Texas Court Protects Anonymous Posters' Identities in Criminal Proceeding

Texas court has ruled that the Abilene Reporter-News does not have to reveal the identities of anonymous posters who submitted online commentary concerning a murder defendant to an Abilene newspaper’s website. According to the Reporter-News, the anonymous posters’ identities had been sought by the defendant’s attorney to ensure that none of the posters were selected to sit on the jury for the murder trial, which began on June 23. 

The Taylor County District Court’s decision to protect the posters’ identities, which was issued on July 19, is one of the early applications of the newly enacted Texas shield law. (We previously reported on the Texas shield law in civil and criminal proceedings.) At least in this case and one other reported on by the Reporter's Committee for Freedom of the Press, it appears that the Texas trial courts are ably applying the statutory privilege, which just took effect in May 2009.

According to the Reporter-News’s coverage, the defendant’s attorney argued that his client’s interest in a fair trial outweighed the newspaper’s interest in protecting the identities of the posters. However, in addition to arguing that the shield law protected the commenters’ identities from disclosure, the Reporter-News also argued that the defendant’s right to a fair trial could be adequately protected by questioning prospective jurors during jury selection. 

The Texas court joins a growing number of jurisdictions that have declined to require website publishers from disclosing the identities of anonymous posters. We have covered a number of those outcomes over the past several months, including cases from Maryland and Pennsylvania

Although the case law in favor of protecting anonymous posters' identities from disclosure is growing, the cases are not uniformly in that direction, as pbs.org's Mediashift has recently discussed.

Obama Administration Denies Access to White House Visitor Logs

The Obama Administration has denied msnbc.com and the Citizens for Responsibility and Ethics in Washington ("CREW") access to the names of White House visitors. The Obama Administration’s position on visitor logs is consistent with that of the Bush Administration—but appears to be inconsistent with President Obama’s promise of transparency and openness declared earlier this year.

Msnbc.com has the complete story, including its own FOIA request for the visitor logs, CREW’s related FOIA request, and a copy of the complaint filed by CREW on June 15, 2009, in the District Court for the District of Columbia seeking, among other things, an order compelling the government to release the records requested by CREW.


CREW has been litigating the visitor log issue for some time. As reported on msnbc.com, CREW previously locked horns with the Bush Administration over access to the names of visitors to the White House and Vice President Dick Cheney’s residence. In its lawsuit against the Department of Homeland Security (the agency under which the Secret Service, the keeper of the visitor records, falls), a federal judge ruled that visitor logs are records subject to FOIA, not privileged presidential communications, and ordered DHS to process CREW’s FOIA request and release all responsive and nonexempt records.  


Here’s an excerpt of the district court’s January opinion concerning the presidential communications privilege:

The presidential communications privilege, as its name and the [D.C.] Circuit [Court]’s opinions suggest, extends only to communications. The visit records sought by plaintiff need only consist of the visitor’s name, date and time of visit, and in some cases the name of the person requesting access for the visitor and in some cases the name of the person visited. Such information sheds no light on the content of communications between the visitor and the President or his advisors, whether the communications related to presidential deliberation or decisionmaking, or whether any substantive communications even occurred. “The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President.”

Msnbc.com links to the full district court opinion here.


DHS filed an appeal of the district court’s January 2009 ruling to the D.C. Circuit on January 14, 2009—just a few days before President Obama’s inauguration. In April, the D.C. Circuit gave the new administration an opportunity to let the appeal go by issuing an order to show cause why the appeal should not be dismissed for lack of appellate jurisdiction.  Rather than backing away, the Obama Administration filed a brief in May 2009 requesting that the D.C. Circuit take jurisdiction to review the district court’s order. 


Stay tuned to see how the Obama Administration responds to CREW's FOIA lawsuit filed on June 15.  Thehill.com is reporting that the White House is now, as of June 16, "reviewing" its policy on access to visitor logs.

"Libel Tourism" Bill Passed by U.S. House

The U.S. House of Representatives on June 15, 2009, passed a bill to combat so-called “libel tourism”—a practice where United States reporters and media outlets are sued for defamation in foreign countries to circumvent the limits the U.S. Constitution places on defamation claims. The text of H.R. 2765 is available here, while the House report on the bill is here.

