Congressional subcommittee holds hearing on federal anti-SLAPP bill

While the Democratic sit-in protesting gun control garnered the nation’s attention this week, a less publicized piece of legislation gained traction in the U.S. House of Representatives Judiciary Committee. The Committee’s Subcommittee on the Constitution and Civil Justice heard testimony Wednesday on the SPEAK FREE Act (H.R. 2304), a federal anti-SLAPP bill. The bill extends speech protections for defendants subject to SLAPPs (Strategic Lawsuits Against Public Participation) to federal court and to states without anti-SLAPP laws.

Currently, 28 states, the District of Columbia, and the territory of Guam have enacted anti-SLAPP statutes with varying degrees of protection. SLAPPs are brought against those exercising their speech rights under the First Amendment and on matters of public concern. Often the goal of SLAPPs is to silence critics by subjecting them to costly and burdensome litigation. Anti-SLAPP laws grant defendants of these suits mechanisms in which to quickly dismiss claims, stay discovery, and receive attorney’s fees. These laws deter litigants from filing speech-chilling lawsuits.

The SPEAK FREE Act, introduced by Rep. Blake Farenthold (R-Tx) in May 2015, permits anti-SLAPP protections to apply in federal court and in states lacking an anti-SLAPP law.

Wednesday’s hearing (video here) included testimony from Bruce D. Brown, Executive Director of the Reporters Committee for Freedom of the Press; Aaron Schur, Senior Director of Litigation at Yelp, Inc.; Laura Prather, Partner at Haynes and Boone, LLP, and board member of the Public Participation Project; and Alexander Reinert, Professor of Law at Cardozo School of Law.

For more on the hearing, visit the Reporters Committee’s website here.

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U.S. Supreme Court rejects review of opinion doctrine in Scholz v. Delp

The U.S. Supreme Court once again denied review of a media law case Monday, refusing to hear the appeal from the Supreme Judicial Court of Massachusetts involving Tom Scholz’s defamation suit against Micki Delp, the Boston Herald, and other defendants.

The certiorari denial leaves in place the finding of the highest court in Massachusetts that Delp’s statements published in the Boston Herald about the death Scholz, the lead singer of the band Boston, were nonactionable opinion protected by the First Amendment.

SCOTUS nominee Merrick Garland’s record reveals encouraging First Amendment views

Everyone has an opinion about Merrick Garland, President Barack Obama’s nominee to fill the larger than life shoes left in the wake of U.S. Supreme Court Justice Antonin Scalia’s death.

Garland has been considered too liberal, too conservative, and too white. Although many have impressions of Garland’s ideology, the more reliable (although not perfect) way to assess a judge’s views is by his previous record on the bench.

Tom Goldstein of SCOTUSblog authored a general overview of Garland’s record in a fact-intensive piece called The Potential Nomination of Merrick Garland.

More relevant to this website is Garland’s previous decisions on media law and the First Amendment. The Reporters Committee for Freedom of the Press published a comprehensive Report breaking down Garland’s relevant media law decisions during his 17 years on the bench.

Of particular note is Garland’s joining of Judge David Tatel’s dissent in Lee v. Dep’t of Justice, 428 F.3d 299 (D.C. Cir. 2004), arguing for a more expansive reporter’s privilege for journalists held in contempt for refusing to disclose sources who provided them with information related to an investigation into Wen Ho Lee. The majority of the court looked merely to whether the identity of a source went “to the heart of the matter” and whether alternative sources had been utilized. In his dissent of a denial of an en banc rehearing, Garland advocated for a third prong—weighing the public interest in protecting the reporter’s sources against the interest of forcing disclosure.

Garland sided with broad newsgathering rights in Boehner v. McDermott, 484 F.3d 573 (D.C. Cir. 2007) (en banc). The Supreme Court nominee joined Judge Sentelle’s dissent finding that a publisher had a First Amendment defense in releasing information the publisher obtained lawfully even though the source may have unlawfully obtained the information.

In the libel context, Garland found privileges based on a judicial proceeding in Messina v. Krakower, 439 F.3d 755 (D.C. Cir. 2006) and based on self-defense in Washburn v. Lavoie, 437 F.3d 84 (D.C. Cir. 2006).

Under Garland’s watch as chief judge, the D.C. Circuit permitted same-day audio recording access to all hearings.

For more on Garland’s record in these and more First Amendment cases, see the extensive Report from the Reporters Committee.

 

U.S. Supreme Court denies review in right of publicity and anti-SLAPP cases

The odds are never in your favor when seeking U.S. Supreme Court review. Out of the 7,000 – 8,000 petitions for a writ of certiorari received each term, the Court grants and hears oral argument in around 80 cases. Thus, this morning’s news that the Court denied review in two cases of media law interest came at no surprise.

