Columbia Global Freedom of Expression seeks to contribute to the development of an integrated and progressive jurisprudence and understanding on freedom of expression and information around the world. It maintains an extensive database of international case law. This is its newsletter dealing with recent developments in the field.
● Epilogue for the Jack Daniels Case: The Supreme Court’s Final Opinion, by Laura E. Little and Andrew Rosen. Published by the Forum for Humor and the Law (ForHum), the article comments on the U.S. Supreme Court’s ruling in the dispute between Jack Daniels and VIP Products. The trademark case was initiated due to VIP Products’ sales of a dog chew toy labeled “Bad Spaniels,” designed as a parody of Jack Daniel’s famous whiskey bottle. Little and Rosen argue the Court’s final opinion, written by Justice Elena Kagan, did not explore the intersection of trademark law and humorous expression. Thus, “[by] grounding its opinion in a mark’s functionality as a “trademark” as opposed to a “parody,” the court avoided the question of when humor may be protectable.”
● Report Release – SLAPP Cases in Georgia, a New Threat to Media Freedom. The Georgian Democracy Initiative (GDI) has just published a report that examines strategic litigation cases aimed at silencing journalists and civil society in Georgia. Focusing on the time frame between January 2021 and April 2023, the report registers a significant increase in SLAPP cases and emphasizes similarities in the legal disputes analyzed. GDI notes the cases bear features of a systematic campaign, observing that “general court judges show a heightened interest in lawsuits filed by people connected to the government and hear them in unusually speedy, tight time frames.” The report highlights that Georgian city mayors initiated approximately 31.5% of the disputes, while individuals with connections to Georgia’s ruling party – 26%. Read the full report here.
● South Africa: High Court Dismisses Private Prosecution of Journalist. IFEX member Committee to Protect Journalists (CPJ) issued a statement in response to the ruling of South Africa’s Pietermaritzburg High Court, which prohibited former President Jacob Zuma from prosecuting journalist Karyn Maughan on June 7, 2023. CPJ reports Zuma had initiated a private prosecution against Maughan in September 2022 due to her reporting on his medical condition for News24 in August 2021. The Court found the information featured in the journalist’s report had in fact been public and described Zuma’s actions against Maughan as an “abuse of process” that violated the right to media freedom. The judges emphasized, “Such [a] right we agree encompasses the right of journalists to report freely on matters of public interest without threats and without intimidation and harassment.”
Decisions this Week
Scarborough v. Frederick County School Board
Decision Date: February 8, 2021
The United States District Court for the Western District of Virginia denied the Frederick County School Board’s motion to dismiss the claims filed by the petitioner, who was blocked from a school’s official Facebook page and from two superintendents’ official Twitter pages, after criticizing COVID-19 protocols and facemask policies on the aforementioned Facebook page. The plaintiff, Christie Scarborough, filed a civil-rights suit seeking monetary damages. She argued that the defendants engaged in viewpoint discrimination and that her freedom of expression rights under the First Amendment were violated. The defendants responded that the plaintiff failed to allege enough facts to support her claims and that she failed to prove that the accounts were maintained in official capacities. The Court held that Facebook comments were protected by the First Amendment, that the public-forum threshold for a social-media platform was reached because the Facebook page at issue was an arm of the government entity itself, and that viewpoint discrimination was prohibited in all forums. For the Court, the plaintiff’s allegations supported the inference that the defendants blocked the plaintiff from the Facebook page because they did not like what she had said about their policies. As for the Twitter claim, the Court recalled the case Knight First Amend. Inst. at Columbia Univ. v. Trump and considered that the public officials operated their Twitter accounts in their official capacities and that there was enough evidence to consider that the applicant’s removal from the social-media platform was a result of her criticism of their policies. In conclusion, the Court considered that the applicant effectively argued that the social-media accounts at issue were public forums, and that the defendants engaged in unconstitutional viewpoint discrimination by blocking her from Facebook and Twitter.
Price v. New York
Decision Date: June 25, 2018
The United States District Court for the Southern District of New York granted a motion to dismiss the claims filed by the petitioner, Kelly Price, who was blocked from two official public Twitter accounts after complaining about the treatment she received from public officials in her own cases of domestic violence. Although the Court held that viewpoint discrimination violated the Free Speech Clause of the First Amendment, it granted here qualified immunity to the public servants in charge of the Twitter accounts. Qualified immunity means that public officials are excused from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In the Court’s opinion, there was neither a binding authority nor a robust consensus of cases from a persuasive authority that addressed the context of First Amendment claims concerning the government’s use of social media. Thus, for the Court, there was no “fair warning” for the public servants that suggested that their conduct was unlawful. Hence, the Court held, they should enjoy qualified immunity.