H.R. 2765 provides the following:

  1. U.S. state or federal courts must not recognize or enforce a foreign defamation judgment if the person opposing the judgment argues that the judgment is inconsistent with the First Amendment. The domestic court may enforce the foreign judgment if it independently determines that the judgment is consistent with the First Amendment.
  2. U.S. state or federal courts must not recognize or enforce a foreign defamation judgment if the person opposing the judgment shows that the foreign court failed to comport with Due Process in exercising personal jurisdiction over the defamation defendant. (For more information on personal jurisdiction, this website provides an overview.) 
  3. U.S. state or federal courts must not recognize or enforce a foreign defamation judgment against an “interactive computer service” provider, as that term is defined in Section 230 of the Communications Act, if the person opposing the judgment raises Section 230 as a bar. The domestic court may recognize or enforce the foreign judgment if it independently determines that the judgment is consistent with Section 230. (Section 230 generally requires that “interactive computer service” providers are not to be treated as the publishers or speakers of content posted on their websites by third parties. We have written about Section 230 here and here.)

The burden of establishing that the foreign judgment does not run afoul of the First Amendment or Section 230 is on the party seeking to recognize or enforce the foreign judgment—not the defamation defendant. That makes it more difficult for the holder of the foreign judgment to have the judgment enforced in the United States if the defamation defendant raises the First Amendment or Section 230 as a bar. 


The burden of showing a foreign court failed to give the defamation defendant Due Process is with the person opposing the foreign judgment—the defamation defendant. This, of course, makes it more difficult for a defamation defendant to avoid a foreign judgment based on the foreign court’s lack of personal jurisdiction. 


H.R. 2765 also provides that “appearing” before a foreign court to contest the court’s jurisdiction or defend against the claims does not preclude the defamation defendant from opposing the judgment in the United States on jurisdiction grounds or otherwise.


Additionally, the bill provides that the party opposing recognition or enforcement of a foreign defamation judgment may be awarded reasonable attorneys' fees if the party prevails based on one of the three grounds described above. 


If enacted, H.R. 2765 would represent a significant victory for media companies, particularly in this age where media websites may be accessed anywhere around the world—including places that have few if any restrictions on defamation claims.  However, the bill, as currently written, does not include any additional penalties (other than attorneys' fees) to further deter defamation plaintiffs from pursuing these problematic foreign judgments in the U.S.


H.R. 2765 was reported favorably out of the Judiciary Committee on a voice vote on June 10, 2009.  With passage by the full House on June 15, 2009, the bill next moves to the Senate.

Quantifiying the Chilling Effect of Newsroom Subpoenas

The Media Law Resource Center recently flagged this interesting study, by Professor RonNell Andersen Jones, due to be published soon in the Washington Law Review.  Professor Jones, a former newspaper reporter who has written widely on meda law issues, undertook a large-scale survey of newspaper and broadcast reporters and editors to assess the impact that a surge in newsroom subpoenas is having on the media.  Her work is intended to be an update to Professor Vincent Blasi's landmark study of the same issue in 1971, just as the Branzburg cases were making their way to the Supreme Court.

Without spoiling the ending, since the article is as-yet unpublished, suffice it to say that while the prevalence of shield laws has helped give editors more weapons to fight subpoenas, an inordinate amount of time and money is still being spent educating attorneys serving subpoenas about the contours of the shield laws and, when necessary, fighting them in court.  As Jones notes, while the media was rather highly regarded in 1971, the state of public opinion today is far different, and editors and reporters work in constant fear of being forced to stand up in court and defend their decision not to comply with a subpoena.

The article is very much worth a read, especially for the wealth of data she culled from surveys sent to editors and reporters around the country.

Former Raleigh Mayor Sues for Defamation

According to a recent story in the Raleigh News & Observer, a former Republican mayor of Raleigh, and current candidate for chairman of the North Carolina Republican Party, Tom Fetzer, has sued a Wilmington radio station and disc jockey for defamation because the disc jockey forwarded an email to others that "insinuat[ed] that Fetzer is gay."  Fetzer's civil complaint can be read here.

As has been widely reported, there is a North Carolina Court of Appeals decision that would appear to make Fetzer's claim a legal long shot.  In Donovan v. Fiumara, 442 S.E.2d 524 (N.C. Ct. App. 1994), the plaintiffs brought a sander claim against the defendant for stating to others that the plaintiffs were "gay and bisexual."  The trial court had granted the defendant's motion to dismiss, and the Court of Appeals agreed that the purported comments did not fit into any of the three categories of slander per se.  It did not impeach the plaintiffs in their trade or business, it did not allege they had a "loathsome disease," and it did not impute to them the commission of a crime.

Much of the court's opinion was spent analyzing the final category, since, as plaintiffs asserted, North Carolina has an anti-sodomy law.  The court held, however, that the law banned all kinds of activity not particular to gay people, and so calling someone "gay" "is not tantamount to charging that individual with the commission of a crime."    Thus, as a matter of law, implying someone is "gay," as the News & Observer says Fetzer is claiming here, does not support a claim of slander per se.

