Supreme Court to Consider Law Criminalizing Animal Cruelty Videos

As has been widely reported, the U.S. Supreme Court will review a case this session involving a federal statute that criminalizes the sale of depictions of animal cruelty.  Last year, in United States v. Stevens, the Third Circuit declared the statute unconstitutional and vacated the conviction of Robert Stevens, who was prosecuted for selling videos of illegal dog fighting.  ( covered the Third Circuit decision when it was released last year.)

The basic question for the court is whether or not the statute on its face runs afoul of the First Amendment.  As the Third Circuit framed it, the question for the Supreme Court is, more specifically, whether or not depictions of animal cruelty constitute a new category of speech that receives no First Amendment protection.  If it is a new category of unprotected speech, then depictions of animal cruelty will join the likes of obscenity, child pornography, false and misleading advertising, “fighting words,” and similar kinds of speech that may lawfully be criminalized or banned by the government.  However, as the Third Circuit pointed out in its 2008 opinion, the Supreme Court has not recognized a new category of unprotected speech in about 25 years—which may suggest that the Court will be reluctant to do so in this case. 

Of course, at least theoretically, the Supreme Court could decide more narrowly that depictions of animal cruelty may be limited under certain circumstances, or that the speech at issue is commercial in nature and may be regulated consistent with existing commercial speech principles.

A case like Stevens puts First Amendment principles to the test.  On the one hand, as this article discusses, advocates for freedom of expression are concerned that adding another category of speech to the list that the government may lawfully prohibit chips away at the First Amendment and leaves it vulnerable to further attack. On the other hand, other people argue that depictions of animal cruelty are inhumane and, like obscenity, have little or no social value that render them worthy of First Amendment protection.  It’s too soon to tell which side of the debate a majority of the Supreme Court will favor.

Oral arguments in the case are scheduled for October 6, 2009.  We will continue to follow the story and keep you updated.

Federal Shield Law Stalled in Senate Judiciary Committee

Federal reporter’s shield legislation has met with opposition in the Senate Judiciary Committee.  The committee addressed S. 448, the Free Flow of Information Act of 2009, in a hearing on September 17 but, ultimately, failed to report the bill out of committee and onto the Senate floor.   The inability to move the bill to the floor for a vote by the full Senate is a disappointment to the media and surely to Sen. Patrick Leahy (D-VT), the chairman of the committee and co-sponsor of the bill.

S. 448, as amended, generally protects journalists from having to disclose source information in a federal proceeding unless a federal court has determined that:

(1) the party seeking to compel disclosure has exhausted all reasonable alternative sources,

(2) (A) in a criminal investigation or prosecution, (i) there are reasonable grounds to believe a crime has occurred, (ii) the information sought is “essential” to the investigation, prosecution or defense, and (iii) in an investigation of disclosure of classified information, the disclosure has caused or will cause “significant and articulable harm” to national security, or

(2)(B) in matters other than criminal investigations or prosecutions, the information sought is “essential to the resolution of the matter,” and

(3) nondisclosure would be contrary to the public interest, considering both the public interest in compelling disclosure and maintaining the free flow of information.

Before last week’s hearing, an amendment was offered in an effort to strengthen national security protections, and much of Thursday's debate focused on the proposed national security carve-out.   The protections from nondisclosure described above would not apply to information that would “materially assist in preventing or mitigating, or identifying the perpetrator of (1) an act of terrorism or (2) other significant and articulable harm to national security that would outweigh the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information.” In other words, the federal shield would not apply, and disclosure could be compelled, in such circumstances.

But, even with the added protections for national security, Sen. Diane Feinstein (D-CA) and others expressed reservations about how the bill would affect leaks of sensitive intelligence documents and other classified national security information. 

Rather than voting on the bill in committee, Sen. Jeff Sessions (R-AL), the ranking member, suggested “slowing down” and focusing on the “problems” with the bill.  Indeed, the hearing concluded without an up or down vote on the bill, which means that it remains in committee for now.

The federal shield legislation’s fate at this point is unclear.  But judging by the remarks of the Senate Judiciary Committee members, particularly Chairman Leahy and Sen. Charles Schumer (D-NY), the committee members will continue working to resolve their differences and working with the Justice Department to craft a compromise.  We’ll continue to update you on this important legislation.

N.C. Governor Vetos Legislative Confidentiality Bill

North Carolina Governor Beverly Perdue vetoed a bill last week that would have allowed certain documents used in the legislative process to remain confidential.  The Raleigh News and Observer has the full story.

House Bill 104 would have, among other provisions, made legislative "drafting requests," "information requests," and certain other documents submitted in connection with such requests confidential as a matter of state law -- the bill expressly exempted such materials from the state pubic records statute.  Documents prepared by legislative employees at the request of lawmakers would also have been deemed confidential.  The bill would have subjected violators to criminal penalties.

In a public statement announcing the veto, Governor Perdue stated, in part, that “[t]ransparency and accountability are hallmarks of my administration.  If this legislation became law, documents that are currently public record would become private.” 

Governor Perdue's veto could have been overridden by a vote of the North Carolina General Assembly.  But on Friday, House and Senate leaders announced they would not return for a special session to vote on an override.  That means that Governor Perdue's veto stands.

North Carolina Court of Appeals Rules that Duke Lacrosse Coach's Defamation Suit may Proceed

Earlier this month, the North Carolina Court of Appeals released an opinion paving the way for Michael Pressler, former coach of the Duke University lacrosse team, to sue Duke University and a university spokesperson for slander and libel related to statements made in the aftermath of the Duke lacrosse case. 

