Communication Law in America

Paul Siegel, University of Hartford

 

Winter, 2005 Update

 

EDITOR=S NOTE: 

 

As always, this update is organized so as to coincide with the book=s own chapters.  Where a given entry also has implications for topics raised in other chapters of the book, those chapters are given in parentheses.  The update was written in mid- January, 2005.  As such it includes reference to relevant Supreme Court decisions, including the 2003-4 Term, and even some early actions from the 2004-5 term.  In recent decisions the Court:

 

!clarified rules governing the Afair use@ of protected trademarks ( K.P. Permanent Make-Up, Inc., v. Lasting Impression I, Inc., 2004).

 

!upheld most features of the McCain-Feingold campaign reform law (McConnell v. FEC, 2003).

 

!refused once again to let the Child Online Protection Act go into effect (but stopping short of striking it down outright) (Ashcroft v. ACLU)

 

!skirted the intriguing constitutional issue of whether the Pledge of Allegiance=s reference to our nation being Aunder God@ was, in the context of mandatory pledges in public schools, a violation of the Establishment Clause (Elk Grove Unified School District v. Newdow, 2004).

 

!permitted Vice President Cheney to keep secret the detailsBincluding names of attendeesBof his National Energy Policy Development Group (Cheney v. United States District Court, 2004).

 

!found no constitutional infirmity in a town ordinance governing the licensing of adult bookstores (City of Littleton v. Z.J. Gifts D-4, 2004).

 

!concluded that the privacy interests included in the Freedom of Information Act=s law enforcement exemption applies to surviving family members (National Archives and Records Administration v. Favish, 2004).

 

The Court also decided to hear, in its 2004-5 term, one case involving government-compelled participation in a generic advertising campaign in support of the beef industry, and another examining the constitutional status of peer-to-peer online music file sharing services.  Mention is made in this Update too of the Court=s decision not to review such newsworthy cases as:

PThe Ninth Circuit decision (Conant v. Walters) challenging the federal government=s attempt to prevent physicians from prescribing marijuana


PThe D. C. Circuit decision (Center for National Security Studies v. U.S. Dept of Justice) permitting the Bush Administration to withhold even the most basic information about 9/11 detainees

 

 

Other noteworthy developments in this Update:

 

!President Bush=s signing into law the ACan SPAM Act@ prohibiting some kinds of unsolicited commercial e-mail, and the FTC=s decision not to create a national ADo Not SPAM@ list

 

!The D. C. Circuit Court of Appeals= upholding the agreement reached between the federal government and Microsoft, thus throwing out a challenge from Massachusetts and a couple of industry trade groups (Massachusetts v. Microsoft, 2004)..

 

!Nike=s out-of-court settlement with the consumer activist who had sued the company, alleging it had lied in its PR campaign combating charges it had used child sweatshop labor overseas in the manufacture of some of its products

 

!The most recent information concerning broadcast ownership rulesB Congress reducing the FCC cap from 45% to 39%, and the Third Circuit=s decision in  Prometheus Radio Project v. FCC , questioning many of the Commission=s other rules. 

 

!The D. C. Circuit decision (RIAA v. Verizon Internet Services) prohibiting record labels from forcing Internet Service Providers to hand over identifying information on subscribers= suspected of illegally copying music files

 

!Such FCC actions as

Penforcement of the new federal ADo Not Call@ provision aimed at telemarketers (and the Tenth Circuit Court of Appeals= upholding the list=s constitutionality)

Pordering that digital video recorders attached to personal computers not be able to make unauthorized copies of broadcast TV.

P at first refusing to punish stations that broadcast rock star Bono=s use of Afucking@ as an adjective (Athis is fucking great!@) during the 2003 Golden Globes Awards program, but then overruling its own staff in order to permit sanctions against the station

PChairman Powell=s request that Congress dramatically increase the level of fines for broadcasting indecent or obscene programming (and ensuing Congressional action)

 

!The Ninth Circuit decision (Brand X Internet Services v. FCC, 2003) telling the FCC that it must treat modem cable providers as an odd hybrid service, and require them to make their lines available to competing ISPs.

 

! Judge Thomas Penfield Jackson=s insistence that media outlets reveal to Dr.Wen Ho Lee the identity of any government leakers on whom they relied in writing stories about Lee=s being suspected of espionage activities.        

 

 

TABLE OF CONTENTS

 

 

ARECENT DEVELOPMENTS@

The Nuremberg Files Site (Chapters 2, 13)

 

CHAPTER 1

Free Speech and Religion

Can Judges Speak Out?

