Morro Bay law update, 2000
California Supreme Court focuses on media law
This was prepared for the 2000 Journalism Association of Community Colleges Faculty Retreat by Wayne Overbeck, a professor of communications at California State University, Fullerton, and a former communications attorney. His media law textbook, Major Principles of Media Law (Harcourt), is now in its 11th edition. (Posted 2/22/00)
Among the many new developments in communications law of the past year, some of the most noteworthy were eight different California Supreme Court decisions on media-related and First Amendment issues. Never before in its 150-year history has the state Supreme Court decided so many communications cases in a single year.
Other highlights of the year's new developments include a U.S. Supreme
Court decision on media ride-alongs, a major federal court decision on
student press freedom--a decision later withdrawn for en banc reconsideration
by the same court--plus many changes in the law affecting the Internet.
The past year also saw new concerns raised about access to campus newspaper
During 1999 alone, the California Supreme Court ruled on these eight communications-related cases:
*Briggs v. Eden Council for Hope and Opportunity, a case holding that California's law limited strategic lawsuits against public participation should be interpreted broadly to protect First Amendment freedoms from the chilling effect of harassment lawsuits;
*Sanders v. ABC, a decision holding that broadcast journalists may be sued for the use of a hidden camera in a workplace having partitioned offices;
*Polydoros v. 20th Century Fox Film, a ruling by the high court reinstating a lower appellate court decision that rejected any right to sue for the use of a fictitious character resembling an actual person and having a similar name;
*NBC Subsidiary (KNBC-TV) v. Superior Court, a landmark case recognizing a constitutional right of the press and public to attend most civil court proceedings;
*Miller v. Superior Court, a major ruling that strengthened California's constitutional shield law by holding that prosecutors (as opposed to defendants) have no right to circumvent the shield law and force journalists to reveal confidential information in criminal cases;
*Regents of the University of California v. Superior Court, a decision upholding the 30-day deadline for lawsuits challenging actions allegedly taken in violation of the Bagley-Keene open-meeting law--a decision later modified by new legislation extending the statutory deadline from 30 days to 90 days;
*Daily Journal Corp. v. Superior Court, a decision interpreting a law governing the release of grand jury transcripts narrowly so as to prevent release of the transcript of a grand jury's criminal inquiry into the Merrill Lynch brokerage's role in the Orange County bankruptcy; and
*Aguilar v. Avis Rent A Car System, a case in which the high court upheld a judge's injunction forbidding the use of a long list of racially offensive words in a workplace, holding that such an injunction does not violate the First Amendment.
The sections to follow summarize these eight California Supreme Court
decisions in more detail.
If there was any doubt of the legal status of California's pioneering anti-SLAPP law, that doubt was eliminated when the California Supreme Court decisively upheld and broadly interpreted the law in a 1999 decision, Briggs v. Eden Council for Hope and Opportunity. This was the first ruling on the anti-SLAPP law by the state's highest court.
(This case was decided just prior to the 1999 Morro Bay conference and was covered in the 1999 report; it is included here for the sake of completeness.)
By a 5-2 majority, the court said that the anti-SLAPP law must be interpreted liberally 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 and Judy Briggs, 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 Briggs 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 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."
In early 1999, three more appellate court decisions further strengthened the California anti-SLAPP law. In U.S. v. Lockheed Missiles & Space Co., the ninth circuit U.S. Court of Appeals ruled that the anti-SLAPP law applies in federal courts in California under certain circumstances. In this case, Lockheed, a large aerospace company, had sued two "whistle-blowers" (former employees who reported alleged wrongdoing at the company). The ruling allowed the whistle-blowers to collect attorney's fees from Lockheed. In Conroy v. Spitzer, a California appellate court upheld the dismissal of a libel suit against Orange County Supervisor Todd Spitzer by Mickey Conroy, whom Spitzer defeated in a supervisorial election and who sued because of statements Spitzer made during the campaign (the court held that everything Spitzer said about Conroy was either true or based on reliable evidence). In Sipple v. Foundation for National Progress, an appellate court affirmed the dismissal of a lawsuit against Mother Jones magazine by political consultant Donald Sipple. The court ruled that the magazine's report of Sipple abusing his wives was privileged and therefore not libelous.
The anti-SLAPP law was amended again in 1999, this time to give those
who face a SLAPP lawsuit a stronger right to appeal if a trial judge should
deny their motion to have the lawsuit against them dismissed.
In the very controversial decision of Sanders v. ABC, the California Supreme Court allowed a lawsuit against ABC for using a hidden camera inside a workplace.
