Media Law Update Morro Bay 2010

1. Media Law UpdateMorro Bay 2010 Genelle Belmas, Ph.D.Cal State Fullerton

2. The current Justices Alito Breyer Ginsberg Sotomayor! Stevens Scalia Kennedy CJ Roberts Thomas

3. THE hot 1A case: Citizens United v. Federal Elections Commission (Jan. 21, 2010) • “Hillary: The Movie” • At issue: Whether federal campaign finance laws apply to a critical feature-length film about Senator Hillary Clinton intended to be shown in theaters and on-demand to cable subscribers • After hearing argument last Term, the Court ordered re-argument, to focuson the constitutionality oflimiting corporations’independent spending duringcampaigns for the Presidencyand Congress

4. So long, campaign finance limitations for corporations and non-profits… • Decision came down along party lines, 5-4 • Majority opinion used the term “blog” for the first time! • Kennedy: Restrictions on independent political spending cannot rely on the identity of the speaker • Spending money = speaking • Corporations are no longer barred fromspending their own in-house cash on politics • Application to labor unions? • Bitter dissent by Stevens: Corporationsshould NOT be treated as human beings • “The Court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process.”

5. Twitter and YouTubein the courts? • Some courts allow reporters to “tweet”updates from the courtroom, butrecording for broadcast on YouTube? Not so fast! • Hollingsworth v. Perry (2010): Supreme Court ruled that Judge Vaughn Walker and the Ninth Judicial Council had not followed proper procedures to allow the CA Proposition 8 trial (Perry v. Schwarzenegger) to be recorded and broadcast either on YouTube or into other federal courthouses for the public to watch • Per curiam(unsigned) opinion expressed fear that there would be violence against supporters of Prop 8 • Dissent by Breyer suggested that there was no reason to countermand the local court’s decision, and Prop 8 supporters could have asked for proceedings not to be broadcast but did not

6. “Fleeting expletives” • FCC v. Fox Television (2009): FCC did NOTviolate Administrative Procedures Act byimplementing a “fleeting expletives” policy • Scalia: the policy was not arbitrary and capricious and was an acceptable indecency policy, and the FCC did not have to prove that new policy was “better” than previous • Dissenters said that FCC had notadequately explained the policy change • Most interesting concurrence by Thomas:the indecency policy overall is based ontwo badly decided cases (Pacifica andRed Lion), and he would be inclined toreverse those two cases! • 2CA reheard the case and questioned entire indecency regime

7. Public access to voir dire affirmed • Presley v. Georgia (2010): Eric Presley challenged his cocaine trafficking conviction on the grounds that the public (including his uncle) had been barred from jury selection proceedings • Different from Press-Enterprise I in that here the case is brought by the defendant, not the media • Per curiam: “Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials” • Thomas/Scalia dissent: it is not clearthat voir dire is part of the “publictrial” that the 6A guarantees

8. Awaiting SCOTUS opinion ororal argument next Term • U.S. v. Stevens (3CA 2008): 3CA struck downanimal cruelty law as applied to sales ofvideotapes of pit bulls fighting • Targeted at “crush videos” where women in high heels abuse small animals • At issue: Should animal cruelty speech get no 1A protection? • Christian Legal Society v. Martinez (9CA 2009): 9CA said that all UC-Hastings Law groups “must accept all comers as voting members even if those individuals disagree with the mission of the group” • At issue: Can a public university law school deny school funding and other benefits to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints?

9. Awaiting SCOTUS oral argumentnext Term • Quon v. Arch Wireless (9CA 2008): 9CA said that the City of Ontario Police Department violated a SWAT officer’s reasonable expectation of privacy by reviewing his sexually explicit text messages (“sexts”), even though the messages were sent with a department-issued phone, and the department’s formal policy warned of review • Relied on a statement by officer incharge of the texting program to plaintiffthat department would not review textsif he voluntarily paid overage charges • At issue: How far may a governmentemployer go to monitor the privatecommunications of its workers when they suspect abuse, and can service providers be held liable for providing those communications without the consent of the sender?

10. Awaiting SCOTUS oral argumentnext Term • Doe v. Reed (9CA 2009): arose over a 9CA order to publish more than 138,500 names of signatories to a Washington state petition to overturn a state law giving same-sex partners the same rights as married partners (“everything but marriage act”) • 9CA ruled that the names should be released, but the Supreme Court issued a temporary stay in October until after the Nov. elections (when the referendum failed) • Some signers say they fears harassment bygay-rights supporters, some of whom havevowed to post signers’ names on the Internet • At issue: Does the First Amendment allowa state to compel the release of identityinformation about petition signers?

11. Truth defense in libel questioned • Noonan v. Staples (1CA 2009): some have called it the most dangerous libel case in decades • Alan Noonan was fired from Staples for padding expenses; management sent out mass email to employees about the firing and warning about padding (no email had before been sent out naming a fired employee); Noonan sued for libel • 1CA found for Noonan: Massachusetts law predating Sullivan case said “actual malice” should be interpreted as malicious intent, NOT as knowing falsity/reckless disregard—even truthful statements made with “ill will” could be libelous! • Even sarcasm could be considered “ill will” • 1CA declined to rehear the case en banc • Only precedential in Massachusetts but other states have similar old laws

12. New FTC endorsement rules • New Oct. 2009 Guidelines that clarify the FTC’s position on product/service endorsements – bloggers and social media users must disclose their relationship with a company when they endorse a product or service (e.g., say that they got the product free to review) • What counts as an “endorsement?” The FTC says that “any advertising message…that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoringadvertiser, even if the views expressedby that party are identical to those of thesponsoring advertiser”

