB 159 passed the Alabama House earlier this month.  The bill, if enacted, would prevent the disclosure of 911 calls to the public without a prior order ... Read More 

Earlier this month, the North Carolina Court of Appeals affirmed the Rule 12(b)(6) dismissal of a defamation action, holding that the filing of the complaint was sanctionable under Rule 11.  In Ward v. Jett Properties, LLC, the plaintiff filed an action pro se, contending that his landlord defamed him in a letter sent to a representative of the homeowners association of the development where the plaintiff lived.

The matter started with a letter the plaintiff sent to the defendant, complaining about various actions by neighboring tenants.  In response, the defendant wrote back ... Read More 

In yet another data point on the status of anonymous Internet speech, a New York judge this week quashed a subpoena seeking the identity of a person who had posted comments on a newspaper website.

We have covered this topic in a number of prior posts, for example here and here, as courts have grappled in the past year with the question of when to enforce subpoenas to media organizations that would compel the identification of an anonymous Internet speaker.  Such subpoenas have been examined both from a First Amendment perspective, in terms of the constitutional right to ... Read More 

The presiding judge closed a hearing Friday on whether to hold Andrew Young and his wife in contempt for failing to turn over a sex tape purportedly showing Rielle Hunter and disgraced former presidential candidate John Edwards consummating their much-publicized affair.  The hearing was held in Chatham County, North Carolina, and it was set in a lawsuit brought by Hunter to recover possession of the tape from Young.  Young, a former aide to Edwards, was apparently part of Edwards's misbegotten scheme to cover up his fathering of a child with Hunter, as Young originally claimed the ... Read More 

With the arrival of a new presidential administration, and with the explosive growth of alternative ways for people to get their daily news and opinion, a legal issue once thought settled is again in the headlines.

The “Fairness Doctrine,” first imposed by the Federal Communications Commission in 1949, required television and radio broadcast stations to give reasonable opportunity for the discussion of conflicting views on issues of public importance.

In 1987, the FCC ruled that the doctrine violated the First Amendment and did not serve the public interest because it: (1 ... Read More 

January has been a prolific month on the U.S. Supreme Court docket for cases raising First Amendment or other media issues.  In addition to the Citizens United and Presley decisions addressing limits on corporate political speech and access to jury voir dire proceedings, the Supreme Court earlier this month agreed to hear a case out of the Ninth Circuit involving public access to the petitions that put in place a controversial Washington ballot initiative.  The petitions were sought under a state sunshine law in an effort to learn the identities of those who ... Read More 

Yesterday, the United States Supreme Court ruled in Citizens United v. Federal Election Commission that corporations (and labor unions) may make unlimited expenditures to directly advocate for the election or defeat of a Federal candidate at any point in the election cycle.  The crux of the Court’s decision is that the First Amendment prohibits Congress from banning certain types of political speech based on the corporate identity of the speaker. The decision opens the way for greatly increased participation by corporations—large and small, for-profit and non-profit—in ... Read More 

The U.S. Supreme Court today issued a 7-2 per curiam opinion summarily reversing a Georgia Supreme Court decision that had found no error in a lower court ruling that emptied a courtroom during jury selection in a criminal case.  The case was notable in the short work the majority made of the notion that the Sixth Amendment right to a public trial somehow may not include the voir dire process or that applicable test is not clear.  The case therefore represents an important victory for access to court proceedings.

The case, Presley v. Georgia, involved a criminal trial in which a ... Read More 

With 2009 drawing to a close, a panel of the Fourth Circuit affirmed a decision by the Eastern District of Virginia holding that the website Consumeraffairs.com was an “interactive computer service” entitled to immunity under Section 230 of the Communications Decency Act with respect to 20 website postings concerning a class-action lawsuit against an auto dealer. The Fourth Circuit’s opinion in Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. is linked here.

The Fourth Circuit panel’s majority opinion is largely procedural, but it offers an important lesson about ... Read More 

Broadcasting & Cable is reporting that the Third Circuit has scheduled oral argument in the Janet Jackson "wardrobe malfunction" case for February 23, 2010, at 1:30 p.m. 

The case involves review of the FCC's determination that the Super Bowl half-time broadcast of less than one second of Janet Jackson's bare breast was actionably indecent.  In July 2008, the Third Circuit vacated and remanded the FCC's decision, finding that the Commission's action was arbitrary and capricious because the material at issue was "fleeting" and, at the time of the broadcast, the FCC's policy was ... Read More 

The Volokh Conspiracy recently blogged about a 2008 Massachusetts Superior Court order granting a libel defendants’ motion to dismiss defamation and business defamation claims because the defendant had “no continuing duty to investigate the accuracy” of a news article that was posted by the defendant on its website. The case, Jenzabar, Inc. v. Long Bow Group, Inc., No. 2007-2075H (Mass. Super Ct., Aug. 5, 2008) is linked from the Volokh site here.

The case is an interesting one, first, for its treatment of the fair report privilege and, second, because it is another example ... Read More 

The U.S. Court of Appeals for the Second Circuit has scheduled to hold oral argument in the Fox v. FCC indecency case on January 13, 2010, at 3:00 pm. 

The Fox case involves review of the FCC's determination that Cher's use of the F-word during the 2002 Billboard Music Awards show and Nicole Richie's use of the F-word and S-word during the 2003 Billboard Music Awards show (both broadcast by the Fox Network and its affiliates) were actionably indecent.  We previously reported about the Supreme Court's decision in the Fox case here. 

Although the Second Circuit previously ruled that the ... Read More 

FCC Chairman Julius Genachowski  recently announced what the Commission is billing as an “agency-wide initiative to assess the state of media in these challenging economic times and make recommendations designed to ensure a vibrant media landscape.” The Chairman has appointed Steven Waldman to lead the effort. Waldman most recently served as President and Editor-in-Chief of Beliefnet.com, a faith-oriented website, and was a regular columnist for the online edition of the Wall Street Journal. According to an FCC News Release, Waldman will work with FCC bureaus to ... Read More 

We have closely followed the twists and turns in Detroit Free Press reporter David Ashenfelter's efforts to avoid being forced to reveal his sources in the civil action against the Department of Justice brought by former federal prosecutor Richard Convertino.  This spring, a federal judge in Michigan allowed Ashenfelter to invoke his rights under the 5th Amendment in order to avoid testifying under oath about his sources.

