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US Freedom of Expression and Media Law Round Up – May to September 2011

This is our round up of US freedom of expression and media cases.  It has been four months since our last US Round Up.  Apologies to our readers, in the US in particular, for the delay and for the cases and stories we have missed.

We begin with the US Supreme Court. There have been notable First Amendment decisions since our last round up.  The first concerned “commercial speech”.  In Sorrell v. IMS Health Inc (23 June 2011) in which the Court voted 6-3 to strike down Vermont’s Prescription Confidentiality Law, which had prohibited the use, sale or disclosure of prescriber histories in pharmaceutical marketing to physicians. Justice Anthony Kennedy’s opinion for the Court, said that the law was “contrary to basic First Amendment principles.”  The state argued that this provision advanced important public policy goals by lowering the costs of medical services and promoting public health.  Whilst acknowledging that these were proper goals, the Court held that the statute did not advance them in a permissible way.  Justice Kennedy, in giving the opinion of the court said:

“The State seeks to achieve its policy objectives through the indirect means of restraining certain speech by certain speakers — that is, by diminishing detailers’ ability to influence prescription decisions. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the “fear that people would make bad decisions if given truthful information” cannot justify content-based burdens on speech. “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” These precepts apply with full force when the audience, in this case prescribing physicians, consists of “sophisticated and experienced” consumers”.

The decision has been summed up by saying that it establishes that commercial advertising cannot be generally restricted on the grounds that it might persuade people to do something that the government thinks is bad  (see the post on the Volokh Conspiracy Blog).  As Justice Kennedy puts it:

“the State defends the law by insisting that “pharmaceutical marketing has a strong influence on doctors’ prescribing practices.” This reasoning is incompatible with the First Amendment. In an attempt to reverse a disfavored trend in public opinion, a State could not ban campaigning with slogans, picketing with signs, or marching during the daytime. Likewise the State may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading advertisements that contain impressive endorsements or catchy jingles. That the State finds expression too persuasive does not permit it to quiet the speech or to burden its messengers”.

Justice Breyer filed a dissenting opinion (in which Justices Ginsburg and Kagan concurred).  His view was that the effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special “heightened” standard of review whenreviewing such an effort. And, in any event, the statute meets the First Amendment standard this Court has previously applied when the government seeks to regulate commercial speech. There is a post about the decision on the SCOTUS Blog. The SCOTUS Blog’s “Case Page” contains all the relevant materials.

Even more striking is the Court’s decision in Brown v. Entertainment Merchants Association (27 June 2011) in which, by a 7-2 majority, the Court struck down a California law that made it a crime to sell or rent violent video games to anyone under the age of 18 (if a parent or other adult was not with the youth).  Justice Scalia, speaking for the majority held that law was an impermissible attempt to create a new exception to free-speech rights by regulating youths’ access to violent video content.   Justice Scalia opinion drew a bright constitutional line between obscenity and violence, with obscenity outside the First Amendment and violent expression within it. The majority commented that the Court has never taken violent expression out from under the First Amendment’s protection.  This ruling is closely related to last year’s decision in US v Stevens striking down a federal law that banned video or other depictions of animal cruelty.  The majority was not persuaded by any of the research literature that suggests that children who watch violent video games are led to engage in dangerous or other harmful behavior themselves.  There are posts about the decision, inter alia, Thomas Jefferson Center site and on the SCOTUS Blog. The SCOTUS Blog’s “Case Page” contains all the relevant materials.

Other First Amendment Cases

In Haley v. State, (8 July 2011) the Georgia Supreme Court considered whether hoaxes have First Amendment protection.  Mr Haley apparently created an online hoax that he would “confess” to 16 murders.  It appears that the statements were reasonably read as actually claiming that the poster was the killer, rather than being clearly visible to be fiction or parody. As a result, the Court held that the knowing falsehood stripped the statements of First Amendment protection. The Volokh Conspiracy has a post on the case with a detailed discussion of the (for US constitutional lawyers) difficult question as to the extent to which knowingly false statements of fact are protected by the First Amendment

In State v. Stephens (22 July 2011) an Ohio trial court judge held that there is no First Amendment right to bark at a police dog.  A city ordinance banning the defendant from “willfully and maliciously taunt[ing], torment[ing], [or] teas[ing] … any dog used by the Police Department in the performance of the functions or duties of such Department” could constitutionally be applied to him. The Volokh Conspiracy has a post on the case.

On 13 June 2011 the Court of Appeal for 3rd Circuit ruled in J.S. v. Blue Mountain School District and Layshock v. Hermitage School District that students’ First Amendment rights were violated when they were suspended for mocking their school principals on MySpace.  The Court said that such punishment could only take place if there was a substantial nexus between the student speech and the school environment and the school officials could reasonably forecast that the speech would cause a substantial disruption of school activities within the meaning of the 1969 case of Tinker v. Des Moines Independent School District.

