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Category: Media Law

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James Risen and the reporter’s privilege status quo

Many thanks to Danielle, Frank, and the Concurring Opinions crew for inviting me to guest blog this month. As Danielle mentioned, I’m primarily an IP and media law guy, and I anticipate blogging about things like Aereo, trolls, and the future of newsgathering. (Like Harry, I can be found commenting on lots of other things @bradagreenberg.) I start today with a reporter’s ability to protect the identity of confidential sources…

This week the Supreme Court denied the petition of New York Times investigative reporter James Risen. For years, Risen has fought government efforts to compel disclosure of whether a former CIA official was Risen’s source for a story about a botched CIA plot to infiltrate Iran’s nuclear agency. Risen included this confidential information in his 2006 best-selling book State of War. The former CIA official is being prosecuted for leaking to Risen, and, last July, the Fourth Circuit ruled that Risen must testify at the trial. In a last gasp, Risen petitioned the Supreme Court, asking whether  journalists in a federal criminal trial have a qualified constitutional privilege against revealing confidential sources or should have a common law privilege under Federal Rule of Evidence 501.

The Court having declined to answer this question, Risen now faces testifying or being held in contempt. (Or he must throw himself on the “hinted” mercy of the Justice Department.) This is a great tragedy for a great journalist. But it is not necessarily a great tragedy for great journalism.

Risen’s appeal was a case of Be Careful What You Wish For.

At the core of Risen’s protest is the often-mistaken belief that reporters cannot be compelled to disclose their confidential sources. The Supreme Court first addressed this question forty-two years ago in Branzburg v. Hayes, in which the Court effectively split 4-1-4 on whether journalists had a constitutional privilege against compelled disclosure. The majority opinion held that journalists do not.

But Branzburg did not foreclose such protections. State courts have long shielded media from compelled disclosure, with forty-nine states and the District of Columbia offer varying statutory or common law protections. And Justice Powell’s concurrence suggested that journalists might have a constitutional privilege on different facts, particularly if the subpoena had not been issued by a grand jury. Since then, the circuit courts have recognized a variety of protections: “nine circuits have acknowledged, and only the Sixth Circuit has rejected, a qualified privilege for confidential information in civil cases, and … four circuits extend the privilege in criminal cases and some over non-confidential information in civil cases.” (That’s from this essay about the flawed Free Flow of Information Act of 2013; the federal media shield folly was also mentioned in my previous guest visit.) The result has been that journalists get different levels of protection in different jurisdictions—but in most jurisdictions they get some protection.

Had the Supreme Court agreed to hear Risen’s petition, it is likely that there would be uniformity regarding compelled disclosure of journalists’ confidential info. (It is unclear whether that uniformity would have been limited to confidential sources or would have extended to nonconfidential notes, unused materials, journalist observations, etc.) That uniformity could have increased protections and thereby decreased disincentives to sharing sensitive or confidential information.

Yet, in many circuits the uniformity might cut the other way, restating Branzburg in a manner that results in a weaker media shield. In fact, this seems more likely. In a post-legacy-media era in which people do journalism but aren’t necessarily journalists, legislators and judges have found it so difficult to determine to whom a reporter’s privilege should apply. (The debate over the federal media shield bill is paradigmatic. See n.5.) In this context, it is unlikely the Supreme Court would be willing to establish a broad reporter’s privilege—and in a national security case, for that matter.

Of course, just because the government can compel Risen to testify, does not mean that it should. The spirit of the First Amendment suggests otherwise…

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ROUNDUP: Media Law 05.07.2014

 

Non-traditional media is the focus today. First up is “net neutrality.” The Federal Communications Commission refers to net neutrality as the Open Internet, and had promulgated a rule back in 2010 designed to promote it. Under the principle of net neutrality, service providers cannot discriminate among users or information providers in terms of price or quality of service.  Because many Internet service providers are cable companies, for example, they are not traditional “common carriers,” (telephone companies, for example), and don’t come under the same kind of FCC regulation as do telephone companies. Therein lies the problem for the FCC.

