We begin this week with the US Supreme Court.  In its new term – with a new justice, Elena Kagan – and a “docket” which includes a number of cases which give rise to freedom of expression and privacy issues.  First in line, due to be heard on 6 October 2010, is the controversial case of Snyder v Phelps. We have previously discussed this case which 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 filed 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 overturned by the 4th Circuit Court of Appeals on First Amendment grounds.   The Volokh Conspiracy blog has an interesting thread on the case – Eugene Volokh has also written an Amicus Brief in the case.  The ScotUS Blog has its usual comprehensive coverage of this case which can be found here.

There are a number of other interesting forthcoming cases in the Court this term, which are discussed on a post on the Media Law blog  entitled “ Free Speech tested in Digital Age”.  We would draw specific attention to two more.  First, the case of NASA v Nelson in which the issues is whether it is a violation of an employee’s constitutional right to privacy to ask her whether she has received counseling or treatment for recent illegal drug use in the past year.   The ScotUS Blog coverage of this case is here.  Secondly, there is case of Schwarzenegger v. Entertainment Merchants in which the issues is whether a state law restricting the sale of violent video games to minors violates the First Amendment right to free speech.  The ScotUS Blog coverage of this case is here.

A similar point recently arose in U.S. Circuit Court of Appeals for the Ninth Circuit  in Powell Books, Inc. d/b/a LLC v. Kroger (Nos. 09-35153, 09-35154) declared unconstitutional  two Oregon statutes intended to combat child sexual abuse as violating the First Amendment.  One statute criminalized giving sexually explicit material to minors under age 13 and another criminal penalties on those who lure minors under age 18 with visual, verbal or narrative descriptions of sexual conduct to arouse sexually the minor or the furnisher of the material or inducing the minor to engage in sexual activity.  The Court held that these statutes,

sweep up a host of material entitled to constitutional protection, ranging from standard sexual education materials to novels for children and young adults by Judy Blume.

It noted that materials such as children’s books Mommy Laid an Egg and Where Do Babies Come From? along with depictions of sex acts in  the best-seller The Joy of Sex, would be actionable under the statutes.  There is a post about the case on the Unruly of Law blog.

In State v. Crawley (28 September 2010), the Minnesota Court of Appeals struck down a Minnesota law banning knowingly falsely reports of police misconduct on First Amendment grounds.  The Court said though such reports fall within an “intentional falsehood” exception to the First Amendment, the law was unconstitutional because it was viewpoint discriminatory —

The provision challenged in this case punishes only those known falsehoods that are critical of police conduct,” as opposed to “knowingly making false statements to absolve an officer of wrongdoing.”

Well, yes, an interesting point – though one which would not cut much ice in the English courts.  The Volokh Conspiracy blog has a post on the case under the headline “Is There a First Amendment Exception for (Most) Knowingly False Statements of Fact, or Instead Several Exceptions for Libel, Fraud, Perjury, and the Like?”

In the land of the First Amendment, free speech is not always popular.  Joseph Werner, mayor of Mokena, Illinois, said that internet bloggers who anonymously ridicule public officials are like terrorists who hijack American planes and fly them into buildings. He believes blogs have given rise to the greatest First Amendment crisis in this country’s history.  There have been a couple of news stories about this in the local Chicago press Mayor says bloggers are U.S. terrorists and Bloggers and freedom to decide what’s true.  Mr Werner later clarified the position, saying he doesn’t have a problem with bloggers in general, just with those who hide their identities:

“They want to be anonymous. That’s cowardly.  Just like terrorists, they don’t care if they destroy innocent people, and maybe they’re not killing anyone, but they’re destroying reputations.”

This is the subject of a post on the Blog law Blog. Mr Werner’s language may be just slightly overblown but the point is an important one – noted in the past by the Supreme Court – that free speech fundamentalism means that reputation is not sufficiently valued to the detriment of society generally.


In Baltimore, the City Paper lost a defamation claim brought by a Miami restaurateur after he was who mistakenly identified as a federal fugitive of the same name.  The weekly has been ordered to pay defendant Ionnas Kafouros $350,000 for defamation and acting with negligence. They did not find that the defendants acted with malice, and so the defendant was not entitled to punitive damages.  There is a story about this case in the Baltimore Magazine.

In the case of David L Wilson v Sparrow Health System the Michigan Court of Appeals dismissed a claim for defamation by a man who was charged with indecent exposure at a swimming pool after the club’s executive director reported his suspicions to police. But another man later confessed, and the charges against Mr Wilson were dropped. The appeals court said today that holding the club liable would have a chilling effect on people who report allegations of criminal activity.

Perhaps unsurprisingly, US commentators have been amazed and scandalised in equal proportions about the French “Google Suggest” defamation case (which we blogged about last week).  For example, the San Francisco Chronicle describes the decision as “outrageous” and “absurd”.   Legal writer Julie Hilden has a piece on “Find Law” under the title “The French Criminal-Defamation Conviction of Google and Its CEO: Why It Wouldn’t Happen in America” – as might be expected there a host of different reasons, all of which would have led to the case failing in the US.

Other News

A new law makes it illegal in California to maliciously impersonate someone online.  On Monday California Governor Arnold Schwarzenegger signed the law, which makes it a misdemeanor in the state to impersonate someone online for “purposes of harming, intimidating, threatening, or defrauding another person.”  The bill’s author, State Senator Joe Simitian, said that Senate Bill 1411 brings California’s impersonation laws into the 21st century by addressing “the dark side of the social networking revolution.”  There is a story about the new law in PC World.