In this case, ABC's "Prime Time Live" allegedly violated a telepsychic's privacy by using a hidden camera to tape him giving advice to clients by telephone. Mark Sanders and a second telepsychic who later died were videotaped inside partitioned cubicles by an ABC reporter who went under cover, taking a job as a telepsychic so she could obtain video for a story about the telepsychic business. A jury awarded Sanders $1.2 million in damages in 1994, but an appellate court overturned the verdict, ruling that Sanders had no reasonable expectation of privacy in his cubicle, which was not fully enclosed. The California Supreme Court reversed the appellate court ruling, clearing the way for Sanders to seek the reinstatement of the large damage award. The state Supreme Court ruled that there is a limited expectation of privacy in a partitioned cubicle in an office.
The second telepsychic's death led to another lawsuit against ABC, with his parents claiming that ABC's conduct caused him to drink heavily--and that the drinking caused his death. The ninth circuit U.S. Court of Appeals rejected that argument and tossed out the parents' case (Kersis v. ABC, 1999).
In 1999 the ninth circuit U.S. Court of Appeals decided still another case resulting from the same ABC undercover operation that led to Sanders: Sussman v. ABC. In this case, the court held that subjects of hidden-camera exposes cannot sue for federal wiretap violations unless they can show that a news organization intended to commit a crime or a civil wrong.
In Sussman, 12 employees of the telepsychic operation sued under federal law, claiming that by surreptitiously recording their conversations and then airing them on "Prime Time Live," ABC had violated the federal anti-wiretapping statute. By suing under this federal law, their lawyers hoped to establish a precedent that would permit lawsuits against the media even in states that do not follow the Sanders precedent. But it didn't work. Writing for a unanimous federal appellate court, Judge Alex Kozinski seemed to be saying that Sanders defines the outer limit of media liability for a hidden-camera expose. He wrote: "Although the ABC taping may well have been a tortious invasion of privacy under state law, plaintiffs have provided no probative evidence that ABC had an illegal or tortious purpose when it made the tape." Yet another appellate court upheld a family's right to sue for invasion of privacy because the producers of the TV show, "LAPD: Life on the Beat," aired a videotape of police officers telephoning the parents of a man who died from a drug overdose. The parents were unaware of the taping when they took the call. Even though no names were used and the parents' responses were largely unintelligible, the court held that they could sue (Marich v. QRZ Media, 1999). The state Supreme Court later "depublished" this decision, which means it was not overturned but it may not be cited as a legal precedent.
In December of 1999, a federal appellate court ruled in Alpha Therapeutic Corp. v. Nippon Hoso Kyokai (NHK) that it may be an invasion of privacy under California law for a broadcaster to secretly tape an interview on someone's doorstep and then air the tape without consent. In Alpha Therapeutic, the court dealt with a fact situation similar to the one in the earlier case of Deteresa v. ABC, but reached the opposite conclusion. In Deteresa, the ninth circuit U.S. Court of Appeals rejected Beverly Deteresa's right to sue for the clandestine taping of her front-doorstep conversation with an ABC producer. (She was a flight attendant on the flight that O.J. Simpson took to Chicago the night of the murders of Nicole Brown Simpson and Ronald Goldman; she had disagreed with some media accounts of Simpson's mood on that flight. When Deteresa refused to go on the air, what she told an ABC producer on her porch was summarized on the air, accompanied by a few seconds of video of her taken from a news van parked on the street.)
In the NHK case, the same court that ruled against Deteresa upheld the right of a medical director and his company to sue because NHK, Japan's government-backed television network, did much the same thing that ABC did--but aired the tape made surreptitiously on his doorstep.
An NHK reporter went to the home of Alpha Therapeutic Medical Director Clyde McAuley and interviewed him while wearing a hidden microphone. The conversation was secretly videotaped in a van parked on the street, as in the Deteresa case. However, NHK aired the audio tape of the interview. NHK used much of the actual interview in an hour-long program aired only in Japan. The program discussed charges that Alpha had shipped AIDS-tainted blood products to Japan. But a shorter segment of the interview was also aired in the United States. The appellate court held that NHK was partially exempt from liability as an agency of a foreign government. But the court also ruled that the broadcast and newsgathering in the U.S. were actionable. The case was remanded to a lower court for a later trial.
