(This was prepared for the 1999 Journalism Association of Community Colleges Faculty Retreat by Wayne Overbeck, a professor of communications at California State University, Fullerton, and a former communications attorney).

There have been many changes in communications law this past year. While Congress was enacting three new copyright laws, the California legislature passed a controversial anti-paparazzi law that will expose journalists to lawsuits for constructive invasion of privacy. In the appellate courts, there have been significant rulings on libel, invasion of privacy, the California shield law and the California anti-SLAPP law. Meanwhile, a case that could encourage administrators to impose censorship on college newspapers is pending in a federal appellate court. Here are some highlights of the year's new developments. 
 

KINCAID: APPLYING HAZELWOOD TO COLLEGES?

Many journalism educators have been concerned about Kincaid v. Gibson, a 1997 federal district court ruling that applied the Supreme Court's Hazelwood v. Kuhlmeier decision to student publications at the college level. The judge allowed administrative censorship at Kentucky State University under a Hazelwood-type analysis. Kincaid has been appealed to the sixth circuit U.S. Court of Appeals; a parade of journalism education organizations joined in an amicus curiae brief urging the appellate court to overturn the district court's ruling. Oral arguments in this case have been scheduled for March, 1999; a decision is expected about six months after that. 

Precedents from the sixth circuit (which covers a band of states stretching from Michigan south to Tennessee) are not binding in other parts of the country. However, a ruling by any circuit that specifically applies Hazelwood to college student publications is sure to cause administrators everywhere to rethink their policies toward the student press. When another federal appellate court held that Hazelwood applies to college student activities in general several years ago, it surely had that effect on some campuses. (Alabama Student Party v. Student Government Association held that student activities tied to the curriculum fall under the Hazelwood standard). 
 

"NEUTRAL REPORTAGE" LIBEL DEFENSE REJECTED

In a 1998 decision, the California Supreme Court ruled that the neutral reportage libel defense does not apply in cases involving private persons in this state. In the widely noted case of Khawar v. Globe International, the high court refused to allow a tabloid newspaper, the Globe, to use this defense after it republished a claim in an obscure book that a man who is now a Bakersfield area farmer was the true murderer of Sen. Robert F. Kennedy. 

The Globe repeated charges made in "The Senator Must Die," a book by Robert Morrow. Morrow claimed that Sirhan Sirhan, who was convicted of Kennedy's murder, did not commit the crime. Instead, Morrow alleged that Kennedy was killed by an Iranian secret agent working with the Mafia. The Globe republished and enlarged a photograph from the book showing Khalid Khawar, a Bakersfield farmer in the 1990s but a Pakistani photojournalist at the time of the murder, standing near Kennedy shortly before the killing. The Globe identified him as the Iranian agent but did not use his name. However, Khawar said he was recognizable in the picture; he sued for libel and won a jury verdict of $1.175 million. In upholding the verdict, the Supreme Court refused to accept the Globe's argument that it was merely reporting the contents of a newsworthy book about a controversial issue. 

The court declined to apply the neutral reportage defense, noting that Khawar was a private person while the source for the article was a book that made undocumented charges--charges that were never verified by authorities who investigated the crime. The court also noted that the Globe made no attempt to balance the story or to contact Khawar for a rebuttal. 

The court said reports such as this one rarely benefit the public when the allegations are against a private individual. Justice Joyce L. Kennard wrote: "...(T)he report of such accusations can have a devastating effect on the reputation of the accused individual, who has not voluntarily elected to encounter an increased risk of defamation and who may lack sufficient media access to counter the accusations." 

The Globe was supported in its appeal by several mainstream media, including the Los Angeles Times, the New York Times, CBS, NBC and ABC. The major media argued that they often must report newsworthy charges and countercharges concerning controversial issues--charges that cannot necessarily be verified. When the state Supreme Court ruled against the Globe, several media attorneys said the case would make the media more reluctant to cover controversies involving private persons, thereby limiting freedom of the press in California. 

