This was prepared for the 2006 Journalism Association of Community Colleges Faculty Retreat by Wayne Overbeck, professor of communications, emeritus at California State University, Fullerton and a former communications attorney. His media law textbook, Major Principles of Media Law (Wadsworth), is now in its 17th edition. The 18th edition is scheduled to be published in August, 2006. This is the 26th year he has presented a law update at the Morro Bay conference.
 

Probably no court ruling since the Supreme Court's 1988 Hazelwood v. Kuhlmeier decision (484 U.S. 260) has caused as much concern and consternation among journalism educators as Hosty v. Carter (412 F.3d 731, cert. den. 2006 U.S. Lexis 1141). This 2005 decision, which appears to be final now that the U.S. Supreme Court has declined to review it, held that the Hazelwood principle applied to a public university student newspaper in Illinois, upholding an administrator's right to censor the newspaper. 

This report summarizes Hosty and some of the other notable new developments in communications law. 
 

THE HOSTY  HULLABALOO

In mid-2005 the seventh circuit U.S. Court of Appeals ruled en banc (i.e., with all seventh circuit judges participating) that administrators could censor a university-subsidized student newspaper in Hosty v. Carter. The court, voting 7-4 to overturn an earlier decision by a three-judge panel of the seventh circuit, limited the First Amendment rights of student journalists at least in the seventh circuit (Illinois, Indiana and Wisconsin). 

In Hosty, Patricia Carter, the dean of student affairs at Governors State University near Chicago, had ordered the printer of the student newspaper, The Innovator, not to publish future issues until she had a chance to review and approve the copy. That move was a response to previous stories in the paper about campus administrators that she considered false and libelous. Margaret Hosty and other newspaper staffers sued, alleging that this prior administrative review violated the First Amendment. Initially, the three-judge panel agreed, holding that the Hazelwood principle does not apply at the college level. The panel also ruled that the law on this point is so clear that Carter could be held personally liable and forced to pay damages for violating the students' First Amendment rights. 

Then the three-judge panel's decision was withdrawn and the en banc panel ruled that Carter has qualified immunity from being personally liable because the law does not clearly support the students' position. In fact, the majority said that student freedom must be analyzed under Hazelwood. The court said: "we hold, therefore, that (the) Hazelwood framework applies to subsidized student newspapers at colleges as well as elementary and secondary schools." Under that standard, administrative censorship is not barred by the First Amendment. 

The majority opinion, written by Judge Frank H. Easterbrook, also said, "there is no sharp difference between high school and college newspapers," alluding to the fact that both high school and college newspapers are often financially subsidized and/or produced by journalism classes. The Innovator was subsidized but was not produced by a class. The majority relied heavily on a series of U.S. Supreme Court decisions holding that the content of government-subsidized communications may be regulated by the sponsoring agency. 

However, the court also said that a student newspaper could be a "designated public forum." If it is, it would be protected by the First Amendment, financial subsidies notwithstanding. 

The four dissenting judges in Hosty argued that Hazelwood should not apply to college newspapers. They argued that several pre-Hazelwood federal court decisions upholding student journalists' First Amendment rights are still valid and disagreed with the majority's interpretation of post-Hazelwood decisions that limited First Amendment protection at public colleges. 

The Student Press Law Center, which filed an amicus curiae brief supporting the students in Hosty, issued a statement downplaying the significance of the case for student newspapers. The SPLC said many newspapers would qualify as public forums, although Hosty could curtail other forms of student expression. The SPLC also said the decision applies only in the three states of the seventh circuit and nowhere else. 

Others disagreed. While a decision of a federal appellate court is a controlling precedent only in that particular federal circuit, such decisions are often cited as precedents--and carry considerable legal weight--in other circuits. Both the majority and dissenting opinions in Hosty cited rulings from other circuits to support their positions. Federal courts sometimes decline to follow in-circuit precedents, instead ruling that a new case is distinguishable--sufficiently different to justify a different result. On the other hand, federal courts often follow out-of-circuit precedents that they find to be persuasive or well-reasoned. 