Last week, the collateral damage from Convertino's legal crusade continued to spread.  This time, Convertino was seeking some 736 DOJ documents that he claimed ... Read More 

After weeks of debate, the Senate Judiciary Committee today amended and passed the proposed federal shield law on to the full Senate for consideration.  Even with this important step, it is unclear when the full Senate will vote on the measure or how quickly the Senate version can be reconciled with the House version.

In an important victory for the media, the Senate Judiciary bill reportedly adopts a broad definition of "journalist" -- one that, at this stage, includes bloggers and other journalists with non-traditional media organizations.  This aspect of the bill was the focus of ... Read More 

In light of our recent discussion of Bartnicki v. Vopper and the legality of publishing information that was illegally obtained by a third party, this recent case from New Hampshire drew our attention.

In early November, the New Hampshire Supreme Court heard arguments in a case involving a website's refusal to identify the author of a post that criticized mortgage lender The Mortgage Specialists Inc.  The site, Mortgage Lender Implode-O-Meter, had posted a story concerning a state investigation into MSI for, among other things, allegedly forging signatures and ... Read More 

The release of hacked emails written by well-known climate scientists has been widely reported around the world, as those emails have raised questions about whether the science behind global warming has been overstated.

This New York Times blog post by the paper's science reporter caused a mini-furor of its own in the blogosphere.  In the post, Andrew Revkin writes of the hacked emails:

The documents appear to have been acquired illegally and contain all manner of private information and statements that were never intended for the public eye, so they won’t be posted here.

While ... Read More 

In a decision that goes against the grain of a building legal consensus around the country, an Illinois trial court has ordered the disclosure of the identity of an anonymous blogger who the plaintiff, a local politician, claims defamed her 15-year-old son.

The controversy started this spring, as local elections in Buffalo Grove Village were heating up, when an online debate between the candidate's son and "Hipcheck16" got testy.  When challenged to a live debate, Hipcheck16, wrote, according to reports: "Seems like you're very willing to invite a man you only know from the Internet ... Read More 

In late September, the United States Court of Appeals for the Fourth Circuit reversed on First Amendment grounds a $5 million jury verdict against infamous Kansas preacher Fred Phelps and other members of his Westboro Baptist Church.

The claim against Phelps and his church members arose from their protest activities at the March 2006 funeral of Lance Corporal Matthew Snyder, a U.S. Marine who was killed in Iraq. At Snyder's funeral in Westminster, Maryland, Phelps and other protesters held up a variety of offensive signs decrying gays, Catholics, and Americans generally.  Members of ... Read More 

The Senate Judiciary Committee is slated this week to take up compromise language on the Free Flow of Information Act of 2009 (S. 448), endorsed by Attorney General Eric Holder, which may finally result in passage of a federal shield law.

As we previously reported, federal shield bills were again introduced in Congress this year, after many years of frustrating defeats. Although a shield bill passed in the House, the bill unexpectedly hit a snag in the Senate. To the surprise of many observers, the Obama administration objected to the bill on the grounds that ... Read More 

The North Carolina Court of Appeals earlier this week affirmed in a 2-1 decision the dismissal of a public records action brought by the State Employees Association of North Carolina ("SEANC") against the North Carolina Department of the State Treasurer ("Treasury Department"). The decision, which held that SEANC failed to state a claim under the North Carolina Public Records Act, N.C. Gen. Stat. s. 132-1, et seq., is troubling in how the court approached both the substantive and procedural issues presented in the case.

The long-brewing dispute traces back to ... Read More 

A decision last week from the North Carolina Court of Appeals illustrates an important principle concerning the nature of appellate review in defamation actions -- that non-final orders are ordinarily not subject to immediate appeal by the plaintiff.  The case of Nguyen v. Taylor involved a host of libel and related claims brought by five Greensboro police officers against a rapper, Jayceon Taylor, known as "The Game", arising out of an October 28, 2005, incident that occurred in a Greensboro mall.  Taylor was arrested after he and his entourage were asked to leave the mall and an ... Read More 

As we discussed in this earlier post, anti-SLAPP statutes are laws designed to prevent plaintiffs from using the threat of costly litigation to chill the free speech rights of people seeking to participate in the public debate over important issues.

SLAPP suits -- Strategic Litigation Against Public Participation -- are typically claims for defamation, intentional infliction of emotional distress, invasion of privacy, or tortious interference with contract filed against a party who has criticized or spoken out against the plaintiff in some public context.  The paradigm case is a ... Read More 

The U.S. Supreme Court took action today in a high-profile public records dispute, issuing a stay of a Ninth Circuit ruling that requires the release of the names of those who petitioned to include a referendum on the ballot in the State of Washington this November.  The dispute relates to Referendum 71, a ballot initiative that would overturn a Washington law, passed this year, granting legal rights to domestic partners equivalent to those enjoyed by married couples.  The initiative was launched by a conservative group that opposes same-sex marriage.

In order to appear on the ... Read More 

Late last week a federal jury returned a verdict in the defendant's favor in a libel case from Massachusetts that has attracted national attention.  The case, Noonan v. Staples, came into the spotlight because of a ruling from the First Circuit Court of Appeals that the plaintiff's libel claim could go to trial even if the communication at issue were true or substantially true.  We wrote about the decision here, noting the consternation the decision had drawn from First Amendment advocates for its implication that a truthful publication, if published with common-law ... Read More 

In a decision released today, the North Carolina Court of Appeals affirmed a trial court order sealing three search warrants and related materials in a high-profile murder case in Cary, North Carolina. The decision, In re Cooper, represents the first instance in which a North Carolina appellate court has squarely addressed the standards applicable to orders sealing search warrant materials, and it resulted in a set back for press interests in North Carolina.

The case arose out of the investigation into the death of Nancy Cooper.  In July 2008, the Cary Police Department and ... Read More 

As has been widely reported, the U.S. Supreme Court will review a case this session involving a federal statute that criminalizes the sale of depictions of animal cruelty.  Last year, in United States v. Stevens, the Third Circuit declared the statute unconstitutional and vacated the conviction of Robert Stevens, who was prosecuted for selling videos of illegal dog fighting.  (Law.com covered the Third Circuit decision when it was released last year.)

