First Amendment Lawyer Blog

This may be the year the long-debated and much-needed federal shield law passes.

The so-called Free Flow of Information Act, HR 985, cleared the House Judiciary Committee March 25, and the committee's chairman, Rep. John Conyers, committed to "swift action" on the bill this year. Last year the federal shield law sailed through the House, 398-21, but stalled in the Senate at the end of the session in the face of opposition from the Bush Administration and its Justice Department. The shield law has bipartisan backing, with Senator Arlen Specter (R-Pa.), the ranking member of the Senate Judiciary Committee, having introduced S448, a similar measure.

Continue reading "Federal Shield Law May Pass This Year -- Free Flow of Information Act, HR 985, Clears House Judiciary Committee" »

What do Dustin Hoffman, Joe Montana and Vanna White have in common?

All have been plaintiffs in high-profile cases testing whether a person's right to profit from celebrity overcomes a First Amendment right to talk about them or do a parody about them.

Joe Montana, the former San Francisco 49er quarterback, was thrown for a loss in a 1990s suit against a San Jose newspaper which reproduced, in poster form, actual newspaper pages containing his picture. Dustin Hoffman, too, lost a lawsuit which parodied the famous photo of him from the movie "Tootside," in which he appeared in drag. But Vanna White had better luck when she sued Samsung Electronics for running an ad using a robot which resembled her as the "Wheel of Fortune" spokesperson.

These cases show that when you use a famous person's likeness, you may get sued and the result of any lawsuit is not entirely predictable. A use which drives home a point, makes editorial comment on a celebrity, is predominantly a parody, or is newsworthy will generally be protected by the First Amendment and/or state law. A purely commercial use, on the other hand, is likely to expose the user to liability.

Bottom line here: you can generally comment on or criticize celebrities, but it's risky to use their name or likeness without permission for purely commercial purposes.

Two interests which both find some support in the First Amendment -- the right to be anonymous and the public's right to know -- collide with each other in a new federal court lawsuit.

The lawsuit was filed by supporters of Proposition 8, the California measure passed by voters in November which effectively outlaws gay marriage (and which is now being challenged in the California Supreme Court). The organizations behind Proposition 8 are challenging campaign finance laws which require disclosure of contributors and the amount of their contributions. They contend that their coerced identification ("outing") infringes their First Amendment rights.

It is a difficult issue. On one hand, the U. S. Supreme Court has upheld the right to anonymous speech and in one case held that the NAACP did not have to disclose its membership list. But on the other hand, the entire system of campaign finance reform depends on the public's ability to know who contributes to candidates and initiative measures. In an era when large corporations can spend massive amounts to defeat grassroots initiative measures, "anonymity" could result in defeating the public's right to know who's behind deceptive advertising campaigns.

Putting aside gay marriage, which isn't the primary issue in this latest case, both sides have good arguments. But I wouldn't bet on the plaintiffs being able to toss campaign finance laws out the window in this one.

I've often said that one of the best ways to bring attention to something is to try and censor it.

A San Francisco defamation suit reported today is a good example of this. A local chiropractor, it seems, was unhappy about a negative review of him posted on the website Yelp. He sued the poster, who had complained about the chiropractor's bill.

I don't know how many people read the negative review in the first place, but after the daily newspaper did a front-page article about the lawsuit -- fairly and accurately reporting that the chiropractor had filed the lawsuit, and quoting lawyers on both sides -- a lot more people know about the review. In other words, it might have been better for the chiropractor if he had just ignored the Yelp review. In fact, someone quoted in the article today says people reacted more negatively to the chiropractor filing a lawsuit than they would have to what the Yelp review said in the first place.

The morals of the story are (1) the best remedy for speech is counter-speech, and (2) in the words of the old comic strip, if someone says something about you you don't like, Grin and Bear It.

What do the First Amendment and your vanishing stock portfolio have in common?