Soon after the Hosty decision, Christine Helwick, chief lawyer for the 400,000-student California State University system, issued a memorandum that said, "While the Hosty decision is from another jurisdiction and, as such, does not directly impact the CSU, the case appears to signal that CSU campuses may have more latitude than previously believed to censor the content of subsidized student newspapers, provided that there is an established practice of regularized content review and approval for pedagogical purposes. It should be noted, however, that exercising control over the content of student newspapers may very well also expose the University to liability for that content against claims of defamation." 

That memo triggered still more controversy. Some said the CSU general counsel, who is widely respected in the legal community, had made a glaring factual error. Others said she was correct in her assessment of legal realities, including the risk of institutional liability if administrators assume control over content. 

While these issues were being discussed in California and around the country, the students who lost the Hosty case appealed to the Supreme Court, backed by the SPLC and other advocates of student press freedom. At first, it appeared that the Supreme Court might hear an appeal. When the Illinois attorney general's office (representing the state and the university) did not file a response to the students' petition, the court asked the state to file a reply brief. But after seeing the state's brief as well as the ones filed by the students and their supporters, the court dismissed the students' appeal in early 2006. 

The Hosty decision led many to re-read Kincaid v. Gibson (236 F.3d 342), an earlier decision of the sixth circuit that upheld students' free press rights in a yearbook case. This 2001 ruling, also decided en banc, held that Kentucky State University officials violated the First Amendment by impounding all copies of the KSU yearbook in 1994. 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. The sixth circuit ultimately held that the KSU Thorobred yearbook was a limited public forum and could not be arbitrarily censored by administrators. Significantly, the court ruled that Hazelwood does not apply fully to student publications at the college level. The eight-judge majority said even campus media that are not public forums cannot be censored unless the censorship is viewpoint neutral. 

As a legal precedent, Kincaid is theoretically binding only in the four states in the sixth federal circuit: Michigan, Ohio, Kentucky and Tennessee. However, like Hosty it carries considerable legal weight elsewhere. 

Several other federal appellate courts have also ruled on the applicability of Hazelwood at the college level. One said that if student activities (including campus newspapers) are part of the curriculum, they may not enjoy full First Amendment protection (Alabama Student Party v. Student Government Assn., 867 F.2d 1344, 1989). Two other federal circuits have also held that the Hazelwood standard limits First Amendment rights in college classrooms (Axson-Flynn v. Johnson, 356 F.3d 1277, 2004; and Bishop v. Aronov, 926 F.2d 1066, 1991). In contrast, another circuit rejected the Hazelwood principle in holding that closing a campus legal services office and creating a new one with different responsibilities did not violate students' First Amendment rights (Student Government Association v. 
Board of Trustees of the University of Massachusetts, 868 F.2d 473, 1989). 

Also, a scholarly publication for college and university administrators who supervise student activities said in a 1996 article that Hazelwood applies at the college level (see "Hazelwood v. Kuhlmeier: Supreme Court Decision Does Affect College and University First Amendment Rights," in NASPA Journal, Vol. 33, No. 4, p. 307). 

All of this has led many college administrators to believe they have a right to control the campus media. Although the Supreme Court's refusal to review Hosty sets no additional legal precedent, it certainly adds to the public awareness (and hence the impact) of the existing precedent. 
 

A VICTORY FOR THE STUDENT PRESS: THE PITT NEWS CASE

In a decision written by Judge Samuel Alito, who is now a Supreme Court justice, the third circuit U.S. Court of Appeals overturned a Pennsylvania law banning alcoholic beverage advertising in campus media as a violation of the First Amendment. In 2004, in the latest phase of a long-running lawsuit, the court ruled in favor of The Pitt News, the student newspaper at the University of Pittsburgh (Pitt News v. Pappert, 379 F.3d 96). 

