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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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.

 

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.

Is calling kennel a “puppy mill” protected opinion under the First Amendment? The Missouri Supreme Court will decide in upcoming Humane Society case

On the heels of Missourians voting on the “Puppy Mill Cruelty Prevention Act,” the Humane Society of the United States, the nation’s largest animal protection organization, published a Report titled “Missouri’s Dirty Dozen: A report on some of the worst puppy mills in Missouri.” The Report, released October 5, 2010, listed Smith’s Kennel on the “Dirty Dozen,” citing numerous U.S. Department of Agriculture violations involving unsanitary conditions, exposure of dogs to extreme temperatures without adequate shelter, injured and bleeding dogs, and a bevy of other health hazards. Smith’s Kennel has not denied the veracity of these violations.

Responding to this Report and a subsequent press release, summary, and updated Report, Mary Ann Smith, owner of Smith’s Kennel, sued the Humane Society for defamation and false light in Missouri state court. The Humane Society filed a motion to dismiss, arguing its statements were constitutionally protected non-actionable opinion. The trial court agreed, granting the Humane Society’s motion to dismiss. However, the Court of Appeals reversed and remanded the trial court’s decision. Upon remand, the Defendants transferred the case to the Missouri Supreme Court.

On Feb. 4, the Reporters Committee for Freedom of the Press (RCFP), with a coalition of 22 media organizations, filed an amicus brief with the Missouri Supreme Court. RCFP had the assistance of attorney Joseph E. Martineau of Lewis Rice and the support of organizations such as the St. Louis Post-Dispatch, Kansas City Star, Council of Better Business Bureaus, BuzzFeed, Gannett Co., and the E.W. Scripps Company.

In our brief, amici urge the Missouri Supreme Court to find the statements are constitutionally protected opinion and affirm the trial court’s dismissal. Our argument centers around the following premise:

The Humane Society’s statements are protected opinion because they are based on disclosed, truthful facts and are core political speech.

Furthermore, we contend that broadly protecting statements of opinion preserves the vitality of the marketplace of ideas and encourages speakers to infuse valuable information into the public sphere.

To answer the question posed above: Is calling a kennel a ‘puppy mill’ protected opinion under the First Amendment? We firmly believe so.

The Missouri Supreme Court will have the final say. Oral arguments are scheduled for March 2, 2016.

To read RCFP’s amicus brief in Smith v. Humane Society, click here.

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Columbia Journalism Review teaches copyright, privacy, and defamation basics in legal primer series

Many journalists have an arm’s length relationship with the law. Unless they are a legal beat writer, reporters seek to avoid the legal realm during their career. This is partly because if a journalist is involved in litigation, it usually finds itself on the right side of the “v.” defending against a lawsuit.

But becoming familiar with some legal concepts could reduce the risk of having to deal with the financial burdens and frustrations of fighting a suit down the road.

Jonathan Peters (@jonathanwpeters), a media law attorney and the Columbia Journalism Review’s press freedom correspondent, recently published an informative three-part series outlining some common legal principles journalists should to know. In a simple, easy-to-understand format, Peters walks journalists through some legal concepts and provides quick answers for commonly asked questions.

In part one of the trifecta, called “Can I use that?,” Peters explains copyright law, including how copyrights are obtained and what constitutes fair use. In his second article, “Can I do that?,” the author explores recording and privacy concerns journalists often confront. And finally, Peters caps off his series with “Can I say that?,” which details the ins and outs of defamation.

I recommend the articles for both journalists and lawyers alike to gain insight into fundamental media law topics in a comprehensive and digestible manner.

From admirer to journalist to legal fellow: The road to the Reporters Committee for Freedom of the Press

Surreal.

Surreal is the most fitting word to summarize my first week working for the Reporters Committee for Freedom of the Press in Washington, D.C., as the new Ethics and Excellence in Journalism Legal Fellow.

Growing up in New Orleans, Louisiana, I was not a traditional child. Among the many reasons I was different was my addiction to the media at an early age. Unlike many of my childhood friends, instead of peering into the television watching cartoons in the morning, my nose was deep into the daily newspaper. At night, rather than loudly singing along to pop tunes in the shower, I would turn on talk radio and quietly listen to news updates, bombastic opinions, and commentary from many “longtime listeners, first time callers.”

Journalists were my heroes. As a young man I looked up and admired those that graced the front page of the newspaper – not those featured in the headlines and photos – but rather the ones acknowledged in black-and-white minuscule print in the byline. I recognized the names of those reporting the news more easily than the names of the ones making the news.

Journalists embodied everything I was not growing up. While I was a shy child afraid to challenge authority, journalists fearlessly held those in power responsible and provided a check on the government as the fourth estate. While I felt my speech chilled and my true feelings often suppressed, journalists boldly gave a voice to the voiceless, pushing the envelope and challenging the status quo. The authentic and courageous nature of journalists were characteristics I wanted to exemplify as an adult.

Once I reached the point where I began paving a career path for myself, I decided to major in journalism. I saw being a journalist as a way for me to come out of my shell and create my own independent identity separate from the one given to me in my youth.

I distinctly remember the first time I told my parents I wanted to study journalism at the Louisiana State University Manship School of Mass Communication. My CPA mother and businessman father did not know quite how to react, but lovingly, they supported my decision. I wish I could have captured the thoughts going through their mind at that moment I announced my intention to become a journalist. I know it was not what they expected or maybe hoped, but their trust in my decision meant the most.

My parents had lofty expectations for me after I graduated third in my high school class (“Thirdatorian” as I dubbed it in my school’s newspaper, The Raider’s Digest). To many people, achieving academic success meant you were expected to pursue a more traditional, stable, and lucrative career route, such as medicine, engineering, or business. But my life has never been traditional. I saw being a journalist – although unorthodox and underappreciated – as a job in which you stood for a greater cause. To me, being a journalist – pursuing and sharing the truth with the world – was a noble career.

After four years of studying the ins and outs of journalism at Louisiana State University, I graduated in 2012 with a B.A. in mass communication with a concentration in journalism. More importantly, I gained invaluable experience during those four years working as a journalist for The Daily Reveille, FoxSports, SportsNola.com, and as a radio reporter for WGSO 990 AM and KLSU 91.1 FM. I was fortunate enough to do the same job as those I looked up to as a child, and in doing so, I gained an even greater respect for the journalism profession.

After spending time as a journalist myself, I am now helping journalists pursue the truth, disseminate the news, and exercise their First Amendment rights. It is a sincere honor and privilege to begin my legal career in Washington, D.C., with the Reporters Committee for Freedom of the Press.

The Reporters Committee, which began in 1970, provides legal resources, support, and advocacy to protect the First Amendment rights of the press. As the Ethics and Excellence in Journalism Legal Fellow, I focus specifically on the issues of defamation, invasion of privacy, protection of confidential sources, and newsgathering. I will compose amicus briefs (friend-of-the-court briefs) on behalf of the press to various courts throughout the country, provide legal resources for journalists by writing informative articles for the Reporters Committee’s Web site and quarterly publication The News Media and The Law, and assist journalists with their legal questions and concerns through the Reporters Committee’s legal defense hotline.

The young man who admired journalists from afar eventually became one himself and is now assisting them with their legal needs and fighting for a cause he has held dear for years. It is, indeed, surreal.

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