The answer is the need for openness, transparency and watchdogs on powerful institutions. The people who created the First Amendment more than two centuries ago had never heard of hedge funds, but they knew that too much power and wealth concentrated in too few hands would create a huge problem. Sadly, that lesson got lost in the financial markets as greedy hedge funds and investment banks piled up money in opaque investments and a complicit administration ignored the warning signs of financial disaster created by things like the subprime mortgage crisis. Because little information about many investments such as hedge funds is publicly available, neither the press nor public were able to ferret out information and help the government do its job of keeping businesses honest.

Now, a watchdog press is pointing out that there were plenty of warning signs, but the problem was hidden too long by powerful financial institutions and an administration which got enough support from those financiers to make it all too willing to look the other way. We're finding out now -- after stock indexes have dropped 40 percent -- what happened to us. As President-elect Barack Obama said today, agencies like the Securities and Exchange Commission were "asleep at the switch" while people like Bernard Madoff apparently made off with billions of dollars.

What all this means is that transparency, a watchdog press and blogosphere, and an informed citizenry are necessary to protect our rights -- and our pocketbooks -- from those who would take them away.

One of the hallmarks of the Internet age has been the increasing prevalence of anonymous speech.

No one can question that there is a First Amendment right to anonymous speech. The U.S. Supreme Court affirmed that point in the case of McIntyre v. Ohio. Anonymous speech serves many important purposes: people who are aware of government or corporate wrongdoing can alert the public to wrongdoing anonymously in situations where they can’t use their real name.

Neither the government nor the courts should be in the business of regulating speech, and the marketplace of ideas is big enough to include anonymous speech under certain circumstances. And the Internet is certainly a forum for uninhibited and impassioned speech. But not everything that legally can be said should be said, and in most cases a writer’s credibility is higher when they’re willing to put their name behind what they say. So anonymous speech is alive and well – but anonymous or not, it doesn’t hurt to think before posting.

But a small number of online commentators post racist, homophobic, sexist and mean-spirited comments and hide behind the cloak of anonymity given to them as online commentators, as one editor has said. The editor wrote: “We’re trying to balance people’s right to free speech with the responsibility not to be slanderous, libelous, sexist, racist or just plain mean.”

Does the First Amendment protect someone’s use of another’s copyright or trademark to make fun of them?

That question has been at the forefront of several cases involving so-called “parody” of intellectual property. Many cases have found parody of copyrighted works or trademarks protected under the “fair use” doctrine or the First Amendment or both. One of the best-known examples was a parody of the song “Pretty Woman” which the U.S. Supreme Court held was protected. Another case held that a 29-second song “When Sonny Sniffs Glue” which parodied the original “When Sunny Gets Blue” was a fair use.

A U. S. District Judge in San Francisco, Susan Illston, recently applied “fair use” principles in a lawsuit brought by radio talk show host Michael Savage. Savage went on a tirade (“Take your religion and shove it”) about Muslims and the Council on American-Islamic Relations. The Council posted his virulent remarks on its website, and Savage sued it for copyright infringement. Judge Illston gave the lawsuit savage treatment, dismissing it based upon the “fair use” doctrine and the “Oh Pretty Woman” case. See Savage v. Council on American Relations et al. She noted that the Copyright Act “expressly permits fair use for the purposes of criticism and commentary.” The same First Amendment which allows Michael Savage to rant about Muslims enables them to criticize him.

Continue reading "First Amendment and Copyright Fair Use Give (Michael) Savage Treatment to Lawsuit" »

The First Amendment and judicial independence – both prized pieces of American democracy – have an uneasy coexistence these days.

Many states elect their trial judges and the justices of their highest courts, and in some states, like West Virginia, big-money corporate interests have waged expensive campaigns to elect or defeat Supreme Court justices. John Grisham’s “The Appeal” offers a gripping tale about a fictional – but plausible – attempt to “buy” a seat on the Mississippi Supreme Court and swing the outcome of a pending case. In California this year, opponents of the California Supreme Court’s gay marriage ruling are likely to accuse the court of “judicial activism” in a multi-million dollar attempt to reverse its ruling.