The appellate court noted that The Pitt News, a financially independent, advertiser-supported newspaper, derived a significant part of its revenue from alcoholic beverage advertising before the state barred alcoholic beverage advertisers from placing ads in campus media in 1996. After that, several off-campus publications that are distributed on campus alongside The Pitt News continued to carry alcohol ads, but not The Pitt News. Because of the obvious financial implications of this state law, The Pitt News challenged its constitutionality. 

At first, the courts sided with the state. In a 2000 ruling, the third circuit declined to overturn the law because the ban applied only to advertisers, leaving the newspaper free to say whatever it wanted about alcoholic beverages or the establishments that serve them, as long the paper didn't get paid (Pitt News v. Fisher, 215 F.3d 354). In that case, the court relied on the Central Hudson test to uphold the state law as a restriction on commercial speech. 

However, The Pitt News pursued the case further and eventually prevailed when the third circuit heard a later appeal and accepted the argument that because the policy financially burdened the campus newspaper while benefiting its off-campus competitors, it singled out one medium of communication as opposed to others for disfavored treatment. Citing classic Supreme Court decisions on newspaper taxation such as Grosjean v. American Press (297 U.S. 233) and Minneapolis Star & Tribune v. Commissioner of Revenue (460 U.S. 575), Judge Alito wrote: "If the government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment." 
 

INTERNET FILE SHARING: THE GROKSTER CASE

In 2005, the recording and motion picture industries won a major victory when the U.S. Supreme Court ruled in MGM v. Grokster (125 S.Ct. 2764) that copyright owners can sue technology companies who encourage consumers to share copyrighted files. The unanimous decision held that modern file sharing is different from what was happening in 1984 when the Sony v. Universal City Studios decision (464 U.S. 417) allowed home video taping of TV shows. Not only is copying of digital files easier and more widespread than home video taping was then, but companies like Grokster and StreamCast Networks (another defendant in this case) actively facilitate the process. These companies make no effort to prevent illegal file sharing, the Supreme Court said. 

"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties," Justice David H. Souter wrote for the court. 

However, the Grokster decision also set up a balancing test to provide some protection to scientific innovators. The court said it was unrealistic to force a company developing a new product to predict how consumers might use its product months or years later. If a company merely learns that consumers are using its product for an illegal purpose, that is not sufficient to make the company liable for the acts of others. This balancing is needed so as not to "compromise legitimate commerce or discourage innovation having a lawful purpose," the court said. 

The Grokster decision clears the way for the recording and motion picture industries to go after companies that encourage file sharing as well as cracking down on individual users of file-sharing networks like Grokster, as the industries did starting in 2003. Industry lawyers filed lawsuits against thousands of individuals who allegedly shared music or movies over the internet. Two federal appeals courts ruled that internet providers need not reveal their subscribers' names to recording industry attorneys without a judge's subpoena in each case (RIAA v. Verizon, 351 F.3d 1229, 2003; and RIAA v. Charter Communications, 393 F.3d 771, 2005), but the industry then began seeking individual subpoenas to identify targeted file sharers. Now under the Grokster decision the industry can go after software and hardware creators who facilitate copying within the jurisdiction of U.S. courts. That does little, of course, to deter copying via websites in other countries. 
 

ELIMINATING SIDEWALKS AS A PUBLIC FORUM IN SALT LAKE CITY

The 10th circuit U.S. Court of Appeals in 2005 upheld the right of Salt Lake City, Utah, to hand over complete control of once-public sidewalks adjacent to Temple Square to the Mormon Church. Ruling in Utah Gospel Mission v. Salt Lake City Corp. (425 F.3d 1249), the court rejected a challenge by the ACLU and others to the city-church deal.