The case of T.V. v. Smith-Green Community School Corp. (US District Court, Indiana ND,10 Aug. 2011) dealt with the issue of the disciplining of students for posting racy photographs on Facebook.  The judge began his judgment by saying

“Not much good takes place at slumber parties for high school kids, and this case proves the point.”

He went on to hold that a high school violated plaintiffs’ First Amendment rights when it suspended them from the volleyball team because they had posted a raunchy video of themselves on the Internet.  It also held that the school’s code of conduct allowing suspensions for “act[ing] in a manner in school or out of school that brings discredit or dishonor upon yourself or your school” is unconstitutionally vague and overbroad.   There are posts about the case on the Volokh Conspiracy blog here and by Eric Goldman.

However, some restrictions on “out of school speech” are permissible. In Wynar v. Douglas County School District (10 August 2011) it was held that administrators did not violate the First Amendment when they expelled a Nevada high school student who sent instant messages containing an alleged hit list.  This speech could be restricting on the basis that the school could reasonably forecast a substantial disruption of school activities.  The First Amendment Center has a post about the case.


In Tomblin v. WCHS-TV8 (11 May 2011) the Court of Appeals of the 4th Circuit, 2-1, reinstated a defamation claim by the owner of a child nursery after the defendant broadcast a news report that a four-year-old child was sexually abused.  The District Court entered summary judgment for the defendant concluding that that it accurately reported the abuse allegations made by the mother of the child.  The Court of Appeals pointed out that the defendant it knew and left out the fact that the incident involved one four-year-old boy touching the rectum and genitalia of another four-year-old boy and that, as a result, it arguably published a false statement about sexual abuse.  The court concluded that

“when taken as a whole, there could be a question of fact as to whether the broadcast produced a false “implication, innuendo or insinuation” about the daycare. The broadcast repeatedly referenced the sexual abuse of a child in the context of a daycare, potentially creating the impression that a daycare worker abused a child”.

The Volokh Conspiracy has a post on the case, under the heading “Defamation by half truth?”

On 8 June 2011, in the case of Yonaty v. Mincolla (Case No. 1003-2009), Justice Rumsey held that imputing homosexuality to an individual constitutes libel per se.  Mark Yonaty, who denies being gay, sued Jean Mincolla, alleging his betrothed broke off their engagement after she was advised that he was gay or bisexual.   Acknowledging changing societal perceptions about homosexual conduct, which long ago was against the law in New York, Justice Rumsey nonetheless said he was bound by legal precedent and the ample body of New York case law that holds false accusations of homosexuality rise to the level of defamation per se.  The Unruly of Law Blog has a post on the case.

On 13 July 2011 in G. Watson Bryant Jr., Executor of the Estate of Richard Jewell v. Cox Enterprises, Inc. d/b/a The Atlanta Journal-Constitution et al. (Case No. A11A0510), the Court of Appeals of Georgia last month upheld the trial court’s finding that The Atlanta Journal-Constitution did not defame the late Richard Jewell when it reported that anonymous law enforcement officials considered the security guard a suspect in the 1996 bombing of Centennial Olympic Park.  The Court said the defendant’s articles were substantially true, and though sympathetic to Mr Jewell’s ordeal the Court held that:

“A reasonable reader would have understood the information to be preliminary in nature and published during the very early stages of the ongoing investigation.”

It was held that Mr Jewell was a limited-purpose public figure who had to satisfy the higher burden of proof of actual malice to prevail in his defamation claim. The Unruly of Law Blog has a post on the case.

In Bustos v. A&E Television Networks (Case No. 10-1253, 19 July 2011), a three-member panel of the U.S. Circuit Court of Appeals for the Tenth Circuit this month upheld a trial court’s ruling against an Hispanic Colorado inmate who sued A & Television Networks for airing a documentary alleging he was a member of the Aryan Brotherhood white supremacist group.  The documentary Gangland: Aryan Brotherhood included footage from a surveillance tape showing Mr Bustos fighting with another inmate while voice-over narration discussed the white supremacist group and its tradition of violence. Mr Bustos alleged he was subjected to death threats because of the false impression that he was a member of the group.   The Court agreed with the trial court that the program’s impression that Mr Bustos was an Aryan Brotherhood member was defamatory but said that the defendant was protected because the statement was “substantially true.” As the subject of the program involved a matter of public concern, the burden of proof was on Bustos to show the Aryan Brotherhood accusation was materially false.  The Court concluded

“Comparing the challenged defamatory statement(membership in the Aryan Brotherhood) to the truth (conspiring with and aiding and abetting the Aryan Brotherhood), we cannot see how any juror could find the difference to be a material one–that is, likely to cause a reasonable member of the general public to think significantly less favorably of Mr. Bustos,”.

