In an update to the curious case we highlighted Tuesday, Judge Forte has entered an order dismissing the “gag order” placed on Michelle Langlois after Tracey Martin, the petitioner who sought the gag order, voluntarily dismissed her petition. Judge Forte removed the ban in advance of a hearing scheduled Wednesday on the ACLU's motion to dismiss.
As we recently discussed, prior restraints on speech and the press have been deemed “the most serious and the least tolerable infringement on First Amendment rights” by the United States Supreme Court and bear a “heavy presumption” against their constitutionality. A recent Rhode Island state court order, however, raises questions as to the true understanding of prior restraint jurisprudence among lower courts.
A Rhode Island Family Court has barred a woman from posting any information on the internet about a pending child custody case, although the woman is not a party to the proceeding. Kent County Family Court Judge Michael Forte issued the order in late June, restraining Michelle Langlois, whose brother is involved in a custody dispute with his ex-wife, from “posting details about the children and the pending Family Court proceedings on the internet.” The order stemmed from a “domestic abuse” petition filed by Tracey Martin, Langois’ brother’s ex-wife, against Langlois after Langlois posted information and opinions about the case on her Facebook page. The petition alleged that the postings constituted “harassment” and a “mental assault” on Martin and her children, and that “[a]ny further contact with [Langlois] could further psychologically damage the children” involved in the case.
The ACLU has intervened on behalf of Langlois by filing a motion to dismiss the order, asserting that the order imposes an unconstitutional prior restraint on Langlois’ right of free speech. The motion also seeks dismissal of the order based on jurisdictional defects. In defense of her Facebook postings, Langlois stated: “I do not believe the truth was coming out in Family Court. I was simply using the internet to publicize my brother’s plight.”
The motion will be heard on Wednesday, July 29 in Kent County Family Court before Judge Forte. If Judge Forte denies the motion, Langlois and the ACLU may have a viable appeal due to the general presumption of unconstitutionality of prior restraints in American jurisprudence, as mentioned above. We will keep you apprised of the outcome in this matter.
We have previously reported on prior restraints on media coverage and the interplay between the First Amendment rights of free speech and press and other Constitutional rights. Prior restraints occur in different forms: “gag orders” imposed by courts, typically through the form of temporary restraining orders or injunctions; licensing requirements and cease and desist orders imposed by regulatory agencies; and “gag statutes” imposed by legislatures. Additionally, different forms of prior restraints can affect the press equally; a gag order preventing persons from contacting the press can have the same chilling effect on publication as a prior restraint imposed on the press.
The United States Supreme Court has viewed a free press as “essential to the nature of a free state,” holding in Near v. Minnesota, 283 U.S. 697 (1931), that the chief purpose of the First Amendment’s guarantee to freedom of the press is to prevent prior restraints on publication. This purpose stems directly from the press’s struggle in England to publish free of government censorship. Correspondingly, the Supreme Court has examined prior restraints on the press with a “heavy presumption” against their constitutionality, holding in Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), that prior restraints are “the most serious and the least tolerable infringement on First Amendment rights.”
The right to free press is not absolute, however. While the Supreme Court has never upheld a prior restraint upon the press, it has recognized limited situations where a prior restraint might be justified, such as where pervasive publicity might interfere with a criminal defendant’s constitutional right to a fair trial. Moreover, the Supreme Court has viewed punishment for statements in the press after publication as a more tolerable form of First Amendment infringement than preventing publication from happening in the first place. Specifically, the Court has permitted criminal punishment and civil damages for the publication of defamatory statements, invasion of privacy, and obstruction of justice, among others. As noted by the Supreme Court in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975):
[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.
Although different forms of prior restraints can have the same chilling effect on the press, courts in the Fourth Circuit have been more permissive of prior restraints on members of the general public than prior restraints on the press. In United States v. King, 192 F.R.D. 527 (E.D.Va. 2000), the U.S. District Court for the Eastern District of Virginia granted a motion to restrain government witnesses in a high-profile drug conspiracy trial from forecasting their probable testimony for an upcoming trial in interviews with the press, although the court refused to prevent the media from airing a television interview that had already occurred. The court in King recognized the Fourth Circuit’s interpretation of Nebraska Press to mean that, in the context of ensuring a defendant’s right to a fair trial, “the proponent of a prior restraint order must show a ‘clear and present danger’ that the pretrial publicity sought to be restrained will adversely affect the ability of the defendant to receive a fair trial.”
King further stated that to determine the necessity of a prior restraint to protect the fair trial rights of a defendant, Nebraska Press requires that courts must:
[D]etermine (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of the unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger. The precise terms of the restraining order are also important.
