Amicus brief advocates for reversal of unprecedented actual malice interpretation by California trial court

The actual malice standard is a critical component of a defamation claim. Its stringent requirements give journalists the liberty to challenge authority and seek the truth regarding powerful public figures and officials.

When the standard applies, many libel cases hinge on whether the plaintiff can prove a statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”  New York Times Co. v. Sullivan, 376 U.S. 254, 280.

The Sullivan Court demanded this rigorous standard when public officials sue for defamation (later expanded to public figures in Gertz v. Robert Welch, Inc.) because it believed in a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Id. at 270.

Part of Justice Brennan’s justification for establishing the actual malice standard was to echo the sentiments of James Madison, the draftsman of the First Amendment. Madison strongly believed that the government should not have the sole power to censor its constituents and that the public possess absolute sovereignty.

In the recent case of Angel v. Winograd, a California Superior Court reached a finding of actual malice incompatible with Sullivan and Madison’s convictions. The trial court found that the defendant, Marcy Winograd, spoke with actual malice because she continued to protest the conditions of a petting zoo after animal control officers found no violations. Winograd is appealing the trial court’s order to the California Court of Appeal.

In our amicus brief, the Reporters Committee and five other media organizations urge the Court to Appeal to reverse the Superior Court’s unprecedented interpretation of the actual malice standard. By finding that Winograd acted with actual malice because she spoke in disagreement with government employees, the trial court essentially concluded that speakers cannot counter or question government employees without the risk of defamation liability. The opinion of the trial court grants the government the ability to dictate the truthfulness of statements in defamation cases.

This interpretation of the actual malice standard cannot stand. Besides ignoring years of actual malice jurisprudence, the court’s understanding of actual malice conflicts with the purpose of the First Amendment and would deter journalists from investigating the government and reporting on matters of public concern.

Marcy Winograd, the defendant in the case, sent a touching email to our local counsel, Jean-Paul Jassy of Jassy Vick Carolan LLP in Los Angeles, California, describing her favorite quote of the brief:

Instead of using the actual malice standard articulated in the wake of Sullivan, the Superior Court fashioned its own unprecedented understanding of actual malice that ignores years of reasoned constitutional justifications.

Winograd nailed the heart of our argument: The Superior Court’s finding of actual malice in this case strikes against justifications for the enactment of the actual malice standard in Sullivan and why courts have continued to uphold its stringent requirements. We hope the Court of Appeal reverses the Superior Court’s novel finding of actual malice, realigning the standard to comport with the First Amendment.

To read the Reporters Committee’s amicus brief in Winograd, click here.

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MLonML on break for bar exam

The Supreme Court recently concluded its 2015 term with many high-profile cases, spanning issues such as lethal injections, health care, housing discrimination, and many more. The First Amendment also had a spotlight before the high court in cases involving signs, license plates, judicial elections, and prisons. The New York Times produced an interactive page breaking down the blockbuster cases in an easy-to-read fashion.

Here at MLonML I am also wrapping up my coverage for a brief period as I finish preparing and take the bar exam at the end of July. I want to thank all my readers from the past year, particularly those from around the globe.

MLonML has been read by people in more than 60 counties—the power and scope of the Internet is incredible!

It has been a pleasure writing and sharing media and other legal news with you all. I look forward to more coverage in the future as I join the Reporters Committee for Freedom of the Press in the fall and am able to focus my efforts exclusively on media and IP law.

I leave you for the time being with an insightful infographic from the Newseum Institute’s First Amendment Center on the “State of the First Amendment.”

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Louisiana Law Review Comment – A Gunman’s Paradise: How Louisiana Shields Concealed Handgun Permit Holders While Targeting Free Speech and Why Other States Should Avoid the Same Misfire

I am pleased to share my Comment published in Louisiana Law Review Volume 75, Issue 2. Below is a brief summary of my Comment followed by a citation. The Comment itself begins with the “Introduction” section. You may need to click “continue reading” at the bottom of this post in order to read the entire Comment.