Verizon challenged the FCC’s statutory authority to regulate it and other non-traditional Internet service providers under the principle of net neutrality, bringing a suit in federal court. On January 14, the U. S. Court of Appeals for the D.C. Circuit agreed with Verizon that the agency had exceeded its authority. Several of the FCC Commissioners are now considering whether another stab at regulation is a wise idea. Commissioner Ajit Pai has testified before the Senate Subcommittee on Financial Services and General Govenrment of the U.S. Senate Committee on Appropriations that he thinks net neutrality is an “unnecessary distraction,” and that other FCC priorities, including auctioning off more of the spectrum as required under the Spectrum Act,  are more important. FCC Chair Tom Wheeler, by contrast, has issued a statement saying he intends to offer revamped rules that respond to the Verizon decision. He says in part, “We will carefully consider how Section 706  might be used to protect and promote an Open Internet consistent with the D.C. Circuit’s opinion
and its earlier affirmance of our Data Roaming Order. Thus, we will consider (1) setting an enforceable legal standard that provides guidance and predictability to edge providers,
consumers, and broadband providers alike; (2) evaluating on a case-by-case basis whether that  standard is met; and (3) identifying key behaviors by broadband providers that the Commission would view with particular skepticism.” Many FCC watchers have reacted with, at best, skepticism, even though they have not yet seen the proposal, which the FCC will consider at its May 15 meeting. The FCC has opened up a digital “in box” to accept public comments here.

On April 3, the European Parliament threw its weight behind net neutrality, voting to adopt a net neutrality proposal which would provide equality for end users and end roaming charges by 2016.

On April 2, the Writers Guild and Hollywood’s movie producers (the Alliance of Motion Picture and Television Producers, or AMPTP) reached a three year deal that spells out some important guarantees for writers on scripted shows, including a guaranteed salary increase, payments into pension funds, and agreements with regard to streaming. Members of WGA must still vote on the contract, but industry watchers seem to think that the vote will be much less contentious than that in 2008, for example, which followed on a more than 3 month strike. That ugly negotiation was the first during which new media became an issue for both sides. David Robb discusses the long term effects of the WGA strike here. The Writers Guild members voted overwhelmingly to ratify the contract (98.5 percent to 1.5 percent) at the end of April. Up next, the SAG/AFTRA (Screen Actors Guild/American Federation of Television & Radio Artists) negotiations with AMPTP. While SAG and AFTRA are now one union, the two still have separate contracts with AMPTP.

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Involuntary Public Figures

101px-Sasha_ObamaI am teaching Advanced Torts this semester.  I’ve never taught this course before, though I have taught aspects of this class in other courses.  One unit that I found especially interesting was defamation and libel, which is not a subject that I took in law school or encountered much afterwards.  I was really struck by this passage in Gertz v. Robert Welch, Inc., which limited the actual malice standard of New York Times v. Sullivan to public figures.

“Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare.”

This statement is highly questionable.  There are lots of involuntary public figures today.  Children of celebrities.  Folks who are exposed to scrutiny on social media.  And so on.  Yet the Court used this premise (few involuntary public figures) to support the point that involuntary public figures should be treated like voluntary public figures (government officials or celebrities).  Things are too well settled, I suppose, to challenge this rule, but its foundation seems weaker.

Comments?  Send them to gmaglioc@iupui.edu

The “Markets” for Top “Talent”

IncomeGrowthThe stories we tell ourselves about inequality matter. As incomes of the top 0.1% and top 0.01% grow ever more stratospheric, “low wage workers are paid less now than they were from the 1950s-1970s.” Is this just, as Steve Schwartzman suggests, the natural consequence of globalization? Tim Harford suggested as much in the FT last week:

The uncomfortable truth is that market forces – that is, the result of freely agreed contracts – are probably behind much of the rise in inequality. Globalisation and technological change favour the highly skilled. . . . [A]t the very top, winner-take-all markets are emerging, where the best or luckiest entrepreneurs, fund managers, authors or athletes hoover up most of the gains.