Khawar's attorney said the high court's ruling had "driven a stake through the heart of the neutral reportage concept." He added: "neutral reportage is neither neutral nor legitimate reporting but simply an excuse to titillate by knowing repetition of falsehoods." 
 

HEADLINES AND LIBEL: KATO KAELIN'S CASE

Despite their frequent ambiguities and oversimplifications, newspaper headlines, magazine covers and television news teasers lead to remarkably few libel suits in California. California courts have traditionally taken the position that if a headline or even a portion of the body of a story is ambiguous and can be interpreted in either a libelous or a non-libelous way, the ambiguity will be resolved in favor of avoiding a libelous interpretation. Also, a seemingly libelous headline can often be offset by a story that clarifies the meaning of the headline and renders it non-libelous. 

However, a headline can sometimes result in a potentially successful libel suit even if there is no libel in the story. That was illustrated by a 1998 federal appellate court decision interpreting California libel law: Kaelin v. Globe Communications. This case was an indirect result of the O.J. Simpson murder trial. Soon after Simpson's acquittal, the National Examiner, a Globe publication, said in a headline, "COPS THINK KATO DID IT." The story explained that police officers suspected Kato Kaelin, Simpson's house guest, of perjury, not of the murders of Nicole Brown Simpson and Ron Goldman. Kaelin sued anyway. 

The appellate court overturned a lower court's dismissal of Kaelin's libel suit. Kaelin contended he was libeled by the headline, which appeared a week after Simpson's acquittal, regardless of what the story said. Although a subhead said, "He fears they want him for perjury, say pals," the appellate court said the larger headline would lead many readers to conclude Kaelin was suspected of the murders. The court declined to follow the normal California rule that the story must be considered along with the headline in determining if there is a libel. 

"It is certainly clear under California law that headlines are not irrelevant, extraneous, or liability-free zones," Judge Barry Silverman wrote for the appellate court. He added: "The Kaelin story was located 17 pages away from the cover. In this respect, the National Examiner's front page headline is unlike a conventional headline that immediately precedes a newspaper story, and nowhere does the cover headline reference the internal page where readers could locate the article. A reasonable juror could conclude that the Kaelin article was too far removed from the cover headline to have the salutary effect that Globe claims." 

The appellate court also focused on a statement by a Globe editor who conceded during a deposition that he was "a bit concerned" that the headline was not an accurate summary of the story, although the editor also said he thought the subhead referring to perjury cleared up any ambiguity. 

The paper clearly knew that Kaelin did not commit the murders. Therefore, publishing a headline that readers could interpret as saying he was the murderer could fall within the definition of actual malice. When an editor admits he was "a bit concerned," that would make it even easier for a jury to find actual malice, the appellate court suggested. In essence, the court believed a jury could conclude that the Examiner deliberately published a misleading headline to sell more newspapers, at Kaelin's expense. The case was remanded to a lower court for trial in 1999 or possibly later. 
 

THE ANTI-SLAPP LAW: A HUGE VICTORY

California has one of the nation's strongest laws to curtail strategic lawsuits against public participation--lawsuits intended to silence those who speak out on public issues. There have been numerous appellate court decisions interpreting the anti-SLAPP law since it was enacted in 1992. For the most part, these decisions have expanded its scope, allowing not only individuals but media corporations to use the law to get meritless libel and slander lawsuits dismissed quickly. However, a few courts interpreted the law more narrowly, prompting the state legislature to issue a declaration that the law should be interpreted liberally to protect all kinds of statements concerning public issues. 

If there was any remaining doubt about the legal status of California's anti-SLAPP law, that doubt was eliminated when the California Supreme Court decisively upheld and broadly interpreted the law in a 1999 decision called Briggs v. Eden Council for Hope and Opportunity. Although the anti-SLAPP law has triggered many lower court decisions, this was the first ruling on it by the state's highest court. 