The First Amendment protects these attacks on the courts, and it protects judges’ attempts to defend themselves. That much is clear from a U.S. Supreme Court case called Republican Party of Minnesota v. White. But there’s something unseemly, and deeply disturbing, about politicizing the courts. Judges and appellate court justices are supposed to be like umpires, calling balls and strikes, not playing for one team or the other. If they are dragged into political fights and have to raise and spend millions of dollars from the very people who have cases before them to defend themselves, the quality of justice suffers, the impartiality of the courts is imperiled, and public confidence in the courts takes a hit.

The media will inevitably come under intense criticism this year for its coverage of the Presidential election. Supporters of John McCain have criticized the media for favoring Barack Obama. Hillary Clinton’s backers considered some in the media sexist, and Obama backers have complained of what they consider racist comments by members of the media.

‘Twas ever thus. The media – like politicians – can make some of the people happy all of the time, and all of the people happy some of the time, but can’t – and shouldn’t try to – make all of the people happy all of the time.

This election’s “media” coverage is complicated by the full emergence of the Internet and the blogershere and the cacophonous coverage produced by such a multitude of voices. Ironically, though, the Internet’s allowance of a greater number of voices may bring us back closer to where we were at the birth of our nation, when a panoply of pamphleteers peddled their wares and when one journalist – who was said to have been paid by Thomas Jefferson – called George Washington “a traitor, a robber and a perjuror,” and another accused President John Adams of “selfish avarice.”

Next time your candidate gets pilloried, or his or her words are taken out of context, think of those unfair and scurrilous attacks on George Washington more than 200 years ago – and think of how lucky we are to have the First Amendment’s protection for free speech and a free press – whatever “the press” is these days – instead of the enforced censorship that reigns in places like China.

Congress is debating whether there should be a federal “shield law” for reporters, modeled after state reporter’s privilege laws which exist in 35 states and which help protect vital First Amendment rights.. Of the 15 states which don’t have statutory protections for reporters, all but one have some form of protection for reporters against compelled disclosure of their sources.

A key issue is whether such reporter’s privilege laws should apply only to reporters from traditional media such as newspapers and television stations, or whether online journalists and bloggers should have protection. One federal case warned against extending a federal common law privilege to “bloggers in pajamas.”

A California Court of Appeal, in the well-reasoned decision of O'Grady v. Superior Court, http://www.courtinfo.ca.gov/opinions/archive/H028579M.PDF, held that on-line journalists are “reporters, editors, or publishers entitled to the protections of the constitutional privilege. If their activities and social function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial.”

This reasoning is persuasive. If sources need a promise of confidentiality to blow the whistle on corporate and government wrongdoing – and they do – and if journalists need to offer confidentiality on occasion, it shouldn’t matter whether the journalist’s story is delivered in a truck or over the Internet. Either way, the reporter’s privilege is protecting important speech and enabling vital stories to be told. Congress should pass a shield law, and it should extend to on-line journalists.

It’s been said that when it comes to the First Amendment, the tie goes to the speaker, not the censor.

The U. S. Supreme Court’s free speech decisions have generally adhered to that principle, but not always. The Court threw out campaign finance regulation partly because a speaker should have the autonomy to choose the content of his own message, and the regulations went too far in prohibiting campaign ads. We can expect to see plenty of free – and no doubt misleading – speech as the November 2008 elections approach.

The same day the Court struck down bars on campaign ads, however, it upheld the decision of an Alaska school censoring a student’s banner in the famous “Bong Hits for Jesus” case. The court showed more deference to school officials than it did to a high school student’s free speech rights. Dissenting Justice John Paul Stevens stated, “In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding – indeed, lauding – a school’s decision to punish Frederick for expressing a view with which it disagreed.”

Justice Stevens was right, in my view. The court should have displayed the same “tie goes to the speaker, not the censor” attitude in that case that it displayed when it came to campaign finance regulations.