|Morro Bay law update, 2007
NEW DEVELOPMENTS IN MEDIA LAW, 2006-07
This was prepared for the 2007
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 18th edition. The
19th edition is scheduled to be published in August, 2007. This is the
27th year he has presented a law update at the Morro Bay conference.
California Legislature Bans Administrative Censorship
In the aftermath of the Hosty v. Carter
decision, in which a federal appeals court allowed administrative censorship
of a college newspaper in Illinois, the state legislature in California
enacted the nation's first statutory law specifically forbidding administrative
censorship of student newspapers at public colleges and universities.
The measure, AB2581, was signed into law by
Gov. Arnold Schwarzenegger in mid-2006. It went into effect Jan.
1, 2007. It sailed through the legislature with almost no formal
opposition. It applies to the University of California, the California
State University system and the state's Community Colleges but not to private
universities and colleges. The new law added a sentence to Section
66301 of the Education Code, which is popularly known as the Leonard Law
because it was greatly expanded in 1992 in legislation sponsored by Sen.
William Leonard of Upland. His legislation gave students essentially
the same First Amendment rights on campus that they have off campus.
However, the Leonard Law didn't specifically protect officially sponsored
student newspapers from administrative censorship until now. AB2581
added this language to Section 66301: "Nothing in this section shall
be construed to authorize any prior restraint of student speech or the
Even before the new law went into effect,
there were questions about its scope and impact. Administrators at
several community colleges have demanded that faculty advisers engage in
prior review of the student media this year. Although advisers can
now argue that this is illegal, administrators have a lot of discretionary
power, especially in dealing with a non-tenured or part-time adviser.
Even tenured faculty members can be reassigned. Without filing a
lawsuit or fighting a battle in the court of public opinion, there is little
a faculty adviser may be able to do when ordered to read and approve all
copy. Nevertheless, this new law gives students and their faculty
advisers far more clout than they had in the now-bygone era when they had
to argue about First Amendment freedoms as an abstract principle.
The fact that AB2581 did nothing for freedom
of the press at private institutions was underscored by several well publicized
incidents of administrative interference this year. At the University
of Southern California, for example, the administration acted to prevent
the incumbent editor in chief of the Daily Trojan from serving for
a second semester. To protest, student newspapers at 18 universities
including Harvard and Stanford published a jointly written editorial that
said, "a meddling administration undermines the educational value of student
At about the same time, adminstrators at the Art Institute in San Francisco
declined to re-employ a part-time adviser who objected to an administrative
decision to withdraw a student-produced magazine from circulation.
"Bong Hits 4 Jesus" Case Goes to U.S. Supreme Court
The U.S. Supreme Court may revisit Tinker
v. Community School District,
Hazelwood v. Kuhlmeier and other
cases involving the First Amendment rights of public school students.
The court has agreed to hear the controversial "Bong Hits 4 Jesus" case
(Frederick v. Morse, 439 F.3d 1114, 2006).
In this case, Joseph Frederick, a student
at Juneau-Douglas (Alaska) High School, was suspended for 10 days for displaying
his "Bong Hits 4 Jesus" banner across the street from the school as the
Olympic Torch Relay was passing by--in what he acknowledged was an attempt
to get on national television. The torch relay was an event leading
up to the Winter Olympics in Salt Lake City in 2002. Principal Deborah
Morse crossed the street, confronted Frederick, crumpled the banner and
suspended him. He sued, alleging a violation of his First Amendment
rights. School officials did not claim that displaying the banner
disrupted the torch relay or school activities, but they said it interfered
with the school's goal of promoting a drug-free environment.
The ninth circuit eventually ruled that Frederick's
rights had been violated, allowing him to pursue his lawsuit against Morse
for monetary damages under 42 U.S.C. 1983 (the same federal civil rights
law that was used unsuccessfully by students seeking damages for the censorship
of a student newspaper in Hosty v. Carter). The court said
the school could not punish Frederick merely based on disapproval of the
content of a message he displayed off campus.
The Supreme Court is expected to rule on this
case in 2007 or 2008.
California Exempts Internet Providers and Users from Libel
The California Supreme Court, ruling in November,
2006, held that only those who create a libelous Internet message may be
sued, not Internet providers or users who post a message created by someone
This decision, which is based on the exemption
for Internet providers in Section 230 of the federal Communications Decency
Act, is consistent with rulings of many other federal and state appellate
courts, starting with the classic federal case, Zeran v. AOL Inc.
(129 F.3d 327, 1997) and the Florida Supreme Court's Doe v. America
Online decision (783 So.2d 1010, 2001). However, this new California
Barrett v. Rosenthal (40 C.4th 33), is so sweeping that it
appears to exempt traditional newspaper publishers and broadcasters from
libel suits for what they post on their websites, even when they could
be held liable if the same material appears in print or in a broadcast.
