US Freedom of Expression and Media Law Round Up – 13 February 2011

The gun attack on Congresswoman Gabrielle Giffords and others gave rise to an intense debate about the limits of free speech in the USA last month.  The UK Human Rights Blog drew attention to a New York Times columnist, writing in October 2010 that the USA was in ”denial” about “the level of rage still coursing, sometimes violently, through our national bloodstream” and asked what was to be done about violent “rage”, publicly expressed?  It made the point that political rhetoric in the United States is often more offensive and charged than in the UK, due in part to the more robust freedom of expression protections under the US Constitution.    But US free speech campaigners were quick to condemn any potential restrictions on violent political speech.  The American Civil Liberties Union, sent a Memorandum to Congress reiterating its “free speech fundamentalist” position.  The ACLU blog has a post entitled “Thoughts on Free Speech after the Arizona Tragedy”.

Supreme Court

On 19 January 2011, the US Supreme Court gave judgment in the case of NASA v Nelson (09-530, see ScotUS Wiki) upholding NASA’s background checks for employees of companies working under contract.  The majority held that there was no need to settle the lingering constitutional question as to whether individuals have a right not to have information about their private lives disclosed by the government.  The majority assumed, without ruling, that there is a constitutional right to “informational privacy” holding that it was not violated.  Scalia and Thomas JJ dissented on this issue, dismissing the argument that such a right can be found in the Constitution as “absurd,” “silly,” “farcical,” and “ridiculous.”  Scalia J said

If … the Court believes that there is a constitutional right to informational privacy, then I fail to see the minimalist virtues in delivering a lengthy opinion analyzing that right while coyly noting that the right is “assumed” rather than “decided.” Thirty-three years have passed since the Court first suggested that the right may, or may not, exist. It is past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence”.

There is an analysis of the Opinions by Lyle Denniston on the SCOTUS blog

The Supreme Court has denied certiorari in the appeal of Salzano v. North Jersey Media Group d/b/a The Record et al. (No. 10-616), letting stand a decision by the N.J. Supreme Court (Case No. A 78-79, Sept. 2008 Term) upholding the fair report privilege for journalists in defamation suits.  The court had ruled that the fair report privilege covers defamatory statements contained in filed pleadings that have yet to come before a judicial officer. The story is report by Courthouse News and there is a post about the case on the Unruly of Law Blog.

The Court heard argument in the case of Federal Communications Commission v. AT&T (09-1279)(see ScotUS wiki).  The issue was whether the exemption in the Freedom of Information Act — which exempts from mandatory disclosure records or information compiled for law enforcement purposes when such disclosure could reasonably be expected to constitute an unwarranted invasion of “personal privacy” – protects the “privacy” of corporate entities.   As Lyle Denniston explained on ScotUS blog, the concept of “personal privacy” for corporations found little support from the judges during argument.  There is a transcript and audio of the hearing.

Anonymity and the Internet

Anonymous internet abuse, protected by the First Amendment, continues to be a problem in the US.  In the case of Gatelli v Pilchesky the Pennsylvia Superior Court backed online commenters’ right to anonymity, overturning an order requiring a Web site operator to disclose the identities of commenters who slammed a local politician.   There is a post about the case at Mediapost.com.

Stanley Fish wrote an opinion column, “Anonymity and the Dark Side of the Internet” in the “New York Times”, picked up by Privacy Lives.   He discusses a new set of essays on the dark side of the Internet titled “The Offensive Internet.” The authors of the essays suggest that the way to deal with scurrilous and harmful material on the internet involves the repeal or modification of Section 230 of the Communications Decency Act, suggesting that immunity might be conditioned on the willingness of a provider either to take down a message after notice of its falsity or defamatory character has been given, or “to enforce non-anonymity” and thus open the way for an injured party to seek redress.

Defamation

In the case of G.D. v. Bernard Kenny and The Hudson County Democratic Organization, Inc. the New Jersey Supreme Court has held that it is not libel to say that someone was convicted of a crime when the conviction has been expunged.  This case raises interesting general issues in both defamation and privacy law and will be the subject of a separate post.

We have already posted about the Courtney love Twitter libel claim which was due to begin on 8 February 2011.   The Techdirt site notes an interesting argument which was, apparently, being advanced by Ms Love

“The most interesting (and least likely to succeed) line of defense is a sort of “Twitter made me do it” defense:

Love’s attorneys have their own witnesses, including a medical expert who plans to testify that even if Love’s statements were untrue, her mental state was not “subjectively malicious” enough to justify the defamation lawsuit.

