Morro Bay law update, 2002

Journalists and the Supreme Court

     This was prepared for the 2002 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/Wadsworth), is now in its 13th edition.  This is the 22nd year that he has presented a law update at Morro Bay.  (Posted 2/25/02)

     Both the U.S. Supreme Court and the California Supreme Court handed down major decisions that affect journalists during 2001.  As has been customary in these Morro Bay law updates, this report summarizes some of the year's major new legal developments.  And as usual, other legal questions of interest to those attending the Morro Bay conference will also be covered during the law session. Richard Weinstock, a longtime attorney and the spouse of Carol Weinstock of Ventura College, will join in this year's presentation, as he did several years ago. 


     During its 2000-2001 term, the U.S. Supreme Court handed down a number of decisions affecting communications law.  Two of them directly affect journalists and newsgathering practices: Bartnicki v. Vopper and New York Times Co. v. Tasini.

     In Bartnicki v. Vopper, the high court ruled that a broadcaster had a First Amendment right to air a newsworthy but pirated tape recording of a private cellphone call. By a 6-3 vote, the court rejected the argument that airing such a tape is a violation of the federal wiretap law. 

     In this case, a Pennsylvania broadcaster, Frederick Vopper, was given a tape of a conversation between two teacher's union officials. Whoever made the tape gave it anonymously to a local anti-tax crusader amidst a controversy over teachers' salaries. The anti-tax crusader then passed it on to Vopper, who broadcast it on his talk show several times. The tape included some fiery rhetoric aimed at local school leaders. At one point, one union official said to the other, "we're going to have to go to their blow off their front porches" if school board members resisted the union's demands for a pay raise. Gloria Bartnicki and another union leader sued Vopper for airing the tape of their conversation. 

     No one disputed the point that whoever monitored the phone call and made the tape violated the law. But the court ruled that when such a tape concerns an issue of public concern and the media lawfully obtain it from a third party without participating in or encouraging the illegal taping, the media have a First Amendment right to air the tape.

     In reaching this conclusion, Justice John Paul Stevens relied heavily on the "Pentagon Papers" case (New York Times v. U.S., discussed in Chapter Three), in which the court allowed the Times to publish excerpts from the so-called Pentagon Papers even though they had been illegally copied and then given to the Times

     "A stranger's illegal conduct does not suffice to remove the First Amendment shield about a matter of public concern," Stevens said. 

     However, two justices, Stephen G. Breyer and Sandra Day O'Connor, wrote a separate concurring opinion in which they took a narrower view than Stevens did of the media's rights in such cases. They said the media would not have the right to air a tape that reveals gossip about someone's private life, as opposed to a discussion of a major local issue such as teachers' salaries. And there were three dissenters, Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. They said the media should not be free of liability for airing a bootlegged tape of a private phone conversation even if it addresses an issue of public concern. 

     Thus, the result was a victory for the media, but a narrow one. The right to air a pirated tape extends only to a tape of a conversation about an issue of public concern--usually a political or social issue. Also, new telephone technologies have made the interception of private phone calls much more difficult in recent years. Media lawyers were widely quoted as hailing the Bartnicki decision as a good one--while emphasizing that it may have little real impact on personal privacy because of improvements in telephone privacy protection in the digital age. 

     Significantly, shortly after deciding Bartnicki the Supreme Court refused to intervene in another case where a television station played a more active role in illegal taping: Peavy v. WFAA-TV. In this case, the fifth circuit U.S. Court of Appeals said the station could be held liable because a reporter cooperated with a family that illegally monitored and taped a neighbor's cordless telephone conversations. The neighbor, Carver Dan Peavy, was an elected Dallas, Texas school trustee. The taped conversations led the TV reporter to believe that Peavy had taken kickbacks on school insurance purchases. The tapes were not aired, but they were used by WFAA-TV in preparing several stories about alleged wrongdoing by Peavy. Peavy sued, but a trial court dismissed the case on First Amendment grounds. The appellate court reinstated the case. 

     A related issue concerns telephone taping when only one party knows about the taping and gives consent. A number of states including California forbid taping telephone conversations without the consent of both parties. On the other hand, federal law and some state laws permit taping if only one party consents, thereby allowing journalists to record a phone interview without informing the other party of the taping. If neither party consents, as in Bartnicki v. Vopper, of course, the person who eavesdrops and makes a bootleg tape is committing a crime under federal law and the law of most states. If such a person is caught and convicted, he or she faces a stiff sentence. 

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     The U.S. Supreme Court addressed another question of great concern to some journalists in another 2001 decision, New York Times Co. v. Tasini.  This case involved a controversial issue created by the digital revolution:  the right of newspapers and magazines to place their content in online editions and electronic data bases without specific permission of freelance authors.

