It has been more than two months since we last rounded up the US Freedom of Expression and Media Law news. Apologies to our readers, in the US in particular, for the delay and for the cases and stories we have missed.
The most high profile First Amendment decision of the year so far was Snyder v Phelps (2 March, 2011). The case arose out of the activities of the Westboro Baptist church headed by Fred Phelps which is well known to picket military funerals and other events while brandishing signs with the words “God hates fags” and “Thank God for dead soldiers,” among other statements. The parents of the deceased soldier brought a claim for defamation, invasion of privacy, and intentional infliction of emotional distress. The claim succeeded at first instance with damages being ultimately put at US$5 million. The verdict was overturned by Appeals Court whose ruling was upheld by the Supreme Court. The Court, by an 8:1 majority, held that the First Amendment protects those who stage a peaceful protest on a matter of public concern near the funeral of a military service member. The SCOTUS blog case page is here – this include all the briefs submitted to the Court – including 15 Amicus Briefs, largely from supporters of free speech (and hence of the decision under appeal). The case also has a full Wikipedia entry. There is a post about the case on the Canadian Supreme Court blog, “The Court”.
The majority justices and most US commentators found this an easy case. An exception was a post on the “Mirror of Justice” blog entitled “Military Funerals and the Failure of Chief Justice Roberts”. PrawfsBlawg has a post in response entitled “Chief Justice Roberts and the Ostensibly Boring First Amendment”
One interesting footnote to the case arises from the fact that Court refused to consider – for dubious technical legal reasons – similar attacks on the Snyders on the Westboro Baptist website. Jeffrey Shulman has a paper on the subject “Epic Considerations: The Speech that the Supreme Court Would Not Hear in Snyder v. Phelps”, Cardozo Law Review de Novo, pp. 35-42, 2011.
The case brings into sharp focus the difference of approach between US Courts and those in Europe over the issue of “hate speech”. Adam Wagner had a post on this issue at the time concluding
The lesson seems to be that, to paraphrase the US court, as nations we have charted different courses. In light of these protest cases, it is difficult to argue that hurtful speech on public issues in the UK is properly free, and that public debate is not being stifled.
In FCC v. AT&T, (1 March 2011) the Supreme Court held that corporations do not have a right of “personal privacy” under the Freedom of Information Act. The case turned on the meaning of the word “personal”: the Act says that law enforcement records that “could reasonably be expected to constitute an unwarranted invasion of personal privacy” do not have to be disclosed. The Court held, unanimously, that although a corporation is a “person”, the word personal does not refer to corporations. He ended the opinion by saying, “We trust that AT&T will not take it personally.” There is an analysis of the decision on the SCOTUS Blog which has a case page here. There is also a post about the case on the “The Court” blog.
First Amendment Cases
In the case of USA v Alvarez (21 March 2011), the Court of Appeals for the Ninth Circuit refused an en banc re-hearing of an appeal in which the Stolen Valor Act 2005 had been struck down. By declining an en banc review, the court’s majority upheld an appellate panel ruling that struck down the Act – which makes it a crime to lie about receiving a military medal. The full court was strongly divided by the question of how far the First Amendment reaches to protect false speech that is not defamatory, inciting, obscene or fraudulent. Seven judges signed an angry dissent, prompting two judges to defend the panel decision. There is a post about this on the Index on Censorship blog.
To similar effect is the decision of the Eighth Circuit Court of Appeals in the case of 281 Care Committee v. Arneson on 28 April 2011. The Court held that a ban on recklessly or knowingly false statements about ballot initiatives is unconstitutional unless it can be shown to be “narrowly tailored to a compelling state interest” (the so-called “strict scrutiny” test). There is a post about this issue on the Volokh Conspiracy Blog in which he suggests that the case makes it even more likely that the Supreme Court will agree to hear either this case or Alvarez and decide whether
(1) there’s one First Amendment exception for knowingly or recklessly false statements of fact (though with exceptions to the exception, for instance with regard to libels about the government, which are categorically protected), or (2) there are several narrower First Amendment exceptions, for libel, fraud, perjury, false statements that tend to obstruct law enforcement, nondefamatory statements that place someone in a false light, and so on.
In the case of Newton v. LePage (22 April 2011) a US District Judge refused a temporary restraining order to prevent the Governor removing a mural depicting Maine’s labor history from the walls of the Department of Labor because he disapproved of its contents. When the Government speaks it is not subject to the free speech clause . There is a post about the case on the Volokh Conspiracy Blog.
On 19 April 2011 a federal judge ruled that a Chicago jury was wrong when it convicted a white supremacist of using his website to solicit violence against a juror in another case, saying the posts were protected by the First Amendment. In a 66-page ruling, U.S. District Judge Lynn Adelman held that prosecutors did not present enough evidence to prove that William White, in his comments on overthrow.com, wanted the foreman harmed. He also ruled that White’s postings were protected by the First Amendment, saying that “The First Amendment protects vehement, scathing and even offensive criticism of others, including individuals involved in the criminal justice system” There is a report about the case in the “Chicago Tribune” and a discussion on the First Amendment Center site,
In the case of Bradley Love v Robert Rehfus (21 April 2011), the Supreme Court of Indiana held that a volunteer firefighter had a First Amendment right to send a private e-mail about a contentious political campaign relating to his department and could not be dismissed from his job for making false statements about the Fire Chief in this email. There are posts about this decision on the First Amendment Center website and (a new one to us) the Fire Law Blog.
In Tamkin v. CBS Broadcasting,(1 March 2011) a California appeals court ruled that the First Amendment — through the state’s “anti-SLAPP” law — insulates a television writer’s creative process from defamation and invasion of privacy claims. There is a post about the case on the “Entertainment Law Matters” blog.