The basic question for the court is whether or not the statute on its face runs afoul of the First Amendment.  As the Third Circuit framed ... Read More 

Federal reporter’s shield legislation has met with opposition in the Senate Judiciary Committee.  The committee addressed S. 448, the Free Flow of Information Act of 2009, in a hearing on September 17 but, ultimately, failed to report the bill out of committee and onto the Senate floor.   The inability to move the bill to the floor for a vote by the full Senate is a disappointment to the media and surely to Sen. Patrick Leahy (D-VT), the chairman of the committee and co-sponsor of the bill.

S. 448, as amended, generally protects journalists from having to disclose source information in a ... Read More 

North Carolina Governor Beverly Perdue vetoed a bill last week that would have allowed certain documents used in the legislative process to remain confidential.  

House Bill 104 would have, among other provisions, made legislative "drafting requests," "information requests," and certain other documents submitted in connection with such requests confidential as a matter of state law -- the bill expressly exempted such materials from the state pubic records statute.  Documents prepared by legislative employees at the request of lawmakers would also have been deemed ... Read More 

Earlier this month, the North Carolina Court of Appeals released an opinion paving the way for Michael Pressler, former coach of the Duke University lacrosse team, to sue Duke University and a university spokesperson for slander and libel related to statements made in the aftermath of the Duke lacrosse case. 

Pressler was the Duke lacrosse coach in 2006 when the Durham District Attorney Mike Nifong initiated a high-profile, and later discredited, investigation into allegations that members of the lacrosse team raped a dancer at an off-campus party. The North Carolina Attorney ... Read More 

Last week, as reported by the Reporters Committee for Freedom of the Press, Justice Ruth Bader Ginsburg denied a request to stay an order of the Connecticut Supreme Court ordering the disclosure of more than 12,000 documents filed in 23 now-settled lawsuits involving allegations of sexual abuse by Roman Catholic priests. 

The emergency request for stay to the U.S. Supreme Court followed the Connecticut Supreme Court’s decision in Rosado v. Bridgeport Roman Catholic Diocesan Corp. in June 2009. In Rosado, the defendants (the diocese and certain individual clergy members ... Read More 

A New York trial judge ruled recently that cover model Liskula Cohen was entitled to learn the identity of the anonymous author of the short-lived "Skanks in NYC" blog.  Cohen claimed that the blogger had defamed her in August 2008 when the blogger wrote: "I would have to say that the first place award for 'Skankiest in NYC' would have to go to Liskula Gentile Cohen."   The blogger later called Cohen a "psychotic, lying, whoring . . . skank."

The blog was hosted by Google, so in January, Cohen asked a judge to order Google to disclose the blogger's identity.  A lawyer appeared for the blogger ... Read More 

In a closely watched case, a Leon County, Florida trial court judge held last week that records concerning an NCAA investigation into possible academic cheating by athletes at Florida State University were public records subject to disclosure.  A coalition of media organizations had filed suit under Florida's public records law, seeking the release of transcripts from a 2008 NCAA hearing in which school and NCAA officials discussed the allegations of cheating.

The factual wrinkle that made this case unique was that University officials never actually received a paper copy of the ... Read More 

The District of Columbia Court of Appeals, the highest court for cases arising in the District of Columbia, continued the recent trend of requiring defamation plaintiffs to meet an elevated legal standard when they serve a subpoena seeking the identity of an anonymous speaker.  Like Maryland's highest court, the District of Columbia appellate court held that a plaintiff must proffer sufficient evidence to survive summary judgment before a motion to compel will be granted.

The D.C. case, Solers, Inc. v. John Doe, was brought by Solers, a software company, alleging that Doe had ... Read More 

As reported by our colleague Mack Sperling in his North Carolina Business Litigation Report, the Fourth Circuit recently affirmed a trial court order to disclose the identity of an anonymous speaker who had sent a letter, through a law firm, to Jos. A. Banks Clothiers accusing the company of accounting fraud.

Read Mack's post for all the details, though it is worth noting that sitting by designation on the panel was retired Supreme Court Justice Sandra Day O'Connor.Read More 

The Twitter phenomena has seemingly gone viral this summer. What started out as a quirky way for people to send brief (140 characters or fewer!!) updates on their daily activities, thoughts, or opinions, is now a major source of breaking news. From the streets of Iran to the Pittsburgh Steelers’ practice field, correspondents of all stripes are Tweeting first, blogging second, and (maybe) writing a story for the crusty old newspaper third.

It should come as no surprise, then, that we are just now seeing our first claims for Twitter defamation.  As has been widely discussed, a ... Read More 

In a stunning move of questionable constitutionality, a federal court in late July conducted an entire two-day trial behind closed doors, with no access to the public or media “from the swearing in of the first witness through closing arguments.”  As the Reporters Committee for Freedom of the Press reported, even the judge’s ruling was filed under seal.

The highly unusual move came in a trial involving a civil suit filed against the federal government by the family of a Jewish Defense League activist Earl Krugel who was beaten to death by white supremacists while in federal ... Read More 

In an update to the curious case we highlighted Tuesday, Judge Forte has entered an order dismissing the “gag order” placed on Michelle Langlois after Tracey Martin, the petitioner who sought the gag order, voluntarily dismissed her petition. Judge Forte removed the ban in advance of a hearing scheduled Wednesday on the ACLU's motion to dismiss.Read More 

As we recently discussed, prior restraints on speech and the press have been deemed “the most serious and the least tolerable infringement on First Amendment rights” by the United States Supreme Court and bear a “heavy presumption” against their constitutionality. A recent Rhode Island state court order, however, raises questions as to the true understanding of prior restraint jurisprudence among lower courts.