The Unruly of Law Blog has a post on the case.

In Varrenti v. Gannett Co. (3 August 2011) a New York Trial Court rejected a libel claim filed a police chief and three officers against anonymous internet commentersThe court held that the comments, in context, would be seen as expressions of opinion rather than statements of verifiable fact — largely because readers would seem them as “sarcastic, hyperbolic, and based on rumors”.   As a result, the plaintiffs could not get discovery of the anonymous commenters’ identifying information (see MLRC Actions against Free Speech).

In Olguin v. Santa Barbara Community College Dist. (Cal. Ct. App. Aug. 15, 2011) the plaintiff complained about a memorandum when by a colleague which he complained contained false statements including the “republication” of a student’s complaint about witnessing him commit a lewd act in his office.  The Court of Appeals found no error in the jury directions.   The testimony of the author of the memorandum that he was motivated by concerns about academic freedom is supported by his memo, which the Court described as “essentially a treatise on academic freedom”.   The Volokh Conspiracy has a post on the case.

The case of Rashada v. New York Post (N.Y. trial court, Aug. 11, 2011), involved a libel claim brought by Melody Rashada against the New York Post and op-ed author Patrick Dunleavy based on this article. The article focused on four Muslim terrorism suspects, and asked how they “were radicalized to the point where they’d even consider plotting to bomb synagogues in The Bronx and shoot down aircraft with missiles.”  The court held that the article was opinion and speculation, rather than a factual assertion

 “The article is painly intended to raise issues, rather than convey specific, objective facts about Rashada’s role in the radicalization of inmates…. the article does not make any definitive accusations against Rashada, but rather the article suggests that the connection between the former inmates and the mosque should be investigated

The Volokh Conspiracy has a post on the case.

The case of Westergen v Olsen (18 August 2011) is a relatively rare example of a successful defamation claim.  The plaintiff was the in-house counsel of Del Mar College in Corpus Christi.  The defendant, a history professor, related confidential allegations of sexual misconduct against him on a local radio talk show.
A jury found that defendant was guilty of defamation by making the false statement that the plaintiff had problems with pornography.   The 13th District Texas Court of Appeals upheld the jury’s award of US $20,000.

“Thus, considering the factual record in full, we conclude that the circumstances leading up to Olson’s on-air statements in combination with Olson’s failure to investigate the allegations were sufficient evidence from which the jury could form a firm belief or conviction that Olson acted with reckless disregard as to the truth or falsity of Cox’s allegations against Westergren.  We conclude that the evidence was therefore clear and convincing and supported the jury’s actual malice finding.”

Internet Libel

We have already posted about the case of Shiamili v. The Real Estate Group of New York, Inc., The defendant real estate brokers ran a blog. Several people posted pseudonymous comments critical of Shiamili, another real estate broker. Defendants left those comments up, and even reposted one of the comments as a separate post, with a heading and an illustration provided by defendants. Shiamili sued the defendants. The court held that the defendants were protected by 47 U.S.C. § 230, which generally immunizes Internet content providers from being held liable for posts by other service providers. And the court held this even though the defendants deliberately reproduced one of the comments in a separate post. The Volokh Conspiracy has a post on the case

In M.A. v. Village Voice Media Holdings LLC, (E.D. Mo. Aug. 15, 2011).   M.A. was the victim of a convicted sexual trafficker. She alleged that he created child pornography of M.A., posted the photos on Backpage as part of advertising M.A. for prostitution, and then acted as a pimp for M.A. She sued Backpage.  The claim failed as there was a complete defence under section 230 of the Communications Decency Act.  There is a post about the case on the Technology & Marketing Law Blog.


A new California law signed by Governor Jerry Brown threaten jurors with jail if they tweet, blog, or otherwise use the internet to communicate about their trial.  The first thing the law puts an additional requirement on judges when they give jury directions.  Under Code of Civil Procedure §611, judges already have to explain that jurors are prohibited from talking about, researching, or disseminating information about the trial. The new law requires that judges “clearly explain,” that this admonishment “applies to all forms of electronic and wireless communication.”  Last year, Governor Arnold Schwarzenegger vetoed a bill similar to this one because he considered current warnings to jurors to be adequate.  The new law does not find favour with the Blog law Blog.

The Blog Law Online blog has prepared a “State by State Compilation of Social Media Jury Instructions“.  The most recent version can be found in the latest issue of the Reynolds Courts & Media Law Journal (available here).

1 Comment

  1. kyu ho youm

    Many thanks for the succinct, informative round up of various U.S. media law and related cases. KHY

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