An earlier 10th circuit decision held that the church had to allow expressive activities on the sidewalks because the sidewalks were still a public forum after the city transferred ownership to the church. The court based that decision on the city's retention of a pedestrian easement to assure continued public access to the sidewalks. The city then abandoned the easement in return for 2.17 acres of church-owned property elsewhere plus a commitment by the church to build a $5 million recreation center on that property. 

In the new decision, the federal court said the city-church trade did not violate the First Amendment. The court also said that because the church had created new landscaping and redesigned the entire block as an "ecclesiastical park," this newly privatized area did not retain its character as a public forum. The court said this was different from the privatization of once-public sidewalks along the Las Vegas Strip. The ninth circuit U.S. Court of Appeals had ruled that the Las Vegas Strip sidewalks retained their public forum status, which meant casino owners had to allow picketing and other expressive activities on their now-private sidewalks adjacent to the Strip. In contrast, the Mormon Church is now free to ban expressive activities on formerly public sidewalks near its headquarters. 
 

CALIFORNIA EXPANDS ANTI-PAPARAZZI LAW

In 2005 the California legislature approved a bill to strengthen the state's law restricting paparazzi, and it was signed into law by Gov. Arnold Schwarzenegger, himself a victim of a paparazzi assault. AB381, the new law, expands the circumstances in which celebrities and others who are assaulted by a newsgatherer seeking photographs or recordings may sue for triple damages plus any profits earned by the newsgatherer. 

The law was enacted after two incidents in which paparazzi allegedly assaulted celebrities in 2005. In one case, actress Lindsay Lohan said a photographer rammed her car with his minivan. In the other, actress Reese Witherspoon told police a photographer blocked her car. Back in 1998, the future governor and his wife, Maria Shriver, were blocked by paparazzi outside their son's preschool. Two paparazzi were convicted of false imprisonment in that incident. 

Although the mainstream media were careful not to defend these paparazzi tactics, AB381 was widely criticized by media attorneys. Tom Newton, counsel to the California Newspaper Publishers Association, said, "It (AB381) subjects people engaged in First Amendment activity to punishment to which the rest of the public is not subjected." 
 

JUDITH MILLER RELEASED, THEN GIVEN EARLY RETIREMENT

New York Times reporter Judith Miller, who spent 85 days in jail for refusing to name her source in the incident involving CIA operative Valerie Plame, was released when she agreed to testify before the grand jury investigating the leak of Plame's identity. Miller said her source specifically released her from her promise not to name him, both in a letter and a telephone call to her in jail. She then testified before the grand jury and reportedly identified the source as I. Lewis "Scooter" Libby, the top aide to Vice President Dick Cheney. 

Libby was eventually indicted on several criminal charges by the grand jury and resigned from his White House post. Amid a growing controversy about her reporting methods, both among New York Times staffers and among media watchers elsewhere, Miller "agreed" to retire from the Times. Among other things, the Times' senior editors questioned whether she misled them or at least failed to fully inform the Times' Washington Bureau chief about her dealings with Bush administration officials. 

In one of the most blunt indictments of Miller's work, Los Angeles Times media critic Tim Rutten wrote: "Within days of Miller's release from jail, the details of her decidedly irregular dealings with Libby became public, and her image underwent a public meltdown unmatched since Dorothy sloshed the Wicked Witch of the West with that bucket of water." 

Meanwhile, the U.S. Court of Appeals in Washington, D.C. declined to reconsider a three-judge panel's decision against four reporters who may now face jail time for refusing to identify their sources in a separate case involving nuclear weapons scientist Wen Ho Lee. The court deadlocked 4-4 on whether to hear a further appeal. Under the court's rules, a tie vote results in the appeal being rejected. Barring intervention by the Supreme Court, the four reporters may be jailed in 2006. 

All of these developments seemed to undercut the quest by journalists for a federal shield law, which is now being considered by Congress. To make matters worse, in December, 2005, the Justice Department launched a new investigation that may force reporters to reveal confidential sources--this time seeking identities of the New York Times' sources for its sensational revelations about domestic spying without court authorization by the National Security Agency. 