A Rhode Island Family Court has barred a woman from posting any information on the internet about a pending child custody case, although the woman is not a party ... Read More 

We have previously reported on prior restraints on media coverage and the interplay between the First Amendment rights of free speech and press and other Constitutional rights.  Prior restraints occur in different forms: “gag orders” imposed by courts, typically through the form of temporary restraining orders or injunctions; licensing requirements and cease and desist orders imposed by regulatory agencies; and “gag statutes” imposed by legislatures.  Additionally, different forms of prior restraints can affect the press equally; a gag order preventing persons from ... Read More 

Last week the North Carolina House passed H. 1134, a bill that would make it easier for private citizens and media organizations who prevail in public records disputes with government agencies to recover their legal fees.  Although the bill is still up for consideration in the North Carolina Senate, having been received and referred to the Judiciary I committee, passage of H. 1134 in the House represents a significant breakthrough.  Past efforts to strengthen the fee recovery provision of North Carolina's Public Records Act foundered in the House.

The bill, co-sponsored by ... Read More 

According to news reports, Commissioner Michael Copps is passing a document around the Federal Communications Commission concerning the “state of journalism.”  Although the report is not yet publicly available, CNSNews.com is reporting that it “examines the decline of broadcast journalism over the past several years and tries to explain why traditional forms of journalism have declined while other, newer forms have been on the rise.”

It appears that the report is tied to a formal (though not yet public) Notice of Inquiry.  Issuing an NOI is often the first step to initiate a ... Read More 

A panel of the Minnesota Court of Appeals has ruled in an invasion of privacy case that a MySpace.com posting revealing certain private facts about a plaintiff constituted “publicity per se.”  Although the appellate court ultimately held that the lower court properly granted summary judgment on the invasion of privacy claims in favor of the defendants, the publicity aspect of the ruling is an important because it demonstrates how “old media” publication torts are being applied to new social media.

The plaintiff in Yath v. Fairview Clinics, N.P., Docket No. 27-CV-06-12506 ... Read More 

A Texas court has ruled that the Abilene Reporter-News does not have to reveal the identities of anonymous posters who submitted online commentary concerning a murder defendant to an Abilene newspaper’s website. According to the Reporter-News, the anonymous posters’ identities had been sought by the defendant’s attorney to ensure that none of the posters were selected to sit on the jury for the murder trial, which began on June 23. 

The Taylor County District Court’s decision to protect the posters’ identities, which was issued on July 19, is one of the early ... Read More 

The Obama Administration has denied msnbc.com and the Citizens for Responsibility and Ethics in Washington ("CREW") access to the names of White House visitors. The Obama Administration’s position on visitor logs is consistent with that of the Bush Administration—but appears to be inconsistent with President Obama’s promise of transparency and openness declared earlier this year.

Msnbc.com has the complete story, including its own FOIA request for the visitor logs, CREW’s related FOIA request, and a copy of the complaint filed by CREW on June 15, 2009, in the District ... Read More 

The Media Law Resource Center recently flagged this interesting study, by Professor RonNell Andersen Jones, due to be published soon in the Washington Law Review.  Professor Jones, a former newspaper reporter who has written widely on media law issues, undertook a large-scale survey of newspaper and broadcast reporters and editors to assess the impact that a surge in newsroom subpoenas is having on the media.  Her work is intended to be an update to Professor Vincent Blasi's landmark study of the same issue in 1971, just as the Branzburg cases were making their way to the Supreme Court.Read More 

According to a recent story in the Raleigh News & Observer, a former Republican mayor of Raleigh, and current candidate for chairman of the North Carolina Republican Party, Tom Fetzer, has sued a Wilmington radio station and disc jockey for defamation because the disc jockey forwarded an email to others that "insinuat[ed] that Fetzer is gay."  Fetzer's civil complaint can be read here.

As has been widely reported, there is a North Carolina Court of Appeals decision that would appear to make Fetzer's claim a legal long shot.  In Donovan v. Fiumara, 442 S.E.2d 524 (N.C. Ct. App. 1994), the ... Read More 

As a judge for the Second Circuit Court of Appeals since 1998 and for the Southern District of New York for the preceding six years, United States Supreme Court nominee Sonia Sotomayor has approached First Amendment issues narrowly and contextually, demonstrating traditionally liberal views in some cases and more conservative views in others. If confirmed, it seems most likely that Sotomayor will side with the Court’s liberal wing on many First Amendment issues. However, her seeming unpredictability in cases involving free speech could make her an important swing vote in some ... Read More 

In late February, the United States Court of Appeals for the Fourth Circuit agreed with a trial court ruling that a jury was entitled to decide whether calling the plaintiff a “gangster” and a “thug,” and alleging that he had been intoxicated at a convention, was indeed defamatory. In a Solomonic twist, however, the court nonetheless vacated the trial court’s judgment for the plaintiff because of reversible errors in the jury instructions.

The claim arose from a column in the Korean-language Inside the World newspaper, which opined that a prominent businessman in the ... Read More 

In a seemingly simple little case that has turned out to have all kinds of interesting and important twists, the United States Court of Appeals for the Ninth Circuit last month held that Section 230 of the Communications Decency Act did not preclude a plaintiff from stating a valid claim for promissory estoppel against an Internet service provider.

The case, Barnes v. Yahoo!, Inc., arose in 2004 when Cecilia Barnes broke up with her long-term boyfriend, who responded by creating in Barnes’s name several Yahoo profiles that contained nude pictures of Barnes and various open ... Read More 

Back in December we wrote a series of posts about the emerging issue of subpoenas seeking the identity of anonymous commenters to newspaper web sites.  In the intervening weeks, the issue has continued to develop, with news coming recently that a company hired by the York Daily Record to manage its web site comment sections had agreed to disclose to authorities the identity of anonymous commenters.

Much like the Alton Telegraph case we've reported on, this case involved a story posted by the newspaper on its web site concerning a murder investigation.  The local prosecutor sought the ... Read More 

Today the Office of Science and Technology Policy published a notice in the Federal Register requesting public comment on issues related to transparency and open government.

We reported earlier this year about President Obama’s transparency and open government memorandum signed on January 21, 2009—President Obama’s first full day in office. Among other things, this memorandum directed the Chief Technology Officer, along with the Office of Management and Budget and the General Services Administration, to develop recommendations for an “Open Government ... Read More 

As we reported last week, both chambers of the Texas legislature unanimously passed a shield law giving journalists qualified protection from disclosure of their sources and other confidential and non-confidential unpublished information collected as part of their newsgathering activities.  On Thursday, Governor Perry signed the Texas Free Flow of Information Act, H.B. 670, making it law in Texas.  The shield statute became effective immediately, and its enactment makes Texas the 37th state to pass some form of protection for journalists from state-court subpoenas.

