Morro Bay law update, 2005


This was prepared for the 2005 Journalism Association of Community Colleges Faculty Retreat by Wayne Overbeck, a retired professor of communications at California State University, Fullerton and a former communications attorney. His media law textbook, Major Principles of Media Law (Wadsworth), is now in its 16th edition. The 17th edition is scheduled to be published in August, 2005. This is the 25th year he has presented a law update at the Morro Bay conference.  He first attended a JACC conference 44 years ago.

This report summarizes some of the notable new developments in communications law of 2004-05. Other legal questions of interest to those attending the Morro Bay conference will also be discussed during the Sunday morning law session. 

Highlights this year include a U.S. Supreme Court decision on freedom of information, a California Supreme Court decision protecting the media's right to report historical facts and several other important court decisions. Also notable was the overwhelming approval by California voters of Proposition 59, an amendment of the state Constitution to protect public access to government information. 


In a case with implications for the student press, the third circuit U.S. Court of Appeals has overturned the Solomon Amendment, a federal law requiring colleges and universities to allow military recruiting if they wish to receive federal funds. In Forum for Academic and Institutional Rights v. Rumsfeld (390 F.3d 219), the court upheld the right of law schools to bar military recruiters, as many do because of the military's policy on gays and lesbians. Most colleges and universities deny career placement services to employers who discriminate on the basis of such factors as race, gender, religion or sexual orientation. 

"The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom," Judge Thomas L. Ambro wrote for the court's 2-1 majority, ruling that Solomon Amendment violates the First Amendment. 

Dissenting, Judge Ruggero Aldisert said the need for military recruiting during wartime "outweighs the indirect and attenuated interest in the law schools' speech, expressive association and academic freedom rights." 

The third circuit decision would allow colleges at least in Delaware, New Jersey and Pennsylvania (the states in the third circuit) to bar military recruiters without jeopardizing their federal funding--unless the case is reconsidered by the appellate court or reviewed by the Supreme Court. Some law school officials were quoted in the media as saying they expected Congress to intervene. 

The court did not address the related issue of military advertising in college newspapers. In some instances, college newspapers that rejected military recruiting ads have been warned by administrators or military recruiters that barring military ads could jeopardize their colleges' federal funding under the Solomon Amendment. That threat raises another First Amendment question. 


Suzuki Motor Corp. v. Consumers Union (330 F.3d 1110), a libel case that produced a noteworthy federal appeals court decision, was settled in mid-2004 without any payment of money. The case had troubled many media lawyers because the appellate court said the car-maker could take the case to trial. Suzuki agreed to drop the lawsuit in return for a "clarification" by Consumers' Union. 

In a joint statement, the two sides agreed that a product review in Consumer Reports saying the Suzuki Samurai tended to roll over "easily" could have been "misconstrued and misunderstood." Consumers Union also declared that it had never questioned the safety of any other Suzuki model it tested. Suzuki stopped selling the Samurai in 1995 and was planning a major effort to increase U.S. sales in 2004 and 2005. 

The settlement ends a dispute that spanned 15 years from the time of the initial tests by Consumers Union. After the adverse decision by the ninth circuit U.S. Court of Appeals, Consumers Union appealed to the U.S. Supreme Court. When the high court declined to hear the case, Consumers Union had two choices: go to trial or settle the case. Both sides apparently decided to avoid a trial that would have been highly publicized and expensive. 


The California Supreme Court has virtually abandoned the line of precedents allowing rehabilitated ex-convicts and others with an unsavory past to sue the media if their past is revealed. In Gates v. Discovery Communications (34 C.4th 679), the court overturned its own 33-year-old decision in Briscoe v. Reader's Digest (4 C.3d 529). In Briscoe, the court allowed a man whose criminal past had been revealed to take his lawsuit to trial. Ruling in 2004, the court held that the news media and entertainment industry may now disseminate truthful information lawfully obtained from public records even if the information is decades old. 