     Until about 1995, most major publishers did not include a provision in the contracts signed by freelancers to cover electronic rights. The National Writers Union, an organization that represents about 3,000 freelance writers, sued the New York Times Co., other major publishers and the Lexis-Nexis computer database for using the writers' work electronically without specific permission. 

     The publishers contended that these electronic data bases were merely reproductions of the printed versions--and no separate copyright permission was required. 

     In 2001, the U.S. Supreme Court sided with the writers in New York Times Co. v. Tasini. In this case, the court ruled that Jonathan Tasini, former president of the National Writers Union, and other freelancers, own the electronic rights to their works unless they specifically assign those rights to a publisher. 

     The case only involved material produced by freelancers as opposed to staff writers. Under the "works made for hire" provision of the Copyright Act, employers automatically own the copyrights to works created by employees within the scope of their employment. It also does not involve most freelance works published since 1995, when the major publishers began including specific provisions to authorize electronic republication in their standard contracts. Responding to the court's decision, representatives of the New York Times pointed out that between 1980 and 1995, the years covered by the Tasini decision, the Times had published about 115,000 articles written by 27,000 different freelancers. Because of the difficulty of tracking down all of these authors and securing permission, Times Publisher Arthur Sulzberger, Jr. said the Times "will now undertake the difficult and sad process of removing significant portions from its electronic historical archive." Some historians, including documentary filmmaker Ken Burns and historian Doris Kearns Goodwin, who filed a brief supporting the publishers, also lamented the gaps in the historical record that will result from the Tasini decision if publishers are forced to remove freelance work from their data bases. 

     Sulzberger said publishers would ask Congress to amend the Copyright Act to allow electronic data bases to include pre-1995 freelance articles as well as staff-written articles and more recent freelance work. 

     On the other hand, Tasini said his union would be happy to work out a licensing system for freelancers similar to that used by ASCAP and BMI to compensate music copyright owners, with freelancers compensated each time someone accesses the electronic version of a story or other material that appeared in the major media. 


     During 2001 and the first two months of 2002, the California Supreme Court announced five decisions that affect media law, continuing the state high court's surprisingly high volume of media and free-expression cases--a trend noted in several recent Morro Bay law updates.  The 2001-2002 cases involved everything from free expression on private property to secrecy of police reports.

     In mid-2001 the California Supreme Court declared that there is no constitutional right to distribute flyers to residents of a private, gated apartment complex. Ruling in the case of Golden Gateway Center v. Golden Gateway Tenants Association, the court continued a recent trend away from upholding the right to distribute literature on private property. 

     The high court held in the Golden Gateway case that a tenants' association may be barred by the landlord from circulating flyers critical of management at a 1,254-unit, four-building complex in San Francisco. 

     In a 4-3 decision, the California Supreme Court said its landmark Pruneyard Shopping Center v. Robins case, which recognized a limited right to engage in free expression at private shopping centers, applies only to private places that are open to the public, not to areas that have a gate or a guard at the entrance. In gated complexes, there is no right to do literature distribution under the state constitution, Justice Janice Rogers Brown wrote for the court. (The U.S. Supreme court ruled earlier that there is no such right under the U.S. Constitution.)

     This decision does not affect literature distribution in places where the management chooses to allow it. Nor does it undercut state laws and local ordinances that permit literature distribution in some private places. But the state's highest court has now held that there is no constitutional right to circulate literature in private places that are not open to the public. Justice Brown also pointed out that tenants are free to communicate with each other in many ways--but not by circulating unsolicited flyers. 

     The three dissenting justices argued that there should be a constitutional right to distribute literature in private places--even gated places that allow no public access. 

     Meanwhile, in mid-2001, a third appellate court held that the Pruneyard principle does not apply to a stand-alone store.  (In recent years California appeals courts denied free-expression rights at a relatively small Trader Joe's store and at a Waremart, much larger discount store.)  In Young v. Raley's Inc., the court held that a stand-alone 57,000 square foot grocery store is not a public forum for literature distribution purposes. A few months later, in the case of Lushbaugh v. Home Depot U.S.A., another California appellate court upheld Home Depot's policy on free expression, which allows soliciting and leafleting only in specified areas (usually near each store's exit). The court said Home Depot's regulations are reasonable, which is all that is necessary for them to be upheld. The court suggested that Home Depot stores, like other stand-alone stores, might be exempt from the requirement to allow free-expression activities. 

* * *

     The California Supreme Court, ruling in February, 2002, overturned the state's "Son of Sam" law.  This law was intended to prevent convicted felons from receiving book or movie royalties or otherwise profiting from the notoriety they gained from their crimes.  Such laws derive their name from serial killer David "Son of Sam" Berkowitz, who published a highly profitable book called "Son of Sam," prompting New York to pass a law allowing the state to seize his profits.

