Morro Bay law update, 2001

First Amendment conflicts, circa 2000

     This was prepared for the 2001 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 12th edition.  (Posted 2/26/01)

     Communications and First Amendment law continues to expand at a very rapid pace.  During its 1999-2000 term alone, the U.S. Supreme Court decided no fewer than 12 cases in this area--perhaps the most such cases the high court has ever ruled on in a single term.  Several involved controversial interpretations of the First Amendment. 

     Meanwhile, a federal appellate court recently ruled that the college media continue to enjoy broad First Amendment protection from administrative censorship in its long-awaited en banc reconsideration of the Kincaid v. Gibson case.  On the other hand, another federal appellate court ruled that a state law preventing the college media from carrying alcoholic beverage ads does not violate their First Amendment rights. 

     In California, during the last year there have been a number of court decisions and legislative developments affecting free expression and the media, including campus media.  These new developments are summarized in the sections that follow.


     During 1999-2000, the U.S. Supreme Court ruled on the communications and First Amendment-related cases that are briefly noted here (among others): 

*Hill v. Colorado, upholding a state law restricting the right of demonstrators to approach patients near the entrances to health care facilities and rejecting the argument of abortion foes that the law violates their First Amendment rights; 

*Boy Scouts of America v. Dale, allowing the Boy Scouts to exclude gay scoutmasters under First Amendment freedom of association principles and rejecting the argument that state laws banning discrimination against homosexuals in public accommodations should apply to the scouts; 

*Wal-Mart v. Samara Brothers, a decision limiting the ability of a designer to use trade dress protection laws to prevent others from selling similar-looking apparel; 

*Reno v. Condon, a decision upholding the federal Driver's Privacy Protection Act, which requires the states to limit public (and journalistic) access to information from state drivers' license data bases; 

*Los Angeles Police Department v. United Reporting Publishing Co., allowing California to deny commercial access to crime victims' and arrestees' addresses while granting non-commercial access; 

*City of Erie v. Pap's A.M., a decision upholding the right of a local government to forbid nude dancing in a private club under a public decency law; 

*U.S. v. Playboy Entertainment, the decision permitting scrambled adult cable programming to be aired during the daytime despite the "signal bleed" problem; 

*Food and Drug Administration v. Brown & Williamson, in which the Supreme Court held that the FDA lacks statutory authority to regulate tobacco as a drug, thereby undermining the FDA's regulation of cigarette advertising; and 

*Board of Regents v. Southworth, a decision allowing controversial campus groups to be funded by mandatory student fees as long as the awarding of such fees is viewpoint neutral. 

In addition, the U.S. Supreme Court has agreed to rule on several other communications-related cases in 2001, including these: 

*Tasini v. New York Times, in which a federal appellate court upheld the National Writers Union's position that the electronic publication of a printed work is a separate publication, requiring authorization from the owner of the work; 

*Free Speech Coalition v. Reno, a federal appellate court decision overturning a provision of the Child Pornography Prevention Act banning erotic works that merely "appear to" portray a minor in a sexually oriented role; and

*Lorillard Tobacco v. Reilly and Altadis v. Reilly, two of several decisions in which federal appellate courts sharply disagreed with one another about the right of the states to regulate tobacco advertising. 


     Handing down its long-awaited en banc decision in Kincaid v. Gibson, the sixth circuit U.S. Court of Appeals ruled in January, 2001 that Kentucky State University officials violated the First Amendment by impounding all copies of the KSU yearbook in 1994.

     Earlier, a three-judge panel of that court ruled that KSU administrators did not violate the First Amendment because the yearbook was not a public forum protected by the First Amendment.  Campus officials objected to the yearbook for several reasons, including its color (purple), the lack of captions for many of the photographs, and the inclusion of considerable off-campus material. 

     In the new ruling, the judges held that the KSU Thorobred yearbook is a limited public forum and may not be arbitrarily censored by administrators.  Significantly, the court ruled that the U.S. Supreme Court's Hazelwood v. Kuhlmeier decision does not apply to student publications at the college level, at least in this particular instance. The eight-judge majority even said campus media that are nonpublic forums cannot be censored if the censorship is not viewpoint neutral.

     To reach its conclusion that the yearbook was a limited forum entitled to substantial First Amendment protection, the majority analyzed KSU's written policy governing the yearbook, the actual practice of the university in overseeing it, the nature of the yearbook as expressive activity and the campus context.