The state Supreme Court upheld a lower court that said more recent U.S. Supreme Court decisions have extended First Amendment protection to the truthful publication of public records, even old ones. 

In this case, Steven Gates sued the Discovery Channel for airing a documentary about a San Diego murder in which Gates was convicted as an accessory after the fact. The murder occurred 12 years before the television program was broadcast. By then Gates had served his time, moved to a new community, become a successful salesman and opened a business with his wife. Gates said that the program caused him to lose friends, quit his business and move, and contributed to his divorce. 

The state Supreme Court rejected Gates' claims. "(C)ourts are not freed by the mere passage of time to impose sanctions on the publication of truthful information that is obtained from public official court records," Justice Kathryn Mickle Werdegar wrote for a unanimous court. She said that the media may do reenactments of historical events under this principle, ruling that "any state interest in protecting, for rehabilitative purposes, the long-term anonymity of former convicts" does not justify abridging the First Amendment. 

The court said lawsuits based on the truthful publication of public records should be allowed unless there is a "need to further a state interest of the highest order." Gates' desire to keep his past confidential does not meet that test, the court held, ruling that the case should have been dismissed under California's anti-SLAPP law. 


The problems journalists face when they refuse to identify their sources were again on the public agenda in 2005, with longtime TV reporter Jim Taricani under home confinement and two other prominent journalists facing jail time after an adverse decision of the U.S. Court of Appeals in Washington, D.C.

Taricani, a 30-year veteran reporter for WJAR-TV in Providence, RI, was sentenced in late 2004 to six months of home confinement for refusing to reveal who gave him an FBI tape showing a Providence city official accepting a bribe. In imposing the stay-at-home sentence, Chief U.S. District Judge Ernest C. Torres said he would have jailed Taricani but for the reporter's severely compromised immune system due to a heart transplant in 1996. Taricani was convicted of criminal contempt. Earlier, the judge imposed a civil penalty of $1,000 a day until Taricani revealed his source. That penalty grew to $85,000, which was paid by WJAR-TV, before the judge halted the daily fines. Under terms of the home confinement, Taricani was barred from accessing the Internet or leaving home except for medical treatment. He was barred from media appearances and ordered not to receive visitors except at two times: 2-4 p.m. and 6-8 p.m. Ironically, Taricani's source voluntarily identified himself, putting Taricani in the awkward position of protecting a source who no longer wanted protection--and putting a federal prosecutor in the questionable position of pursuing sanctions against a reporter after the identity of the source was known. 

In a separate case, reporters Judith Miller of the New York Times and Matthew Cooper of Time magazine could spend as much as 18 months in jail for refusing to reveal their sources in a federal investigation of a leak to the media of the name of a confidential CIA officer. Disclosing the identity of an undercover CIA officer or informant is a federal crime under some circumstances. 

In 2005 the federal appeals court in Washington rejected Miller's and Cooper's claims of reporter's privilege under the First Amendment. In this case as in Taricani's case, the court relied on Branzburg v. Hayes (408 U.S. 665), a 1972 Supreme Court decision, in ruling that federal investigations such as these are beyond the scope of any journalistic privilege. 

This decision came at a time when a number of other journalists were also facing possible jail sentences for refusing to identify their sources in newsworthy cases, including the case involving nuclear weapons scientist Wen Ho Lee, whose federal prosecution was dropped after it received extensive media publicity in 1999. Lee is suing the federal government, alleging that federal officials leaked confidential information about him to the press. 

Alarmed at these cases, major news organizations are seeking a federal shield law for journalists. Such legislation was under consideration in both houses of Congress in early 2005. 


By a resounding 83 percent majority, California voters approved Proposition 59 on the November, 2004 ballot. The measure added a new Article I, Section 3(b) to the state constitution. It declares, "The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny." 