The most important word in that paragraph is “luckiest.” What deserves comment is Harford’s argument that “freely agreed contracts” are deciding who is “hoovering up” the most. He elaborates a bit later:
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Pressing a point

 

Prentice Women’s Hospital is a landmark for me.  Owned by Northwestern University, it stands directly across from the Northwestern Law complex, meaning that I passed it virtually every day as a law student and more recently as a VAP here at the school.  So I’m keenly interested in the University’s plan to tear down the concrete, clover leaf-shaped structure and replace it with a state-of-the-art research facility.  The debate over its fate also illustrated a trend towards advocacy in the mainstream media that raises some interesting legal questions.

Prentice_Women's_Hospital_Chicago

The building is one of the foremost examples of late-Modernist architecture in the city, and activists pressed the Chicago Commission on Landmarks to give the building landmark status, thus preserving it from demolition. When, in the midst of the preservation effort last year, local alderman Brendan Reilly said he was “open to suggestions” to save the building, New York Times architecture critic Michael Kimmelman stepped in.  Kimmelman did not merely detail the architectural relevance of the building or express his support for preservation.  Instead, he asked Chicago architecture’s It Girl, Jeanne Gang, whether it would be possible to build a research tower on top of the existing structure.  She responded with drawings of a 31-story skyscraper perched on top of the clover leaf.  Kimmelman wrote about Gang’s idea, running pictures of her concept in the paper.  Again, though, he didn’t stop there.  He contacted a field officer for the Chicago office of the National  Trust for Historic Preservation, and asked whether her organization would support the idea.  He contacted Northwestern to ask whether the university might sign on.  And he called the president of an international structural engineering firm to get feedback on the structural and financial feasibility of the plan.  Somewhere along the way, Kimmelman stopped looking like a reporter, or even a critic, and started looking more like one of the activists trying to save the building.

Putting aside the admirable intentions that obviously drove Kimmelman, his efforts illustrate the increasingly porous boundary between reporting and advocacy, even in the mainstream media.  Of course, partisanship and muckraking in journalism are not new.  But as journalism migrates onto our phones and screens alongside Instagram and Facebook, and as “dying” newspapers and network news broadcasts venture beyond traditional reporting techniques to chase eyeballs and engagement, it grows increasingly difficult to categorize what exactly we are consuming when we consume the news.  Why do these questions, obvious fodder for media ethicists, matter to lawyers?  For two reasons, one specific and one general.

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Glass Houses

Google Glass has been a mere gleam in the eye of tech savants for the past several months, but the company began distributing the wearable internet device to a hand-picked group of “Explorers” in June.  A fascinating pair of articles from the New York Times Bits columnist, Nick Bilton, recently highlighted the tensions between speech and privacy that are likely to play out as the device is integrated into everyday use.  The articles compared Glass to Kodak cameras, which were controversial when introduced in the late 1800s but ultimately accepted after Americans figured out how and when the cameras should be used.  It’s not clear, however, that the Glass experience will duplicate the Kodak pattern.  Kodaks came on the market when tort law could respond nimbly to camera invasions of privacy, while Glass is debuting in a world where tort law is increasingly subject to constitutional constraints.

Bilton teed up the Glass privacy issue nicely in May, when he described his visit to the Google I/O developers’ conference.  There, hundreds of attendees were sporting the eyeglass-mounted computers, which can take a snapshot or video with a wink of the wearer’s eye.  Bilton — a self-professed tech nerd — reported being rattled by the swarms of Glass wearers; after trying to “duck [his] head and move out of the way” of the wearable cameras, he retreated to the men’s room, only to find the urinals on either side of him occupied by Glass wearers.  “My world,” he wrote, “came screeching to a halt.”  In an article appearing a week later, however, Bilton appeared to have calmed down.  He had interviewed CUNY journalism professor Jeff Jarvis, who predicted that unwilling stars in Glass pictures and videos would eventually realize that being recorded is simply a hazard of appearing in public.  Jarvis likened the anti-Glass complaints to the furor that erupted when Kodak cameras were introduced in the 1890s.  So-called Kodak fiends, who trained their lenses primarily on uncooperative females, initially encountered threats and violence.  Ultimately, Jarvis said, amateur photographers began to behave better and society accepted cameras as a new feature of daily life.