By a 5-2 majority, the court said that the anti-SLAPP law must be interpreted broadly enough to protect those who participate in a debate of a public issue--any issue involving a government proceeding or a government action. It also protects journalists who report these debates. The high court said the anti-SLAPP law covers "any matter pending before an official proceeding." Several media lawyers hailed the decision as a major victory for freedom of the press; one lawyer was widely quoted as calling it a "home run." As a result, those who are sued for speaking out on a public issue have a strong right--now recognized by the state Supreme Court--to get the lawsuit dismissed quickly and inexpensively unless the lawsuit has a strong likelihood of succeeding on its merits. 

The Briggs case arose from a landlord-tenant dispute--not the kind of thing that journalists typically think of when they worry about harassment lawsuits resulting from their First Amendment activities. Dan Briggs and his wife, who owned apartments in the East Bay area, sued the Eden Council for Hope and Opportunity (ECHO), a fair housing group, for allegedly defaming them by calling Dan Briggs a racist and a "redneck (who) doesn't like women" during an investigation by the federal Department of Housing and Urban Development. HUD eventually exonerated the couple and they sued ECHO for libel, among other things. 

ECHO sought to have the case dismissed as a SLAPP case, arguing that it was intended to chill the valid exercise of the group's First Amendment rights. A trial court granted the dismissal and ordered the Briggs couple to pay ECHO's attorney's fees, but a state appellate court reversed that decision. The legislature then amended the anti-SLAPP law to declare that it should be interpreted broadly, not narrowly. And the Supreme Court did just that. 

Writing for the court, Justice Kathryn Mickle Werdegar said that if speech connected with an official proceeding leads to a lawsuit, the defendant who wants the lawsuit dismissed "need not separately demonstrate that the statement concerned an issue of public significance." The Briggs' lawyer argued that calling someone a racist or "redneck" is not a legitimate discussion of a public issue, but the court said that didn't matter. The anti-SLAPP law covers any discussion in a public proceeding. If the discussion leads to a lawsuit, and the lawsuit is not likely to succeed, it must be dismissed quickly. 
 

PRIVACY AND THE SUPREME COURT(S)

In mid-1998, the California Supreme Court alarmed many journalists by ruling that a television producer may be sued when a crew shoots video of an accident victim being freed from a car and receiving emergency medical care in a rescue helicopter. In Shulman v. Group W Productions, the court ruled that Ruth Shulman, the accident victim, had a right to go to trial with her claim that the video crew's coverage of her auto accident was unduly intrusive. Although the state Supreme Court was deeply divided in its reasoning, five of the seven justices agreed that the media can be sued for intruding on an accident victim's privacy, even if the accident itself is newsworthy. On the other hand, the justices agreed that the media could not be sued for the revelation of private facts in a situation as newsworthy as an accident scene near a major highway. 

Writing the court's lead opinion, Justice Kathryn M. Werdegar said, "...the state may not intrude into the proper sphere of the news media to dictate what they should publish and broadcast, but neither may the media play tyrant to the people by unlawfully spying on them in the name of newsgathering.... A jury could reasonably believe that fundamental respect for human dignity requires the patient's anxious journey be taken only with those whose care is solely for them and out of sight of the prying eyes of others (via cameras)." 

What appeared to trouble the justices most about the Shulman case was that the video crew secretly recorded Shulman's post-accident conversations with emergency workers at the scene and in the helicopter by using microphones hidden on paramedics. 

Meanwhile, the U.S. Supreme Court has agreed to rule on a case involving a "ride-along" with law enforcement by the news media. The court has accepted the case of Berger v. Hanlon, in which the ninth circuit U.S. Court of Appeals ruled that Cable News Network could be sued for its role in a ride-along with federal officers. 

CNN sent a television crew along with federal wildlife agents on a raid of a 75,000-acre ranch in Montana. The federal agents suspected that Paul Berger, the elderly owner of the ranch, had killed American bald eagles in violation of the Endangered Species Act. An agent wearing a hidden microphone searched the ranch and questioned Berger and his wife inside their home. 

The court said that by agreeing to cooperate with CNN, the federal agents had "transformed the execution of a search warrant into television entertainment." Judge Mary Schroeder held that the federal agents and CNN could both be sued for an allegedly unlawful intrusion, adding, "Law enforcement authority was used to assist commercial television, not to assist law enforcement objectives."