The new provision also decrees that the state open meeting and public records laws "shall be broadly construed" when they further "the people's right of access" and "narrowly construed" when they limit public access. 

The main impact of this may be to give the press and public more leverage in dealing with government officials and in lawsuits challenging restrictions on public access to government information. Soon after the passage of Proposition 59, the California First Amendment Coalition requested that Gov. Arnold Schwarzenegger make his appointment calendar public--and the governor complied in a matter of days. In 1991, the California Supreme Court had carved out a large loophole in the Public Records Act by saying that a state agency's "deliberative process" could be kept secret, and that the governor could keep his calendar secret under this rationale (Times Mirror v. Superior Court, 53 C.3d 1325). 

After the governor released his calendar to the media, 10 other state elected officials followed his lead and made their calendars public.

The full impact of Proposition 59 remains to be seen, but it will clearly make it harder for governments to justify secrecy. Peter Sheer, CFAC's executive director, predicted that many other government records that were kept secret under the "deliberative process" theory would now have to be released. He cited as examples city-paid cellphone bills of local officials and applications to the governor for appointments to public office. 

Soon after the passage of Proposition 59, an Alameda County Superior Court judge ordered the city of Oakland to release the names and incomes of city employees earning more than $100,000 a year.  The Contra Costa Times had sued under the Public Records Act to obtain this information--and faced strenuous opposition from city employee unions.  When the salaries were released, it became clear why the unions wanted to keep them secret.  A total of 811 of  Oakland's 4,500 city employees earned more than $100,000 a year in 2003-04.  One fire battalion chief earned $230,400 and a police sergeant earned $181,728--in a city facing a $45 million budget shortfall and preparing to cut basic city services.  The huge salaries were largely the result of generous overtime pay in the police and fire departments.  The battalion chief's base pay was a mere $128,300.  Altogether, 57 percent of fire department employees earned more than $100,000, including overtime and possibly other bonuses.


A 2004 U.S. Supreme Court decision extended the privacy exception to the federal Freedom of Information Act, holding for the first time that a deceased person's relatives may invoke it. In National Archives and Records Administration v. Favish (124 S.Ct. 2198), the court upheld a decision by the federal government to deny public access to photographs of the body of Vincent Foster, Jr., a Clinton administration official who committed suicide in 1993. His body was found in an area managed by the National Park Service. Attorney Allan Favish, who disputed the verdict of several investigative bodies that Foster's death was a suicide, sued under the FoI Act for access to photos taken by the U.S. Park Police. The Supreme Court said the privacy rights of Foster's family outweighed the public interest in disclosure of the photos. 


The Federal Communications Commission voted in September, 2004 to impose a $550,000 penalty on CBS for the breast-baring incident involving singer Janet Jackson during the 2004 Super Bowl halftime show. The fine was aimed at 20 CBS-owned stations, each of which faced the maximum penalty of $27,500. At the time it was the largest fine ever imposed on television stations. Independently owned CBS affiliates were not fined for carrying the network feed. 

Executives of Viacom, the parent company of CBS, vowed to challenge the fine in federal court. Although CBS apologized to viewers, Viacom officials said the incident did not meet the legal standard for a finding of broadcast indecency, which must include a determination that the broadcast was patently offensive. 

However, in November, 2004 Viacom agreed to pay $3.5 million to settle a series of other indecency charges unrelated to the Janet Jackson case. Although many involved Viacom's Infinity Broadcasting radio stations, the settlement also resolved indecency complaints that had been filed against such TV programs as "CSI" and "Big Brother." In the settlement, Viacom also agreed to put a time delay on all live programming, discipline employees who violate FCC rules and hold classes on indecency compliance. 