     As the U.S. Supreme Court did in rejecting New York's "Son of Sam" law in a 1991 decision, the California court held that the state law violates the First Amendment.  But the court said the California law also violates the free expression provision in the California Constitution.  Although the California law, like similar laws in about 40 other states, was intended to seize criminals' profits and use the money to compensate their victims, the court unanimously held that it placed an unconstitutional burden on free expression.

     This decision, which came in the case of Keenan v. Superior Court of Los Angeles County (Sinatra), will allow Barry Keenan to receive income that exceeds $1 million by some estimates, for his story about how he helped kidnap Frank Sinatra, Jr., the son of the famous singer, in 1963.

     The California Supreme Court rejected the state's "Son of Sam" law because it was written so broadly that it could interfere with the right of authors to profit from works that happen to discuss a crime in detail.

     "A statute which operates in this fashion disturbs or discourages protected speech to a degree substantially beyond that necessary to serve the state's compelling interest  in compensating crime victims from the fruits of crime," Justice Marvin Baxter wrote for the state Supreme Court.

     This decision would not necessarily prevent the legislature from drafting a narrower law to compensate crime victims by seizing criminals' earnings, Justice Janice Rogers Brown said in a concurring opinion.

* * *

      The California Supreme Court ruled in 2001 that police departments need not disclose internal documents about criminal investigations, including mere traffic stops, even if no one is likely to be charged with a crime as a result of the investigation.

     Ruling in the case of Haynie v. Superior Court (Los Angeles), the court held that the California Public Records Act does not cover such records.  Police must still disclose basic factual information about incidents and arrests (but not necessarily the official reports).

     As a result, those who want to monitor law enforcement will find it more difficult to do so.  Records of many police investigations can still be obtained through the pretrial discovery process after a civil rights lawsuit has been filed against a police agency, but not by simply requesting them under the Public Records Act.

     The case resulted from a police stop of Elgin Haynie by Los Angeles County sheriff's deputies.  Officers had received a report that three male Asian teenagers were seen getting into a blue Ford van carrying what appeared to be guns.  When Haynie, who is black, was stopped, he had three teenage Latina passengers.  He said he was injured during the stop.  He was handcuffed but later released; no charges were filed against him.

     Haynie then sought police records of the incident before filing a possible lawsuit against the Sheriff's Department.  The department refused to turn over the records, saying they were covered by the Public Records Act's exemption for criminal investigations.

     The state Supreme Court upheld the department's position, taking a broad view of what qualifies as a report of a criminal investigation.

* * *

     One of the difficult questions posed by the right of publicity is the right of an artist to depict famous people. Where does artistic freedom end and misappropriation of someone's public persona begin? The California Supreme Court addressed that issue in a noteworthy 2001 decision, Comedy III Productions Inc. v. Gary Saderup. In this case, the heirs to the right of publicity of the Three Stooges, a comedy trio, sued artist Gary Saderup for selling thousands of T-shirts bearing his sketch of the Three Stooges. 

     Basically, the court held that the depiction was so realistic and the three characters were so literally recognizable that the sketch was a misappropriation. Writing for the court, Justice Stanley Mosk said the depictions were more "imitative" than "creative." 

     Mosk said, "His (Saderup's) undeniable skill is manifestly subordinated to the overall goal of creating literal, conventional depictions of the Three Stooges so as to exploit their fame." 

     Mosk suggested a new test to balance free-speech rights against the right of publicity: a creativity test, with works that have transformative value being protected while those that are basically imitation are not protected. Mosk made a distinction between Saderup's too-literal depiction of the Three Stooges and the well-known silk-screens done by Andy Warhol of Marilyn Monroe, Elizabeth Taylor and Elvis Presley. 

     "Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself," Mosk wrote, suggesting that Warhol's work would be protected, while Saderup's is not.  This was one of Justice
Mosk's final opinions for the court:  he died later in 2001 after serving an incredible 37 years on the California Supreme Court--longer than any other justice in the court's 151-year history.

* * *

     In another of Justice Stanley Mosk's final majority opinions for the California Supreme Court, Mosk handed down a ruling to uphold and expand the state's anti-SLAPP law in 2001. 

     As noted in previous Morro Bay law updates, the anti-SLAPP law enables those who are sued for engaging in First Amendment activities in the public arena to get harassment lawsuits dismissed quickly, sparing them the burden of defending a lawsuit.

     In the 2001 decision, Ketchum v. Moses, the California Supreme Court said that attorney's fees can be multiplied so that someone who files a harassment lawsuit may end up paying more than the full amount of the defendant's legal expenses. Under California law, a lawyer who agrees to take a high-risk case on a contingent fee basis can sometimes win more than his/her full fees--as an incentive for lawyers to take the risk of handling such cases. 