     The decision was widely applauded by journalism educators and other advocates of campus press freedom.  As a legal precedent, it is binding only in the four states in the sixth federal circuit:  Michigan, Ohio, Kentucky and Tennessee.  However, it is sure to carry considerable weight elsewhere. 


     Although it was overshadowed by the Kincaid case, another federal appellate court decision in 2000 significantly affected the First Amendment rights of the campus press: Pitt News v. Fisher. In this case, the student-run newspaper at the University of Pittsburgh challenged a Pennsylvania state law forbidding businesses such as bars and liquor stores to advertise alcoholic beverages in student media.

     This Pitt News' case was difficult because the law directly targeted advertisers, not the media.  Under the commercial speech doctrine, a state may regulate advertising for a product such as alcoholic beverages as long as there are ample alternate channels of communication available and certain other legal requirements are met.  But the Pitt News argued that by reducing its ad revenue, the ban forced the paper to reduce its size--and that, the paper argued, was a First Amendment violation. 

     The third circuit U.S. Court of Appeals rejected that argument, ruling that there is no First Amendment right for a student newspaper to have any particular amount of advertising that would enable it to publish any particular number of pages.  (The Pitt News said it lost about $17,000 in advertising revenue in 1997-98 because the ban forced local businesses to withdraw alcoholic beverage advertising from the campus paper.)  The court pointed out that the paper was free to publish a calendar of events that might list local bars and even note which ones offer bargains on alcoholic beverages, as long as businesses didn't pay for such listings.  On the other hand, if a business did pay for such a listing, the business (but not the paper) could be prosecuted for violating the state law, the court noted. 

      The Pitt News case raises many legal and ethical questions.  For example, would the outcome of the case be different if the university administration had ordered the newspaper to reject alcoholic beverage ads, over the staff's objections?  If that happened at the college level, it might raise serious First Amendment questions that were not raised by Pitt News v. Fisher


     Ever since its Valentine v. Chrestensen decision almost 60 years ago, the U.S. Supreme Court has limited the First Amendment protection of commercial speech (i.e., advertising).  Even the court's most recent decisions have stopped short of affording advertising the same high level of protection that is enjoyed by journalists and those who engage in political or religious expression, for example. 

     However, in a decision hailed as "monumental" by some commercial speech advocates, the California Supreme Court has refused to accept the second class status of commercial speech.  Instead, the state's highest court has held that commercial speech enjoys full protection under the free-expression provision in Article I of the California Constitution even though it does not have full protection under the First Amendment. 

     Ruling in Gerawan Farming v. Lyons, the California court specifically held that farmers can challenge state regulations that force them to pay for advertising to promote farm products.  California has a number of laws requiring growers to contribute to generic advertising campaigns designed to promote their products. 

     Gerawan, a Reedley-based plum grower, challenged these mandatory advertising rules in a series of lawsuits.  This led to a 1997 U.S. Supreme Court decision upholding the state's right to force all growers to contribute to these ad campaigns.  In Glickman v. Wileman Brothers & Elliott, the U.S. Supreme Court ruled that these programs are a form of economic regulation of growers, not a violation of the First Amendment. 

     After this loss in the nation's highest court, Gerawan's lawyers launched a new attack on the mandatory advertising charges in state courts, arguing that they violate the free-speech 
provisions of the state constitution even if they don't violate the First Amendment.  And in a 4-3 decision that was widely hailed as a great victory for commercial speech rights under the California Constitution, the state Supreme Court held that these rules may well violate the state constitution. 

     Writing for the majority, Justice Stanley Mosk said the mandatory advertising rules violate growers' freedom not to speak.  "One does not speak freely when one is restrained from speaking.  But neither does one speak freely when one is compelled to speak," Mosk wrote for the court.  The case was sent back to a lower court to reconsider the proper legal standard for evaluating attacks on the mandatory advertising program by growers:  this specific case is far from being fully resolved. 

     Although the court was closely divided--and didn't ultimately hold that the mandatory advertising fees are necessarily unconstitutional, the ruling that commercial speech enjoys constitutional protection in California when it doesn't under the U.S. Constitution was a huge breakthrough. 

