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US Freedom of Expression and Media Law round-up – 22 April 2012 – Gervase de Wilde

The last Inforrm US round up was published in November 2011 – apologies for the long delay since then. As well as a number of important Supreme Court decisions in the interim, there have been a number of developments, including a large award of damages, in the Obsidian Finance v Cox litigation. A judge decided that a blogger was not a journalist for the purposes of Oregon’s media shield law, provoking national and international comment. Web-based media more generally to be the focus of new developments in the law.

Supreme Court

The most significant US Supreme Court decision in this area since our last round-up is one that we trailed in January of this year, in United States v Jones (10-1259 01/23/2012). The case was about whether or not the police should obtain a warrant before attaching a GPS tracking device to a suspect’s vehicle, and using it to monitor his movements. The court decided that this was a violation of the Fourth Amendment, but was split 5-4 on whether it was a violation of property rights, or of the individual’s reasonable expectation of privacy.

The Court did not rule on the circumstances or extent of the use of such tracking technologies in the future. Lyle Denniston on the Supreme Court’s scotusblog suggests that the court has effectively “launched years of new lawsuits to sort it all out”, and the increasing use of technology in law-enforcement, and in other private areas of people’s lives, seems to indicate that this will be fertile ground for future litigation.

To the increasingly vocal and active privacy lobby on both sides of the Atlantic, the most significant opinion is probably that of Justice Sonia Sotomayor, who would, it seems, widen the ambit of protection offered by the Fourth Amendment: she questioned the aggregation and use of data on the details of individuals’ lives by the executive and went further still, to suggest that third parties could also be subject to constraints in their use and disclosure of such information:

“it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties…This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

A New York Times piece praised the Judge’s insistence on the primacy of fundamental rights in the face of technological change, and suggested that it was “too bad her separate opinion mustered no other votes”. The existence of a voice so strongly in favour of individual privacy and data protection rights may provide a counter-weight to the chorus of disapproval in the US over the EU’s new ‘right to be forgotten’.

As the debate goes on over the Affordable Care Act, and the Supreme Court considers the arguments it has heard over attempts to strike down the legislation, the Court handed down its judgment in FAA v Cooper (10-1024 03/28/2012). The case concerned the sharing of an individual’s health records by government agencies, and the extent of damages available for the violation of the Federal Privacy Act which had taken place as a result. The court held that damages were to be limited to financial losses which resulted from the breach, and that the meaning of “actual damages” did not extend to encompass mental and emotional distress.

Justice Sotomayor again diverged from the majority, handing down a dissenting opinion which focused on the broad meaning which should be ascribed to “actual damages”, an expression she felt could not be limited to pecuniary injuries only. As her dissent suggests, the decision has implications for all those who seek a remedy for the unlawful actions of state agencies, as well as for breaches of privacy specifically.

An important First Amendment case decided in 2012 is that of Hosanna Tabor v EEOC (10-553 01/11/2012), which concerned a ‘ministerial exception’ to the operation of Federal discrimination laws. The exception puts those who perform religious functions outside the scope of workplace discrimination and bias legislation at all levels. The main opinion, by Chief Justice Roberts, held that a loose understanding of ministerial and religious duties was appropriate – the employee who had been fired was a teacher who spent most of her time on non-religious duties. The decision is an extension of the long-recognised First Amendment rights of religious institutions to control their own affairs.


Our last round-up referred to a decision granting summary judgment in the widely reported case of Obsidian Finance v Cox (No. 3:11-cv-57-HZ), in which a judge decided that the blogging medium involved a “looser, more relaxed communication style” which made it less likely to be trusted by readers. The sequence of events in the litigation can be followed on this useful page put together by the Citizen Media Law project. The defendant, Crystal Cox, subsequently sought the protection of Oregon’s media shield law, a refuge which was denied her by the judge. In a one-day trial on November 29, a jury awarded the plaintiff company Obsidian US$1,000,000 in damages and its principal Kevin Padrick a further US$1, 500,000.