But Bilton and Jarvis may have overlooked a crucial difference between the legal environment when pocket cameras were introduced and the legal environment today.  Tort law was instrumental in developing norms about acceptable camera use in the early Twentieth Century.  The Kodak fiends did not become more respectful overnight, and Americans did not become easily inured to having their pictures taken by strangers.  Instead, Samuel Warren and Louis Brandeis protested the abuse of cameras in what has been called the most famous law review article ever published, The Right to Privacy.  That piece advocated the creation of a new tort that would give victims of stealth photography (and other dubious news practices) a legal remedy against their aggressors.  State courts began recognizing privacy torts in 1905 and by 1960 they were a standard part of the tort toolbox.  In short, tort law established a background scheme of legal liability for the abuse of camera technology, and social norms about acceptable camera use followed.

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Divisible Defamation

When Congress passed the SPEECH Act two years ago, its primary goal was to protect speakers from hefty defamation verdicts rendered by libel havens, countries whose laws are less speech-protective than those in the United States.  The statute essentially prohibits U.S. courts from enforcing foreign defamation judgments unless the applicable law provides speech protections comparable to those in the U.S., or the same judgment would have resulted under U.S. law.  One recent case suggests that the SPEECH Act may inadvertently be splitting the defamation atom in two, allowing plaintiffs to rehabilitate their reputations while simultaneously shielding defendants from monetary loss.  This phenomenon may sound familiar to Conflicts aficionados, as it seems to replicate the creation of so-called divisible divorce in the 1940s.

A case now on appeal in the Fifth Circuit, involving New Orleans corruption, Canadian libel law, and the same-sex proprietors of a Nova Scotia fishing resort, illustrates what may become the norm when electronic speech spans national borders.

In a 2010 story about alleged political corruption in Jefferson Parish, Louisiana, the New Orleans Times-Picayune reported that a parish official co-owned a vacation resort in Nova Scotia.  The paper later retracted the statement and stopped hosting a blog that had also discussed the connection between the disgraced official and the Nova Scotia couple that ran the resort.  The blogger found a new host and continued to post allegations that the couple was laundering proceeds of the New Orleans corruption, along with embarrassing photoshopped images of the two and several homophobic slurs against them.  The couple sued the blogger in Canada for defamation (and several other torts).  The blogger did not appear, the allegations in the complaint were taken as true, and the court awarded the men $425,000.  The men sought to enforce the judgment in Mississippi state court, the case was removed to the local federal district court, and the court refused to enforce the judgment, citing the SPEECH Act.  The federal court concluded that its Canadian counterpart did not specifically find that the blogger’s statements were false, as required under U.S. law.  Therefore, the Canadian court provided less speech protection than a U.S. court would have, and the judgment could not be enforced.

The result may have been an unintentionally ideal compromise.  Together the U.S. and Canadian courts essentially credited the moral victory to the ostensibly defamed lodge owners and the financial victory to the blogger.  While this might not be a palatable outcome for most torts, there is some research suggesting that defamation plaintiffs, in particular, are as concerned with public acknowledgment that they have been falsely impugned as they are with collecting money.  In fact, the Nova Scotia plaintiffs were reported to have said “this was never about the money,” echoing Frederick Pollock’s famous observation that “the law went wrong from the start in making the damage and not the insult the cause of the action.”  Further, while speech has grown increasingly global, libel law remains stubbornly divided between defendant-protective doctrines in the U.S. and more plaintiff-friendly doctrines elsewhere.  So it may be time for a mechanism that strikes something of a balance.