In a related development, radio personality Howard Stern announced in October, 2004, that he would be abandoning traditional radio for Sirius, a fee-based satellite radio provider. Stern said he would make the switch when his contract with Infinity Broadcasting expires at the end of 2005. Satellite radio is exempt from the FCC's indecency rule and other content-based regulations that have troubled Stern for years and led to massive fines of stations carrying his controversial but highly rated show. In announcing the change, Stern said government regulation has doomed over-the-air radio. "I think FM radio is dead," he said. Perhaps not coincidentally, Viacom in February, 2005 announced the fifth-largest quarterly loss ever posted by an American corporation, with $10.9 billion of the $18.4 billion loss stemming from a write-down of the value of its Infinity radio stations. 

Earlier, Clear Channel Communications, the nation's largest radio group, agreed to pay the FCC $1.75 million to settle a series of indecency charges. Also, in October, 2004, the FCC announced fines totaling $1.18 million against Fox television stations for a sexually explicit episode of "Married by America." Unlike the fines Viacom faced for the Janet Jackson incident, this sanction applied to all stations that aired the Fox feed, not just network-owned stations. Many Fox stations were challenging the fines, contending that they had no way to know in advance what the content of this unscripted reality show would be and that they merely carried the network feed. 

Congress rejoined the indecency controversy in 2005. In February, the House voted to authorize the FCC to increase indecency fines to $500,000 per station for each incident. Similar but less sweeping legislation was also pending in the Senate. A previous Congressional effort to crack down on indecency died when Congress adjourned without acting on it in 2004. 

The FCC has also penalized broadcasters for other forms of alleged misconduct. In October, 2004 the FCC fined two networks for carrying too many commercials during children's television programs. The FCC fined Nickelodeon $1 million and ABC Family $500,000 for these violations of the rules. The fines were based on field audits of the networks' programs. 


As a result of a federal court decision, in 2005 the FCC was reconsidering almost all of its 2003 ownership rule changes (except the 39 percent limit on the number of television households one company may serve with its own stations, a limit imposed by Congress after the FCC raised the cap to 45 percent). 

The third circuit U.S. Court of Appeals forced the FCC to revisit the rules with its Prometheus Radio Project v. FCC decision (2004 U.S. App. Lexis 12720). The Philadelphia-based federal court's 2-1 majority did not actually overturn many of the rules, but it did tell the FCC either to rescind the liberalized rules or better justify them. As a result, the 2003 version of the television duopoly rule (which allowed one company to own up to three television stations in the largest markets) and the liberalized newspaper-broadcast cross-ownership rule, among others, are being reconsidered by the FCC. No one--not the federal court, not the FCC, not Congress, and certainly not the media companies whose plans have been put on hold--can really predict what the broadcast ownership rules will ultimately look like. The court made it clear that, whatever the FCC does next, its decision will again be reviewed by the same three-judge panel, unless the Supreme Court intervenes or the third circuit itself votes to reconsider the case en banc

The Prometheus ruling came in a complex 218-page document. The ruling drew a strenuous dissent from Chief Judge Anthony Scirica, who accused his two colleagues of substituting their views for those of the FCC on public policy issues that are within the FCC's jurisdiction. 

Tribune Corp., owner of both newspapers and television stations in New York, Los Angeles and several other major markets, petitioned the court to reconsider its Prometheus decision, but that motion was denied. Tribune asked the court to allow cross-ownerships in markets having nine or more TV stations because the FCC had concluded that no ownership restrictions were needed in such large markets. The company was considering an appeal to the Supreme Court, even as the FCC itself said it would rewrite the rules once again instead of appealing to the Supreme Court. 

Tribune owns both Newsday and WPIX in New York, the Los Angeles Times and KTLA in Los Angeles, the South Florida Sun-Sentinel and WBZL in the Miami area, and the Hartford Courant and WTXX in Hartford. The company will need waivers to avoid having to sell one of its New York, Los Angeles and Hartford media outlets. It already has a waiver in Miami. 

The company also owns the Chicago Tribune and WGN, its flagship properties in Chicago. But they are exempt because the company already owned both before the FCC adopted the cross-ownership rules in 1975. 

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