     Writing for the court, Justice Stanley Mosk ruled that the concept of a fee multiplier applies to anti-SLAPP cases, just as it does to other cases where attorney's fees might be awarded. 

     "The purpose of a fee enhancement, or so-called multiplier, for contingent risk is to bring the financial incentives for attorneys enforcing important constitutional rights, such as those protected under the anti-SLAPP provision, into line with incentives they have to undertake claims for which they are paid on a fee-for-services basis," Mosk wrote.


    Among the thousands of federal court decisions of the last year, several affect the California media enough that they should be noted here.

     To the alarm of many media lawyers, a federal court has held that the California anti-SLAPP law does not apply when a case is taken to federal court because of diversity of citizenship. The ninth circuit U.S. Court of Appeals so ruled in late 2001 in the case of Metabolife International v. Wornick

     In the Metabolife case, the federal appellate court held that the anti-SLAPP law is contrary to federal rules that permit plaintiffs to do discovery to fill in the details of their case before a motion to dismiss the case can be granted. Discovery is the often-costly process in which each side in a case must answer oral or written questions, or hand over evidence, at the request of the other side. 

     Metabolife, a maker of herbal supplements, including weight loss products, sued television journalist Susan Wornick for libel (among other things) after she did a three-part series alleging that the main ingredient in Metabolife 356, a weight-loss product, is ephedrine, the same dangerous ingredient found in methamphetamines. Metabolife denied that 356 is dangerous. 

     Because Metabolife is California-based while Wornick lives and works in Massachusetts, the case was filed in federal court, forcing the federal appellate court to decide whether the anti-SLAPP law protects Wornick in a federal diversity case (as it would if the case had been filed in state court). The court held that it does not. 

     This decision appears to create a loophole for those who want to silence journalists and citizen-activists by filing lawsuits against them. If there is a basis to file the case in a federal court instead of a state court, the ninth circuit is saying that the anti-SLAPP law's key cost-saving feature does not apply. 

* * *

     Many journalists were concerned when actor Dustin Hoffman sued Los Angeles Magazine and won a $3 million trial verdict against the magazine for placing his face on a woman's body; a 2001 federal appellate court ruling allayed some of their concerns.

     The photo was apparently inspired by Hoffman's 1982 movie, Tootsie, in which he portrayed a male actor who dressed as a woman to get a part in a television series. The magazine depicted a number of other celebrities, including several who are deceased, in modern high-fashion attire by using digital photo-altering techniques. 

     Ruling in Hoffman v. Capital Cities/ABC, the ninth circuit U.S. Court of Appeals held that the use of the photo was essentially a journalistic use and not commercial speech, thus denying Hoffman's claim that his right of publicity was violated by commercial misappropriation of his image. Moreover, the court said Hoffman failed to prove the magazine acted with actual malice in altering the photograph. 

     The three-judge panel's unanimous ruling was widely praised by media attorneys, who pointed out that the right to do satirical journalism could have been severely limited if Hoffman had won the case. 

* * *

     The California First Amendment Coalition has fought a lengthy legal battle for journalistic access to executions in California.  Here is a brief summary of where that case stands after repeated decisions and appeals.

     Even after use of the gas chamber was ruled unconstitutional and California switched to lethal injections as a method of execution, television coverage of executions was prohibited. Although 12 witnesses must be allowed to watch each execution under an 1858 California law, that does not mean television coverage is also permitted. In a 1996 ruling, U.S. District Judge Vaughn Walker declared that while there is no right to have television coverage, there is a "limited First Amendment right of public access" to executions (California First Amendment Coalition v. Calderon). 

     In a later ruling in the same case, Judge Walker declared that reporters have a First Amendment right to observe the execution process from the time intravenous needles are inserted into the condemned person. Prison officials had refused to allow reporters (or other witnesses) to watch until after that step was completed and the inmate was motionless on a gurney, moments before his death. 

     In 1998, however, the ninth circuit U.S. Court of Appeals overturned that ruling and held that the media have NO First Amendment right to watch the whole process. The appellate court sent the case back for Judge Walker to determine if prison officials, who cited security concerns in preventing observers from watching the early steps in executions, had a reasonable basis for those concerns. If so, then observers could be barred from all but the final moments of executions, the appellate court held. 

     Judge Walker conducted a full trial on the media's right to witness executions in 2000, and ruled that the state's concerns were unfounded and said the media should be allowed to witness the entire process. Then in 2001 Walker ruled that the media had to be allowed to witness an execution in full. Prison officials immediately appealed to the ninth circuit once again, and the appellate court heard new oral arguments in the case in December, 2001. A follow-up decision is expected from the ninth circuit in 2002. 

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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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