Free press ... Read More 

Texas is on the cusp of parting company with the minority of jurisdictions that offer no statutory protection to journalists who receive subpoenas.  As we have discussed in a previous post, most states have enacted laws that create a least a qualified privilege for journalists from being compelled to disclose source information.  Some "shield" statutes, as they are often called, protect both confidential and non-confidential information, whereas others protect only confidential information or confidential sources.  Some give absolute protection from disclosure, others ... Read More 

In a 5-4 decision released April 28, 2009, the United States Supreme Court has upheld the FCC’s decision to find “fleeting expletives” actionably indecent in certain circumstances.  The immediate import of the decision is that even a single occurrence of the F-word or S-word outside of the safe harbor (10:00 pm to 6:00 am) may subject a television or radio station to fines up to $325,000.  We previously reported on the oral argument in this case when it occurred back in November.

The case, FCC v. Fox Television Stations, Inc., involved the single use of the F-word by Cher during the ... Read More 

The FCC this week filed a petition with the U.S. Supreme Court seeking review of a federal appellate decision overturning $550,000 in fines levied by the FCC over Janet Jackson's infamous "wardrobe malfunction" during the 2004 Super Bowl halftime show.  The FCC fined CBS that amount -- representing the then-prevailing statutory maximum of $27,500 per CBS-owned station that aired the Super Bowl -- on the grounds that the split-second exposure of Janet Jackson's right breast (for 9/16 of a second) at the end of her performance was indecent.

On July 21, 2008, the Third Circuit ... Read More 

The U.S. Supreme Court today set aside the broadcast industry's victory in the Janet Jackson indecency case.  In a two-sentence order (see case number 08-653), the Supreme Court granted the FCC's petition for writ of certiorari (we previously reported on the filing of the petition by the FCC), vacated the Third Circuit's decision that CBS owned and operated stations were not liable for the broadcast of Janet Jackson's infamous "wardrobe malfunction," and remanded the case back to the Third Circuit for further consideration in light of last week's Supreme Court decision in FCC ... Read More 

We have been closely following the saga of Detroit Free Press reporter David Ashenfelter and his efforts to avoid being forced to reveal the confidential source of information concerning former federal prosecutor, Richard Convertino.  The former prosecutor is attempting to sue the Justice Department under the federal Privacy Act.

Last week the judge in the case, District Court Judge Robert Cleland, allowed Ashenfelter to submit a confidential affidavit explaining the basis for Ashenfelter’s fears that he might face criminal prosecution if forced to reveal his source.

As we ... Read More 

We have covered in a number of prior posts the saga of a former federal prosecutor's efforts to compel Detroit Free Press reporter David Ashenfelter to disclose the identity of a confidential source.  This story has had a number of interesting twists and turns, and last week's development was no different -- after hearing testimony from Ashenfelter in camera federal district court judge Robert Cleland upheld Ashenfelter's invocation of the Fifth Amendment privilege against self-incrimination, which means that Ashenfelter will not have to reveal his source.

As we previously ... Read More 

In a question-begging 5-4 decision, a badly-fractured United States Supreme Court issued a ruling this morning in the Fox indecency case stemming from the isolated use of expletives (the “F-Word” and the “S-Word”) by Cher and Nicole Ritchie on live awards shows broadcast in prime time during 2002 and 2003.  A half dozen opinions were filed by the nine Justices on the High Court.

The FCC had determined that the broadcasts at issue were indecent, and the Second Circuit Court of Appeals had reversed the FCC on the grounds that the FCC’s decision was “arbitrary and capricious” ... Read More 

The Criminal Court for Knox County, Tennessee recently denied motions to prohibit or limit anonymous internet commentary about a capital murder proceeding. The court’s order denying the motion to restrict media coverage is linked here.

We have previously reported on the conflict between the First Amendment rights of the media to obtain access to or to cover criminal proceedings and the right of criminal defendants to receive a fair trial.  We have also reported on the First Amendment right to engage in anonymous speech and on prior restraints on media coverage.  This ... Read More 

The First Circuit recently affirmed summary judgment in favor of Fox News Network and Fox personalities Steve Doocy and Brian Kilmeade over a three-hour cable program during which the hosts discussed a report of an alleged “hate crime” at a public school in Lewiston, Maine, where the plaintiff was the superintendent of schools.  During the program, Doocy and Kilmeade repeatedly quoted an article about the incident that contained false quotations and false citation to the Associated Press but also contained substantially true information.

The facts underlying Levesque v ... Read More 

A former Louisiana State University student recently filed a libel complaint against the student newspaper, the Daily Reveille, its management staff, and several officials associated with the university for alleged defamatory comments about the plaintiff that were anonymously posted on the newspaper’s website.  The Student Press Law Center provides a link to the amended complaint in a story about the lawsuit and also reports that the lawsuit has been dismissed in this follow up article.

The amended complaint alleged that the editor-in-chief and managing editor of the ... Read More 

In a recent post, we reported that President Obama issued a Freedom of Information Act memorandum directing executive departments and agencies to administer FOIA with a presumption in favor of openness and a memorandum calling for transparency in government. President Obama recently took an additional step that appears to provide evidence of the administration’s continued commitment to open government: On February 26, 2009, President Obama submitted a budget for fiscal year 2010 that includes $1 million for the new Office of Government Information Services that would serve ... Read More 

On March 18, 2009, the First Circuit denied a petition for rehearing en banc of a case in which a panel of the First Circuit recognized that, under Massachusetts law, truth is not an absolute defense to a libel claim.  The defendant raised a constitutional attack against the state statute that served as the basis of the panel's decision, but the First Circuit determined that the constitutional argument was not properly before the court.  The outcome—in which common-law malice may defeat the truth defense—cannot easily be squared with the federal constitutional requirements for ... Read More 