     Explaining the majority's rationale, Justice Mosk noted that the state constitution guarantees the freedom to speak, write and publish on all subjects, a provision lacking in the First Amendment.  Mosk argued that if companies enjoy a fundamental right to express themselves on all subjects, they also should be free not to spend advertising dollars against their will for a message that they may not support. 

     In essence, Mosk was saying that the California Constitution does not discriminate against commercial speech in the same way that the U.S. Constitution does.  While this does not mean that false or misleading advertising enjoys any constitutional protection in California, it does mean that government attempts to censor commercial speech in California will be harder to justify than they are under the federal standard.

     The Gerawan case may have a major impact on free expression, especially commercial expression, in California in the coming years.  It also may undercut other instances of government-coerced speech in California.  The labor union movement, led by AFL-CIO, filed an amicus curiae brief opposing Gerawan's position.  The unions apparently feared that a broad interpretation of the free expression provision of the state constitution could undermine the ability of labor unions to compel all workers holding unionized government jobs to pay "agency fees" or union dues even if they oppose the union.

     The free expression provision in Article I, Section 2 of the California Constitution reads as follows:  Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.  A law may not restrain or abridge liberty of speech or press.


     As just noted in the discussion of the California Supreme Court's Gerawan decision, the California Constitution sometimes provides broader free expression rights than the First Amendment.  Many years ago the state Supreme Court ruled, in a case called Pruneyard Shopping Center v. Robins, that there is a right under the state constitution to engage in free expression at private shopping centers.  The U.S. Supreme Court had held that there is no First Amendment right to do such things as distribute literature, circulate petitions or solicit donations at a private mall without the owner's consent. 

     However, the right to engage in free expression at private shopping areas has been curtailed repeatedly by California court decisions since the landmark Pruneyard case.  In 1999, a California appellate court held that the state constitution does not protect the right to solicit signatures on petitions outside a free-standing Trader Joe's market in Santa Rosa.  The store had its own private parking lot, which was open only to its own customers.  The court held that the Pruneyard principle does not apply to a stand-alone store, as opposed to a store in a shopping center or a mall.  Thus, this particular Trader Joe's was allowed to ban free expression in its parking lot and near the entrance (Trader Joe's Co. v. Progressive Campaigns). 

     The Trader Joe's case, overlooked by most of the news media when it was decided, has turned out to be an important decision.  By 2000, attorneys for large stand-alone stores all over California had seized upon this decision to justify banning soliciting and petition-signing outside their stores.  That led to several new lawsuits by those seeking to engage in free expression outside Wal-Marts and other large stores.  In these cases, free expression advocates contended that these large stores are not comparable to a small grocery boutique like Trader Joe's, even if the giant store is not adjacent to a mall. 

     While several cases involving Wal-Mart and other large stores were making their way through the courts, in late 2000 still another appellate court upheld the right of a stand-alone grocery store to forbid petition-signing on its property, reasoning that the store was essentially comparable to a Trader Joe's (Waremart v. Progressive Campaigns).  This was particularly alarming to free-expression advocates because this involved a 75,000-square-foot store--much larger than the Santa Rosa Trader Joe's store.  If free expression can be banned there, it can surely be banned outside other "big box" stores, leaving the rights recognized in Pruneyard viable only at large shopping centers having many different stores.


     During 2000 there were a series of judicial and legislative developments affecting the relationship between journalists and the California courts. 

     Responding to the California Supreme Court's landmark NBC Subsidiary v. Superior Court decision, which said that civil as well as criminal courts should normally be open to the press and public, the California Judicial Council adopted new rules to curtail secrecy in California courts.  The new rules declare, "Unless confidentiality is required by law, trial court records are presumed to be open."  These rules severely restrict the circumstances in which a judge is permitted to seal court records.  It is no longer permissible for a judge to seal court records just because both sides in a lawsuit request it.  Instead, a judge must find that there is a compelling need for secrecy before sealing court records.  Court records may still be sealed to protect companies' trade secrets and to protect personal privacy under a few circumstances. 

     The news media, consumer groups and other advocates of open records noted that sometimes insurance companies, for instance, have covered up fraud or deceit in failing to pay valid claims by getting court records sealed.  That will no longer be possible. 

     Until these rules were adopted in 2000, there was no statewide standard to guide judges in deciding when to seal court records. 

     The new rules do not apply to secret out-of-court settlements of lawsuits.  They are often still kept secret; in 2001 the Judicial Council was investigating whether it had the authority to require records of settlements to be made public. 