The decision not to allow Cox to use the shield law, and to deny her the chance to use a higher negligence standard which is applied to media defendants in libel claims, led to widespread outrage and criticism online, mostly along the lines of ‘Judge rules bloggers aren’t journalists’ (see Roy Greenslade in The Guardian). However, the decision itself was a narrow one in relation to online publishing platforms, and Cox’s particular use of them could not be described as journalism in any meaningful sense, as the judge clarified in a later opinion denying her motion for a new trial:

“In my discussion, I did not state that a person who “blogs” could never be considered “media.” I also did not state that to be considered “media,” one had to possess all or most of the characteristics I recited. Rather, I confined my conclusion to the record defendant created in this case and noted that defendant had presented no evidence as to any single one of the characteristics which would tend to establish oneself as a member of the “media.”

The judge also pointed to Cox’s business model, which involved posting defamatory material about the plaintiffs and then offering “PR,” “search engine management,” and online reputation repair services” to remove them for “a small but tasteful monthly fee”.

As Forbes suggests, most journalists “will not want Cox in their camp”. But the principles underlying the case, relating to whether all those who use mass communications technology should be accorded the same protections as ‘big’ media, nevertheless inspire trenchant views: the cudgels have now been taken up by Eugene Volokh of the Volokh conspiracy blog, who has become involved in Cox’s case on a pro bono basis, and Cox has filed a notice of appeal to the 9th Circuit Court of Appeals.

Other notable online defamation decisions included the case of a ‘revenge blogger’ who was ordered to take down a blog about his former partner which violated a harassment restraining order (Johnson v. Arlotta, 2011 WL 6141651 (Minn. App. Ct. Dec. 12, 2011). Eric Goldman highlights how extreme, and potentially unconstitutional, the remedy of the blog’s total removal from the internet was. Another post by Goldman focuses on a ‘Wikipedia defamation’ ruling involving defamatory material which was corrected in the course of the site’s in-house editing process. In Georgia, three six figure awards have been given in cases of blog-based libel in the past fifteen months.

A key difference between this jurisdiction and the US is the application of the concept of the ‘public figure’ to defamation and privacy actions; such a figure needs to prove actual malice to found an action. The idea can be seen in operation in a suit brought by two Dominican plantation owners who have sued the makers of ‘The Price of Sugar’, an investigative film critical of the island’s sugar industry. The US Court of Appeals in Boston (First Circuit) ruled in Lluberes v Uncommon Productions (No. 10-2082)that the Lluberes brothers are ‘limited purpose’ public figures, in that they are well-known for a particular issue, although they are not household names.

The claimant’s status as a public figure was also at issue in Bertrand v Mullin (EQCV143342 6 April 2012), an Iowa judgment which considered the nature of an ‘attack’ ad run by the Iowa Democratic party against state senator Rick Bertrand. The advert described him as a “salesman for the most unethical company in the world” and as having a “record of deceit”. A jury awarded damages of US$231,000 in a decision which could have implications for the intemperate tone of US political advertising.


The class action against Facebook – Fraley v Facebook – which we mentioned at the beginning of the year continues, with two of the named plaintiffs successfully applying to be dismissed from the suit as class representatives in March. One of them cited “privacy concerns and potential embarrassment” as the reasons for her desire to withdraw.

The earlier decision on a (failed) summary judgment application by Facebook has garnered more attention and comment since, and rightly so: the attempt to constrain Facebook’s use of users profiles as part their ‘sponsored story’ advertising has far-reaching implications, for their business model, and for the increasing tendency for consumers of online services to be unwittingly turned into those same services’ most lucrative products. A Stanford Law Review article focuses on a corollary of the ‘public figure’ concept, that of ‘newsworthiness’. Facebook argued that the plaintiffs expressions of consumer opinion were newsworthy and therefore a subject of legitimate public interest. The court agreed, holding that this meant

“that Facebook users are famous to their friends and that even their most banal actions—indicating that they “Like” a product—may be “newsworthy.””