In the Alpha Therapeutic case, the appellate court said a jury could conclude that the surreptitious taping was an invasion of privacy because McAuley knew only that he was talking to a reporter--he did not know the conversation was being taped. The court said "a person may reasonably expect privacy against the electronic recording of a communication, even though he or she had no reasonable expectation as to confidentiality of the communication's contents." The court held that a jury could find the taping to have been conducted in a private place, and to be "highly offensive" to a reasonable person--the two elements required for an actionable intrusion under California law. The court also cited Section 637.2(a) of the California Penal Code, which permits civil lawsuits by victims of surreptitious taping of "confidential communications." (California requires all parties to a private conversation to give consent for the conversation to be taped or monitored by others).
If there is some expectation of privacy in a workplace with partitioned
cubicles or on one's doorstep, that is not true of an open patio at a restaurant.
In Simtel Communications v. NBC, another 1999 decision, a California
appellate court refused to allow two salesmen to sue NBC for secretly videotaping
them making a sales pitch at a table on a crowded patio. NBC producers,
posing as potential investors, used a hidden camera to tape the pitch,
which was later shown on "Dateline NBC." The court noted that the taping
was done in a busy place and that NBC did not "intrude into (the salesmen's)
personal lives, intimate relations or any other private affairs."
Motion picture and television producers have often had to deal with claims of misappropriation when they did documentaries and especially fictionalized works based on the lives of real people. California law permits unauthorized movies depicting the lives of the famous, just as it allows writers to produce unauthorized biographies of celebrities. But what about a movie that uses the name and other aspects of a non-celebrity's persona?
A California court addressed that question in the 1997 case of Polydoros
v. 20th Century Fox Film. In that case, an appellate court ruled that
the film, "The Sandlot," did not misappropriate the name and likeness of
an old schoolmate of the film's writer and director. Plaintiff Michael
Polydoros alleged that a movie character named Michael Polledorous was
virtually identical to him, right down to the thick eyeglasses and his
style of dress. As proof, he offered a 1960s photo of himself that was
very similar to the movie character in appearance. The court held that
Polydoros' right of publicity was not violated: a fictitious movie can
include a character resembling a real person without liability for misappropriation.
Polydoros appealed to the state Supreme Court, and in 1998 the high court
initially agreed to hear the case. However, the court later reconsidered
and dropped the appeal in 1999. When the Supreme Court does this, the lower
appellate court's decision is not only reinstated as a legal precedent
but made binding statewide as well.
The California Supreme Court issued a broad ruling on public access to the civil courts in NBC Subsidiary (KNBC-TV) v. Superior Court. In this case, the court held that the press and public have a right to attend civil trials as well as criminal trials, overturning a number of restrictions that had been imposed on the press and public during a trial pitting actor Clint Eastwood against his former lover, actress Sondra Locke.
The California Supreme Court ruled on the NBC Subsidiary case in mid-1999--and recognized a broad constitutional right of the press and public to attend civil court proceedings as well as criminal proceedings. In a sweeping decision, the state Supreme Court unanimously ruled that the First Amendment protects the right to attend civil trials.
Writing for the court, Chief Justice Ronald George traced the tradition of open courtrooms through history and relied heavily on the U.S. Supreme Court's landmark Richmond Newspapers v. Virginia decision in concluding that there is a constitutional right to attend civil court proceedings. Although Richmond specifically affirmed the public's right to attend only criminal trials, George noted that there are strong public policy reasons to recognize a similar right in civil cases. "(T)he public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases," George wrote.
In addition to the constitutional considerations, the court relied on Section 124 of the California Code of Civil Procedure, which was enacted in 1872, in reaching its decision. The Supreme Court said that under both the First Amendment and this statute, judges must carefully consider each civil courtroom closure. The court held that before a judge can close a civil proceeding to the press and public, he or she must take a series of steps. First, the judge must provide public notice that a courtroom closure is being considered. Then the judge must hold a hearing before closing "substantive" court proceedings or sealing transcripts. At this hearing, the judge must find: 1) that there is an overriding interest to justify the closure, 2) that the closure is as narrowly focused as possible, and 3) that there is no less restrictive means of protecting the integrity of the proceedings.
Several media lawyers praised the NBC Subsidiary decision as
the most decisive affirmation of the right of the press and public to attend
civil court proceedings ever handed down by any state's highest court.
It will surely have a major impact in other states as well as California,
making it much more difficult for judges to justify closing civil court
In 1999, the California Supreme Court issued a sweeping ruling on the state's shield law in Miller v. San Joaquin County Superior Court. The result was a major victory for journalists because the court held that the prosecution in a criminal case (as opposed to the defense) does NOT have a right to circumvent the shield law and force a journalist to reveal confidential information.