The new case arose when Ilena Rosenthal, a
San Diego women's health activist, posted materials critical of two medical
doctors, including an allegedly libelous e-mail written by another critic
of the two doctors. The doctors, Stephen Barrett of Allentown, Pa.
and Terry Polevoy, an American who lives in Canada, sued Rosenthal for
libel. The lawsuit was quickly dismissed under California's anti-SLAPP
because much of what Rosenthal posted was opinion, not provably false statements
of fact. However, a California appellate court held that certain
statements could be seen as false statements of fact and therefore actionable
libels. The case based on those should not have been dismissed before
trial, the appellate court said. The court declined to apply the
federal Section 230 exemption, triggering an appeal to the state Supreme
The California Supreme Court reversed the
appellate decision, broadly ruling that Rosenthal was protected by Section
230, even though she was only an Internet user and not a provider.
As long as she did not create the allegedly libelous content but merely
posted materials created by others, her Internet postings are exempt from
This appears to leave Internet publishers
with far broader protection than traditional media. Under the common
law republication rule, recognized in most states, anyone who republishes
libelous material may be sued, not merely the creator. Newspapers
can be sued for libelous letters to the editor and for libels contained
in direct quotations, among other things. Similarly, broadcasters
can be sued for statements made by callers on talk shows. If the
material is a defamatory, false, unprivileged statement of fact as opposed
to opinion, the media are generally liable for republishing it, regardless
of who originated the libel. But under Barrett v. Rosenthal,
Internet providers and users are exempt from liability for republications.
Under cases like this one, the Internet remains a wide-open forum where
messages of every type can be freely forwarded to others, regardless of
whether they may be libelous. Only the creator--often someone who
is "lawsuit-proof" because he or she has no assets--is liable.
Some plaintiffs' attorneys and others criticized
the sweeping nature of this decision and urged Congress to revise Section
230 to rein in the broad exemption from liability that the Internet now
Phone Calls from California Cannot be Secretly Recorded
California is one of 11 states that require
the consent of both parties before a telephone call may be recorded.
Georgia is one of the 39 states that do not. So what happens when
a Californian makes a phone call to a company that runs a call center in
In Kearney v. Salomon Smith Barney,
the California Supreme Court ruled in 2006 that anyone who accepts calls
from California or places calls to California must obey the California
law. In a unanimous ruling, the court said Citigroup Smith Barney,
as the brokerage firm is now known, must obtain the consent of Californians
before recording their calls, even though recording calls without notifying
the caller is legal in one-party-consent states such as Georgia, where
this call center is located.
This decision drew protests from business
groups, including the U.S. Chamber of Commerce. They said it is an
attempt to extend California law beyond the state's borders and invites
Access to Police Disciplinary Records and Criminal History Records
The California Supreme Court has held that
information about police disciplinary proceedings, including the names
of officers being disciplined, is not public during administrative appeals.
In Copley Press v. Superior Court,
a September, 2006 decision, the high court ruled that police disciplinary
records are exempt from disclosure under the California Public Records
Act. Writing for a 6-1 majority, Justice Ming W. Chin said that such
records remain confidential even during appeals to state and local agencies.
The case did not involve records of cases that end up in court. The
Public Records Act makes police disciplinary records confidential within
the "employing agency." Copley contended that once the case goes
to an outside agency for an appeal, the records become public. The
Supreme Court majority disagreed.
The case was a victory for police unions that
had argued for the privacy of officers facing discipline for alleged misconduct.
It was a defeat for the San Diego Union-Tribune, which appealed
a case involving a San Diego officer, and for other media organizations
that supported the appeal. It means that in many instances the details
of a police misconduct case may never be made public.
At almost the same time as the Copley
decision, the California Attorney General's office issued a formal opinion
declaring that much information about criminal defendants should not be
released by prosecutors. In California many prosecutors had been
releasing to the media such information as a defendant's criminal history
or parole status. In response to the attorney general's opinion,
most district attorneys stopped releasing that type of information from
law enforcement databases.
Brown Act Forbids Private Consensus-Building by City Councils
A California appellate court ruled in 2006
that under California's local government open meeting law, the Ralph M.
Brown Act, a city manager may not build a city council consensus on a matter
of city business by meeting privately with each council member.