Summary: This Comment provides a legal analysis of a law passed by the Louisiana Legislature in 2013 that imposes criminal penalties against government employees, the press, and citizens for releasing, disseminating, or making public information regarding concealed handgun permit ownership. The law has been named “Louisiana’s Ban on Gun Permit Speech” for purposes of this Comment. Part I discusses the development of concealed handgun permit laws in America and how the surge in handgun permits has led to increased investigations of state permit schemes by the press. It further considers how this amplified attention has resulted in permit holders expressing privacy concerns and how many state legislatures have responded to these worries by limiting public access to permit records. Part II then examines the history of gun laws in Louisiana and explores the legislative history of Louisiana’s Ban on Gun Permit Speech. Part III addresses the law’s constitutionality in the context of First Amendment jurisprudence and analogous privacy precedent from the United States Supreme Court and concludes that Louisiana’s Ban on Gun Permit Speech violates the First Amendment of the United States Constitution and Article I, Section 7, of the Louisiana Constitution because it infringes on the constitutional protections against punishment for truthful speech about matters of public concern. Finally, Part IV demonstrates the negative effects of Louisiana’s Ban on Gun Permit Speech and advocates for other state legislatures to abide by the Constitution and refuse to adopt laws criminalizing gun speech.

Michael J. Lambert, A Gunman’s Paradise: How Louisiana Shields Concealed Handgun Permit Holders While Targeting Free Speech and Why Other States Should Avoid the Same Misfire, 75 La. L. Rev. (2014), available at http://digitalcommons.law.lsu.edu/lalrev/vol75/iss2/11.

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 Introduction

Debra Wills feared for her life.[1] One night in May 2011, Debra called the Union County, North Carolina, police for protection from her threatening, estranged husband, Ricky.[2] While the police were speaking with Debra inside of her home, Ricky, who lived just a few hundred feet away, drunkenly stumbled over to Debra’s house and began shooting at the home.[3] As a result of the night’s events, Ricky was convicted and sentenced to jail on two counts of assault.[4] After Ricky’s conviction, the Union County sheriff was compelled by law to revoke Ricky’s concealed handgun permit, but the sheriff initially failed to do so.[5] Eventually, North Carolina authorities rescinded Ricky’s concealed handgun permit—but only after the New York Times informed the local sheriff’s office of Ricky’s criminal convictions and outstanding permit.[6] A New York Times investigation revealed that from 2007 to 2011, Ricky was one of about 200 convicted felons in North Carolina with a concealed handgun permit that should have been revoked or suspended by the sheriff—at least 10 of whom committed murder or manslaughter.[7] Media in other states have uncovered similar flaws in state handgun-allocation systems where handgun permits remained in the hands of unqualified individuals, including felons and the mentally ill.[8] As alarming as these stories may be, the media was at least able to publicize the identities of unqualified handgun permit holders and advocate for change in the North Carolina permit system.

This would not be the case in Louisiana.[9] Even if a whistleblower uncovered similar discrepancies in Louisiana’s concealed handgun system and revealed them to a newspaper, the newspaper could not inform its readers by exposing the errors of the government.[10] This is the result of a new law passed in Louisiana in 2013 making it illegal for a newspaper or other media outlet to publicize such governmental mistakes.[11] If a media outlet releases any information concerning the identification of a concealed handgun permit holder, the state could fine the media outlet $10,000, and the media outlet’s employees could face up to six months in prison.[12]

During the 2013 Legislative Session, the Louisiana Legislature amended its concealed handgun statute, Louisiana Revised Statutes section 40:1379.3, to include section 40:1379.3(A)(3).[13] The amendment makes it unlawful for “any person” to “intentionally release, disseminate, or make public in any manner any information contained in an application for a concealed handgun permit or any information regarding the identity of any person who applied for or received a concealed handgun permit.”[14] Violators of the law could face a $10,000 fine and could be imprisoned for up to six months.[15] The new law is referred to throughout this Comment as “Louisiana’s Ban on Gun Permit Speech.”