However, this may not be the last word on the subject. Soon after the Miller decision, the prosecutor in the Miller case adopted a new legal tactic to get around the Supreme Court decision--and another judge refused to follow Miller at all, citing a reporter for contempt when he declined to answer questions posed by a prosecutor.
In Miller, the state Supreme Court overturned an appellate court decision holding that prosecutors have a due process right to force journalists to reveal confidential information in spite of the shield law. The case began when KOVR-TV news director Ellen Miller refused to turn over non-broadcast outtakes of a taped interview with a prisoner accused of killing his cellmate. She was cited for contempt in spite of the shield law, setting up this important court decision.
In a unanimous ruling, the high court rejected the due process claims of prosecutors. The court held that the shield law--which was placed in the state constitution by popular vote--was not superseded by a 1990 ballot proposition that said prosecutors in a criminal case have various due process rights. Writing for the court, Justice Stanley Mosk said the 1990 ballot proposition, called the Crime Victims Justice Reform Act, did not alter the protections given to journalists when a 1980 ballot proposition placed the shield law in the constitution. And Justice Mosk explained at length why the limited right of criminal defendants to circumvent the shield law (as recognized by the Supreme Court in Delaney v. Superior Court, a 1990 case) does not also apply to the prosecution. He noted that the Delaney decision was based on the federal constitutionally-protected fair-trial rights of defendants, with the concept of federal supremacy requiring that federal fair-trial rights be given priority over the state shield law in some instances. In contrast, prosecutors have no similar federally protected due process right, Mosk declared.
Although the state Supreme Court was unanimous in ruling that Miller could not be cited for contempt for refusing to turn over the tape that was the centerpiece of this case, two of the justices--Janice Brown and Kathryn Mickle Werdegar--did not join in Justice Mosk's sweeping view that the shield law provides journalists with absolute protection from contempt citations for failing to turn information over to prosecutors. They issued a separate concurring opinion in which they contended that the shield law should sometimes give way to the evidence-gathering needs of prosecutors.
In spite of the Miller decision, California journalists continue to face subpoenas from prosecutors. Only two months after the Supreme Court upheld the shield law, a judge in Marin County reasoned his way around Miller and held a reporter in contempt for refusing to testify about unpublished material in a homicide case. A California appellate court is now considering the reporter's appeal of that ruling.
In that case, former Marin Independent Journal reporter Daniel Fost was called to testify by the defense, and he did so because the Delaney decision left him with little choice. He answered questions affirming the contents of an article he wrote in 1997, but then he declined to answer further questions during cross examination by prosecutors, citing the shield law and the First Amendment.
The judge cited Fost for contempt and ordered him to pay $1,000 a day until he agreed to testify. Judge John Sutro Jr. said Miller does not protect Fost because he refused to testify during cross examination, while Miller involved the prosecution's effort to obtain confidential information for its case-in-chief, not during cross examination. By testifying for the defense--and by indirectly referring to unpublished information--Fost waived his rights under the shield law, the judge apparently concluded.
Fost's lawyers are arguing on appeal that this distinction between direct examination and cross examination is irrelevant under Miller. An appellate court suspended the fine while it considers the case.
Meanwhile, the prosecutor who launched the Miller case in the first place renewed her effort to obtain the tape of the jailhouse interview in early 2000. San Joaquin County prosecutor Dorothy Klishevich subpoenaed the segments of the tape that were actually broadcast. If she succeeds in having those segments shown in court, the defense will then be in a position to seek the unaired portions of the tape under the Delaney precedent so defense attorneys can determine if the aired footage was shown out of context. That would open the way for the prosecution to gain access to this footage as well because the defense cannot ordinarily subpoena evidence and then withhold it from prosecutors.
So does Miller really protect journalists from subpoenas by
prosecutors? Well, maybe...
The California Supreme Court held in 1999 that the Bagley-Keene Act's 30-day deadline for filing lawsuits challenging actions taken at allegedly illegal secret meetings is mandatory. The court rejected a lawsuit filed seven months after the fact by the student newspaper at UC Santa Barbara, the Daily Nexus, seeking to overturn the University of California Board of Regents' decision to abolish affirmative action (Regents of the University of California v. Superior Court).
The Daily Nexus charged that then-Gov. Pete Wilson conferred
in private with enough regents before the vote that a consensus was reached
privately in violation of the Bagley-Keene Act. Note: later in 1999
the legislature passed and Gov. Gray Davis signed AB1234, a bill allowing
actions taken at illegal secret meetings to be challenged for 90 days,
not just 30.
