The Supreme Court gave several judgments on First Amendment matters last term, and these are helpfully rounded up by the ABA Journal here. While no significant decisions in this area have been handed down since our last round up, the Court is, as the ABA article suggests, showing a clear interest in cases with First Amendment implications.

The Supreme Court has already heard arguments this term in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a challenge to the ‘ministerial exception’ which prohibits most employment-related claims against religious organizations by employees who perform religious functions.

In the wake of the landmark Supreme Court ruling on funeral protests (covered here in our last but one Inforrm round up), the controversy surrounding the activities of the notorious Westoboro Baptist Church continues.  The church’s provocative picketing of military funerals was held by the Supreme Court to be protected by the First Amendment in Snyder v Phelps (2 March 2011), a case brought by the father of a dead Marine who sued the church for the distress caused by their attendance at his son’s funeral.

The 8th Circuit court of Appeals in Missouri has since twice ruled in favour of the Phelps family, who are the key members of the Church. In early October, the Court held in Phelps-Roper v City of Manchester (5 October, 2011) that the Missouri town of Manchester was not entitled to enforce a law banning peaceful picketing outside of funerals. Later in the month, the same court in Phelps-Roper v Troutman (20 October  2011) struck down a Nebraska law keeping protesters away from a funeral or memorial service. The court held that it was bound by its earlier ruling in the church’s favour, a decision which left them with no choice but to rule against the local legislation.

As numerous commentators, including the Wall Street Journal, have pointed out, the significance of these rulings is that they leave two parts of the same Appeals court in conflict over the issue. In 2008, the Sixth Circuit found in Phelps-Roper v Strickland (22 August 2008) that a similar law to those struck down this year was valid. A point of contention at this level helps determine whether the Supreme Court will hear a case on appeal and, with more test cases to come on this difficult issue in the lower courts, the Westboro Church may again test the limits of the First Amendment at the highest level.

The use of the Stars and Stripes has featured in First Amendment cases in the past and it played a part in Dariano v Morgan Hill Unified School District (8 November 2011). A California District Court upheld a school’s decision to prevent students wearing the flag on their T shirts on Cinco de Mayo (a day of Mexican celebration across the United States when the Mexican flag is often worn). The school was responding to tension between Caucasian and Mexican students on the previous year’s holiday. As the Volokh Conspiracy blog suggests, it is the facts of this case – which seem to indicate ill feeling between the school’s different ethnic groups and a struggle to regulate students’ freedom of expression – which are disturbing, even if the decision is right under a ruling which allows the restriction of speech in schools where it may cause disruption. Volokh also draws attention to a decision on a similar set of facts (a school’s right restrict to students’ wearing ‘Islam Is Of the Devil’ T shirts) where the potential for disruption justified the restriction.

Freedom of expression in the context of education was also at issue in another Californian case concerning Muslim students who disrupted a lecture by the Israeli ambassador Michael Oren at the University of California, Irvine. The students stood up one by one and shouted prepared statements at Oren such as “propagating murder is not an expression of free speech”. They were disciplined by the university but were found guilty by a jury of both consipiring to disrupt and disrupting the ambassador’s speech under section 403 of the California Penal Code, which prohibits disturbing or breaking up “any assembly or meeting that is not unlawful in its character”. For more information, see the AP report at First Amendment Center.

On a rather less political note, the activities of British actor Sacha Baron-Cohen in his ‘Borat’ and ‘Bruno’ guises have seen the film company behind his work face claims from a number of those who became unwitting participants in it. But a Californian court has held he was engaged in protected First Amendment speech when he seized the microphone at a bingo game and began calling offensive versions of the numbers. The Unruly of Law has more on the facts and the film company’s defence.

Those interested in the relationship between First Amendment jurisprudence and the law surrounding freedom of expression in other jurisdictions may be interested to read a series of posts, starting here, by Professor Timothy Zick on the Concurring Opinions blog. In them, he previews a new book on what he describes as the First Amendment’s ‘trans-border dimension’, which addresses some of the issues arising from disputes over speech involving the USA and its citizens in the context of the world beyond the country’s borders.


The most eye-catching and widely reported defamation decision since our last round up has been the award of US$7.5 million in damages for slander to Shawn Esfehani, the Iranian-born owner of a Toyota dealership whose competitor referred to his business as “Taliban Toyota”, and accused him of being a terrorist. The rival dealership’s representatives told customers that Mr Esfahani was “from the Middle East, and he is helping fund the insurgents there and is also laundering money for them”. The breakdown of the total award was US$2.5 million in compensatory damages and US$5 million in compensatory damages, a sum still some way shy of the US$28 million sought by the Plaintiff. Comments by a lawyer who was involved in the case on Volokh provide some further background on the facts.

Another sizeable award of damages was made in Minnesota where, in a case concerning a practitioner of alternative medicine, a jury awarded US$1 million against a TV station (see the AP report on the First Amendment Center blog). The damages were given by a Dakota County jury to a naturopathy healer for a 2009 broadcast alleging that she told a client to discontinue anti-anxiety medication. The healer denied having given the advice in question and the jury agreed with her, awarding US$100,000 consequential damages for lost past and future income, and US$900,000 in damages for the broadcaster’s having acted with “actual malice” in airing the story.

