Developments in the Law: the Law of Media

An article in Harvard Law Review (Feb 2007) (.pdf) (78 pages):

Table of Contents

1. I. Introduction: New Media, New Secrecy, New Questions
2. II. Protecting the New Media: Application of the Journalist’s Privilege to Bloggers
3. III. Prosecuting the Press: Criminal Liability for the Act of Publishing
4. IV. Viewpoint Discrimination and Media Access to Government Officials
5. V. Internet Jurisdiction: A Comparative Analysis
6. VI. Media Liability for Reporting Suspects’Identities: A Comparative Analysis
7. VII. Newsgathering in Light of HIPAA

In the article:

Part II explores whether blogs, an increasingly important source of news, will receive protections that have long been available to more traditional news sources. After describing the constitutional, common law, and statutory protections available to reporters generally, this Part asks which of these might most readily — and helpfully — be extended to blogs. After concluding that the common law reporter’s shield will almost certainly cover bloggers but may provide insufficient protection, this Part discusses a recent, groundbreaking case from California5 that extended a statutory reporter’s shield to bloggers despite the statute’s failure to mention blogs explicitly.6 This Part then examines whether this decision is likely the beginning of a trend, and evaluates the steps bloggers could take to increase the likelihood that they will receive such protection in the future.

Part III discusses whether, in light of several recent, high-profile news stories that revealed classified information7 and corresponding threats of retaliation from the Bush Administration and members of Congress,8 members of the press could be prosecuted for reporting classified national security information. After describing the history of government attempts to prevent the press from publishing classified information and outlining the general rules regarding when members of the press can be prosecuted for breaking the law, this Part asks whether a recent case, United States v. Rosen,9 sets a new precedent suggesting that the press can be successfully prosecuted for publishing classified information.

To analyze further the role of the media in an age of renewed government secrecy, Part IV explores the contours of the relationship between the First Amendment and media access to both government leaks and one-on-one interviews with government actors. Although the First Amendment provides no special right of the press to access government information,10 the government’s selective dissemination of information to only some members of the media based on reporters’ past speech may constitute impermissible viewpoint discrimination. This Part catalogues several recent decisions that appear to permit government actors to restrict press access based on reporters’ past speech. Analysis of the decisions indicates that although courts are willing to patrol for viewpoint discrimination when the government limits access to a press forum to which other journalists have access, they are less willing to do so when government actors limit access to interactive information-gathering opportunities, such as interviews. After considering the practical implications of these cases, this Part suggests that future courts more clearly distinguish between government action that pragmatically limits access based on time or space constraints and government action that denies certain reporters access based on their past speech. As new technology sends media content around the globe, comparison of international and domestic laws affecting the media has new importance. Parts V and VI explore two classes of recent developments in the United States and Commonwealth countries that affect the potential liability of media defendants.

Part V compares U.S. and Commonwealth doctrine on the exercise of personal jurisdiction over media defendants in defamation cases based on Internet content. U.S. courts have settled on a targeting test, which finds jurisdiction only when a media defendant intentionally directs content specifically at viewers in the forum state.11 In contrast, Commonwealth nations including the United Kingdom, Australia, and Canada have settled on a more lenient foreseeability test, which allows jurisdiction whenever it is foreseeable that content will be available and potentially cause harm.12 This Part argues that the differing jurisdictional tests stem in part from entrenched differences in the substantive laws of, and the value placed on speech in, the United States and Commonwealth nations. Viewing the procedural tests as outgrowths of substantive differences helps explain why arguments to change procedural tests in Internet cases have failed. Looking forward, this Part predicts that a treaty harmonizing the different jurisdictional approaches would be helpful but is unlikely, and that media defendants will therefore increasingly rely on technology to limit the dissemination of Internet content to avoid being subject to jurisdiction in foreign courts.

Part VI explores the legal implications in the United States and Commonwealth nations of media reports about suspects in criminal cases and investigations. Historically, laws that governed reporting about suspects tended to align with the divergent trends toward media protection in the United States and reputation protection in Commonwealth nations. However, this Part recounts recent developments that imply some convergence in the traditional doctrines. In the United States, a recent Fourth Circuit decision13 provided stronger protection to a suspect-plaintiff than traditional U.S. doctrine would have afforded when it evaluated the overall tone of a newspaper’s report to find the report capable of defamatory meaning. In the United Kingdom, recent defamation decisions provided new protection to the media by expanding the qualified privilege defense14 and directing lower courts to apply this privilege more consistently.15 Similarly, the recent passage of uniform defamation acts in Australia16 may foreshadow in- creased protection for the media in that country. However, despite these steps toward more plaintiff protection in the United States and more media protection abroad, this Part concludes that convergence of the laws governing reporting about suspects in these jurisdictions is unlikely due to deep differences in underlying defamation and criminal contempt laws.

Finally, Part VII examines the interaction between the Health Insurance Portability and Accountability Act17 (HIPAA), a federal law designed to protect the privacy of individuals’ health information, and state Freedom of Information (FOI) laws,18 which are designed to ensure public access to government documents. This Part describes three recent cases from different states that addressed difficult issues about where and how to draw the line between the public’s right to know and individuals’ rights to keep their medical information secret. This Part concludes that questions about the interaction of state FOI laws and HIPAA should be guided by the framework suggested in HIPAA regulations for understanding the interaction between HIPAA and the federal Freedom of Information Act.19 State courts and agencies should therefore use the provisions in state FOI laws that regard medical privacy to inform decisions about information requests from citizens and the media.