In fact, it is not uncommon that recognition and enforcement principles are deployed to accommodate cultural or generational divides reflected in conflicting laws.  In the 1940s, the Supreme Court held in a series of cases that states had to recognize quickie divorces awarded by sister states that had welcomed fleeing spouses, even when the absent spouse was clinging to the marriage.  Several years later, however, the Court held that while sister states had to honor adjudications of marital status, they did not have to honor out-of-state judgments purporting to dictate the financial status of the absent spouse.  Thus was born the “divisible divorce,” with one state handling the status adjudication and another handling the financial adjudication.  Perhaps the SPEECH Act has established divisible defamation for the age of global speech.

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Tumblr, Porn, and Internet Intermediaries

In the hubbub surrounding this week’s acquisition of the blogging platform Tumblr by born-again internet hub Yahoo!, I thought one of the most interesting observations concerned the regulation of pornography. It led, by a winding path, to a topic near and dear to the Concurring Opinions gang: Section 230 of the Communications Decency Act, which generally immunizes online intermediaries from liability for the contents of user-generated content. (Just a few examples of many ConOp discussions of Section 230: this old post by Dan Solove and a January 2013 series of posts by Danielle Citron on Section 230 and revenge porn here, here, and here.)

Apparently Tumblr has a very large amount of NSFW material compared to other sites with user-generated content. By one estimate, over 11% of the site’s 200,000 most popular blogs are “adult.” By my math that’s well over 20,000 of the site’s power users.

Predictably, much of the ensuing discussion focused on the implications of all that smut for business and branding. But Peter Kafka explains on All Things D that the structure of Tumblr prevents advertisements for family-friendly brands from showing up next to pornographic content. His reassuring tone almost let you hear the “whew” from Yahoo! investors (as if harm to brands is the only relevant consideration about porn — which, for many tech journalists and entrepreneurs, it is).

There is another potential porn problem besides bad PR, and it is legal. Lux Alptraum, writing in Fast Company, addressed it.  (The author is, according to her bio, “a writer, sex educator, and CEO of Fleshbot, the web’s foremost blog about sexuality and adult entertainment.”) She somewhat conflates two different issues — understandably, since they are related — but that’s part of what I think is interesting. A lot of that user-posted porn is violating copyright law, or regulations meant to protect minors from exploitation, or both. To what extent might Tumblr be on the hook for those violations?

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Stanford Law Review Online: Privilege and the Belfast Project

Stanford Law Review

The Stanford Law Review Online has just published a Note by Will Havemann entitled Privilege and the Belfast Project. Havemann argues that a recent First Circuit opinion goes too far and threatens the idea of academic privilege:

In 2001, two Irish scholars living in the United States set out to compile the recollections of men and women involved in the decades-long conflict in Northern Ireland. The result was the Belfast Project, an oral history project housed at Boston College that collected interviews from many who were personally involved in the violent Northern Irish “Troubles.” To induce participants to document their memories for posterity, Belfast Project historians promised all those interviewed that the contents of their testimonials would remain confidential until they died. More than a decade later, this promise of confidentiality is at the heart of a legal dispute implicating the United States’ bilateral legal assistance treaty with the United Kingdom, the so-called academic’s privilege, and the First Amendment.

He concludes:

Given the confusion sown by Branzburg’s fractured opinion, the First Circuit’s hardnosed decision is unsurprising. But by disavowing the balancing approach recommended in Justice Powell’s concurring Branzburg opinion, and by overlooking the considerable interests supporting the Belfast Project’s confidentiality guarantee, the First Circuit erred both as a matter of precedent and of policy. At least one Supreme Court Justice has signaled a willingness to correct the mischief done by the First Circuit, and to clarify an area of First Amendment law where the Court’s guidance is sorely needed. The rest of the Court should take note.

Read the full article, Privilege and the Belfast Project at the Stanford Law Review Online.