That claim — something akin to an insanity defense for social media — suggests that Twitter was so appealing and addictive for Love that she had no appreciation for how the comments she posted would be received by others”.

The MLRC site “Actions against Online Speech” has collected a number of stories about the case.  There is a post about the case on the Prawfs Blawg.  However, despite or perhaps because of the huge online excitement about the case, it now appears that it may settle.  The Unruly of Law blog notes that the case has been adjourned to 4 March for a status conference about settlement negotiations.

Other defamation cases include McNamee v. Clemens (Case No. 1:09-cv-01647) – which Judge Sterling Johnson, Jr. said ex-trainer Brian McNamee may pursue his defamation claim based on Roger Clemens’ alleged statements that McNamee lied and manufactured evidence to inculpate Clemens as a user of steroids and human growth hormone during his pitching days.  There is a post about the case on the Unruly of Law blog.

It is reported that member of the San Francisco Bay-area Sikh temple can bring a libel and defamation lawsuit against a newspaper that quoted him as stating the temple was training terrorists.

A libel claim has been brought against Intelius, a software and “information commerce” company.  It is alleged that the company published false criminal records through its Date Check smart phone app.  Paul Geller claimed Date Check defamed him by reporting he has “18 criminal records,” though his only legal infraction was a traffic ticket that was dismissed after traffic school.  The case is discussed on the Courthouse News site.

The West Publishing company is appealing against a US$5 million libel verdict awarded to two law professors last December by a jury in the U.S. District Court for the Eastern District of Pennsylvania.  The plaintiffs co-authored West’s “Pennsylvania Criminal Procedure: Law, Commentary & Forms” in 1987 and continued to provide yearly updates, for twenty years.  In 2008 West published an update that contained only three cases and omitted significant changes in the law, in a version that listed the plaintiffs as the authors.  The plaintiffs sued for defamation and right of publicity invasion of privacy, among other claims, asserting that their reputations were tarnished in the academic community by being associated with the shoddy update.  They were each awarded US$90,000 in compensatory damages and US$2.5 million in exemplary damages. There is a post about the appeal on the Unruly of Law blog.

Finally, in this section, an interesting “Libel tourism” case – involving the short trip from the US to Canada InvestorsHub.com, an investment website, has accused a Canadian company of “libel tourism”: suing iHub for defamation in Ontario Superior Court to take advantage of Canada’s defamation laws, though the website and its owners have “no connection” with Canada. They want a US$105,000 Canadian judgment thrown out.

Freedom of Expression

The First Amendment Center and Volokh Conspiracy note that a Virginia federal  court has rejected the claim that the so-called Stolen Valor Act violates the First Amendment. The provision at issue, 18 U.S.C. § 704(b), makes it a crime to “falsely represent [oneself], verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item.” In United States v. Robbins, Judge  James Jones noted that in  Gertz v. Robert Welch Supreme Court had stated that “there is no constitutional value in false statements of fact” and consequently statements such as those covered by the Stolen Valor Act could be criminalized. This ruling departs from the analysis of the two prior decisions examining the Act’s constitutionality. In U.S. v. Strandlof a Colorado district court concluded that the law violated the First Amendment. That ruling in now being appealed. In U.S. v. Alvarez, a 2 to 1 Ninth Circuit panel decision also struck down the provision. Both prior rulings had applied strict scrutiny to the content-based prohibition and found that the government had failed to show the law was narrowly tailored to serve  a compelling interest

Privacy

On 11 January 2001, in the Freedom of Information case of Prison Legal News v Executive Office for United States Attorneys (No 09-1511) the Court of Appeals for the 10^th circuit ruled that releasing certain images, video and audio recordings regarding a prison murder and mutilation would violate the personal privacy of the prisoner’s family.  Prison Legal News, a legal journal covering prisoners’ rights issues, filed a FOIA request for the video and audio shot by prison personnel in the immediate aftermath of the murder of Joey Jesus Estrella, and for autopsy photographs of Estrella. Estrella was murdered by his two cell mates in a Colorado federal prison in 1999. The video and the photographs were used in open court at the murder trials for Estrella’s attackers.  There is a discussion of the case on the Reporters Committee for Freedom of the Press website.