US Freedom of Expression and Media Law Round Up 2 August 2010

2 08 2010

The disclosure on the Wikileaks website and in the Guardian and the New York Times of 90,00 Afghan war logs gives rise to a number of First Amendment issues.  Would free speech case law provide protection for the leaker(s) of the documents and those that publish them? There are obvious parallels with the famous “Pentagon Papers” case,  New York Times v. U.S., in which the US Supreme Court ruled that the First Amendment barred the Nixon administration from preventing the publication of classified information relating to the Vietnam War by the New York Times and Washington Post.  

The WSJ Law Blog has spoken to a number of First Amendment scholars who agree that prosecution of the media is very unlikely – although an alleged military leaker is facing charges.  However, the Washington Post draws attention to some of the important differences between the Afghan papers and the Pentagon Papers.

CBS News quotes First Amendment scholar Floyd Abrams as saying of Wikileaks

“It’s not as if I have any information to suggest that they are highly trained in national security matters.  We’re moving toward a society in which no secrets are safe even though there is a need for some secrets. To some extent, we’re going to have to get used to it.”

CBS news comments that “The press used to see itself as a gatekeeper, deciding what information is reliable enough to make public. Now there are no gates.

The so-called “SPEECH Act” – designed to prevent “non-First Amendment friendly” libel judgments in foreign courts being enforced in the United States – has now passed by the House of Representatives and awaits President Obama’s signature to become law.   This development is reported in the Press Gazette. The continuing uncritical reception of this measure by English commentators leads us to draw attention, again, to a post on the PrawfsBlawg entitled “Professor Wasserman, why do you hate freedom of speech?” which points out that the Act is unnecessary as these judgments are never enforced in the United States in any event.  The bill does not stem, as Jonathan Heawood has suggested from a “fear” of weak English libel law but from political posturing by US legislators.  Commentators who would normally be suspicious of US attempts to impose their own standards on the rest of the world have failed to subject this bill to any kind of analysis or criticism.

In an interesting ruling the US Court of Appeals (4th Circuit) has held that a law which prohibited the re-posting of Social Security numbers was a violation of the First Amendment.  A privacy campaigner, Betty Ostergren created a website called The Virginia Watchdog to protest the availability of Virginians’ personal information on the Internet. She posted government employees’ personal data, including Social Security numbers, to draw attention to the fact agencies frequently post unredacted personal information online.  The state legislature passed a law that prohibited re-posting of Social Security numbers and she brought an action claiming her First Amendment rights had been violated.  The state of Virginia argued that the unredacted numbers were unprotected speech because they facilitated crime and did not put forth any ideas.  The Court held that prohibiting re-posting of truthful, lawfully obtained information was not narrowly tailored to protect the state’s interest in individual’s privacy. In its judgment. the court said

“The unredacted SSNs on Virginia land records that Ostergren has posted online are integral to her message. Indeed, they are her message. Displaying them proves Virginia’s failure to safeguard private information and powerfully demonstrates why Virginia citizens should be concerned.”

There is a post about the case on the First Amendment Coalition Website.

On 12 July 2010 the Ninth Circuit Court of Appeals issued a decision in the case of In Re: Anonymous Online Speakers, No. 09-71265 (9th Cir. July 12, 2010).  It suggested, in dicta that an expansive category of “commercial speech” is entitled to reduced protection in anonymity cases.  The Citizen’s Media Law Project Blog suggests that this ruling may placing “consumer griping” at risk.  The Internet Cases blog points out that the case is significant as only the third federal circuit decision dealing with this issue.

<!–[if gte mso 9]> Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4 <![endif]–><!–[if gte mso 9]> <![endif]–> <!–[endif]–>Betty “B.J.” Ostergren, a self-proclaimed privacy rights advocate, created a website called The Virginia Watchdog to protest the availability of Virginians’ personal information on the Internet. On her website, she posts government employees’ personal data, including Social Security numbers, to draw attention to the fact agencies frequently post unredacted personal information online.

After the state legislature passed a law that prohibited re-posting of Social Security numbers even if already available online — an action she claimed was geared toward stopping her website — Ostergren brought a lawsuit claiming her First Amendment rights had been violated.

The U.S. Court of Appeals in Richmond (4th Cir.) agreed with her this week when it upheld a lower federal court ruling in Ostergren’s favor.

The state of Virginia argued that the unredacted numbers were unprotected speech because they facilitated crime and did not put forth any ideas, but the court ruled that prohibiting Ostergren’s re-posting of truthful, lawfully obtained information was not narrowly tailored to protect the state’s interest in individual’s privacy.

“The unredacted SSNs on Virginia land records that Ostergren has posted online are integral to her message. Indeed, they are her message,” Judge Allyson Kay Duncan wrote in the court’s opinion. “Displaying them proves Virginia’s failure to safeguard private information and powerfully demonstrates why Virginia citizens should be concerned.”

There is a post on the First Amendment Coalition Website


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2 08 2010
US Freedom of Expression and Media Law Round Up 2 August 2010 … | World Media Information

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