In Wolfe v. City of Fremont (144 C.A.4th
533), the court held that a city council cannot reach a "collective concurrence"
through individual meetings with the city manager. In this case,
a citizen contested Fremont's decision to change its policy concerning
police responses to home invasion alarms. The citizen, Dennis Wolfe,
contended that at a hearing a councilmember said the "council had been
fully briefed on the (security alarm) proposal and had expressed their
support." In overturning a trial court's dismissal of Wolfe's Brown
Act lawsuit against the city, the appellate court said that this statement,
if proven true, was evidence of a Brown Act violation. The city manager
(or anyone else) may speak to every member of the council. But the
court said a city council cannot lawfully reach a consensus about action
to be taken through these private meetings because it denies the public
meaningful access to the decision-making process, as required by the Brown
Broadcast Ownership Deregulation on Hold after 2006 Election?
The Democratic victory in the 2006 Congressional
elections may have ended serious consideration of ownership deregulation
by the Federal Communications Commission for now.
Although the FCC still has a 3-2 Republican
majority that appears to favor some further deregulation, major media corporations
appeared to be acting on the assumption that there will be no deregulation
in the aftermath of the election. Tribune Corporation, which owns
both television stations and newspapers in the three largest markets (New
York, Los Angeles and Chicago), was reportedly talking to potential buyers
of WPIX (New York) and KTLA (Los Angeles), both of which Tribune cannot
legally continue to own unless it sells its newspapers in those markets
or wins a politically iffy waiver of the Cross Ownership Rule. The
company owns Newsday in New York and the Los Angeles Times.
Both stations are up for license renewal;
Tribune cannot renew the licenses without obtaining a waiver. The
company created this cross ownership problem by acquiring Newsday
and the Times, among other newspapers, in its acquisition of Times
Mirror Corporation in 2000. Tribune apparently assumed then that
the ban on cross ownerships would be eliminated long before license renewal
time. (In Chicago, the company is grandfathered and exempt from cross
ownership restrictions because it owned both WGN and the Chicago Tribune
long before the rule went into effect in 1975.)
Another possibility is that the Tribune Corporation
itself would be sold piecemeal, much as the old Knight Ridder newspaper
chain was. By late 2006, newspapers across the United States were
rapidly losing both circulation and advertising revenue. As Tribune's
stock value plummeted, the company was considering offers for various parts
of its media empire. Tribune's ownership of the Los Angeles Times
was particularly controversial. Amidst an open rebellion by the Times
staff, Tribune installed a succession of outsiders as editors and publishers.
The company fired both a publisher and an editor who refused to make cuts
demanded by Chicago. The issue had particular currency because of
the widely held view, at least in the west, that the Los Angeles Times
was a better newspaper than the
Chicago Tribune itself and that
Tribune was making cuts that would eliminate the "prettier-than-the-boss'-daughter"
problem, as some put it. Like many American newspapers, the Los
Angeles Times continued to show a profit margin of about 20 percent--a
number desired by Wall Street but only sustainable by making major cutbacks
as advertising revenue declined. A major concern of Times
editors was Tribune's insistence that the Times carry more syndicated
content from other Tribune newspapers instead of exclusive stories generated
by its own bureaus around the world. Ever since the late Otis Chandler
became the Times publisher in 1960, the paper has pursued national
prominence by maintaining its own bureaus worldwide, as do the New York
Times and the Washington Post, the two papers Chandler sought
to match in editorial excellence.
Several Los Angeles billionaires were seeking
to restore local ownership of the Times by buying part or all of
Tribune, but not at the kind of price Tribune's management seemed to have
in mind. By late 2006, the entire company (including all of its broadcast
properties and newspapers that were never part of the Times Mirror chain)
had a stock market value of only $8 billion--about what Tribune had paid
in 2000 for Times Mirror alone. Tribune faced a difficult dilemma.
The company could hang on and hope for both a business turnaround and a
cross ownership waiver from the FCC, or the company could sell some or
all of its media properties on unfavorable terms and then face a large
Some Times staffers and other media-watchers
said the purchase of the Times by a wealthy individual could threaten
the paper's editorial independence as much as ownership by an out-of-town
corporation. When Wendy McCaw, a wealthy Santa Barbara (Calif.) resident,
bought the Santa Barbara News-Press from the New York Times'
corporate parent, at first the staff and many civic leaders were pleased.
But that quickly changed as McCaw allegedly meddled in the paper's editorial
content. In mid-2006 there was a group resignation of editors there,
followed by calls for McCaw to sell the News-Press, something she
declined to do.
FCC Approves Major Telephone Merger
Acting just before a New Year's Day deadline
that had been set by the nation's largest telephone company, the FCC on
Dec. 29, 2006 approved AT&T's merger with BellSouth Corp.