The California Supreme Court upheld the tradition of grand jury secrecy in a 1999 decision, Daily Journal Corp. v. Superior Court. The court ruled that the transcript of a grand jury inquiry must remain secret if no indictment is issued by the grand jury--even if the underlying case is settled out of court.
In California as elsewhere, grand juries investigate many major crimes behind closed doors. All large counties have at least one grand jury; panels of up to 23 grand jurors are appointed by the superior court and ordinarily serve one-year terms. In some counties one grand jury is established to hear evidence and indict persons suspected of committing major crimes, while a second grand jury panel hears evidence about corruption and inefficiency in government and makes recommendations to improve government operations.
Under the Fifth Amendment, no person may be charged with a major federal crime except by a grand jury indictment. This safeguard is intended as a check on law enforcement, requiring a neutral body of citizens to conclude that there is sufficient evidence before anyone is charged with a major federal crime. In California and in most other states, the sheer volume of criminal cases forced the law to be changed so that persons can be charged with crimes without the formality of a grand jury indictment. Most state criminal cases begin with the filing of charges by a district attorney, with a preliminary hearing held by a judge to determine whether there is sufficient evidence to hold the defendant for trial.
Although most state criminal prosecutions no longer begin with a grand jury investigation, many of the most important, controversial and politically sensitive cases are still presented to a grand jury. Therefore, grand jury investigations are often highly newsworthy, and grand jury secrecy is a controversial issue.
Under California law, the official transcript of a grand jury proceeding is released to the defendant when the indictment is issued (to permit the accused to know the basis for the charges). Penal Code section 938.1 provides that the transcript is to be released to the public 10 days later. Also, section 939.1 of the Penal Code permits (but does not require) judges to open grand jury proceedings to the public if the subject matter affects the public and involves corruption or dereliction of duty by public officials.
In a case stemming from Orange County's $1.6 billion bankruptcy, the Merrill Lynch stock brokerage firm contended that the transcript of a grand jury inquiry into its role in the bankruptcy included much information about its business that was confidential and should not be released to the public. Media organizations, the county and others replied that the public had a right to know what role this giant Wall Street firm had played in the Orange County bankruptcy--the largest municipal bankruptcy in U.S. history. Merrill Lynch's quest for secrecy was especially controversial because the Orange County district attorney's office reached a controversial (and unusual) settlement with Merrill Lynch in which the firm agreed to pay $30 million without admitting any criminal wrongdoing. (Merrill Lynch later settled a civil lawsuit by agreeing to pay the county an additional $420 million to compensate for some of the county's losses in the bankruptcy.)
In 1998, a California appellate court ruled that the public had a right to see the grand jury transcript in the Merrill Lynch criminal investigation. The appellate court rejected the idea that a potential criminal defendant could keep a grand jury transcript secret when it would normally be made public merely by paying a large sum of money to settle the case before an indictment could be issued. The court was clearly troubled by the implications of allowing secrecy in this case, given the enormous losses the public suffered in the Orange County bankruptcy. Although the law only provides for disclosure of a grand jury transcript after there is an indictment, the appellate court ruled that disclosure is also proper when there is a settlement before the grand jury can finish its work.
That ruling was quickly set aside and then overturned by the California Supreme Court. In its 1999 Daily Journal decision, the high court held that grand jury transcripts can be made public only when statutory law allows it--and at no other time. The court ruled unanimously that judges have no inherent power to release grand jury transcripts on their own authority. "Grand jury secrecy is the rule and openness the exception, permitted only when specifically authorized by statute," Justice Stanley Mosk wrote for the court.
The result: a wealthy firm like Merrill Lynch can indeed "buy its way
out" of embarrassing public revelations by agreeing to pay a large settlement
to halt a criminal investigation before there is an indictment.
The law specifies that grand jury transcripts are only to be made public
10 days after an indictment. The records of the investigation of
the Orange County bankruptcy thus were kept sealed, denying the public
any access to information about many details of the transactions that led
up to this financial debacle.
In a complex 104-page decision, the California Supreme Court ruled in 1999 that a judge may forbid the future use of racial epithets in a workplace if there is proof that such words were used in the past. Ruling in the case of Aguilar v. Avis Rent A Car System,
the high court was so deeply divided that there were five different opinions from the seven justices--but no majority opinion.
The case began when 17 Hispanic employees of Avis at San Francisco International Airport sued, alleging that a supervisor there had used words such as "wetback" and "crook" in reference to Hispanic workers, thereby violating California's Fair Employment and Housing Act. The 17 workers won a $135,000 jury verdict against Avis and the supervisor. The trial judge also granted their request for an injunction, ordering the supervisor not to use any of a long list of words considered racially offensive--and ordering Avis to make sure the forbidden words were not used in the workplace.
