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US Freedom of Expression and Media Round Up – 20 October 2010

On 6 October 2010 the US Supreme Court heard oral argument in the high profile free speech case of Snyder v Phelps. The case concerns Fred Phelps and his Westboro Baptist Church, notorious for protesting at military funerals with its “God Hates Fags” and “Thank God for Dead Soldiers” signs.  The claim, by the family of a soldier who died in Iraq, is for intentional infliction of emotional distress, invasion of privacy by intrusion upon seclusion and conspiracy.  It was successful at first instance but failed in the Court of Appeals.  It is now possible to listen to audio of the oral argument in the Court.  In addition, a transcript of the hearing is available.  The ScotUS Blog has its usual comprehensive coverage of this case which can be found here.

US freedom of speech campaigners strongly support the rights of Fred Phelps to “offensive speech”.  For example, the ACLU blog of rights has a post under the title “Why Fred Phelps’ Speech Rights should matters to us all.”  We have previously mentioned  the fact that The Volokh Conspiracy blog has an interesting thread on the case

In International Dairy Foods Association v. Boggs, the U.S. Court of Appeals for the Sixth Circuit struck down Ohio’s regulations barring dairy processors from labeling milk as “rbST-Free,” but upheld the agency’s ability to require disclaimers for some rbST-related product claims, subject to First Amendment constraints.   There is a post on The Volokh Conspiracy Blog.

An interesting abuse of freedom of speech is drawn to our attention by “The Blog Law blog”.  This is a website called, a gossip blog that targets ordinary, non-celebrity people who have had the misfortune to wind up in an unflattering photograph, and “then barrages them with a spleen-venting hate-filled spew of off-the-charts invective


According to research from the Media Law Resource Center the number of trials of libel, privacy and related claims against the media fell from 266 in the 1980s to 192 in the 1990s to 124 in the 2000s. In 2009, only nine such trials were held. This is reported in an article in the ABA Journal which also mentions the fact – which we have reported before – that the New York Times is currently facing no libel actions in the US.

In Kennaugh et al. v. Monterey County (Case No. GNM108497) former Harvard Medical School physician Dr. Ralph Kennaugh and business partner Angelo Ben Amadio allege in Monterey County Superior Court that the county’s Sheriff’s Department defamed them by questioning the authenticity of a purported multi-million dollar art theft from the men’s home.  There is a post about the case on the Unruly of Law blog.

In DiFolco v. MSNBC Cable L.L.C., No. 09-2821, the US 2nd Circuit Court of Appeals allowed, in part, an action for breach of contract, defamation, and tortious interference with prospective business relations, based on the termination of plaintiff’s employment by defendant as an entertainment reporter, correspondent, and anchor.  The judge had ruled the defences of truth and fair comment defeated her defamation claims.  The appeals court, however, noted that opinions grounded on false facts are actionable.  There is a summary of the decision here and a discussion on the Unruly of Law blog.

A New Jersey judge has dismissed a lawsuit aimed at silencing a critic of a puppy broker.  Burlington County Superior Court Judge M. Patricia Richmond dismissed on First Amendment grounds a defamation lawsuit against a blogger critical of a broker who sold him a sick dog that was neither the age nor the breed that was advertised.  There is a news report of the case here.

In the case of Bohl v Pryke a California jury this week found that the publisher of California weeklies had defamed psychologist Nancy Bohl in a series of articles from June 1999, to April 2000, alleging she used her relationship with her husband, former San Bernadino County Sheriff  Gary Penrod, to secure a county contract and that she provided the Sheriff’s office with confidential material from her counseling sessions. Damages of US$332,500 for lost business, emotional distress and harm to her reputation were awarded.  There is a post about the case on the Unruly of Law blog.

It is reported that Keven A. McKenna, an independent candidate for Rhode Island attorney general, has sued election rival Erik B. Wallin for defamation of character, alleging that Wallin falsely accused him of removing a Wallin campaign sign from private property and replacing it with a McKenna sign.

In the case of WJA v DA the Superior Court of New Jersey Appellate Division that a defamation claim regarding accusations of online child sex abuse could proceed without proving damage.   It held that that dismissing the case because the plaintiff could not prove damages “provides defendant with a license to defame,”   The Reporters Committee for Freedom of the Press website has an item on the decision and here is a post about the case on the Unruly of Law blog.

It is reported that a Broadway singer wants to know was behind a Twitter posting accusing him of getting an STD from an “Avenue Q” star. In papers filed in Manhattan Supreme Court, former “Xanadu” and “Wicked” performer Marty Thomas says he was defamed last month by a Twitter poster.


On 5 October 2010 the Court heard argument on the case of NASA v Nelson. The issue was whether the government violated a federal contract employee’s constitutional right to informational privacy by asking in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year.  The audio of its hearing and the transcript are available.   A number of the judges expressed scepticism about the whole idea of constitutionally protected “privacy right”.

Other News


The California Governor, Arnold Schwarzenegger has signed into law S.B. 5, the Deceased Child Victims’ Protection and Privacy Act which enables legal guardians of murdered children to prevent the release of autopsy reports and medical records of the young victims.  There is a post about this on the Unruly of Law blog.

1 Comment

  1. sheldon toplitt

    Thanks for the acknowledgment in your informative blog.

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