     Also, a California appellate court in 2000 again upheld the right of public access to juror questionnaires in a case called Bellas v. Superior Court.  In this case, a local public defender's office refused to return juror questionnaires to the court to be sealed after a criminal trial.  The court held that information in these questionnaires is only confidential when there is a "compelling governmental interest" in secrecy, such as when it is necessary to protect jurors from physical harm or threats of harm. 

     An appellate court also held in 2000 that judges may not usually forbid the media to publish photographs of criminal defendants.  Ruling in South Coast Newspapers v. Superior Court, the court reversed a judge's order requiring the media to blur photographs of criminal defendants.  Although cameras were barred during a trial, the media obtained photographs of the defendants outside of the court and them published and broadcast them without blurring.  The appellate court rejected the judge's order as an improper prior restraint, expressing doubts that dissemination of the photos would deny the defendants a fair trial. 

     Meanwhile, the legislature responded to the growing tendency of judges to order journalists to testify in spite of the shield law by passing AB1860, a new law intended to expand the safeguards for journalists. 

     AB1860 has three main provisions: 

     1) A journalist cannot be deemed to have waived his or her rights under the shield law by testifying under a subpoena about information that is not confidential; 

     2) A trial judge must give journalists five days' notice before requiring them to turn over confidential information, affording them time to seek legal assistance; and 

     3) A judge must justify in writing any decision to hold a reporter in contempt, explaining why the information sought is crucial and cannot be obtained elsewhere. 


     Questions about the legal status of photography in private places have arisen several times on the JACC-FAC listserv.  May a photographer go into a restaurant and take pictures without permission?  May a newspaper safely publish the pictures?

     In recent years the California Supreme Court, the U.S. Supreme Court and lower state and federal appellate courts have all addressed this issue in a dizzying series of notable decisions.  Many of the leading cases have been summarized in previous Morro Bay law updates that are avilable online on the JACC website.

     To summarize, this is where photojournalists stand under California law, as interpreted by the leading state and federal court decisions:

     1)  A photographer may take pictures of a person who is visible from a public place such as a street, and the images may be published.  In Deteresa v. ABC, a federal appellate court upheld ABC's use of a short segment of video taken from a van parked in a public place, even though the subject was on private property (her front porch) but clearly visible from the street.  In Simtel Communications v. NBC, a California appellate court upheld the use of video taken with a hidden camera at a restaurant's open outdoor patio area.

     Caution:  if the photographer uses a telephoto lens or a boom microphone, there may be a violation of California's new anti-papparazzi law (Civil Code section 1708.8) even though the photo or video would otherwise be perfectly legal.  And trespassing to get an image or sounds is now prohibited by this law.

     Caution #2:  If the facts are similar to Deteresa, but a news person goes to the person's front door wearing a hidden microphone, using the person's voice may be an invasion of privacy (see Alpha Therapeutic Corp. v. NHK).

     2)  If there is a reasonable expectation of privacy, a journalist may be sued for intrusive newsgathering for going there with a camera or microphone, and the media may be sued for publishing or broadcasting the resulting images or sounds.  The California Supreme Court has ruled that this principle applies to a workplace with partitioned cubicles (Sanders v. ABC) and to a gully off a freeway that was an accident scene (Shulman v. Group W).  The U.S. Supreme Court has held that the media may be sued for taking pictures during a police ride-along on private property, and the police may be sued for allowing it (Wilson v. Layne).


     The California legislature has approved and Gov. Gray Davis has signed AB1857, the Gloria Romero Open Meetings Act of 2000.  The Romero Act requires California State University student governments to hold open meetings under provisions patterned after the Ralph M. Brown Act, which requires local governments in California to hold open meetings.  It replaces a much more vague CSU student government open meeting law that had been in effect since 1984.

     This does not affect student governments at California's community colleges, which are required to comply with the Brown Act by a formal Attorney General's Opinion.

     The Romero Act applies to the Associated Students (AS) Senate or comparable legislative body on each CSU campus, as well as to advisory bodies established by such legislative bodies.  Like the Brown Act, it requires these entities to hold open meetings at regularly scheduled times and to post their agendas 72 hours in advance of the meeting.  The agenda must include a brief description of each item of business.  Items not on the agenda may be acted on only in certain emergencies.  Special meetings must be announced 24 hours in advance, and the announcement must specify what business will be conducted during the meeting, except during emergencies. 