Regina (David Miranda) v. Secretary of State for the Home Department and Commissioner of Police for the Metropolis
Decision Date: January 19, 2016
The Civil Division of the Court of Appeal of England and Wales (EWCA) ruled that the police lawfully exercised the vested authority under Schedule 7 of the Terrorism Act 2000 against the applicant, David Miranda, which empowers officers to stop, question and/or detain a person at a port to determine whether he “is or has been concerned in the commission, preparation or instigation of acts of terrorism”. David Miranda was stopped by the police at Heathrow Airport and questioned about items in his possession, including hard drives with encrypted data from the National Security Agency (NSA) acquired by Edward Snowden. Miranda, although not a journalist himself, had been carrying the materials in assistance to his partner and journalist Glenn Greenwald, who had written articles in The Guardian about Snowden Revelations. The port stop had been initiated upon the request of the UK Security Service, which had convinced the police to use their anti-terrorism powers on the grounds that the (threat of) disclosure of the material would endanger people’s lives and influence a government by promoting a political or ideological cause. The Court of Appeal upheld the conclusion of the lower court that the stop power had been used for a lawful purpose and in a proportionate manner. But, unlike the lower court – and most importantly – the EWCA recognised that journalist activities require a higher degree of protection against the disclosure of journalistic material, which Schedule 7 failed to provide. The Court further held that such authority set out in Schedule 7 is incompatible with Article 10 of the European Convention on Human Rights (ECHR) in relation to journalistic material since it fails to set forth adequate safeguards. Accordingly, the judges urged the UK Parliament to introduce appropriate safeguards in anti-terrorism legislation some form of judicial or other independent scrutiny to protect the confidentiality of journalistic material.
John v. Guardian News
Decision Date: December 12, 2008
The England and Wales High Court (Queen’s Bench Division) struck out a claim submitted by Elton John, founder and chairman of the Elton John AIDS Foundation (EJAF), against a satirical article published by The Guardian. The article was a parody of Elton John’s diary written by the journalist Marina Hyde. It implied that John only gave a portion of the proceeds from a recent fundraising event to his AIDS charity. John sued The Guardian for libel on the grounds that the piece portrayed his commitment to EJAF as insincere and accused him of giving a small proportion of the funds collected to the foundation. The Court considered that the context of the article — being published in the “Weekend” section, with a humorous tone and using irony, allowed reasonable readers to understand that the article did not contain serious allegations.
Bropho v. Human Rights & Equal Opportunity Commission
Decision Date: February 6, 2004
The Federal Court of Australia held by a majority that the cartoon entitled “Alas Poor Yagan” published by Western Australian Newspapers Ltd was protected by freedom of expression under section 18D of the Racial Discrimination Act. The petitioner Robert Bropho had appealed to the Federal Court of Australia on the grounds that the primary judge had erred in law in finding that although the cartoon “Alas Poor Yagan” was offensive on the basis of race, color, or ethnicity under section 18C of the Racial Discrimination Act, it fell within the exceptions in section 18D which exempted the respondent from liability. The majority of the Federal Court of Australia recognized that, although the cartoon consisted of eight drawings that were humiliating and offensive to the Nyoongar Aboriginal community, they did not violate the Racial Discrimination Act because it was an “artistic work” published in good faith and in a reasonable manner reflecting a matter of public interest.
Teaching Freedom of Expression Without Frontiers
This section of the newsletter features teaching materials focused on global freedom of expression which are newly uploaded on Freedom of Expression Without Frontiers.
UNESCO Report – Re|shaping policies for creativity: addressing culture as a global public good
Report Summary: Culture and creativity are crucial economic sectors, accounting for 3.1% of GDP and 6.2% of employment. In 2019, exports of cultural goods and services doubled, reaching $389.1 billion. However, the creative economy faces challenges, including the pandemic, which led to over 10 million job losses. Public investment in culture has declined, and creative professions remain unstable and underregulated. Gender equality remains distant, and only 13% of voluntary national reviews acknowledge culture’s contribution to sustainable development. Disparities between developed and developing countries are significant, with developed countries leading the trade of cultural goods and services. The COVID-19 pandemic highlights the need for countries to protect and promote diversity within their territories and beyond. Culture’s global public good must be preserved for the benefit of present and future generations. This report “offers insightful new data that shed light on emerging trends at a global level, as well as puts forward policy recommendations to foster creative ecosystems that contribute to a sustainable world by 2030 and beyond”.
A companion video on the importance of protecting artists and defending artistic freedom is also available.
● Comedian and YouTube Content Creator Arrested in Sri Lanka over Satire on Buddhism. Advox Global Voices reports Nathasha Edirisooriya, a stand-up comedian based in Sri Lanka, was arrested on May 27, 2023. She is facing allegations of the use of “derogatory remarks about Lord Buddha and Buddhist Girl’s Schools” during her April comedy show performance. The show’s recording caused public outrage, and Edirisooriya received threats of physical violence. Despite the subsequent release of her apology video, the Commissioner of Buddhist Affairs and several Buddhist monks filed a complaint against Edirisooriya. The Criminal Investigation Department proceeded with the case. The comedian was arrested under the ICCPR Act, which has been repeatedly misused to target freedom of expression in Sri Lanka. A petition advocating for Edirisooriya’s release was launched in late May.
This newsletter is reproduced with the permission of Global Freedom of Expression. For an archive of previous newsletters, see here.