 

CHAPTER 2

Content-Neutral Regulations and the Public Forum

To Inhale or Not to Inhale

Government Speech and the Right Not to Speak  (Chapters 10,  11)

Update on the Microsoft antitrust case

No Need to Sign Up

Censorship by Mass Purchase 

 

CHAPTER 3

The AClinton Smear Machine@De-Flowered?

 

CHAPTER 4

Outside and Exposed: the George Michael Libel Case

 

CHAPTER 5

Whad=ya Get?  On Grading Each Others= Papers

Those Pesky Telemarketers (Chapter 10)

Colorado Rejects False Light

Taping the Angry Union Official

Tattered and Best Forgotten?

Is Dustin Hoffman a Drag? (Chapter 6)

No Nudes, Bad News

 

CHAPTER 6

Copyright and New Technologies (Chapters 12, 13)

Copyright Goes On.... and On...

Victor/Victoria=s Secret

 

CHAPTER 7

Freedom of Information After 9/11

Vince Foster and FOIA=s Law Enforcement/Privacy Exemption

Access to Unbiased Reports from Medical Studies?

Concentration of Ownership

Son of Sam Laws Revisited

Energy and Executive Privilege

Reporters= Privilege an International Issue (Chapter 9)

 

CHAPTER 8

Are Detention Hearings Presumably Open?

TV in Court

 

CHAPTER 9

The Jailed Journalist

The Senator, the Reporter, and the Leaky Wiretap

Media Ordered to Release Wen Ho Lee Sources

 

 

CHAPTER 10

Sweating the Distinction Between Political and Commercial Speech

Campaign Reforms Upheld

Tobacco and Alcohol Advertising

Compound Drugs

Puff me a Pie: The Quest for a Better Pizza

A Novel Approach to Product Placements

Any Relationship to a Real Movie Review was Purely Coincidental

Charity Begins With... What?

 

CHAPTER 11

Walk Down the Block Before You Read That Book

Virtual Porn OK=d

Child Pornography in Words Alone: The Brian Dalton Saga

Reinvigorated DOJ Goes After Pornographers

 

CHAPTER 12

Hints From the New FCC

FCC Not Alone in De-Regulation Fervor

 

CHAPTER 13

Freelancers and the Net

Dow Jones Sued for Libel in Australia

Insulting Chat Rooms


Updates on the DMCA

Sexual Messages Online

Peer to Peer Sharing Targeted

Federal Anti-SPAM Legislation Passed

 

 

 

!ARECENT DEVELOPMENTS@!

 

The Nuremberg Files Site

In a move that surprised many commentators, the full Ninth Circuit Court of Appeals, sitting en banc, overturned most of the 3-judge appellate panel=s findings concerning the Nuremberg Files web site, posted by the members of the American Coalition of Life Activists (see p. xxi).

Writing for a 6-5 court, Judge Pamela Rymer found that the web site, as well as AGuilty@ posters distributed by the group, constituted true threats not protected by the First Amendment The context was the key, Rymer concluded.[1]  Three times in recent memory the actual murder of doctors who perform abortions followed close on the heels of the distribution of similar posters (then labeled AWanted,@ and in some instances, AUnwanted@).  The web site also constituted a threat, in that it boasted such nonverbal features as lines drawn through the names of doctors who had been killed or wounded. 

While much of the trial court=s rulings were upheld, the appellate court remanded the case back to that court to review the appropriateness of the huge punitive damages award.

 

 

!CHAPTER 1!

 

Free Speech and Religion

As the short discussion in Chapter 1 suggests (pp. 4-5), conflicts among the First Amendment=s clauses often occur in the context of religious speakers seeking access to public schools.  In Good News Club v. Milford Central School[2], the Supreme Court ruled that local residents in a school district who would otherwise be eligible (under a local ordinance) to conduct meetings in a school building after the instructional day=s completion for Ainstruction in education, learning, or the arts@ or for Asocial, civic, recreational, and entertainment uses pertaining to the  community welfare@ could not be denied such eligibility by dint of the group=s clearly sectarian purpose.  The case was closely watched in that it concerned an elementary school building, and the Court has in the past suggested that the Establishment Clause should carry special weight in protecting the youngest of children in public schools from the impressionBright or wrongBthat the state itself was sponsoring a religious practice.  In this case, the plaintiffs candidly reported that they were a Aprivate Christian organization for children ages 6 to 12@ that intended Ato sing songs, hear Bible lessons, memorize  scripture, and pray.@ 

A 6-3 majority of the Court held that the Milford, New York school district had violated the Good News Club=s rights to freedom of speech by denying them the chance to use the local elementary school on equal footing with all other community groups.