This prompted an appeal on First Amendment grounds, raising an issue that has been widely debated in academic circles: where First Amendment freedom ends and workplace harassment begins. The state Supreme Court clearly had difficulty resolving the issue.
The justices voted 4-3 to uphold the injunction, with three justices joining in a plurality opinion written by Chief Justice Ronald George, who said that the specific facts of this case justified an injunction although that would not be an appropriate remedy in many other situations. He emphasized that such an order would not be appropriate until after there has been a finding that the use of epithets created a hostile work environment--and that in any case such an order should not extend beyond the workplace.
Justice Kathryn Mickle Werdegar wrote a separate opinion concurring with the result but criticizing George for failing to address whether the First Amendment permits imposition of civil liability at all for pure speech that creates a racially hostile workplace environment. Thus, four justices voted to uphold the injunction in spite of its First Amendment implications--but without agreeing on the rationale for this conclusion.
Three other justices wrote separate dissenting opinions. Justice Stanley Mosk said the injunction was an unconstitutional prior restraint. "Among our most cherished constitutional principles is that speech--even if offensive--should be protected unless, and until, it produces a demonstrable harmful effect," Mosk wrote. He said the judge's injunction--with its list of verboten words--"constitutes just such a prior restraint." "It impermissibly restricts speech based on the mere assumption that these words will invariably create a hostile and abusive work environment amounting to employment discrimination," Mosk added.
The case was especially troubling to several justices because the factual record did not include a complete list of the words that were banned.
Because this case raises basic constitutional issues that have not been
addressed by the U.S. Supreme Court, some legal scholars predicted that
it would ultimately be decided by that court. Others, however, decried
the lack of a complete factual record and predicted that the nation's highest
court would not take a case that lacked a better factual record on which
to base a decision about something as important as the scope of the First
While the California Supreme Court was ruling on case after case affecting the media, the U.S. Supreme Court addressed the controversial question of media ride-alongs that allow cameras into private homes.
Media ride-alongs were severely curtailed by a 1999 U.S. Supreme Court decision, Wilson v. Layne. The high court ruled that it violates the Fourth Amendment for law enforcement officers to allow the media to accompany them into private homes when they enter with search warrants or arrest warrants.
The court reached this conclusion in considering appeals by several different persons whose homes (or in one case, a large ranch) were invaded by the news media during ride-alongs with officers. The Wilson case itself began when law enforcement officers, armed with an arrest warrant, entered the home of Charles and Geraldine Wilson at 6:45 a.m. to arrest their son, who turned out not to be living there. A Washington Post reporter and photographer entered the home with the officers and observed a scuffle between officers and Charles Wilson, who came out of his bedroom wearing only briefs to ask the officers why they were in his home. No photographs of the incident were ever published, but the Wilsons sued the officers for allowing journalists to enter their home.
The Supreme Court ruled that law enforcement officials are violating the Fourth Amendment in most instances when they allow the media to accompany them onto private property to conduct a search or make an arrest. Writing for the court, Chief Justice William Rehnquist said that the Fourth Amendment's protection against unreasonable searches and seizures "embodies centuries-old principles of respect for the privacy of the home.... It does not necessarily follow from the fact that the officers were entitled to enter (a suspect's) home that they (were) entitled to bring a reporter and a photographer with them."
The court stopped short of ruling that the officers could be sued in
the Wilson v. Layne case--as opposed to future cases. Rehnquist
noted that the law on ride-alongs may not have been clear before this definitive
Supreme Court ruling. But in the future, there can be no doubt that officers
who allow the media to accompany them onto private property to conduct
searches or make arrests are inviting lawsuits for violating the Fourth
Ever since the U.S. Supreme Court handed down its landmark Hazelwood v. Kuhlmeier decision in 1988, there have been fears that the Hazelwood precedent might be used to deny First Amendment protection to the college media. Several courts did hold that Hazelwood applies at colleges under various circumstances, but none of these cases specifically involved the campus media--until 1999.
In 1999, however, a federal appellate court held that Hazelwood indeed does apply to college publications in a case called Kincaid v. Gibson, but the court then withdrew its decision and agreed to reconsider the case en banc (i.e., with all judges on the court hearing the case in place of the original three-judge panel).
In Hazelwood, the Supreme Court held that most high school student newspapers are not protected from administrative censorship by the First Amendment (although they may be protected by a state law such as California Education Code Section 48907, which applies to high schools but not colleges in this state). In a footnote, the high court said it was not ruling on the First Amendment status of college and university media in the Hazelwood case. As a result, there have been questions about the status of the college media ever since Hazelwood.