In Donovan, because the plaintiffs had not alleged special damages, slander per quod was not an option.  Fetzer's complaint, by contrast, does include an alternative claim for libel per quod, based on the diminished value of Fetzer's professional reputation.

It is worth noting that Fetzer's complaint does not actually allege what the defamatory statement or statements were, though in public statements concerning the lawsuit Fetzer has made clear the basis for his claim. It will be interesting to track the progress of both Fetzer's lawsuit and his candidacy for state party chair to see whether his success or lack of success in the political arena affects his conduct in the legal arena.

Judge Sotomayor's First Amendment Jurisprudence

As a judge for the Second Circuit Court of Appeals since 1998 and for the Southern District of New York for the preceding six years, United States Supreme Court nominee Sonia Sotomayor has approached First Amendment issues narrowly and contextually, demonstrating traditionally liberal views in some cases and more conservative views in others. If confirmed, it seems most likely that Sotomayor will side with the Court’s liberal wing on many First Amendment issues. However, her seeming unpredictability in cases involving free speech could make her an important swing vote in some cases.

Sotomayor’s First Amendment record during her 17 years on the federal bench is not extensive, but it does give some insight into her views on the First Amendment generally and media law specifically. Among Sotomayor’s more notable free speech decisions, Sotomayor dissented in a Second Circuit case in which the majority affirmed the district court’s decision to uphold the New York Police Department’s decision to terminate a Police Officer after an investigation discovered he made anonymous racist comments via mail. Sotomayor also authored an opinion striking down a gag order on the news media that prevented the press from revealing the name of any juror during the retrial of a former bank executive.

These views are contrasted with other decisions favoring withholding records under the Freedom of Information Act and upholding a public high school’s right to bar a student from running for class office after she posted offensive comments about school administrators in her off-campus blog. These decisions are discussed below.

Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), involved a First Amendment claim by a New York City Police Officer who was terminated after an internal New York Police Department investigation found that he anonymously disseminated racist and anti-semitic materials via the U.S. Postal Service. The majority affirmed the district court’s dismissal of the action upon a motion for summary judgment by the defendants, concluding that the NYPD’s “reasonable perception of serious likely impairment of its performance of its mission outweighed Pappas’s interest in free speech.”

Sotomayor dissented, stating that the potential harm to the NYPD’s performance of its mission did not outweigh Pappas’s First Amendment rights. Sotomayor stated that the potential harm to the NYPD was low because (1) Pappas did not occupy a high-level supervisory, confidential, or policymaking role in the NYPD, (2) Pappas did not have law enforcement contact with the public through his position as a computer operator in the NYPD, and (3) Pappas “engaged in the speech anonymously, on his own time, and through mailings sent from his home.” Acknowledging the particular nature of the speech involved in the case, Sotomayor explained:

To be sure, I find the speech in this case patently offensive, hateful, and insulting. The Court should not, however, gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like and because a government employer fears a potential public response that it alone precipitated.

Sotomayor’s views in Pappas are contrasted by her views in Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), in which she joined in a ruling holding that a public high school student’s First Amendment rights were not violated when the school disqualified her from running for Senior Class Secretary based on inflammatory comments written off-campus in her personal blog. Pre-existing jurisprudence concerning free speech in public schools allowed schools to regulate some student speech occurring on school grounds or at school-related events while acknowledging that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Doninger extended the scope of a school’s authority to regulate expression that occurs beyond the confines of campus or campus activities.

In reaching its decision to extend the school’s authority, the court wrote that “Avery's posting—in which she called school administrators ‘douchebags’ and encouraged others to contact [a school administrator] ‘to piss her off more’—contained the sort of language that properly may be prohibited in schools.” However, the court emphasized that the particular nature of the discipline in the case influenced its decision to side with school administrators, stating that “given the posture of this case, we have no occasion to consider whether a different, more serious consequence than disqualification from student office would raise constitutional concerns.”

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Fourth Circuit Splits the Defamation Baby

In late February, the United States Court of Appeals for the Fourth Circuit agreed with a trial court ruling that a jury was entitled to decide whether calling the plaintiff a “gangster” and a “thug,” and alleging that he had been intoxicated at a convention, was indeed defamatory. In a Solomonic twist, however, the court nonetheless vacated the trial court’s judgment for the plaintiff because of reversible errors in the jury instructions.