On April 2, the Fourth Circuit ruled that a former Baltimore Police Department officer’s Section 1983 civil rights claim based on violations of his First Amendment rights may proceed.  The Fourth Circuit reversed and remanded the district court’s order dismissing the freedom of speech claim.  Specifically, the Fourth Circuit held that the plaintiff alleged facts sufficient to pursue his claim that the defendants, including the current and former police commissioners, violated the plaintiff's First Amendment rights by retaliating against him for releasing an internal ... Read More 

As we discussed earlier, courts across the country are now dealing with the question of how state shield laws apply to anonymous commentary on newspaper web sites.  Mirroring these cases is a series of cases approaching the issue from the perspective of the people doing the commenting.  More specifically, courts are addressing the question of whether anonymous commenters on web sites have a First Amendment right to remain anonymous and, if so, whether the web site hosts have standing to raise those First Amendment rights in countering efforts to compel the hosts to disclose the ... Read More 

The Arkansas Supreme Court held last week in a unanimous decision that the fair report privilege protected reporters from The Courier newspaper who had reported allegations about a rape investigation based on the contents of a police report.

The decision arose out of a defamation claim against the paper made by Kevin Whiteside, who was named in the police report of a rape investigation in December 2006.  The report said that a witness at a party hosted by Whiteside saw Whiteside with the alleged rape victim.  In January 2007, The Courier published a story about the allegations based on the ... Read More 

A reporter’s or newsroom's best bet to quash an otherwise valid subpoena to appear in a state proceeding is a state shield statute (such as North Carolina).  If, however, the subpoena was issued at the federal law, such as from a United States Attorney or a fed era grand jury, or if you are in a state that lacks a shield statute (such as Texas), then your only choice is to rely on the muddled outcome of a thirty-six-year-old United Supreme Court precedent.  Despite its age, the value of this case to reporters remains uncertain.

In Branzburg v. Hayes, the Court held 5-4 that reporters ... Read More 

In a new twist in a matter we have been following closely, a federal judge in Michigan issued a written ruling today ordering Detroit Free Press reporter David Ashenfelter to sit for a second deposition.  The judge released his decision just over two weeks after conducting a hearing on a motion to hold Ashenfelter in contempt for refusing to testify at his deposition in a civil lawsuit about a confidential government source who divulged information to him about the plaintiff.

As we first reported in December, this case is particularly interesting because Ashenfelter invoked the ... Read More 

We previously reported that Vicki Iseman, a Washington lobbyist, filed a defamation lawsuit in December against the New York Times over an article published during the 2008 presidential campaign.  In particular, Iseman contended in her complaint that the article falsely implied that she and then-candidate John McCain had carried on an illicit and inappropriate romantic relationship while Iseman worked for clients before a Senate committee chaired by McCain.

Yesterday Iseman and the Times announced that her claims had been resolved and the lawsuit dropped.  The terms ... Read More 

After a number of years in which proposed federal shield statutes have stalled in Congress, news media interests are optimistic that this time will be the charm.  Last week bills were introduced in both the House of Representatives and the Senate that would create a qualified privilege for journalists subject to federal subpoenas akin to the protections journalists currently have under many state shield statutes.

Dubbed the "Free Flow of Information Act of 2009," Senators Specter, Schumer, Lugar, and Graham introduced S. 448 last Friday.  The bill mirrors H.R. 985, which was also ... Read More 

As we reported in December, reporter David Ashenfelter of the Detroit Free Press refused to answer questions about a confidential source during his deposition in a civil lawsuit.  The move was noteworthy because Ashenfelter, who was not a party in the lawsuit, invoked the Fifth Amendment privilege against self-incrimination in refusing to give testimony.  His earlier attempt to protect his source under the First Amendment had been rejected by the federal judge presiding over the case.

The grounds for Ashenfelter's invocation of the Fifth Amendment ... Read More 

 A bill introduced this session in the North Carolina General Assembly would take the regulation of speech on the Internet in a troubling new direction.  Indeed, the negative response to Senate Bill 46, introduced by Senator Steve Goss, has spanned the political spectrum, ranging from North Carolina's Civitas Institute, which termed it the "bad bill of the week," to the BlueNC blog.  The bill has several components.

First, the bill would criminalize defamatory statement made over the Internet.  In particular, the bill declares it to be "unlawful for any person ... Read More 

A few months ago, we reported about access to search warrant materials and the Eve Carson case in North Carolina.  In the Carson case, the trial court released the search warrant materials under the common-law right of access once the police investigation of Carson’s death had been completed. 

In November 2008, the U.S. District Court for the District of Columbia recognized a qualified First Amendment right of access to search warrant materials related to the completed 2001 anthrax attack investigations.  Specifically, the district court ordered search warrants materials ... Read More 

High-profile criminal investigations and trials frequently set the stage for conflict between the news media, law enforcement agencies, and criminal defendants.  While law enforcement reasonably wishes to preserve its ability to successfully investigate and prosecute the case, the media reasonably desires to engage in constitutionally protected newsgathering activities and inform the community about those activities.  Of course, the criminally accused want to protect their constitutional right to a fair trial by an impartial jury.  One of the issues over which the ... Read More 

On January 29, 2009, a panel of the New York Supreme Court, Appellate Division, reversed a trial court’s order denying a motion to dismiss a plaintiff’s libel complaint, holding that the allegedly libelous statements constituted non-actionable opinion.  A copy of the decision is linked here.

In Bonanni v. Hearst Communications, Inc., No. 505007 (N.Y. App. Jan. 29, 2009), the plaintiff, a member of the City of Albany Police Department, sued the owner of the Times Union newspaper (actually the Hearst Corporation, not Hearst Communications) over the content of two articles that ... Read More 

In October 2008, we reported that the Florida Supreme Court rejected the false light invasion of privacy tort as a viable claim for relief under Florida law.  On December 23, 2008, the Missouri Court of Appeals went the opposite direction and held that Missouri does recognize false light invasion of privacy as an actionable tort. 

In Meyerkord v. Zipatoni Co., the Missouri Court of Appeals vacated and remanded the trial court's dismissal of a plaintiff's claim alleging that the defendant company, Zipatoni, had cast the plaintiff in a false light by failing to remove the plaintiff as the ... Read More 

On his first full day in office, President Barack Obama issued two memoranda to the heads of executive departments and agencies plainly declaring that government departments and agencies must be open for public scrutiny.