The Legislature passed Louisiana’s Ban on Gun Permit Speech, the first of its kind in the nation, in response to the release of an online map by The Journal News,[16] a New York newspaper, in December 2012 that identified the names and addresses of thousands of citizens with concealed handgun permits in the New York area.[17] In the months following the publication of the map, constituents around the country voiced fears that their privacy could be invaded by other media outlets publishing their identities and addresses.[18] Responding to these concerns, state legislatures have considered passing laws similar to Louisiana’s that criminalize speech on gun permits, and this trend will likely continue.[19]

However, given the probable unconstitutionality[20] and dangerous effects of Louisiana’s Ban on Gun Permit Speech, similar laws should not be enacted in other states. Instead, Louisiana’s Ban on Gun Permit Speech should serve as a cautionary example. This Comment argues that Louisiana’s Ban on Gun Permit Speech violates the First Amendment to the United States Constitution and Article I, Section 7, of the Louisiana Constitution.[21] A court should strike down the law because it infringes on these constitutional protections against punishment for truthful speech about matters of public concern.[22]

Part I of this Comment discusses the development of concealed handgun permit laws in America and how the surge in handgun permits has led to increased investigations of state permit schemes by the press. It further considers how this amplified attention has resulted in permit holders expressing privacy concerns and how many state legislatures have responded to these worries by limiting public access to permit records. Part II then examines the history of gun laws in Louisiana and explores the legislative history of Louisiana’s Ban on Gun Permit Speech. Part III addresses the law’s constitutionality in the context of First Amendment jurisprudence and analogous privacy precedent from the United States Supreme Court and concludes that, should the law be challenged, it would likely be found unconstitutional. Finally, Part IV demonstrates the negative effects of Louisiana’s Ban on Gun Permit Speech and advocates for other state legislatures to abide by the Constitution and refuse to adopt laws criminalizing gun speech.

Continue reading

All search results are not created equal: The right to be forgotten in the European Union

“Some results may have been removed under data protection law in Europe.”

This sentence is new to the eyes of the average American, but Europeans who use Google have become accustomed to seeing these 12 words or a similar set of words at the bottom of online searches. This difference stems from a case brought before the Court of Justice of the European Union (CJEU) last spring that fundamentally changed online search engines in Europe—Google, Inc. v. AEPD and Mario Costeja González—known by most as the Google Spain case.

Facts

The case began when Mario Costeja González searched his name on Spain’s version of Google, www.google.es, and found two articles from the Spanish newspaper La Vanguardia that discussed his financial troubles. The articles concerned the announcement of a real estate auction that was held 16 years ago to recover social security debts owed by González . After seeing the articles, González made a request to the Spanish Data Protection Agency asking that La Vanguardia and Google Spain remove the articles, claiming that the proceedings were resolved years ago and were irrelevant. The Spanish Data Protection Agency rejected his claim in regards to La Vanguardia but asked Google to remove the links from its search index in Spain. Google appealed this request and sought review from the CJEU, the highest court in Europe.

Court’s Opinion

Summing up the CJEU’s opinion, the Court interpreted Directive 95/46/EC, which is a legal act in the EU governing the processing of personal data, to mean that in certain situations—particularly when the information is “inadequate, irrelevant or excessive in relation to the purposes of the processing”—search engines should remove links from their search index following appropriate requests for removal. The CJEU decided that fundamental privacy rights overrode the economic interests of the search engines and the interests of the public to access information. In essence, the CJEU granted Europeans the ability to ask search engines to erase certain search results after a user searches his/her name on the search engine. The Court also mandated that search engines comply with the requests if they contain inadequate or irrelevant material. Thus, the “right to be forgotten” was born.