Berger was later acquitted of charges of killing protected species and convicted only of a misdemeanor pesticide charge that carried a $1,000 fine. In turn, the Bergers sued the federal agents--and CNN--for $10 million for the alleged invasion of privacy. 

Responding to the appellate court ruling in the Bergers' favor, their attorney told the media, "Twenty armed agents carrying weapons in 10 trucks rolled onto my clients' property looking for something that didn't exist. What they were doing was performing for the cameras." 

The Berger case reaffirmed a principle that emerged from another federal appellate court decision three years earlier: Ayeni v. Mottola. In that case the second circuit U.S. Court of Appeals held that federal agents are not immune from potential liability when they invite a television crew to accompany them into a private home to videotape a search. 

Now the U.S. Supreme Court has agreed to rule on this issue. The high court will most likely focus on the potential liability of law enforcement officers for allowing a media ride-along. If the court rules that they can be held liable, it seems unlikely that many future ride-alongs will occur. 
 

HIGH-TECH INTRUSION: THE PAPARAZZI LAW

To the alarm of many journalists, in 1998 California adopted a state law to curtail intrusive newsgathering by paparazzi photographers and others using telephoto lenses and eavesdropping devices. The law, passed at the urging of the Screen Actors' Guild and many individual celebrities, appears in section 1708.8 of the California Civil Code. 

The anti-paparazzi law makes it an invasion of privacy for journalists (or anyone else) to trespass in an attempt to "capture any type of visual image, sound recording or other physical impression of (any person) engaging in a personal or familial activity (if) the physical invasion occurs in a manner that is offensive to a reasonable person." 

Another provision--the one that troubled journalists the most--makes it a constructive invasion of privacy for anyone to attempt to capture a visual image or recording of any person "engaging in a personal or familial activity" where there is a reasonable expectation of privacy even when there is no physical trespass if a "visual or auditory enhancing device" is used to capture an image or sound that could not otherwise be captured without trespassing. 

The anti-paparazzi law fundamentally alters the rules for journalists. Until this law was passed they could photograph or record anything visible or audible in a public place with little or no risk of liability. Now they can be sued for merely attempting to take pictures or make audio or video recordings in public places if they use "enhancing devices" that make it possible to see or hear something that could otherwise only be heard or seen in a private place. 

The law does not penalize the sale, transmission, publication or broadcast of images and recordings made in violation of the new rules, thereby exempting many media outlets from direct liability. The law targets only those who attempt to obtain images or recordings in violation of the rules--and those who assign or direct them to do so. For newsgatherers and their supervisors or employers, though, the potential for costly lawsuits is great: the law allows victims to sue for treble damages (i.e., three times the general and special damages), something not permitted in normal California libel or invasion of privacy lawsuits. Punitive damages are also permitted, as in most civil lawsuits. 

Much of the impetus for the anti-paparazzi law came from the death of Princess Diana, which many people blamed on the photographers who were pursuing her car at the time of the fatal accident. 

The law was opposed by organizations representing the news media as well as civil liberties groups, who warned that many of its provisions violate the First Amendment by penalizing legitimate newsgathering activities.

In short, this law introduces a new concept into California privacy law by declaring that in many cases the use of telephoto lenses and sensitive microphones is a constructive invasion of privacy. It will surely trigger many lawsuits against newsgatherers by celebrities and other newsworthy persons. The passage of this pioneering law will force the courts to address new questions about when newsgathering--as opposed to publishing the news--is protected by the First Amendment. 
 

THREE NEW COPYRIGHT LAWS

In late 1998 Congress approved three different laws concerning copyrights. Among other things, Congress extended copyright terms, created new rules to govern digital copying and changed the law governing the use of copyrighted music in small business establishments. 