In answering the first prong of the Nebraska Press analysis, the court in King found that, although the airing of the interview could have “some adverse impact” on the views of potential jurors, it could not be said that the interview would “so distort the views of potential jurors that 12 could not be found who would . . . fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court.” Additionally, the court found that extensive voir dire examination and appropriate trial instructions would alleviate any possible juror prejudice arising out of the airing of the interview, satisfying the second prong of Nebraska Press. Although the court found that a prior restraint on the publication of the interview would effectively protect the defendant’s right to a fair trial, the court found that its analysis of the first two prongs compelled the court to decline imposition of a prior restraint on the interview.
The King court analyzed the right of government witnesses to forecast their probable testimony more strictly, however. While the court recognized that witnesses in judicial proceedings have the right of free speech, it noted that previous Fourth Circuit decisions have prohibited witnesses from discussing their probable trial testimony with the media. Similar to the test in Nebraska Press for prior restraints on the press, the court found that the test to determine whether to restrain public statements by witnesses was “whether there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial.” After finding no feasible alternative, the court in King found that the record established “that unrestrained discussion by the Government’s witnesses with the media, be it print or electronic, presents a reasonable likelihood that there will be prejudicial news coverage before trial that would prevent a fair trial.” Correspondingly, the court imposed a gag order preventing government witnesses from discussing the case in interviews with the press.
Likewise, the Fourth Circuit in In re Russell, 726 F.2d 1007 (4th Cir. 1984), upheld a gag order from the Middle District of North Carolina preventing potential witnesses in a high-profile criminal trial from discussing their probable testimony with the media. The court grounded its decision on the extensive publicity surrounding the trial, the “potentially inflammatory and highly prejudicial” statements that the witnesses would likely make, and the relative ineffectiveness of any feasible alternative to protect the defendants’ right to a fair trial. Finding that judges must, by necessity, speculate as to what information may be prejudicial to potential jurors, the court in Russell concluded that the district judge acted “well within constitutional limits . . . in light of the difficult task of drafting an order that sufficiently protected the sixth amendment rights of defendants and at the same time did not unjustifiably trammel petitioners’ protected speech activities.”
Last week the North Carolina House passed H. 1134, a bill that would make it easier for private citizens and media organizations who prevail in public records disputes with government agencies to recover their legal fees. Although the bill is still up for consideration in the North Carolina Senate, having been received and referred to the Judiciary I committee, passage of H. 1134 in the House represents a significant breakthrough. Past efforts to strengthen the fee recovery provision of North Carolina's Public Records Act foundered in the House.
The bill, co-sponsored by Rep. Deborah Ross, would make several changes to the Public Records Act. Under the current state of the law, if a court concludes that a losing government agency acted with "substantial justification" in withholding the records at issue, attorneys' fees are not to be awarded to the prevailing plaintiff. In particular, G.S. 132-9(c) provides as follows:
In any action brought pursuant to this section in which a party successfully compels the disclosure of public records, the court shall allow the prevailing party to recover its reasonable attorneys' fees if attributed to those public records, unless the court finds the agency acted with substantial justification in denying access to the public records or the court finds circumstances that would make the award of attorneys' fees unjust.
The substantial justification provision in G.S. 132-9(c) has proved a difficult hurdle for prevailing plaintiffs to overcome. Under H. 1134, the grounds for denying recovery of attorneys' fees to a prevailing plaintiff would be narrowed to three specific bases:
In any action brought pursuant to this section in which a party successfully compels the disclosure of public records, the court shall allow a party who substantially prevails to recover its reasonable attorneys' fees if attributed to those public records. The court may not assess attorneys' fees against the governmental body or governmental unit if the court finds that the governmental body or governmental unit acted in reasonable reliance on: (1) A judgment or an order of a court applicable to a governmental unit or governmental body; (2) The published opinion of an appellate court; or (3) A written opinion, decision, or letter of the Attorney General.
The bill would also create an Open Government Unit of the North Carolina Department of Justice. The new division would be charged with the responsibility of mediating public records disputes informally before they reach the courts. The Open Government Unit would also develop and implement education programs designed to educate public agencies of their rights and responsibilities under the Public Records Act, and it would make resources concerning public records available electronically.
H. 1134, entitled the Open Government Act, passed with overwhelming support on the House floor, carrying by a margin of 107-5. The lopsided margin contrasts with the drama that occurred in the House Finance committee, where an amendment that would have also required losing plaintiffs to pay the attorneys' fees of the winning government agency, failed by a 13-13 margin.
We will monitor the progress of H. 1134 in the North Carolina Senate.
According to news reports, Commissioner Michael Copps is passing a document around the Federal Communications Commission concerning the “state of journalism.” Although the report is not yet publicly available, CNSNews.com is reporting that it “examines the decline of broadcast journalism over the past several years and tries to explain why traditional forms of journalism have declined while other, newer forms have been on the rise.”
It appears that the report is tied to a formal (though not yet public) Notice of Inquiry. Issuing an NOI is often the first step to initiate a formal agency rulemaking process whereby the government seeks comment from interested parties on a number of identified topics. New regulations may or may not be issued at the conclusion of such a rulemaking procedure.