Response

The Google Spain decision explains why search results on Google in the EU yield statements such as, “Some results may have been removed under data protection law in Europe,” and why this disclaimer is not present on Google searches in the United States. The CJEU’s decision only affects Internet search engines in the EU, but the decision is not limited to Google. Bing also processes right to be forgotten requests.

The Google Spain case left Google and other search engines on their own to establish criteria that comply with the CJEU’s decision to process removal requests. For now it seems as if Google is following the limited guidance from the CJEU. Its website says Google is looking for “inadequate, irrelevant or excessive” results, and assessing the requests on a case-by-case basis. The search engines have developed their own patchwork of criteria to determine whether to remove a link from a search engine result, resulting in a “very vague and subjective” process. Google established an Advisory Council that is currently touring Europe soliciting input on how right to be forgotten requests should be processed.

Request Procedure

The procedure for submitting a right to be forgotten request is fairly straightforward. Google and other third party websites, such as forget.me, allow users to file right to be forgotten requests by completing an online form. Google’s form asks users to select one of the EU countries, submit personal information (name used in search, email address, etc.), and then provide the URLs for the results you want removed. Next, the user must explain “why the inclusion of that result in search results is irrelevant, outdated, or otherwise objectionable.” Finally, users must submit a document verifying their identity, such as a passport or government-issued ID.

If a right to be forgotten request is granted, the underlying content will not be removed. The link will only be removed from the search engine index; the URL that is being linked to from the search engine will remain online. For example, pretend I am a French citizen, and I search “Michael Lambert” on “Google.fr.” A Wikipedia article appears in the search results that I claim contains irrelevant or inadequate information. I could then file a right to be forgotten request. If the request is granted, the link to the Michael Lambert Wikipedia article would be removed from the Google search entry in the EU. But this does not affect the underlying Wikipedia article. The article itself is not removed from the Internet. If you type in the exact URL of the Michael Lambert Wikipedia article in your browser, you could still find the article regardless of whether you are in the United States or Europe. Additionally, if you search Michael Lambert on Google.com, the Wikipedia article would still be found in the search results.

Notifications

As of July 2014, Google received more than 91,000 right to be forgotten requests, approving more than 50 percent of them. Early in the process Google reported that requests concerned issues such as “serious criminal records, embarrassing photos, instances of online bullying and name-calling, decades-old allegations, negative press stories, and more.” When a link is removed from a search, the underlying publisher is notified by the search engine that the search engine has removed one of its links from search results. But the search engine does not tell the publisher the identity of the requester or the reasons for the request.  Some of the publishers notified have decided to tell the public that some of its content has been removed from search engines. For example, Wikipedia announces all the Wikipedia links removed from searches pursuant to right to be forgotten requests. The website “Hidden from Google” posts links that are being censored by search engines.

Recently, The New York Times announced that Google removed links to five Times articles because of right to be forgotten requests. Google did not tell The New York Times who submitted the request but only that they have had removed them from EU search results. To give you an idea of what type of content people are attempting to censor, the five articles removed contained information about two wedding announcements, a death notice, a report about a website being shut down after allegedly selling $1 million of useless web addresses, and a feature story regarding a theater production “Villa Villa.

Closing Thoughts

For years courts across the world have struggled to balance privacy and free expression. In recent years this debate has moved to a new forum: the less-structured realm of the Internet. The Google Spain case gave the CJEU one of the first opportunities for a high court to set the precedent for the privacy-speech tug-of-war online. The CJEU chose privacy at the peril of free and robust free expression. But the debate is far from over in Europe or the United States. More privacy and speech questions will be posed as the Internet advances. And many will remember that much of the debate was sparked by the Google Spain case—a case that is unlikely to be forgotten.

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Author’s note
: This post is the first in a series of posts addressing the Google Spain case and the right to be forgotten.

I recommend two papers from European writers that discuss the Google Spain case in greater detail: