US Freedom of Expression and Media Law Roundup 23 July 2010

23 07 2010

A judge in Denver has ruled that a federal law making it illegal to lie about being a war hero is unconstitutional because it violates free speech. The case of USA v Rick Glen Strandlof, concerned a Colorado man who claimed he was an ex-Marine wounded in Iraq and had received the Purple Heart and Silver Star. The military had no record that Strandlof served.  He was charged with violating the Stolen Valor Act, which makes it illegal to falsely claim to have won a military medal.

The judge dismissed the case, saying the government had not shown it had a compelling reason to restrict that type of statement.  The Government argued that “petty lies . . . do not promote the uninhibited marketplace of ideas and therefore are not protected” by the First Amendment.   The judge did not accept this argument holding that the Act was subject to strict scrutiny as it was “content based speech regulation” which was not “narrowly tailored to serve a compelling government interest”.  The case is discussed by the Huffington post.

The “SPEECH Act” – designed to prevent “non-First Amendment friendly” libel judgments in foreign courts being enforced in the United States was unanimously approved by the US Senate.  It is now expected to be considered by the House of Representatives.  This legislation is unnecessary – since the 1992 case of Matusevitch v Telnikoff it has been clear that the US courts will not enforce foreign libel judgments where the local law does not apply US First Amendment standards.  Furthermore, although there may sometimes be issues about “lible tourism”, it is difficult to see why as a general rule US citizens who commit legal wrongs in countries where they reside or do business should not be subject to local laws, including laws governing speech.  It is surprising that English media law commentators such as Siobhain Butterworth have, apparently, given the Act an uncritical welcome – rather than pointing out the obvious criticisms.  Some of these can be found on the “comments” to her blog piece.  There is an interesting post analysing the Act (and on the PrawfsBlawg entitled “Professor Wasserman, why do you hate freedom of speech?”.  He concludes:

“I remain unconvinced that any of this is necessary. These judgments typically are never enforced in the United States, because every state has a public-policy exception to its enforcement doctrines and most recognize First Amendment concerns as part of that public policy. The federal exclamation point is nice, but ultimately more symbolic than anything else”.

In a widely discussed “obscenity” case, a federal judge in Washington has dismissed all charges against adult film producer John Stagliano, granting a defense motion for judgment of acquittal.  The case is discussed on the Legal Times blog.

On July 7, 2010, in the case of Yeakey v. Hearst Communications, Inc the Washington Court of Appeals dismissed a claim for defamation by a crane operator who contended that it has defamed him by implication although it had made not false statements. The appeals held that a plaintiff could not base a defamation claim on the negative implication of true statements.  The case is discussed on the First Amendment Center blog.

In the case of Mink v. Knox (10th Cir. July 19), the Tenth Circuit reaffirmed that obvious parodies – which no reasonable reader would interpret as factual allegations – cannot be defamatory.  This is the latest instalment in the Howling Pig saga in which a parody led to a police investigation and a search based on the premise that the parody constituted criminal libel.  The author is now suing the prosecutor who appears to have authorized the search warrant.  There is a post about this on the Volokh Conspiracy blog.

The Reporters Committee for Freedom of the Press and 21 media organizations have filed a friend-of-the-court brief asking the U.S. Supreme Court to affirm a Fourth Circuit ruling that cited the First Amendment in the Snyder v. Phelps case.  This began after the Westboro Baptist Church organized a protest at the funeral of U.S. Marine Matthew Snyder, who was killed in the line of duty.  Albert Snyder field a lawsuit based on the display of signs such as “Thank God for Dead Soldiers,” “God Hates Fags,” and “You’re Going to Hell,” and the publication of an Internet diatribe that included statements about Matthew Snyder.  The U.S. District Court in Maryland ruled that the conduct constituted intentional infliction of emotional distress, invasion of privacy by intrusion upon seclusion and conspiracy but this decision was overnight by the 4th Circuit Court of Appeals on First Amendment grounds.  The case is discussed by the Reporters Committee for Freedom of the Press.  The Volokh Conspiracy blog has an interesting thread on the case – Eugene Volokh has also written an Amicus Brief in the case.


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