In the Freedom of Information Act (“FOIA”) memorandum, President Obama directs executive departments and agencies to administer FOIA with a presumption in favor of openness. 

In the face of doubt, openness prevails.  The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors ...

January 2009 marks the start of a new year, with a new President in the White House and new Governors in a number of states, including North Carolina and Missouri. Two outgoing governors, North Carolina Governor Michael Easley and Missouri Governor Matt Blunt, faced intense conflict with the media during 2008 over the issue of retention of and public access to government e-mail messages under relevant public records laws. The conflicts were often heated but were ultimately resolved in anti-climatic fashion in the final days of their respective administrations.

In ... Read More 

We previously reported a recent intermediate appellate court decision from New Jersey in which the court took a narrow view of the fair report privilege.  That decision gave cause for concern for news organizations in New Jersey because it held that the privilege does not apply to reports on the contents of civil court complaints and filings other than final decisions by the court.

On Tuesday, the New Jersey Supreme Court issued a one-paragraph order that temporarily stayed the effect of the lower court decision while the court considers whether to accept the newspaper's ... Read More 

The California Supreme Court in mid-December ruled that a statutory exception to the state's landmark anti-SLAPP statute should be narrowly construed, reversing a lower court ruling to the contrary.

California's anti-SLAPP (Strategic Litigation Against Public Participation) statute, which was the first of its kind when it was passed in 1992, allows defendants to make a special motion to strike any claim against them arising out of their "right of petition or free speech" unless the plaintiff can show a probability of success on the claim.  In essence, the statute prevents ... Read More 

The invaluable Media Law Resource Center recently released a report detailing state efforts to pass shield laws in the past three years.

According to the report, because of the high-profile contempt arrests of reporters James Taricani in 2004 and Judith Miller in 2005, legislative support for the reporter's privilege gained significant momentum.  As a result, five states -- Hawaii, Maine, Utah, Washington, and Connecticut -- passed shield statutes, bringing the total nationally to 36 states plus the District of Columbia.

Three other states, however, attempted to pass shield ... Read More 

Vicki Iseman, a Washington lobbyist, yesterday filed a defamation action against The New York Times, four of the newspaper's reporters, its executive editor, and the chief of its Washington bureau in federal court in Richmond, Virginia.  In her complaint, she contends that a February 2008 article published in the Times that linked her to Senator and then-Presidential candidate John McCain was susceptible of defamatory meaning.  She seeks to recover $27 million in damages for the alleged defamation.

Iseman alleges the article, through its literal words and by implication ... Read More 

In a prior post, we described the contours of the fair report privilege.  This common-law privilege protects journalists from liability for republishing factual errors that appear in official records -- such as a police report, government press release, or criminal indictment -- or that are made during official proceedings -- such as a city council meeting or criminal trial.  So long as the journalist provides a substantially accurate account of the record or proceeding, she will not face liability if the record or proceeding described contains an error that someone contends is ... Read More 

Although no reporter or news organization wants to find itself defending against a defamation claim, the reality is that plaintiffs have and will continue to file claims alleging injury to their reputations based on media reporting.  Fortunately, media defendants faced with defamation claims enjoy a number of privileges and defenses that protect the “breathing space” the First Amendment requires.  One such protection recognized in a number of jurisdictions is called the “fair report” privilege.

As formulated in the Restatement (Second) of Torts, § 611 (1977),

[t]he ...

A reporter for the Detroit Free Press took an unusual approach last week in an effort to protect the identity of a confidential source -- he invoked the Fifth Amendment privilege against self-incrimination.

This dispute arose in the context of a civil lawsuit brought by former federal prosecutor Richard Convertino in federal court in the District of Columbia.  Convertino led the prosecution of the so-called "Detroit Sleeper Cell" defendants shortly after September 11, 2001; however, the Justice Department subsequently removed Convertino from his post and asked that the ... Read More 

U.S. Attorney Patrick Fitzgerald released a sealed indictment and supporting affidavit against Illinois Governor Rod Blagojevich Tuesday after Blagojevich was arrested on a wide range of corruption and "pay-to-play" charges.  Public attention has focused thus far on the first count, which accuses Blagojevich of attempting to leverage his power to appoint President-Elect Barack Obama's successor to the U.S Senate into cash and campaign funds, a choice appointment of his own, or a substantial salary for himself or his wife on a foundation or corporate board.

Fitzgerald called ... Read More 

Rachel Donadio wrote recently about Italy's litigious Prime Minister, Silvio Berlusconi.  In three separate stints as Prime Minister, Berlusconi has himself instituted at least two defamation lawsuits against his critics, and a third has been brought by a close associate.

These lawsuits include an action Berlusconi brought in Italy in July 2001 against the British weekly publication The Economist.  The Economist has been a frequent critic of Berlusconi's administrations, and his lawsuit centered upon an article about Berlusconi that appeared in an April 2001 issue of ... Read More 

The 2008 general election has been hard-fought on the federal and state levels.  We previously reported about the institution of legal actions in two hotly contested U.S. Senate races, and we provided an update on those matters.  In addition to federal races, claims have also been filed in state races, as well. 

For example, on October 20, 2008, fifteen days before the general election, a candidate for a local judicial office in Ohio filed a complaint for defamation against a radio broadcaster related to an editorial broadcast over the air and posted on the Internet in which the broadcaster ... Read More 

The United States has a long-standing commitment to openness in all branches of government.  Among these principles is the presumption that judicial proceedings should be open for observation.  Despite this presumption, there is no absolute right of access to all judicial proceedings or judicial documents, and plaintiffs, defendants, and third parties (such as the reporters) occasionally disagree about what kinds of information should be available to the public.

Sometimes there is a question whether plaintiffs in civil lawsuits must identify themselves by their real names or ... Read More 

In a prior post, we reported upon the institution of legal actions in the midst of two high-profile U.S. Senate campaigns.  There were important developments in both matters yesterday.

As we reported, Kay Hagan instituted an action over a political ad run by North Carolina incumbent Elizabeth Dole.  Hagan, who ultimately won the race, filed a document in North Carolina state court contending that Dole's ad contained defamatory statements about her.  Yesterday, Hagan filed papers with the court dismissing her claim.