The $86 billion deal makes the new AT&T
the dominant telephone service provider in 22 states, with one third of
all landline telephone customers in the United States. The merger
also makes AT&T the largest high-speed Internet provider in the
country and the full owner of Cingular Wireless, the largest cellphone
AT&T, the onetime Southwestern Bell Corp.
based in San Antonio, Texas, earlier acquired several other major telephone
companies, including the former AT&T corporation itself. Ironically,
what was once a regional subsidiary of AT&T has now built a telephone
empire nearly as large as the original AT&T, which was broken up by
a federal court order in 1984 because its market dominance violated antitrust
The FCC's approval was the last regulatory
hurdle that stood in the way of the merger. AT&T officials said
they had to have regulatory approval of the merger by Dec. 31, 2006--and
they got it. In return, AT&T granted several concessions to the
FCC. It promised to sell high speed Internet access for $19.95 a
month without any tie-in to other AT&T services, to reduce the rates
it charges other phone companies for the use of its network, and to provide
large Internet services like Yahoo and Google and smaller services equal
data-flow-through speeds for two years (that is called "network neutrality").
The network neutrality cause has been taken
up by many consumer groups and by some key leaders in Congress. Rep.
Edward J. Markey (D-Mass.), the new chairman of the House telecommunications
subcommittee, pledged to push legislation in 2007 that would mandate network
neutrality for all carriers permanently, not just for two years.
Supreme Court Allows Military Recruiting on Campus
Ruling in March, 2006, the Supreme Court
upheld the right of the U.S. armed forces to recruit at colleges and universities
that receive federal funds and allow other recruiters. On many campuses,
military recruiters had been barred because of the military's "don't ask,
don't tell" policy toward homosexual service personnel. Eventually
Congress passed a law called the Solomon Amendment to give military recruiters
equal access to college campuses for recruiting.
In 2004, the third circuit U.S. Court of Appeals
held that the Solomon Amendment violates the First Amendment rights of
law schools by compelling them to allow military recruiting despite their
disapproval of the military's policy toward gays. Ruling in Rumsfeld
v. Forum for Academic and Institutional Rights, the Supreme Court reversed
the third circuit's decision.
Writing for a unanimous Supreme Court, Chief
Justice John G. Roberts offered a three-part analysis of the First Amendment
question. He said the Solomon Amendment does not require law schools
or their faculties to speak in favor of military service. Nor does
it prevent them from speaking against military service. Also, Roberts
said there is little likelihood that students would mistakenly assume a
college or university endorses any particular recruiter's policies merely
because that recruiter is allowed on campus along with many others.
Roberts wrote: "Nothing about recruiting
suggests that law schools agree with any speech by recruiters, and nothing
in the Solomon Amendment restricts what the law schools may say about the
military's policies. We have held that high school students can appreciate
the difference between speech a school sponsors and speech the school permits
because legally required to do so, pursuant to an equal access policy...
Surely students have not lost that ability by the time they get to law
school." (In Board of Education of Westside Community Schools
v. Mergens, 496 U.S. 226, a 1990 case, the court upheld the right of
a Bible study group to meet on campus if other extra-curricular groups
are granted that right.)
FCC's Indecency Enforcement Reconsidered and Appealed
Acting in November, 2006, the FCC responded
to a federal court's order to reconsider several earlier broadcast indecency
enforcement actions by dropping two cases while reaffirming others.
The second circuit U.S. Court of Appeals ordered
a temporary halt to some indecency enforcement actions while the court
considers an appeal by the four largest over-the-air broadcast networks.
(The indecency ban does not apply to cable and satellite networks.)
The court was responding to the FCC's decision in March to consider even
fleeting uses of certain words on the air to be inherently indecent.
At about the same time, Congress mandated a tenfold increase in indecency
fines. The court is expected to rule on the merits of the networks'
challenge sometime in 2007. The networks contend that the new indecency
enforcement policies and higher fines violate the First Amendment.
In its reconsideration, the FCC withdrew its
finding of indecency on a CBS program, "The Early Show," for use of the
word "bullshitter." The FCC said the show could be considered to
be a news interview, giving it greater protection from indecency charges.
The FCC also dropped a sanction for language in several episodes of ABC's
"NYPD Blue" based on a technicality: the viewer who complained lived
outside the service area of the station on which the show was viewed.
This FCC action effectively removed ABC but not CBS from the networks'
challenge to the FCC's indecency enforcement policies. CBS still
faced other FCC sanctions, as did NBC and Fox.
FCC Commissioner Jonathan S. Adelstein criticized
these two actions, contending that they were taken only to strengthen the
FCC's case in court. He said these two indecency citations are the
ones that would be the hardest to justify.
In a legal brief filed in November, 2006,
Fox said the new rules were a "radical reinterpretation and expansion"
of the FCC's authority that had a chilling effect on the First Amendment
freedoms of broadcasters. "The result is the end of truly live television
and a gross expansion of the FCC's intrusion into the creative and editorial
process," the Fox brief said.
* * *
For more information about recent
developments in media law, check the author's website:
to Morro Bay opening page>