Justice Thomas=s majority opinion had to grapple with the issue of whether the school district had attempted to restrict use of the school building on the basis of categories of speech content, or on the basis of the actual viewpoint of potential speakers.  Under the Court=s public forum doctrine (see the book=s discussion of time, place and manner restrictions in Chapter 2, pages 72-4) the former  kinds of restrictions might be permissible, while the latter would surely be doomed to fail rigorous First Amendment analysis.  Is religious speech a  category of discourse?   If so, the school board might very well have been able to reject the Christian group=s application, just as it could decide that purely commercial speech is beyond the purpose of the forum it was setting up, that a local for-profit corporation could not have its marketing department or its board of directors use the space. 

Instead, Justice Thomas makes clear that the Court majority sees the kind of speech proposed by the Good News Club as a viewpoint, more deserving of First Amendment protection than would be a category or a general topic area.  AThe Club chooses to teach moral lessons from a Christian  perspective through live storytelling and prayer,@ Thomas suggested.  AWe can see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons.@

In another action related to religious speech in the schools, the Supreme Court refused to review a challenge to a Virginia statute requiring public school students to begin their day with a moment of silence.  The Court had invalidated moment of silence statutes in the past as violative of the Establishment Clause.[3]  Chief Justice Rehnquist, however, in his own denying a motion for an injunctionB[4]the full Court denied review altogether a few weeks laterBdistinguished the Virginia law from the earlier Alabama one.  The current law, according to the state legislature, had a valid secular purpose, Ato provide a moment  for quiet reflection in the wake of high‑profile instances of violence in our  public schools.@  Then too, Rehnquist added, Athere is no allegation that Virginia schoolteachers have used the minute of silence, or any other occasion, to lead students in collective prayer.@    


Finally, the Court had to deal with the highly volatile matter of whether the Establishment Clause is violated when public school children are required to utter the words, Aunder God,@ as part of the Pledge of Allegiance.  As the Court recounts, while the idea of a pledge was first proposed in the 1890s (commemorating the 400th anniversary of Columbus= voyage), the words Aunder god@ were only added, by Congress, in the 1950s.  The Ninth Circuit Court of Appeals agreed with a California plaintiffB an atheist offended at his minor daughter having to recite the pledge at school.  A majority of the U. S. Supreme Court[5] managed to overturn this ruling but avoided the constitutional issues altogether.  The plaintiff did not have standing to bring the suit in the first place, the Court held, in that he was divorced, and the state had granted legal custody of his daughter to his ex-wife.

 

 

Can Judges Speak Out?

While federal judges are appointed to life terms by the President, with the advice and consent of the Senate, the vast majority of state judges are elected.  In states that elect their judges, a natural tension has long been recognized.  On the one hand, if voters are to be called upon to elect their judiciaries, those voters should be fully informed about the candidates= backgrounds.  But the practice of electioneering and the seeking of campaign contributions seems to some to be inconsistent with the cherished tradition of an impartial and independent judiciary.   States deal with the tension in a variety of ways.  Some use Aretention elections,@ in which voters are asked only whether a judge should get to retain her seat (there are no alternative candidates offered on the ballot).  Other states permit competing candidates, but employ non-partisan elections, in which candidates= party affiliations do not appear on ballots.  Most state judges also enjoy far longer termsBas long as 15 years, in some jurisdictionsBthan their counterparts in the other branches of government.  Then too, judicial candidates are often held to eligibility requirementsBa law degree, or having been passed on by an appointed judicial commissionB equally unparalleled in the other branches.

In its 2001-2002 term, the Supreme Court considered whether the First Amendment might pose some limitations on the kinds of regulations that individual states may impose on candidates for judicial office.  Republican Party of Minnesota vs. White[6] involved a candidate for a judicial seat in Minnesota challenging that state=s regulations prohibiting such candidates from making utterances that might even appear to commit them to a point of view on matters likely to come before the court.

By a 5-4 vote, the Court invalidated the regulations.  Writing for the majority, Justice Scalia found that the rules= scope was enormous, in that Athere is almost no legal or political issue that is unlikely to come before a judge.@  Even the kinds of generic self-characterizations that the regulations would seem to permitBe.g., AI am a strict constructionistB would have Alittle meaningful content for the electorate unless it is exemplified by application to a particular issue.@

The state had argued that the rules were needed to preserve both the reality and the appearance of Aimpartiality of the state judiciary.@  But Aimpartiality@ can have several meanings, Scalia pointed out.  It might refer to Athe lack of bias for or against either party@ in a given legal dispute.  But the regulation is completely irrelevant to such a conceptualization, in that Ait does not restrict speech for or against particular parties, but rather speech for or against particular issues.@

If impartiality instead refers to a Alack of preconception in favor of or against a particular legal view,@ the state=s interest in furthering such a goal would not be compelling, in that Aa judge=s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice.@  Indeed, we expect judges, by the time they are elevated to the bench, to have given considerable thought to important legal controversies.