The problems of online publishing services’ potential liability for material posted by users have been considered in a line of English authorities recently revisited in  Davison v Habeeb 2011 EWHC 3031 QB and Tamiz v Google Inc [2012] EWHC 449 (QB). In the US, this area is regulated by Section 230 of the Communications Decency Act of 1996, which provides that

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

In a case covered by Eric Goldman, Jones v. Dirty World Entertainment Recordings, LLC, 2012 WL 70426 (E.D. Ky. Jan. 10, 2012), a Kentucky judge rejected the immunity the provision offered to website The site carries sexual gossip about its subjects, usually women, submitted by third parties to its operator, who posts the material with accompanying photographs. Apart from evident distaste about the site’s subject matter, the reasons for the judge refusing to extend this statutory protection seem unclear, and Goldman suggests that the decision will be appealed.

Anonymity online

The latter half of last year offered a raft of online anonymity related decisions and this remains a hotly contested area of the law. In Miller v Junior Achievement (No. 49A02-1103-PL-234), an Indiana Appeals Court refused to offer media shield law protection to an anonymised commenter on a newspaper website whose remarks were found to be defamatory on their face. The commenter was not a source for the purposes of Indiana law. However, the court held that the Dendrite standard should apply to attempts to unmask the commenter: the plaintiff must give the speaker a chance to defend herself, as well as pleading a viable claim, presenting prima facie evidence, and showing that the balance of interests favours disclosure before disclosure of their identity will be ordered by the court. The Consumer Law and Policy Blog has a comment on the case.

Another, and possibly more controversial, decision on the application of ‘shield’ laws noted by the Citizen Media Law blog was given in the state of Illinois. A Judge ruled that technology news site Technobuffalo could not rely on the ‘reporter’s privilege’ to avoid pre action disclosure in a potential trade secrets claim, holding that “TechnoBuffalo’s reliance on the Illinois reporter’s privilege is misplaced,” as the site did not meet the statutory definition of a news medium thanks to its use of anonymous tipsters.

In a case discussed on the Unruly of Law blog, Raw Films Ltd. v. John Does 1-15 (Docket No. 2:11-cv-07248-MAM), a Pennsylvania district judge ordered ISPs to provide IP addresses and other information identifying subscribers who allegedly infringed on the copyright of an adult film through a file-sharing Website. The right to anonymity was balanced against the IP rights of copyright holders, and the judge decided that there was no significant expectation of privacy in such cases.

Other cases

The ‘Solicitors From Hell’ litigation in this country ended in a resounding defeat for the site’s unscrupulous owner. But a legitimate US online lawyer-rating service fought off the attempts of an unhappy attorney to shut it down in a Seattle District Court in Davis v Avvo (C11-1571RSM) last month. Florida lawyer Larry Joe Davis Jr brought claims in libel, and then in false advertising and misrepresentation, against the site, but these were dismissed with costs awarded against him. The ruling was one of the first to be made under Washington State’s Anti-SLAPP law, which is designed to prevent lawsuits which seek to limit the defendant’s participation in public interest issues.

The Michigan Court of Appeals held that a man who hacked into his wife’s email account was not exempted from the State’s unlawful computer access law in the case of Michigan v Walker (304702) decided at the end of last year. The court found no ‘spousal exception’ in the law – Daniel Solove comments on the Concurring Opinions blog that “breaking into one’s private accounts is a violation no matter who does it”.

With thanks to all of the blogs mentioned which have proved invaluable in compiling this round up, particularly Eric Goldman and the Citizen Media Law blog, 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.

1 Comment

  1. Lyrissa Lidsky

    Cases/developments to add: FCC v. Fox, U.S. v. Alvarez, Golan v. Holder, Snyder v. Phelps, Brown v. Ent. Merchants Assn, Chevron Corp. v. Berlinger (2d Cir.), Barclays Capital Inc. v. (2d Cir.).

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