In September, 1999, the sixth circuit U.S. Court of Appeals ruled in the Kincaid case that the Kentucky State University administration could censor the KSU yearbook, using a Hazelwood-type analysis. In a 2-1 decision, the court ruled that the yearbook was not a First Amendment forum. Therefore, the court upheld the university's right to impound about 2,000 copies of the yearbook. Administrators objected to the overall quality of the yearbook (including a lack of captions on photographs) as well as the color of the cover (purple).
The court majority relied heavily on statements in KSU's student handbook about the status of student publications in reaching the conclusion that the yearbook was not protected by the First Amendment. In essence, the court seemed to be saying that First Amendment protection is a gift to be conveyed or denied by the administration, depending on the written policies that may be adopted to govern the campus media. The court noted that the KSU student handbook said the yearbook, unlike the campus newspaper, was an official publication of the college (and therefore under administrative control, the court concluded). But the court implied that the newspaper may still be a First Amendment forum.
The court did not clearly address a situation that is commonplace on college campuses: there is no written policy defining the First Amendment status of the campus media, but the student newspaper functions as a public forum and carries a disclaimer saying its views do not reflect those of the institution. The language of the Kincaid decision suggests that such a newspaper would still enjoy First Amendment protection in the event of administrative censorship.
The Kincaid decision drew immediate criticism from journalism educators and advocates of students' First Amendment rights. Many predicted that it would encourage college officials to crack down on the campus press just as many high school administrators did after the Hazelwood decision.
Lawyers representing the plaintiffs then petitioned the sixth circuit
for en banc reconsideration of the case--a request that was granted
at the end of the year. This gave campus press advocates new hope, because
decisions of three-judge panels are often overturned when a case is reconsidered
Another controversial issue recently has been the ethical and legal implications of accepting or rejecting advertising from controversial organizations or expressing a controversial viewpoint.
The normal rule of American law is that private newspapers and magazines (and in many instances broadcasters as well) are free to accept or reject advertising as they see fit. However, there is a long line of cases (including several U.S. Supreme Court decisions) holding that government-sponsored media must be viewpoint neutral: if they accept advertising espousing one viewpoint on a controversial issue, they may not then reject ads expressing other views on similar issues.
A federal judge once ruled that the student newspaper at Portland Community College had violated the First Amendment by rejecting an ad expressing one viewpoint on abortion after accepting ads that expressed other viewpoints on issues of contraception and abortion. That case has been covered in detail in previous law presentations at Morro Bay.
During 1999, there was an extended discussion of the acceptance of military recruiting ads in campus newspapers on the JACC faculty discussion group on the Internet.
The main question concerned the Solomon Amendment, which military advertisers have used to seek access to the advertising columns of many campus papers.
What IS the Solomon Amendment?
The Solomon Amendment requires colleges and universities to allow military recruiters on campus as a condition of receiving federal work-study and Perkins loan funds. It was enacted in 1994 and expanded in 1996--both times as a rider to an appropriation bill. Its principal author was Rep. Gerald Solomon (R-NY).
The Solomon Amendment was adopted because many colleges and universities (and especially law schools) have barred military recruiters during the 1990s to protest the military's policies toward homosexuals. In some states (especially in the northeast), colleges are required by state law to obtain a non-discrimination pledge from all employers who recruit on campus. Military recruiters routinely cross out the part of the pledge concerning sexual orientation before signing.
The Solomon Amendment put college administrators in some states in a difficult position: they could violate state law, allow military recruiters on campus and keep their federal funding, or they could obey state law and risk losing important sources of federal aid for their students. Some schools have allowed military recruiters--but with signs beside the recruiting tables saying military recruiting was allowed on campus only to avoid the loss of federal funds.
How does this affect student newspapers?
The Solomon Amendment, which is attached to 10 USC 503 (Title 10 of the U.S. Code, section 503), says nothing about the campus media. It says only that colleges are not eligible for Perkins loan and work-study funds if the Secretary of Defense determines that "the educational entity has a policy or practice... that either prohibits, or in effect prevents... entry to campuses, or access to students on campuses, for purposes of federal military recruiting..."
If the student newspaper staff independently decides to reject military advertising, is that a policy or practice of the "educational entity?" Does rejecting military ads deny access to students for military recruiting?
Although no appellate court has yet ruled on this issue, is seems likely that the answer would be no to both questions.