The claim arose from a column in the Korean-language Inside the World newspaper, which opined that a prominent businessman in the U.S. Korean community was “not just an organized gangster, but a thug.”  The column also claimed that the plaintiff had been visibly intoxicated at a Federation of Korean Associations of America convention in 2005.

The court held that such statements could “reasonably be understood as stating actual facts about” the plaintiff, not just “hyperbolic, shorthand label[s].”  Taken the statements as a whole, the court said, it was not an error for the trial court to conclude that a jury question as to defamation had been created.

That said, however, the court vacated the verdict because the trial court’s jury instructions were wholly inadequate.  First, the trial court simply defined defamation as “a false statement of fact as opposed to a statement of opinion.”  This definition, the Fourth Circuit said, did not provide enough guidance as to the “line separating constitutionally protected speech from actionable defamation.”


In addition, the Fourth Circuit held, the trial court’s instruction as to the intoxication claim was inadequate because it did not make clear that defamation requires that the statement be both false and defamatory.  The trial court had not made clear that the statements had to be more than simply false.


So, even though the plaintiff had created a jury question as to defamation, the Fourth Circuit sent him back to square one as a result of the reversible abuse of discretion on the part of the trial court in giving its instructions to the jury.

New Limits on Section 230 Immunity

In a seemingly simple little case that has turned out to have all kinds of interesting and important twists, the United States Court of Appeals for the Ninth Circuit last month held that Section 230 of the Communications Decency Act did not preclude a plaintiff from stating a valid claim for promissory estoppel against an Internet service provider.

The case, Barnes v. Yahoo!, Inc., arose in 2004 when Cecilia Barnes broke up with her long-term boyfriend, who responded by creating in Barnes’s name several Yahoo profiles that contained nude pictures of Barnes and various open solicitations for sex.  When Barnes was flooded with calls, personal visits, and emails, she followed Yahoo’s policy for getting a fraudulent profile removed by mailing in a request.  Two months later, the profiles remained, so Barnes contacted a local news program who began to report the story.  The day before the story was to run, a Yahoo representative contacted Barnes, asked her to fax in another removal request, and said she would “personally walk the statement over” to the group responsible for taking down a profile and see that it got done.


It did not, and Barnes sued for negligent undertaking, as described in Section 323 of the Restatement (Second) of Torts, and for promissory estoppel.


Barnes claimed that by promising to take down her profile and then failing to do so, Yahoo had undertaken a task that it subsequently completed negligently.  Moreover, Barnes asserted, Yahoo's promise constituted a contract that, once Barnes had relied upon it, the company could not later repudiate.


In response to the complaint, Yahoo moved to dismiss, arguing that Section 230 of the CDA provides Yahoo with immunity from Barnes's claims.  Section 230(c) reads, in part: 

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Yahoo is clearly an “interactive computer service” provider, and it did not create or develop the profiles at issue in whole or in part, so Yahoo should not have liability on any claim that would treat it as the "publisher" of those profiles.


On appeal, the Ninth Circuit held that Barnes’s negligent undertaking claim was barred by the Section 230 because, in the final analysis, what Barnes was alleging that Yahoo failed to do with due care was to remove a profile from its Web site.  That, the court said, is the essence of publishing -- deciding what gets published and what does not -- and Section 230 precludes Yahoo from liability for its actions as a publisher.


However, the court came to a different conclusion with respect to Barnes's promissory estoppel claim.  That claim, the court said, is a contract claim, not a tort claim, and Yahoo’s alleged breach had nothing to do with its role as a publisher.  Rather, Yahoo's potential liability was based on its promise to do something that it later failed to do.


To be clear, in addressing the negligent undertaking claim, the court said that the task that Yahoo had failed to complete constituted publishing and was covered by Section 230, and yet that very same conduct in the context of a contract claim was actionable.


While the court was careful to say that a simple monitoring policy or even “an attempt to help a particular person” will not always give rise to a contract claim, where the facts suggest that the company intended to be bound by its words, a claim might arise.  The court said that the solution for companies like Yahoo is easy -- “disclaim any intention to be bound” in the language of any monitoring policy or when agreeing to help a particular customer.


Leaving aside the particular claims, the court also made an interesting procedural ruling that may actually have more far-reaching impact than the rulings on the particular claims. The case had reached the court on a motion to dismiss in which Yahoo cited Section 230 as the reason Barnes failed to state a claim. The Ninth Circuit made clear that a Section 230 defense is an affirmative defense that is not appropriately asserted as a motion to dismiss, but rather as part of an answer.


For an interesting discussion of the implications of this part of the ruling, see this post on the Technology and Marketing Law Blog, which has posted extensively on this case.