     Closed meetings are allowed for discussions of real estate negotiations involving the AS, consultations with attorneys about potential litigation, discussions of certain personnel matters involving AS employees (but not student officers) and consultations with law enforcement officials about threats to campus safety and security.  Actions taken at closed meetings must be reported, including the results of all votes.  Secret ballot voting is not permitted either at open or closed meetings. 

     The new law, which was placed in sections 89305-89307 of the Education Code, also requires AS legislative bodies and their advisory bodies to allow members of the public to speak at their open meetings under most circumstances. 


     The controversial Napster music sharing Internet site lost its appeal to the ninth circuit U.S. Court of Appeals in February, 2001.  The court ruled that Napster must prevent its estimated 50 million users from exchanging copyrighted music.

     The court returned the case to U.S. District Judge Marilyn Hall Patel, who had ordered Napster to shut down in July, 2000.  The appellate court stayed the shutdown order then, agreeing to hear an appeal of Patel's ruling.  Now Patel must issue a new ruling that requires Napster to halt the exchange of copyrighted songs, but only when a copyright owner asks Napster to do so.  This will be a narrower injunction than Patel's original one, which would have shut down Napster altogether.  An estimated 10 percent of the music exchanged via Napster either is not covered by a current copyright or is being exchanged with the copyright owner's permission.  Sharing of that music will not be affected by this court order.

     The appellate court said that sharing music over the Internet without the copyright owner's consent is a copyright infringement, not a fair use.  Napster had argued that its music-sharing system is a fair use, just as home video taping of television shows for later viewing is a fair use rather than a copyright infringement.

     Napster said it would ask the full ninth circuit to reconsider the ruling of the three-judge panel and might ultimately appeal to the Supreme Court.  The decision was widely praised by the recording industry and motion picture producers, who also have taken various steps in a sometimes-futile attempt to stop the sharing of their copyrighted works on the Internet.

     Many Napster fans said they would simply switch to other Internet music-sharing systems that are harder for authorities to track if Napster is forced to halt the sharing of copyrighted songs.

     While the appellate court decision was pending, Bertelsmann, the parent company of BMG Entertainment, one of the top five music companies, announced that it had reached an agreement with Napster that could undercut the industry's position.  Bertelsmann and Napster agreed to a partnership in which the German recording conglomerate would assume part ownership of Napster and urge other large record companies to join a new distribution arrangement.  Under the tentative plan worked out by Napster and Bertelsmann, a pay version of Napster would distribute all BMG music, using the same file-distribution system as the original free Napster--but with copyright owners compensated for the sharing of their music.  Other major record companies have spurned Napster's offers of a financial settlement.

     How the recording industry's fight against Napster is ultimately resolved remains to be seen.  Meanwhile, in a similar lawsuit, a federal judge ordered, another Internet music site, to pay an astonishing $25,000 per CD (a total of perhaps $250 million) in damages to Seagram's Universal Music Group for copyright infringement.  Ruling in September, 2000, Judge Jed Rakoff said he wanted to send a message to the Internet community to deter copyright infringement.  Lawyers for said they would appeal, pointing out that such a high damage award would surely bankrupt the company, which has already paid $20 million apiece to four other large record companies to settle lawsuits.'s website is in some ways similar to Napster, although MP3 allows users to place copyrighted CDs in a huge data base maintained by the company.  Of roughly 80,000 CDs in its data base, about 10,000 are UMG titles.  Napster, on the other hand, provides only an index and a linking service, allowing computer users to share music files with each other.  The music passes directly from one user to another and is not stored by Napster. 

     In still another lawsuit based on copyright law, a federal judge ordered the 2600 Enterprises website to delete links that would help web surfers locate websites offering software to facilitate copying of DVD movies.  The DeCSS software, written primarily by a Scandinavian youth, overrides the copy-prevention features of DVDs.  In August, 2000, a federal judge ruled that even linking to sites having the copying software is a contributory copyright infringement.  The defendants raised First Amendment questions and are appealing the ruling--with the support of civil liberties and Internet advocacy groups such as the Electronic Frontier Foundation.  Meanwhile, many other websites have the same information online, still telling surfers where to find the DeCSS software. 

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For more information about recent developments in media law and to see previous Morro Bay law updates going back to 1986, check the author's communications law website:

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