In Minnesota, incumbent Norm Coleman filed suit over a ... Read More 

The United States Supreme Court heard oral argument in FCC v. Fox Broadcasting on Election Day 2008.  As authors of an amicus curiae brief in the case, three Brooks Pierce correspondents -- Mark Prak, David Kushner, and Julia Ambrose -- made an old-fashioned road trip to Washington to hear the argument.  In an ironic twist, our sojourn to the Nation’s capital was itself seasoned with some “fleeting” expletives, as we encountered unprecedented and extraordinarily frustrating Election Eve traffic that clogged ingress to the District for nearly an hour.  As our car inched across ... Read More 

A sheriff's deputy has arrived in your newsroom, with what you now are sure is a subpoena.  In fact, let’s be more specific.

You spent six months investigating an in-depth enterprise piece on the influx of undocumented workers in a neighboring county.  Your story follows one particular worker, whose identity you do not reveal, as he navigates his way through life, a life which includes using a false Social Security number and driving with no insurance.

Two weeks after the story appears, a deputy from that county's Sheriff's Department shows up at with a subpoena in hand ... Read More 

Not even two weeks after we highlighted the issue of defamation claims arising from political ads, those very claims are making headlines right now in two high-profile political races.

Just this week, two United States Senate candidates—Minnesota incumbent Norm Coleman and North Carolina challenger Kay Hagan—have instituted legal action against their political opponents over alleged defamation in political ads.

The subject of Coleman’s suit against challenger Al Franken is a political ad claiming that Coleman was “ranked the fourth most corrupt Senator ... Read More 

It’s the pivotal moment in countless episodes of Law & Order and CSI.  You know the scene by heart, no doubt.

Detectives approach the intrepid reporter asking for some video or information about where the reporter got a piece of information.  The reluctant reporter puts up initial resistance, saying something like, “That is confidential.”  Detectives quickly respond that they will get a subpoena if they "have to," and, if they do, “we’ll come back in a bad mood.”  Detectives leave with information in hand.

Such confrontations are key to wrapping up a case in forty-eight ... Read More 

The Supreme Court of Florida yesterday issued two opinions holding that Florida law does not recognize the false light invasion of privacy tort.  These outcomes constitute significant wins for media defendants in a state where the existence of false light as a viable state-law claim has been hotly debated. 

Rapp v. Jews for Jesus, Inc. involved statements made by the plaintiff’s stepson in a newsletter that suggested the plaintiff had joined or was a believer in the Jews for Jesus philosophy.  Essentially, the plaintiff argued in the underlying proceedings that, while literally ... Read More 

With two weeks left in a hotly contested election season, the airwaves and newspapers are jammed full of political ads supporting (or attacking) one candidate or another.  These ads make for great political fodder, but they can also present knotty issues for broadcasters and newspapers to consider in deciding what to run and what not to run, especially as the ads become more negative in the late days of the campaign.

With negativity comes the possibility of defamation liability, especially when the target of the negative ad ends up losing the election.  While broadcasters enjoy ... Read More 

The FCC today issued an order finding a broadcaster apparently liable for a $4,000 fine for broadcasting telephone conversations without giving prior notice of its intention to do so.   This order provides some important lessons for reporters who may want to incorporate actual telephone conversations into their broadcast packages.

Television and radio stations, as FCC licensees, are subject to a rule prohibiting the broadcast of telephone conversations without prior notice.  Section 73.1206 provides:

Before recording a telephone conversation for broadcast, or ...

The U.S. Supreme Court case of Branzburg v. Hayes offers reporters limited constitutional protection from subpoenas compelling the disclosure of confidential sources or other source material.  The limitations of Branzburg and the lack of a federal shield law to complement state statutes first came into public consciousness in 2004 with the well-publicized Valerie Plame case. The effort to compel testimony from various Washington reporters about their contacts with White House officials was just one in what some perceived as a marked increase in the number of subpoenas served on ... Read More 

Although North Carolina does not recognize certain invasion of privacy claims recognized in some states, its courts have adopted the claim of invasion of privacy by intrusion. Unlawful intrusion is:

an intentional physical or sensory interference with, or prying into, a person’s solitude or seclusion or his private affairs, where the intrusion is highly offensive or objectionable to a reasonable person.

Examples of conduct that North Carolina courts have found constituted unlawful intrusion include physically invading a person’s home or private place, eavesdropping by ... Read More 

Our Digital Media and Data Privacy Law Blog was borne out of the firm’s Newsroom Law Blog. Given the number of new interactive platforms—and with social media steadily becoming a primary source for both of content and marketing information—content curation and delivery is expanding in ways few imagined. Our practice is expanding with it. This blog will discuss issues that affect all businesses (from large media organizations to small retailers) who use digital media—from intellectual property to data security to online content and marketing. Read More 

Jurisdiction is one of many issues that has become increasingly complicated in a world of web-based communications. Courts across the country have wrestled with the question of where a person who posts content on the Internet about another may be sued. Some litigants have argued that since the Internet may be accessed anywhere in the world, a person who places content on the Internet does so at the peril of being sued anywhere. Such approach would risk chilling Internet speech as bloggers and blog hosts may find themselves sued in far-flung locales, as potential plaintiffs troll the ... Read More 

We are pleased to launch Brooks Pierce’s Newsroom Law Blog, a blog focused on legal issues facing broadcast and print newsrooms. We look forward to providing regular content as a resource to journalists and editors working in newsrooms, as well as to legal professionals who advise media clients and academics who teach and study media issues.  The content we provide will range across the wide spectrum of legal issues that arise in the newsroom, from subpoenas to search warrants, from libel to invasion of privacy to trespass, from courtroom access to access to public records, from ... Read More 

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P is a full-service business law firm providing comprehensive strategic counsel and innovative solutions to our clients. Our lawyers have expertise in all facets of business law. Since our firm's inception in 1897, we have grown to over seventy-five lawyers and serve clients from offices in Raleigh and Greensboro, North Carolina. Our services extend to all areas of a business law practice, from mergers and acquisitions to complex business litigation. We have a non-departmental approach, one that is atypical of today's larger law ... Read More