In the Sonny Bono Copyright Term Extension Act, Congress extended the duration of copyrights by 20 years. An individual copyright now runs for the author's life plus 70 years, while the copyright on a published "work made for hire" now runs for 95 years. Unpublished pseudonymous works, anonymous works and works made for hire are now protected by copyright law for 120 years. The 20-year extension applies to existing works created after Jan. 1, 1978 as well as to new ones. For pre-1978 works that still hold a valid copyright, the term has been extended to a flat 95 years from the original copyright date. Although this brings U.S. law into conformity with the law of many other countries, it was widely opposed by academicians, librarians and others concerned about this new curtailment of the public domain. 

At the same time, Congress also passed the Fairness in Music Licensing Act, exempting small retail establishments, restaurants and bars from paying royalties for playing copyrighted music on radio or television sets in their establishments. Under a compromise between the business community and copyright owners, retail businesses smaller than 2,000 square feet and restaurants and bars smaller than 3,750 square feet will be exempt from paying royalties. Even larger businesses can qualify for the exemption if they have no more than four TV sets or six speakers. Note that these rules apply to the reception of broadcast music only; they do not exempt business owners from copyright liability for the use of recorded or live music. 

In late 1998 Congress approved still another copyright law, the Digital Millennium Copyright Act, which brought the U.S. into compliance with the provisions of two World Intellectual Property Organization (WIPO) treaties signed several years ago. Among other things, this very complex law establishes new rules governing digital copyrights and gives additional copyright protection to digital renderings of motion pictures, videos, sound recordings, photography and graphics. It also bans many technologies that could circumvent encryption and copy-protection schemes, while exempting Internet Service Providers (ISPs) from liability for copyright infringements by their customers if they take certain steps to delete allegedly infringing material quickly. The law gives copyright owners vast new powers to halt the distribution of their material online--even if the use of their material might be allowed by a court under the Fair Use Doctrine. 
 

A NEW LOOPHOLE IN THE SHIELD LAW?

In 1998 a California appellate court ruled that prosecutors in criminal cases can sometimes force journalists to turn over confidential information in spite of the shield law, which was placed in the California Constitution by a vote of the people in 1980. Now the California Supreme Court has agreed to review that decision. 

In a case called Miller v. San Joaquin County Superior Court, the appellate court held that not only defendants but also prosecutors in criminal cases sometimes have a right to break through the shield law and force journalists to reveal confidential information. The court upheld the contempt citation of KOVR-TV news director Ellen Miller, who refused to turn over non-broadcast outtakes of an interview with a prisoner accused of killing his cellmate. 

Expanding on a 1990 California Supreme Court decision that said criminal defendants could get around the shield law, the Miller decision held that the prosecution's due process rights, like a defendant's fair trial rights, take priority over the shield law in certain cases. Writing for the court, Justice Robert Puglia emphasized that this case involved only outtakes and not the identity of a news source. 

"In this case, because the interview (with the prisoner) was given with no promises, express or implied, of confidentiality, the trial court found speculative any concern that in the future, criminal defendants will be deterred from talking to the press out of fear their statements will be made public," Justice Puglia wrote. 

Puglia added, "Here, no trust will have been violated by disclosure. Moreover... the selection of what information to publish and not to publish is solely within the discretion and judgment of the media, informed by imperatives unique to the media, such as time constraints and commercial value, none of which are relevant to the truth-seeking function of a criminal trial." 

The Miller decision caused near panic among journalists in some places, because police and prosecutors frequently believe journalists have information that might help them. If the police and the district attorney can rummage through journalists' notebooks any time they need evidence, the shield law would be meaningless, many feared. Attorneys for KOVR immediately petitioned the state Supreme Court to review the Miller decision, and in December of 1998 the high court agreed to so. 

If the Supreme Court affirms the appellate court's ruling, it will affect journalists at every level--including college campuses. Such a decision would undermine the shield law defense used by the staff of the Contra Costa College Advocate several years ago when police and prosecutors demanded photographs taken by a staff photographer after a gang-related murder occurred on campus. In that case the district attorney eventually backed down and dropped a subpoena seeking the photographs. Under Miller, the d.a. could most likely have won a court order upholding the subpoena--and forcing the student photographer either to hand over the photos or face a jail sentence for contempt of court.