Our last US Round Up was on 20 October 2010.  We apologise for this delay. In this post we will try and deal with the major developments in freedom of expression and media law in the United States over the past two months.

On 2 November 2010 The US Supreme Court heard argument in Schwarzenegger v Entertainment Merchants (Docket 08-1448) the Court considered the issue as to whether a state law restricting the sale of violent video games to minors violated the First Amendment right to free speech.  There is a transcript of the hearing and the oral argument is also available online. The SCOTUSblog Wiki page for the case (which includes all the briefs and other relevant documents) is here.   SCOTUSblog’s Lyle Denniston has posted on the oral argument. The media coverage is summarised on the CBLDF website.

On 18 November 2010 in Defoe v Spiva (09-6080)  the Sixth Circuit Court of Appeals dismissed an appeal by school student Tom Defoe who had challenged his suspension from school for wearing Confederate flag paraphernalia on First Amendment grounds.  The Court held that schools had authority to punish students for speech that the school considers contrary to its “important policies,”  ACLU have filed an Amicus Brief in support of an application for a rehearing.  The case is discussed on the Adjunct Law Prof Blog.

Another First Amendment issues affecting school students across the United States concerns bracelets stating “I ♥ Boobies”.  The bracelets sold by the “Keep a Breast Foundation”, which explains on its website that its “mission is to help eradicate breast cancer by exposing young people to methods of prevention, early detection, and support,” and to “increase breast cancer awareness among young people.” School administrators in a number of states have claimed the bracelets’ message is vulgar, disruptive, or both, and want to ban the bracelets.     The issue was considered by the US District Court in Philadelphia. The case is discussed on the First Amendment Law Prof Blog.  In an article on Findlaw Julia Hilden argues convingcly that the students are right and the schools are wrong.  There is also a commentary on the First Amendment Centre website making the same point.

The San Francisco chronicle reports that a Texas high school cheerleader who was kicked off the squad for refusing to chant the name of an athlete she said had raped is seeking to have the Supreme Court reinstate her free speech claim against the school district.    On 16 September 2010, the Court of Appeals for the Fifth Circuit held in the case of John Doe v Silsbee Independent School District, that the cheerleader was speaking for the school, not herself, and had no right to remain silent when called on to shout the athlete’s name.


The issue of litigant anonymity was considered by the U.S. Circuit Court of Appeals for the Ninth Circuit in Jacob Doe, a minor, by parents & next friends, et al. v. Kamehameha Schools/Bernice District of Hawaii et al. (Case No. 09-15448).  The Court refused a rehearing request by plaintiffs, who are minors, who sought to pursue their civil rights discrimination suit against a school system anonymously.  There were, however, two strong dissenting opinions and it appears that the matter may go to the Supreme Court.  The Unruly of Law blog has a post about the case which is also discussed on the Reporters Committee for Freedom of the Press website.


On 10 October 2010 in Sandholm v. Kuecker (Case No. 08-L-19) the Illinois Court of Appeals affirmed the trial court’s dismissal of a defamation and false light suit by a former high school basketball coach against a group of parents critical of his coaching style.  The court upheld the lower court’s rejection of the plaintiff’s constitutional challenge of the state’s anti-SLAPP (Strategic Lawsuits Against Public Participation) measure, the Illinois Citizen Participation Act (“ICPA”), which the trial judge cited in throwing out the suit on the basis that it chilled free speech.  There is a post about the case on the Unruly of Law Blog.

On 23 November 2010, in the case of Lufti v Spears (BC 406904) The California Court of Appeals has rejected an appeal in a defamation claim brought against Britney Spears’ mother by the singer’s former manager, Sam Lufti arising out of a book entitled Through the Storm: A Real Story of Fame and Family in a Tabloid World.  In August 2009 Superior Court Judge Zaven V. Sinanian denied Lynne Spears’ motion to dismiss the defamation claim on the grounds that her statements constituted protected speech, ruling that the passages targeted in her book by Lufti, if proven false, sufficiently supported a defamation claim.  Mrs Spears appealed the ruling to the California Second District Court of Appeal (Case No. B218211), saying remarks about the plaintiff in her book, including calling him “shifty,” a “predator,” and a “fake” who was “planning evil” by isolating Britney from her family through actions such as throwing away the pop diva’s phone chargers and disabling her house phones, were not defamatory because Mr Lufti is “libel-proof.”  The idea behind the defense, which has not been accepted in any California case law, is that an individual’s reputation already is so sullied that the individual can’t be defamed by attacks on his/her character.  There is a post about the case on the ever informative “The Unruly of Law” blog.

On 3 December 2010, in the case of Little v Consolidated Publishing the Alabama Court of Appeals held that a news story containing a false and defamatory statement can be libelous even if it accurately quotes a person making the claim, includes a denial and makes clear the allegation is unverified.   The case was brought by Anniston City Councilman Ben Little against The Anniston Star which had quoted another city councilman, John Spain, saying there were rumours that Little had a “personal relationship” with a woman who got a US$2,500 city contract to conduct an audit of the human resources department. The story quoted Spain as saying the rumor would be unfair to Little if it’s not true, and it quoted Little as saying it was not true.  The Court held that

a newspaper reporter or publisher cannot avoid liability for publishing a false and defamatory statement on the ground that the newspaper reporter or publisher accurately quoted the rumormonger, even if the newspaper story clearly identified the statement as an unverified report and even if the newspaper story contains a denial of the rumor by its subject.”

In Blockowicz v. Williams, No. 10-1167, (7th Cir. December 27, 2010) the California Court of Appeals refused to extend an injunction to Ripoffreport.com, the website on which some of the defamatory content appeared.  The plaintiffs had failed to show that Ripoffreport was in active concert or participation with the defendants

In Ratcliffe v Redfern (4th Dist, 29 December 2010) the California Court of Appeals dismissed an appeal against the granting of summary judgment to the defendants in a slander and harassment case.

On the Blogs

The Concurring Opinions blog has an interesting post entitled “Does the Roberts Court have a First Amendment Agenda”.  It suggests that

“the Court’s decisions to review Stevens, Snyder, and Entertainment Merchants in such a short time frame are certainly noteworthy. Perhaps the presence of these cases on the Court’s docket signals the interest of at least some current Justices in testing the rigidity of the content discrimination doctrine and expanding the number of exceptions”.

The Shear on Social Media blog has a post entitled “Why professional athletes must be careful when using social media” – mentioning the problems which have arisen in the US for “tweeting” sportsmen –  including NFL players fined for tweeting during games.

And finally … the Media Law Prof Blog notes that California’s  “malicious impersonation” law takes effect today. Penal Code section 528.5 deals with “Impersonation through Internet Web site or by other electronic means”.