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.

 

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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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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.

Fall issue of RCFP’s The News Media and The Law explores newsworthiness in privacy cases, federal legislation benefitting the press

The Reporters Committee for Freedom of the Press (RCFP) recently released its latest edition of The News Media and The Law, the quarterly publication providing legal news and guidance for members of the news media.

In this Fall 2015 edition, the RCFP attorneys tackled numerous issues facing the press, including access to public records, classified records, disclosure of juror names, and drones, among others.

The magazine featured my first two articles published since joining RCFP in September.

One of my articles, promoted on the cover as Privacy vs. News: How do courts decide?, uses the upcoming privacy trial involving the publication of former professional wrestler Hulk Hogan’s sex tape to explore how courts determine what is considered newsworthy.

If a court determines information is newsworthy – or of a “legitimate public concern” – a privacy claim of publication of private facts will be barred. Thus, defining newsworthiness is critical to the result in privacy cases. But what does a court consider when assessing newsworthiness? This question and more is answered in the article, Courts wrestle with defining newsworthiness in privacy cases.

My second article focused on two recent bills before Congress that would benefit journalists and enhance free speech. In the article Camera access, anti-SLAPP laws introduced in Congress, I expanded upon Congressional efforts to permit cameras and other forms of recording into the U.S. Supreme Court with the Eyes on the Court Act.

I then discussed the advantages of the most recent federal anti-SLAPP bill, the SPEAK FREE Act of 2015. This latest attempt to provide the uniform ability to defend against frivolous claims sought to suppress speech has gained support from both sides of the aisle as well as from technology companies and legal scholars.

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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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