The High Court denied cert in EA v. Davis and Mebo International v. Yamanaka, leaving open questions of right of publicity, the First Amendment, and the application of state anti-SLAPP statutes in federal court.

EA v. Davis asked the Court whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work. Former NFL player Michael Davis sued Electronic Arts, the producer of Madden NFL, for violations of his right of publicity. EA filed a motion to strike under California anti-SLAPP statute asserting Davis’ claim was barred under the First Amendment. The Court’s denial of cert left in place the Ninth Circuit’s affirmation of the district court’s denial of EA’s motion to strike.

Mebo International v. Yamanaka asked the Court whether state anti-SLAPP statutes are properly applied in federal diversity cases, or whether doing so runs afoul of the Erie doctrine. The Court’s denial cert left in place the Ninth Circuit’s ruling that the California anti-SLAPP statute does apply in federal court.

 

Federal judiciary declines to extend cameras in courts program

The ability for the public to view the judicial branch in action took a step backward this week. After a four-year pilot program in which 14 federal trial courts voluntarily recorded and published civil proceedings online, the federal judiciary decided to not continue the program. The full report can be found here.

In recommending to maintain the current ban on cameras in federal district courts, the Committee of the Judicial Conference of the United States cited the affect of cameras on witnesses, low levels of interest, and high costs, according to The Washington Post.

Fix the Court, a national organization committed to court access and transparency, responded to the recent decision. Fix the Court’s executive director Gabe Roth said:

“This is a disappointing decision, as the benefits of video-recording federal trials are obvious to any one of hundreds of thousands of people across the country who watched the proceedings recorded during the pilot.”

Unlike federal trial courts, federal appellate courts have progressed in their openness. All 13 federal circuits record audio of court proceedings, and the U.S. Court of Appeals for the Second and Ninth Circuits permit video coverage.

The U.S. Supreme Court continues to remain resistant to public accountability, fighting efforts to open the nation’s highest court. The high court sustains a strict no camera or audio recording policy for members of the public. The Court itself records oral arguments, but the recordings are typically not published until the end of each week. The Court released same-day recording in April 2015 for the Obergefell v. Hodges same-sex marriage case. However, the Court did not publish same-day recordings for the Whole Woman’s Health v. Hellerstedt abortion case earlier in March.

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Florida court mulls newsworthiness in Hogan v. Gawker sex tape trial

Monday marks the second week of the privacy trial pitting former professional wrestler Hulk Hogan against the popular online pop culture website Gawker.

Hogan sued Gawker for publishing a video of the celebrity having sex with his friend’s girlfriend. However, Gawker claims the video was newsworthy because of Hogan’s celebrity status and his previous open discussion of his sex life. The question of newsworthiness matters because the privacy claim of publication of private facts is barred if a court deems the publication is newsworthy (or as courts sometimes call it, “of a legitimate public concern”).

In an article for the Reporters Committee for Freedom of the Press’ magazine The News Media and the Law, I explored the question of how courts define newsworthiness. The article, Courts wrestle with defining newsworthiness in privacy cases, points out the various factors typically considered by courts. They are as follows:

  • Does the information relate to any matter of political, social, or other concern to the community?
  • What is the social value of publishing the information?
  • How far did the publication intrude into the private life of the subject?
  • What is the subject’s status in the community? Did the subject voluntarily assume a position of public notoriety?
  • Is there a connection between the information disclosed and the newsworthiness of the person or event involved in the publication?
  • Not a legal consideration but a recognition of the reality of jury trials – What are the community standards and jury composition?

Here are some articles covering the first week of the trial:

Remembering Justice Antonin Scalia’s First Amendment legacy: Flags, crosses, and video games

The passing of U.S. Supreme Court Justice Antonin Scalia shocked the country Saturday. The conservative titan served on the bench of the nation’s highest court since 1986, earning enthusiastic esteem from the right wing and vigorous vitriol from the left. Quoting my constitutional law professor Paul R. Baier, Scalia “roared from the bench” like a “lion” with stark opinions and scathing dissents rooted in originalism.

Scalia’s approach to the law resulted in a mixed First Amendment legacy. Some of the Justice’s beliefs stunted the growth of speech freedoms, while others expanded speech rights into the 21st century.

For example, Scalia opposed cameras in the Supreme Court, refusing to allow the public to peek inside the most secretive branch of our government.[1] Scalia believed the First Amendment’s Establishment Clause permits government endorsement of religion and dismissed the principle of neutrality.[2]  Scalia cast the decisive vote in carving out an exception for First Amendment rights of students in Hazelwood[3] and voted against student speech rights again in Morse v. Frederick.[4] Scalia repudiated the actual malice standard for defamation of public officials from the seminal case New York Times Co. v. Sullivan.[5] Although not squarely a speech issue, Scalia stood fervent against civil liberties of the LGBT+ community.[6]

However, Scalia’s record contained moments of victory for First Amendment freedoms. In reflecting on the life of one of the most memorable Justices of our lifetime, here are some notable First Amendment opinions from Scalia:

Flag-burning ban infringes First Amendment – Texas v. Johnson, 491 U.S. 397 (1989).

Although Justice Brennan penned the majority opinion, Scalia’s vote in the 5-4 majority that found Texas’ flag-burning law unconstitutional under the First Amendment was crucial during the early days of his tenure on the Court. During oral arguments, Scalia challenged the Dallas County Assistant District Attorney Kathi Alyce Drew, gaining laughter from the audience by asking about the extent to which laws should protect venerated items, such as the state flower. Scalia continued to play the role of the Court’s comedian for the remainder of his Supreme Court stint.

Full opinion here.

Cross-burning ordinance unconstitutional – R.A.V. v. St. Paul, 505 U.S. 377 (1992).

Three years later, the Court confronted another heated First Amendment case. In R.A.V., the Court considered the constitutionality of a St. Paul (Minnesota) ordinance prohibiting the placing of a “symbol, object, appellation, characterization or graffiti” (including burning a cross) when “one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender . . . .” The defendant was charged under the law after making a cross out of broken chair legs and burning the cross inside the fenced yard of a family across the street. Scalia determined the ordinance was facially unconstitutional as a content-based and viewpoint-based restriction on speech.

“Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. . . . The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.”[7]

“Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”[8]

Full opinion here.

Violent video games protected under First Amendment – Brown v. Entertainment Merchants Association, 131 S. Ct. 2729 (2011).

Using his familiar historical approach to the law, Scalia led the Supreme Court in shielding video games under the First Amendment. In striking down a California law prohibiting sale or rental of “violent video games” to minors, the originalist found the law violated the First Amendment because:

“Like protected books, plays, and movies that preceded them, video games communicate ideas—and even social message—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.”[9]

Full opinion here.

Honorable mention: Thermal-imaging is a “search” under the Fourth Amendment – Kyllo v. United States, 533 U.S. 27 (2001).

Although Kyllo is not a First Amendment case, Scalia protected another crucial civil liberty—privacy—in his majority, 5-4, opinion. In this case, the police used a thermal-imaging device to detect marijuana in the defendant’s home. Armed with this new information, the police obtained a search warrant for the defendant’s residence. Relying on the principle that the Fourth Amendment draws “a firm line at the entrance to the house,” Scalia wrote:

“Where, as here, the Government uses a device not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”[10]

Full opinion here.

Scalia’s legacy will survive in both jurisprudence and reputation. His impassioned voice will be heard for generations through oral argument recordings. But the dynamics of the Supreme Court chambers will be forever changed without the roar of the lion called Antonin Scalia.

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[1] See Josh Gerstein, Politico, Scalia: Cameras in Supreme Court would ‘mis-educate’ Americans, July 26, 2012; Jamie Schuman, Reporters Committee for Freedom of the Press, Holding out against cameras at the high court, Spring 2014.

[2] See Americans United for Separation of Church and State, Government’s God: Scalia and the Fraud of ‘Ceremonial Deism,’ February 2016; Rob Boston, Americans United for Separation of Church and State, There He Goes Again: Justice Scalia Continues Attacking Religious Neutrality, Jan. 4, 2016.

[3] Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) (holding that school officials can censor a high school sponsored newspaper when there is a reasonable educational justification and the censorship was viewpoint neutral)

[4] Morse v. Frederick, 551 U.S. 393 (2007) (ruling that school officials can prohibit students from displaying certain messages at a school sanctioned event).

[5] New York Times Co. v. Sullivan, 376 U.S. 254 (1964); See Erik Wemple, The Washington Post, Antonin Scalia hates ‘NYT v. Sullivan’, Dec. 4, 2012.

[6] See, e.g.,  Obergefell v. Hodges , 576 U.S. [  ] (2015) (J. Scalia, dissenting) (disagreeing with the majority’s finding that the Fourteenth Amendment requires a state to license same-sex marriages), United States v. Windsor, 570 U.S. [  ] (2015) (J. Scalia, dissenting), Lawrence v. Texas, 539 U.S. 558 (2003) (J. Scalia, dissenting), Romer v. Evans, 517 U.S. 620 (1996) (J. Scalia, dissenting) (comparing homosexuals to murderers, polygamists, and people who beat animals).

[7] Id. at 391.

[8] Id. at 396.

[9] Id. at 2733

[10] Id. at 40.