Pressler was the Duke lacrosse coach in 2006 when the Durham District Attorney Mike Nifong initiated a high-profile, and later discredited, investigation into allegations that members of the lacrosse team raped a dancer at an off-campus party. The North Carolina Attorney General ultimately found the three accused lacrosse players innocent, and the North Carolina State Bar stripped Nifong of his law license. (Duke maintains a website devoted to the lacrosse case at


As reported in 2008 by, Pressler was pressured to resign from the university in April 2006 shortly after the rape investigation began. Thereafter, Duke spokesman John Burness (a named defendant in Pressler’s lawsuit) made statements to the press concerning Pressler’s resignation, which are the basis of Pressler’s lawsuit.  Burness’s statements were published by Newsday in April 2007 and the Associated Press in June 2007.


The decision in Pressler v. Duke University (No. COA08-859) turned on contract principles. As a university employee, Pressler was bound by a university policy that required employees to arbitrate employment disputes. However, after Pressler resigned, he and Duke negotiated a settlement agreement, executed in March 2007, to resolve disputes concerning Pressler’s termination. The settlement agreement made no reference to any arbitration requirement.


When Pressler filed his libel and slander claims against Duke and Burness in January 2008 for comments made by Burness and published by the press, the defendants responded by invoking the arbitration policy—the defendants sought to stay the proceedings while the parties arbitrated the dispute or, alternatively, sought to dismiss the claims. The trial court denied the defendants’ motion and held that the obligation to arbitrate was “extinguished, cancelled and voided” by the settlement agreement executed in 2007.


On appeal, the North Carolina Court of Appeals affirmed the trial court’s decision based on either of two contract theories. The Court of Appeals wrote:

[Pressler’s] claims against defendants arose from alleged defamatory and libelous actions by defendants in June 2007, after the execution of the mutual release. Therefore, under either a theory of agreement of rescission or a theory of mutual release [of claims], plaintiff is not bound to resolve his dispute by arbitration with defendants. Plaintiff’s proceedings in litigation are not subject to a stay. We affirm the trial court’s . . .  order denying defendants’ motion to stay proceedings pending arbitration.

With this ruling, Pressler is now free to pursue his libel and slander claims filed in Durham County Superior Court. We will continue to monitor this story and update you with significant developments.

Justice Ginsburg Denies Request to Block Release of Judicial Documents in Connecticut

Last week, as reported by the Reporters Committee for Freedom of the Press, Justice Ruth Bader Ginsburg denied a request to stay an order of the Connecticut Supreme Court ordering the disclosure of more than 12,000 documents filed in 23 now-settled lawsuits involving allegations of sexual abuse by Roman Catholic priests. 

The emergency request for stay to the U.S. Supreme Court followed the Connecticut Supreme Court’s decision in Rosado v. Bridgeport Roman Catholic Diocesan Corp. in June 2009. In Rosado, the defendants (the diocese and certain individual clergy members) appealed certain trial court orders to unseal documents previously filed under seal with the court in 23 lawsuits that were settled and withdrawn in 2001. Reviewing the trial court’s orders, the Connecticut Supreme Court held that all but a handful of the 12,675 pages of documents filed were “judicial documents” to which a presumption of public openness applied. The Connecticut Supreme Court further held that the trial judge had properly unsealed all but a few of the documents (the trial court had apparently unsealed all documents in the docket, but the supreme court reversed the trial court with respect to 15 documents).

At issue in Rosado was the application of a Connecticut rule of practice providing “[e]xcept as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.” The critical question—an issue of first impression for the court—was what constituted a document subject to the presumption of public access. 

To resolve the matter, the Connecticut Supreme Court first looked to common-law approaches to presumed access to court documents. Ultimately, the court determined that the state rule of practice codified the “common-law presumption . . . that the language ‘filed with the court’ signifies judicial documents”—that is, the court held that the presumption of openness in the rule of practice applies only to “judicial documents.” A “judicial document,” the court held, means “any document filed that a court reasonably may rely on in support of its adjudicatory function.”

With regard to pretrial discovery motions, the Connecticut Supreme Court wrote:

Because of their impact on the judicial process, the public interest in judicial monitoring extends to such [discovery] motions. The actions of the court during the pretrial period ultimately shape issues between the parties at trial or settlement, and the public surely has a vested interest in ensuring that those actions are carried out equitably, free from corruption or error. The vindication of this interest supports public access, not only to the proceedings themselves, but to any materials upon which a court may rely in reaching a decision. Accordingly, we hold that judicial documents are those filed with a court upon which the court reasonably could rely in the performance of its adjudicatory function, including discovery related motions and their associated exhibits.

In Rosado, the court held that all dispositive and non-dispositive motions filed in the case, including discovery motions, and their attached exhibits—regardless of whether the motions were granted or denied—were “judicial documents” subject to presumed access. All but 15 documents in the docket were ordered unsealed.

The Connecticut lawsuits underlying Rosado represent a few of the many lawsuits filed in recent years alleging abuse by the clergy. Private settlements were reached in many cases in Connecticut, Massachusetts, and other states— for example, in 2002, the Boston Archdiocese reportedly agreed to pay $10 million to settle 86 claims filed against a single priest. 

The Connecticut Supreme Court’s order unsealing judicial documents in the Rosado case will likely result in public disclosure of previously hidden details of the 23 settled Connecticut cases.   According to press reports, following Justice Ginsburg’s denial of their request for an emergency stay, the Rosado defendants have announced their plan to ask the full U.S. Supreme Court to review the case.