Perhaps impartiality was meant to refer more generally to an open-minded judicial temperament.  If so, Minnesota=s regulation would seem to be aimed at Areliev[ing] a judge from pressure to rule a certain way in order to maintain consistency with statements the judge has previously made.@  This view would brand Minnesota=s regulation unconstitutionally underinclusive, in that most of what we know about judicial candidates= view of specific legal issues we learn not from their campaign statements, but from the Aprior lives@ as lawyers, law professors, or public officials (or in the case of incumbents, their earlier published decisions).  Yet only their utterances qua candidates, during their campaigns, would be covered by the state=s regulation.

Concerning the wisdom of appointing or electing judges, the Capital Jury Project, a National Science Foundation-backed consortium of legal scholars, psychologists and sociologists, released a study based on interviews with jurors in hundreds of capital murder trials. The results pointed to an inability on the part of many jurors to understand the judges= instructions.  Often state judges in such cases are loath to clarify boilerplate instructions, lest one wrong word result in an appealable error.  Judges= reversal rates are often used against them in the next election.  So the judges may simply instruct the jurors to re-read the printed instructions, however confusing.[7]

!CHAPTER 2!

Content Neutral Regulations and the Public Forum

Early on in its 2001-2002 Term, the Court produced a unanimous ruling upholding the Chicago Park District=s ordinance governing the issuance of permits for large public events.[8]  The challenging organization had sometimes had their requests for a permit to hold rallied in support of decriminalization of marijuana denied. Writing for the Court, Justice Scalia pointed out that the city=s entire regulatory scheme was a content-neutral regulation of public fora.  Indeed, the triggering mechanism for the permit requirement was not communicative activity, but rather the likely number of participants in any given event.  AThe picnicker and  soccer‑player, no less than the political activist or parade marshal, must apply  for a permit if the 50‑person limit is to be exceeded.@  Moreover, none of the thirteen possible reasons for rejecting a permit application listed in the ordinance was at all related to a requestor=s message.  Rather they addressed such mundane and constitutionally irrelevant matters as failing to fill out forms correctly, or requesting use of a space and time conflicting with that of a previous requestor.

In its 2002-2003 Term, the Court upheld a practice on the part of Richmond, Virginia to maintain the safety of an inner-city public housing complex by artificially privatizing the surrounding streets and prohibiting entry to persons not having legitimate business to conduct within.  The plaintiff in the case had been arrested in the past on trespassing charges and for destroying property in the housing complex.  The later trespass charge leading to the Supreme Court decision followed his having received a letter explicitly barring him from the premises.  A unanimous Court found no First Amendment impediment to the city=s actions, in that they were not triggered by expressive activity.  Justice Scalia=s opinion for the Court implies that the decision might have been different had the plaintiff sought to engage in such activity (e.g., leafletting or otherwise trying to convey a message to residents).[9]

 

To Inhale or Not to Inhale

One of the hottest political issues in recent years has been the question of whether to legalize marijuana, either totally or at least for those who need it for medical reasons.  In response to California and Nevada having legalized the medical use of marijuana, the federal government promulgated a policy warning physicians nationwide that if they even Arecommend@ the use of marijuana, their medical licenses would be in jeopardy.

A coalition of physicians and patients groups went to federal court seeking an injunction against enforcement of the policy.  In December, 2002, the Ninth Circuit Court of Appeals upheld the lower court=s decision to issue the requested injunction.[10]

Judge Schroeder pointed out the constitutional defect in the federal policy.  It Aseeks to punish physicians on the basis of the content of doctor-patient communications. Only doctor-patient conversations that include discussions of the medical use of marijuana trigger the policy. Moreover, the policy does not merely prohibit the discussion of marijuana; it condemns expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient. Such condemnation of particular views is especially troubling in the First Amendment context.@

The United States Supreme Court refused to hear the case.

 

Government Speech and the Right Not to Speak  (Chapter 11)

In the first edition of Communication Law in America, the issue of government-sponsored speech crops up only in the discussion of funding for sexually-oriented and allegedly indecent art (Chapter 11, pages 419-20).  That is unfortunate, because the question of when the existence of government funding permits the state an added measure of control over speakers and messages is a controversial and complex one, far broader than that brief discussion would suggest.  Indeed, it is likely that a more focused discussion of the issue will appear much earlier on in the second edition, likely as an additional Atranscendent First Amendment doctrine@ (see Chapter 2, pp. 67-74).


One of the Supreme Court