Morro Bay law update, 2007


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 student press."
     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 journalism." 
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 Suits

     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 else.
     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 case, 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 law 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 Court.
     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 liability.
     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 enjoys.

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 Georgia?
     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 federal intervention.

Access to Police Disciplinary Records and Criminal History Records Restricted

     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 Act.

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 tax bill.
     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 provider.
     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 laws.
     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.

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