However, in 2005 another story about reporters and news sources came to a very different sort of conclusion when former FBI official W. Mark Felt at age 91 voluntarily identified himself as "Deep Throat" in the Watergate scandal--or Felt may have been outed by his family (no one seemed to know for sure). 

Hundreds of books, articles, television programs and movies had speculated about Deep Throat's identity, and most of them guessed wrong, illustrating how thoroughly reporter Bob Woodward kept his promise of confidentiality to Felt for 33 years. Woodward confirmed a Vanity Fair article by Felt's lawyer identifying him as the legendary Deep Throat (a term coined by a managing editor of the Washington Post in reference to a pornographic movie of the era because Felt spoke to Woodward clandestinely and only on "deep background"). However, in 2005 Woodward pointed out that he and Carl Bernstein also relied on numerous other confidential sources to develop leads in their Pulitzer-prize-winning Watergate investigation, usually not reporting anything until it was confirmed by two sources. 
 

A YEAR-LONG DROUGHT FOR INDECENCY CRUSADERS

To the consternation of some media-monitoring groups, the FCC imposed no fines on broadcasters for allegedly indecent programming during 2005 after fining them nearly $8 million during 2004. To some FCC-watchers, this was attributable to a 2-2 deadlock on the commission itself. After former chairman Michael Powell resigned, the four remaining commissioners appeared to be evenly divided on indecency enforcement. By early 2006, President Bush had nominated two new commissioners to replace Powell and Kathleen Q. Abernathy, whose term expired, leading to uncertainty about the FCC's future policies. 

Nonetheless, celebrated "shock jock" Howard Stern kept his promise to leave over-the-air broadcasting for satellite radio at the end of 2005. His new show on Sirius, a subscription radio service, was launched in January, 2006. But Stern's critics were still campaigning against him, urging Congress or the FCC to impose the same restrictions on allegedly indecent satellite and cable programming that apply to programming on traditional radio and television stations. 
 

BROADCASTERS AGREE TO GO ALL DIGITAL

As of 2009, television broadcasting will be all digital in the United States. The industry agreed in 2005 not to oppose legislation aimed at recapturing the old analog TV channels for other uses. That means only those who have set-top converter boxes or a digital TV receiver will be able to receive television programming in 2009. Analog ("NTSC") TV sets will no longer work without a converter box.  Even with a converter box, the picture quality will be lower than with a new digital TV set. 

The new digital ("ATSC") TV sets are expected to drop sharply in price as the deadline approaches. The new sets will receive the digital broadcasts of free, over-the-air TV stations as well as fee-based satellite and cable programming. Satellite and cable companies are providing converter boxes to subscribers who have older analog TVs, and retailers will sell converter boxes so those who are not cable or satellite subscribers can receive digital signals over the air.  The FCC has adopted a rule requiring all TV sets sold after March 1, 2007 to be capable of receiving digital TV broadcasts. However, at the end of 2005 millions of consumers were still buying analog-only and "digital ready" TV sets that will not work in 2009 except with an external converter box, either a box provided by a satellite or cable system or one that the consumer buys to receive over-the-air digital television. 
 

DETROIT JOINT OPERATING AGREEMENT ENDS

Ending one of the most contentious newspaper collaborations in the country, the Gannett Co., Knight Ridder and MediaNews Group in 2005 agreed to reshuffle the ownership of Detroit's two daily newspapers, abolishing the city's longtime joint operating agreement. 

Gannett, still the largest U.S. newspaper chain, agreed to take control of the Detroit Free Press from Knight Ridder, while selling the Detroit News to MediaNews Group. Knight Ridder and Gannett swapped ownership of several smaller daily newspapers in other cities as a part of the same deal. Gannett and MediaNews Group then announced that they would form a new partnership, if not an actual joint operating agreement, to handle the business operations of the two Detroit newspapers. 
 
 

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