“A Discomfiting Threat to Free Speech”

(1)
NY Times editorial called the decision of US v Williams:

The dissenters are right that the court should have made Congress go back and pass a more carefully written law. They are also right that the court’s analysis undermines protections for political speech.

(2)
In the dissenting, Justice Souter writes in the last para.:

Perhaps I am wrong, but without some demonstration that juries have been rendering exploitation of children unpunishable, there is no excuse for cutting back on the First Amendment and no alternative to finding overbreadth in this Act. I would hold it unconstitutional on the authority of Ferber [1982] and Free Speech Coalition [2002].

Supreme Court Upholds Child Pornography Law

(1)
NY Times reported:

The Supreme Court on Monday upheld the latest Congressional effort to curb the spread of child pornography on the Internet, a 2003 law that makes it a crime to offer or solicit sexually explicit images of children.

The law, known as the Protect Act, applies regardless of whether the material turns out to consist solely of computer-generated images, or digitally altered photographs of adults, or even if the offer is fraudulent and the material does not exist at all.

(2)
“His conviction for possessing the images, and his five-year sentence for that crime, were not at issue in the case.”

(3)
It is about the 1st Ammendment:

“Offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment,” Justice Antonin Scalia wrote for the 7-to-2 majority.

The law at issue was a response to a Supreme Court ruling in 2002, a decision that found unconstitutional an earlier law that prohibited simple possession of purported child pornography even if the material turned out not to depict real children. The First Amendment was violated by a law that “prohibits the visual depiction of an idea,” Justice Anthony M. Kennedy said in the 2002 decision.

Justice Scalia said on Monday that by limiting the crime to the “pandering” of child pornography, the new law represented “a carefully crafted attempt to eliminate the First Amendment problems we identified” in the earlier decision.

The new law and the earlier one, the Child Pornography Prevention Act of 1996, were legislative efforts to deal with the challenge that technology poses to prosecutors if they must prove that material that looks like child pornography was actually produced using real children.

Under the court’s interpretation of the 2003 statute, a person offering material as child pornography can be convicted on either of two grounds: for believing that the material depicts real children, or for intending to convince a would-be recipient that it does.

Is the statute too broad?

The statute itself (“Protect” is an acronym for Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today) is open to a considerably broader interpretation, which led the federal appeals court in Atlanta to invalidate it in 2006, the decision that the justices overturned on Monday.

The law applies to “any person who knowingly advertises, promotes, presents, distributes, or solicits” the prohibited material, raising concerns about whether mainstream movies or innocent photographs of babies in the bath might invite prosecution.

The court said no:

Justice Scalia dismissed these concerns as “fanciful hypotheticals,” saying that such situations would either not give rise to prosecutions or, if they did, would be protected by the courts. In a concurring opinion, Justices John Paul Stevens and Stephen G. Breyer said they, too, were satisfied that the court’s narrow construction of the statute had allayed “any constitutional concerns that might arise.”

(4)
In the dissent:

The two dissenting justices, David H. Souter and Ruth Bader Ginsburg, said their concerns had not been answered. In an opinion by Justice Souter, which Justice Ginsburg signed, they said they did not object to making it a crime to mislead others by offering material that did not in fact exist. That was simply fraud, Justice Souter said.

However, he added, possession of pornographic images that do not depict real children is constitutionally protected, and offering them should not be a crime. “If the act can effectively eliminate the real-child requirement when a proposal relates to extant material, a class of protected speech will disappear,” Justice Souter said.

(5)
The opinion: US v Williams

Social Networking sites’ negligence immunity

Harvard Law Review (Issue 121, Jan 2008) Case summary: Doe v. MySpace, Inc., 474 F. Supp. 2d 843 (W.D. Tex. 2007)

INTERNET LAW — COMMUNICATIONS DECENCY ACT — TEXAS DISTRICT COURT EXTENDS § 230 IMMUNITY TO SOCIAL NETWORKING SITES

The Future of Reputation

Authors@Google: Daniel Solove
Feb 2008

(53 min)

Daniel J. Solove, an associate professor of law at the George Washington University Law School discusses his book “The Future of Reputation“:

What information about you is available on the Internet? What if it’s wrong, humiliating, or true but regrettable? Will it ever go away? Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there’s a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives—often of dubious reliability and sometimes totally false—will follow us wherever we go, accessible to friends, strangers, dates, employers, neighbors, relatives, and anyone else who cares to look. This engrossing book, brimming with amazing examples of gossip, slander, and rumor on the Internet, explores the profound implications of the online collision between free speech and privacy.

Daniel Solove, an authority on information privacy law, offers a fascinating account of how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations. Focusing on blogs, Internet communities, cyber mobs, and other current trends, he shows that, ironically, the unconstrained flow of information on the Internet may impede opportunities for self-development and freedom. Longstanding notions of privacy need review, the author contends: unless we establish a balance among privacy, free speech, and anonymity, we may discover that the freedom of the Internet makes us less free.