13. FTC checklist for endorsements • Is a positive message about a product orservice is an endorsement? FTC looks at: • Whether the speaker is compensated by theadvertiser or its agent; • Whether the product or service in question wasprovided by free by the advertiser; • The terms of any agreement; • The length of the relationship; • The previous receipt of products or services from the same or similar advertisers, or the likelihood of future receipt of such products or services; and • The value of the items or services received • Will this affect you if you blog? Yes, if you get products for free to review, you need to say that • FTC is mostly concerned about those who get money for endorsements, who have an undisclosed marketing arrangement, or who are getting a steady stream of products from a company

14. 2009 file sharing defendant losses • Boston U. grad student Joel Tenenbaumlost in Massachusetts federal court for downloading 30 songs • Jury awarded recording companies a total of $675,000 ($22,500 per song) • He has asked for a new trial • Jammie Thomas-Rassetlost (twice!) inMinnesota federal courts fordownloading 24 songs • The first jury awarded recording companies$222,000 in 2007 ($9,250 per song); in thesecond trial, in 2009, a jury awarded recordingcompanies $1,920,000 ($80,000 per song!!) • MN court has reduced her fine to $2,250 persong – three times the statutory minimum – anddenied her a new trial • RIAA says it is no longer suing individualsbut will continue lawsuits already in process

15. Current federal openness initiatives • On his first day in office, President Obama directed all federal agencies to break down barriers to transparency, participation, and collaboration • Open Government Initiative (OGI): May 2009, contains specific orders/deadlines including: • Publish government infoonline • Improve quality of gov’t info • Create and institutionalize aculture of open gov’t • Create an enabling policyframework for open gov’t

16. Open Government Directive • Executive departments had to upload to data.gov three “high-value” datasets by Jan. 22, 2010

17. Example dataset • “Bibliographical Metadata of the Foreign Relations of the United States Series”

18. Medill students subpoenaed • Medill Innocence Project journalismstudents got a new trial for AnthonyMcKinney for the 1978 shooting death ofa security guard • Cook County state’s attorney subpoenaedstudent grades, notes and recordings ofwitness interviews, syllabus and emails to each other and to professor David Protess • State says there may be evidence the students bribed, hounded and flirted with witnesses to obtain info, motivated, in part, to obtain a better grade • At Jan. 2010 hearing, University attorney argued that the info is protected under the Illinois shield law • Protess has said he will go to jail before turning over the info

19. New state laws affecting newspapers (from CNPA, 1/1/10 unless noted) • AB 130 (Jeffries): Removes the mother’s maiden name from non-confidential marriage data files released to the public; disclosable marriage records will include the name of each party to the marriage • AB 524 (Bass): Rewrites the decade-old anti-paparazzi law to make it easier for victims to sue publisher/broadcaster of an ill-gotten image as well as photographer • Makes newspaper publishers and other media liable under existing anti-paparazzi law if they sell, transmit, publish or use an image with the knowledge the image was obtained illegally and they paid for the image

20. New state laws affecting newspapers (from CNPA, 1/1/10 unless noted) • AB 1494 (Eng): Amends Bagley-Keene Open Meeting law to address a recent court decision (Wolfe v. City of Fremont (144 Cal. App. 4th 533, 2006)) affecting serial meetings of public bodies, which are already prohibited under the law • Amends the definition of “meeting”: “A majority of the members of a state body shall not, outside of a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter of the state body” • SB 40 (Correa): Requires birth and death certificates as well as judgment abstracts to contain only the last 4 digits of a social security number; and provides that a document containing more than the last 4 digits of a social security number is not entitled to be recorded

21. New state laws affecting newspapers (from CNPA, 1/1/10 unless noted) • SB 312 (Romero): Requires the State Board of Education and the State Allocation Board to provide for the live transmission of meetings by web cast or television • SB 320 (Corbett): To combat libel tourism, prohibits state courts from recognizing a libel judgment obtained in a foreign jurisdiction, unless the court determines the defamation law applied in the case provides at least as much protection for freedom of expression as offered by the 1A and CA Constitution • SB 340 (Yee): After Dec. 1, 2010, requires any business that makes an automatic renewal or continuous service offer to a consumer, to present the offer terms in a clear and conspicuous manner, obtain consumer’s affirmative consent and provide acknowledgment that includes the automatic renewal or continuous service offer terms, cancellation policy, and information regarding how to cancel in a manner that is capable of being retained by the consumer

22. New state laws affecting newspapers (from CNPA, 1/1/10 unless noted) • SB 359 (Romero): Comprehensively updates the alphabetical and descriptive index of code sections that can provide a basis for nondisclosure of public records under the California Public Records Act • SB 786 (Yee): Amends the California Anti-SLAPP law to prohibit government agencies that successfully use the law from obtaining their attorney fees and costs from individuals in any action brought under the state’s open meeting or public records laws • Yee: “The anti-SLAPP law was designed to protect freedom of speech and petition; not to chill an individual’s right to participation and ability to access public documents. SB 786 will not only protect the right of individuals to enforce open government laws without fear of a significant financial burden, but will also ensure that government entities act with greater transparency.”

23. Free speech in CA charter schools? • SB 438, last hearing Jan. 2010 • According to sponsor Leland Yee (D-SF): “Senate Bill 438 simply clarifies that charter schools must adhere to existing laws that protect student expression on campus, and protects both students and teachers for exercising their rights” • Adds “charter schools” to Cal. Ed. Codesections 48907 (student freedom of thepress) and 48950 (protecting journalismstudents, advisers and other employeesfrom discipline on the basis of freedom ofexpression)

24. Questions?gbelmas@fullerton.edu (657) 278-3116 thanks for your attention!