The possibility that differences might arise in the application of defamation law online and in print has been addressed by the Federal District Court in Oregon. In Obsidian Finance v Cox (23 August 2011), the court ruled in favour of blogger Crystal Cox, who ran the website, where she published a number of serious and damaging statements about a bankruptcy trustee. While they were prima facie statements of fact, the court held that “the extensive use of hyperbolic and figurative language, and the posing of several questions rather than statements” were evidence that they were not actionable. The Blog Law Blog amusingly describes this as the “ALL CAPS” defence to libel, suggesting that the blogger’s “unconventional style” undermined her credibility. A more troubling point to emerge from the decision is to do with generalisations made about the blogging medium, the judge stating that

“the setting and format of these communication tools create a “looser, more relaxed communication style,” which is less likely to be understood as containing statements of fact or implying factual assertions”

While the decision seems to protect bloggers on one level, on another the idea that they somehow can’t be trusted to get their facts right makes the protection provided little consolation. The Citizen Media Law Project has a comment on the problems with the sentiment that blogs are an inferior subspecies of media.

Although it is a Canadian rather than a US decision, the very similar thinking displayed by a recent decision of the Supreme Court of Ontario in Baglow v Smith 2011 ONSC 5131 provides a further indication of a developing exceptionalism surrounding online publication in the common law world. In refusing to find liability for the comment on a conservative message board that a left-wing blogger was “one of the Taliban’s more vocal supporters”, the judge observed that

 “internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond to the disparaging comments before the same audience in an immediate or a relatively contemporaneous time frame. This distinguishes the context of blogging from other forms of publication of defamatory statements.”


In a case with distinct echoes of the efforts of some British sportsmen to keep their private lives out of the media, Arenas v Shed Media (22 August 2011), a California District Court has refused a basketball star’s application to injunct Shed Media’s reality TV show ‘Basketball Wives’. Gilbert Arenas, a professional player for Orlando Magic, sought to prevent the broadcast of the show featuring Laura Govan, his former partner and mother of his four children. His claim relied on an alleged infringement of his trademark in his own name and a misappropriation of his publicity rights. It is worth noting that a “public interest defense” is available in Californian law, under which

“no cause of action will lie for the publication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it”

In answer to Mr Arenas’s argument that his identity was not a matter of public concern, the court referred to his extensive activity on Twitter:

“This contention is belied by the tens of thousands of Twitter users who follow Arenas as he tweets about a variety of mundane occurrences. (See, e.g. ,Alter Decl., Ex. O at 118 (“dont u hate waking up doing the same thing..wash face..brushteeth..pee..take shower(well sum of us)…put on clothes…eat…etc”).)”

This use of social media constituted a way of life which drew a “bona fide attention” to Mr Arenas’s activities. As a contributor to the Eric Goldman blog observes, the case offers a classic example of a claimant “making an argument that’s inconsistent with statements he or she said online”. Tweeting footballers beware!

Anonymity online

In a decision with broad implications for Twitter users outside as well as within the US, a federal judge has upheld a ruling earlier in the year by a Magistrate that the micro-blogging service must hand over account information to US government prosecutors. The accounts in question belong to users believed by the US government to have been involved in the leak of classified information on Wikileaks (specifically the video which showed the US military shooting two Reuters reporters), and include that of an Icelandic MP, Birgitta Jonsdottir. The Twitter users’ lawyers had argued that forcing the company to cooperate and hand over the data was an invasion of privacy and had a chilling effect on the free speech rights of the service’s users. Under the Stored Communications Act, the government only needs to show that it has a reasonable belief that the information it seeks is ‘relevant’ to an ongoing criminal investigation, a test which provides little protection for Twitter users. The Guardian has more on the decision and international reaction to it, including a comment piece by Ms Jonsdottir.

The privacy of internet users was also at issue in Doe v United States (4 October 2011) in which a California court held that rules protecting anonymous commenters under the First Amendment do not apply where government investigations are concerned (here, a Securities and Exchange Commission investigation into fraudulent ‘pump and dump’ share schemes).

A contrasting decision, and one which, according to the Consumer Law and Policy Blog “bristles with interesting features”, was made in Art of Living Foundation v Does 1-10 (9 November 2011). A federal judge, again in California, overturned the decision of a lower court and asserted that actual proof of wrongdoing is required to obtain identifying information, even where the plaintiff claims copyright infringement. The jurisprudence which supports a lower threshold for identifying anonymous users in illegal downloading cases was held not to apply here, where an international cult was attempting to identify the author of a blog which criticised it.

An anonymous actress has sued the online movie database IMDB for revealing her true age in the ‘Pro’ section of the site. The actress looks considerably younger than her chronological age of 40, and has always been  careful to keep her real age and birth name under wraps. She says that the service took her age from the credit card transaction she conducted when she signed up to the site, and alleges that she has lost work as a result of the revelation. She is suing Amazon, the company’s owner, for over 1 million dollars, claiming invasion of privacy – more details on the facts and her various causes of action are here.

Other cases and legislation

In a case brought by the American Civil Liberties Union (‘ACLU’), a federal judge has ruled that the CIA do not have to release records related to its use of unmanned drones to kill suspected terrorists in Afghanistan and elsewhere. In her opinion, summarised by the Politico website, the judge held that records could be withheld under the rubric of “intelligence sources and methods”. The ACLU’s attempts to obtain drone related information from other government agencies continue.

The state of California has passed a law which specifically prohibits jurors from using social media or the internet during trials to either research or disseminate information. This expands on the existing instructions to jurors which simply forbid any discussion of the case on which the jurors are sitting. It may be an unnecessary addition in legal terms but it’s an unsurprising one in the birthplace of most of today’s most successful social media services.

With thanks to all of the blogs mentioned which have proved invaluable in compiling this round up, particularly The Volokh Conspiracy and The Unruly of Law, and to Kyu Ho Houm, whose Twitter feed is a comprehensive guide to media law news in the US and beyond. Apologies for any significant omissions.

Gervase de Wilde is a former journalist at the Daily Telegraph and a student barrister.