On the other hand, a student newspaper that rejects advertising from military recruiters may be undermining its status as a full public forum, thereby jeopardizing its own First Amendment protection from administrative censorship.
Perhaps a more legally tenable position for a staff to take would be
to accept advertising from all sides on controversial issues--and then
publish editorials and columns expressing the staff's views on these issues
(as well as letters from members of the campus community who might disagree).
Probably no area of American law is evolving more rapidly than the law of the Internet. This area of law was not even mentioned in Major Principles of Media Law until the 1994 edition. By 2000, it was discussed in 11 of the 14 chapters of this textbook.
A full summary of this area of law is beyond the scope of this report. However, a couple of points might be noted. First, the U.S. Supreme Court extended the highest level of First Amendment protection to the Internet in the landmark Reno v. ACLU decision in 1997. In so doing, the court overturned much of the Communications Decency Act, an amendment to the 1996 Telecommunications Act that barred "indecent" (as opposed to legally obscene) material from Internet sites that were accessible to minors. The court rejected the government's argument that the Internet should be afforded only the limited First Amendment status given to over-the-air broadcasters.
On the other hand, the Reno case said nothing that would limit a college administration's right to control the content of its own official website. If a campus newspaper has an online edition that appears on the official website, it may not enjoy First Amendment protection from administrative censorship. On the other hand, if students independently post materials on their own outside website, that site would be fully protected by the First Amendment.
What if the official campus newspaper, produced by journalism classes with a faculty adviser, produces an off-campus online edition? No appellate court has yet addressed this situation, but it seems likely that such an online paper would have the same First Amendment status as the printed version: if the printed paper is a full First Amendment forum, the online version would most likely be as well.
Among the many other Internet law issues that have attracted widespread media attention, perhaps the most notable is the controversy over domain names and trademark law.
In November, 1999, Congress enacted the Anticybersquatting Consumer Protection Act, a new law intended to ban--and criminalize--the practice of "cybersquatting" (registering someone else's trademark or a famous person's name as an Internet domain name in the hope of making a profit by selling the name to its rightful owner).
The new federal law allows fines of up to $100,000 for cybersquatting. The law also authorizes courts to order the cancellation of Internet names that were registered in bad faith, and it applies to names that have already been registered as well as new registrations.
The new anticybersquatting law reduces the impact of a noteworthy federal appellate court decision in August, 1999 which held that only owners of the most famous trademarks could prevent others from registering their names and using them as domain names. In Avery Dennison Corp. v. Sumpton, the court rejected an attempt by Avery Dennison, a maker of office labels and industrial fasteners, to stop Canadian businessman Jerry Sumpton from using the names "avery.net" and "dennison.net" as domain names. Sumpton registered some 12,000 common surnames as domain names, hoping to provide Internet users with e-mail addresses including their own names for relatively modest fees.
Avery Dennison sued, claiming that Sumpton was a cybersquatter who had improperly registered the company's trademark. The appellate court unanimously rejected that contention, holding that Sumpton's use of various surnames in no way infringed upon Avery Dennison's trademark. Avery Dennison claimed that Sumpton's use of its tradename amounted to trademark dilution in violation of the federal Trademark Dilution Act and parallel state laws. But the court held that only companies whose trademarks are truly "distinctive and famous" can prevent others from making noncompeting uses of their names as domain names. Sumpton is in the Internet service business, not the label-making business, the court noted.
"If dilution protection were accorded to trademarks based only on a showing of inherent or acquired distinctiveness, we would upset the balance in favor of overprotecting trademarks, at the expense of potential noninfringing uses," Judge Stephen Trott wrote for the court.
This decision reversed the trend for courts to side with trademark owners at the expense of others who might have a legitimate reason for registering a domain name that also happens to be someone's trademark. In so doing, the court took a narrower view of who is a cybersquatter than had some earlier courts that considered this question.
In addition, this decision made it harder for a company to prove that someone who has registered its tradename did so to profit from the trademark's value.
How does this case differ from Panavision v. Toeppen, in which a federal appellate court reached the opposite conclusion? Aside from the important factor of name recognition (Panasonic's trademarks are arguably more "famous"), there is the fact that Sumpton offered more credible business reasons for registering various names. Toeppen registered many famous trademarks and then demanded large payments from the trademark owners, and he offered no other plausible business rationale for registering the names.
Under the new federal anticybersquatting law, it will much easier for
a company in Panasonic's position to deal with someone like Toeppen. But
the new law also raises serious questions about the right of someone like
Sumpton to register other people's names in the hope of later charging
them for the use of their names on the Internet.
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For more information about recent developments in media law, check the