According to CNSNews.com, “[t]he decline of traditional print and broadcast outlets is the primary focus of the report, which analyzes which new outlets are picking up the slack – and why they might be eclipsing traditional news outlets.” The document also apparently deals with broadcasters’ public interest obligations, which have long been touchstone issues for Commissioner Copps. The NOI could be the first step in seeking to impose tougher public interest obligations on broadcasters.
While the NOI is not yet public, Commissioner Copps’s point of view on the “state of journalism” is well captured in public remarks he made earlier this year.
It’s too soon to tell how high a priority this possible “state of journalism” NOI will be for the nearly reconstituted FCC, now headed by Commissioner Julius Genachowski. We will continue to monitor this story.
A panel of the Minnesota Court of Appeals has ruled in an invasion of privacy case that a MySpace.com posting revealing certain private facts about a plaintiff constituted “publicity per se.” Although the appellate court ultimately held that the lower court properly granted summary judgment on the invasion of privacy claims in favor of the defendants, the publicity aspect of the ruling is an important because it demonstrates how “old media” publication torts are being applied to new social media.
The plaintiff in Yath v. Fairview Clinics, N.P., Docket No. 27-CV-06-12506, slip op. (June 23, 2009), alleged that a medical assistant in a clinic she attended “snooped” in the plaintiff’s medical files without a proper purpose and discussed sensitive personal information she found in the files with another employee of the clinic, one of the defendants in the appeal. The plaintiff also claimed that the employee-defendant, the medical assistant, and others published a MySpace web page about the plaintiff that publicized private information obtained from the her medical records—according to the MySpace page, the plaintiff had a sexually transmitted disease, recently cheated on her husband, and was addicted to plastic surgery.
The plaintiff sued the employee-defendant, the medical assistant, the clinic (on a vicarious liability theory), and one other person for, among other claims, invasion of privacy based on publication of private facts. By the time the matter reached the Court of Appeals, only the employee-defendant and the clinic were still in the case.
The lower court had granted summary judgment in favor of the two defendants on the invasion of privacy claim because the evidence showed that only a few people accessed the MySpace page in the 24 to 48 hours during which the page was live.
However, on review, the Court of Appeals held that the lower court had misapplied the law concerning “publicity” in invasion of privacy cases. "Publicity" is a required element of the publication of private facts tort.
“Publicity,” for the purposes of an invasion-of-privacy claim, means that “the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” In other words, there are two methods to satisfy the publicity element of an invasion-of-privacy claim: the first method is by proving a single communication to the public, and the second method is by proving communication to individuals in such a large number that the information is deemed to have been communicated to the public.
According to the appellate court, the lower court had incorrectly focused on the second prong of the publicity requirement—communication to a sufficiently large number of people—while ignoring the first prong. Just as publication in a newspaper or a magazine of small circulation or in a radio broadcast would constitute “publicity,” so did the publication on MySpace in this case. When information passes through a public medium like the Internet, the “publicity” requirement for invasion of privacy purposes is satisfied as soon as the information is disseminated. “[T]he challenged communication here constitutes publicity under the first method, or publicity per se. . . . [Plaintiff’s] private information was posted on a public MySpace.com webpage for anyone to view. This Internet communication is materially similar in nature to a newspaper publication or a radio broadcast because upon release it is available to the public at large.
The court’s ruling means, in effect, that the number of people who actually view a publicly available website is not relevant to the “publicity” requirement for invasion of privacy purposes. The “publicity” occurs as soon as the information is made publicly available for anyone to view on the Internet. However, as the appellate court acknowledged, the number of people who view such a website may be relevant when calculating the damages the plaintiff suffered (i.e., the more people who view the website, the greater the potential damages).
In reaching its ruling, the Court of Appeals took pains to put invasion of privacy in the context of our “Information Age":
That the Internet vastly enlarges both the amount of information publicly available and the number of sources offering information does not erode the reasoning leading us to hold that posting information on a publicly accessible webpage constitutes publicity. If a late-night radio broadcast aired for a few seconds and potentially heard by a few hundred (or by no one) constitutes publicity as a matter of law, a maliciously fashioned webpage posted for one or two days and potentially read by hundreds, thousands, millions (or by no one) also constitutes publicity as a matter of law.
It is true that mass communication is no longer limited to a tiny handful of commercial purveyors and that we live with much greater access to information than the era in which the tort of invasion of privacy developed. A town crier could reach dozens, a handbill hundreds, a newspaper or radio station tens of thousands, a television station millions, and now a publicly accessible webpage can present the story of someone‘s private life, in this case complete with a photograph and other identifying features, to more than one billion Internet surfers worldwide. This extraordinary advancement in communication argues for, not against, a holding that the MySpace posting constitutes publicity.
The Pioneer Press has additional commentary on the case.
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