In the case of H v Eason Area School District (12 April 2011) a federal judge prevented a Pennsylvania school district from enforcing its ban on “I ♥ Boobies” bracelets. The judge ruled the bracelets were protected expression under the First Amendment, and issued a preliminary injunction allowing students to continue wearing them to school. There is a post about the case on the Student Press Law Center blog.
But there are limits to First Amendment protection. On 12 April 2011 a US District Judge held that public comments by attorneys in Kentucky may be restricted as part of a general effort to uphold public confidence in the judiciary, even if the comments are true but considered reckless. There is a story about the case on Law Reader.com and on the First Amendment Center site.
In February 2011, the U. S. Supreme Court denied a petition for writ of certiorari in a case that challenged on First Amendment grounds Nevada regulations that ban newspaper advertising for brothels. The Court refused to hear the appeal brought by the plaintiffs, which consisted of newspaper companies, the ACLU and the Shady Lady Ranch bordello, in Coyote Publishing, Inc. d/b/a High Desert Advocate et al. v. Masto (Docket No. 10-564), thus letting stand a decision by the U.S. Circuit Court of Appeals for the Ninth Circuit (Case No. 07-16633) that upheld the constitutionality of Nev. Rev. Stat. secs. 201.430-440, which restrict bawdy house advertising. There is a post about the case on the Unruly of Law Blog.
From the perspective of English readers the most interesting US defamation case of the past two months is probably that brought by David Beckham against “In Touch” magazine. We have already posted about the decision of the U.S. District Court for the Central District of California to strike out the libel case and about his forthcoming appeal.
Readers may also be interested in the so-called SPEECH Act – designed either to prevent libel tourism or to reinforce US exceptionalism (depending on your point of view). The decision of the Missouri Court of Appeals in Pontigon v. Lord (Mo. Ct. App. Apr. 19, 2011) appears to be the first case on the Act. As expected by Inforrm this does not concern the UK at all but, rather, a (default) judgment in a defamation claim brought in Canada against a Missouri resident. The Court of Appeals set aside the registration of the Canadian judgment. There is a post about the case on the Volokh Conspiracy Blog and, from a Canadian perspective, on the Trial Warrior Blog. There is a also a news piece on the case here.
In Zherka v. Amicone, decided on 2 March 2011 by the Second Circuit Court of Appeals an interesting defamation claim by a journalist against a public figure was dismissed. The plaintiff was the publisher of the Westchester Guardian and the defendant was the mayor of the City of Yonkers. After newspaper criticism of him, the Mayor retaliated, giving a speech in which he called the publisher a “convicted drug dealer,” “Albanian mobster” and “thug” who would open “drug dens” and “loot” the “pension funds” of Yonkers residents. The Court of Appeals held that the plaintiff did not have a case. In order to succeed he had to show that the public official’s response to his speech chilled further speech. The fact that the plaintiff suffered hurt feelings was not sufficient. The Court said
Retaliatory insults or accusations may wound one’s soul, but by themselves they fail to cross the threshold of measurable harm required to move government response to public complaint from the forum of free speech into federal court.
In Bentkowski v. Cleveland Scene LLC et al. (Case No. 09-4547), on 19 April 2011 the U.S. Court of Appeals for the Sixth Circuit held that a weekly magazine’s article about Seven Hills Ohio Mayor David Bentkowski was not defamatory. There are posts about the case on the Reporters Committee for Freedom of the Press site and on the Unruly of Law blog.
U.S. District Court for the Eastern District of Pennsylvania reduced the US$2.5 million punitive damages awarded both to Leonard Sosnov and David Rudovsky against West Publishing to US$110,000 each. There is a post about the case on the Unruly of Law blog.
We can report one other successful defamation claim. In Florida on 5 April 2011 a Hillsborough County Jury rendered a verdict in favour of Seafarer for US$5,080,000 in compensatory damages. After two days of evidence the jury determined that hundreds of on line posts written by Sean Murphy under the screen name of “Floridatreasurecapt” were false and caused a decrease in market price. There is a news report about the case (based on the plaintiff’s own press release) on Business Wire.
In the Fourth Judicial District of Minnesota case, Jerry Moore v. Don Allen & John Hoff (Case No. 27-cv-09-17778), the plaintiff was awarded damages of $35,000 for lost wages and $25,000 for emotional distress in his tortious interference with contract claim. There is an article about the case in the Minneapolis Star-Tribune and a post on the Unruly of Law blog.
We note a couple of cases about Twitter. In William H. Spooner v. The Associated Press, Inc. & Jon Crawczynski (Case No. 11-cv-00642-JRT), a basketball referee is seeking US$75,000 damages for what he claims was a defamatory Tweet by Crawczynski during a game in January. Details can be found on the Unruly of Law blog. In the case of Maremont v Fredman (15 March 2011) a judge in the U.S. District Court for the Northern District of Illinois rejected a motion to dismiss by the defendant in a “false indorsement” and privacy case based on an allegation that the defendant had impersonated the plaintiff on Twitter. There is also a post about this on the Unruly of Law blog.
And finally, we note a working paper by Michael R. Patrone “Endorsements, Advertisements and Grave Robbers: Why States Must (Further) Extend the Right of Publicity beyond Death”
The authors of this post would like to thank Kyu Ho Youm whose invaluable Twitter feed is the source of many of the above items (as well as other stories on this blog) and Sheldon Toplitt whose Unruly of Law blog (and accompanying Twitter feed) is one of the best and most consistent sources of quality commentary on US media law.