Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

The Volokh Conspiracy recently blogged about a 2008 Massachusetts Superior Court order granting a libel defendants’ motion to dismiss defamation and business defamation claims because the defendant had “no continuing duty to investigate the accuracy” of a news article that was posted by the defendant on its website. The case, Jenzabar, Inc. v. Long Bow Group, Inc., No. 2007-2075H (Mass. Super Ct., Aug. 5, 2008) is linked from the Volokh site here.

The case is an interesting one, first, for its treatment of the fair report privilege and, second, because it is another example of an unusual and constitutionally troubling Massachusetts state statute that is apparently still on the books.

According to the Superior Court’s order, one of the plaintiffs in the Jenzabar case (Chai Ling) was a student leader during the 1989 Tiananmen Square protests in China who later moved to the United States and founded Jenzabar, a software company. The defendant, Long Bow, Inc., was a documentary production company that produced a film chronicling the Tiananmen Square protests. According to at least one news article, the film included an interview with Chai Ling.

The gist of the plaintiffs’ defamation claims was that beginning in May 2004, the defendant’s website referred to news articles that “‘reported certain concerns third parties expressed with respect to Chai Ling and Jenzabar.’” One such article was an excerpt from an August 2003 story published by the Boston Globe, which stated that “‘five former executives have sued Jenzabar, including the former CEO, who accused Chai and [a third person, apparently Chai Ling’s husband] of ‘a number of unethical, inappropriate, and/or illegal actions.’” The plaintiffs in Jenzabar alleged the Boston Globe article (as republished by Long Bow) was false because the former CEO had retracted his allegations. However, it appears that the defendant first posted the Boston Globe article before the former CEO’s lawsuit had been dismissed. 

The critical question for the court with respect to the defamation claim based on the Boston Globe article was “whether [the defendant] had any kind of continuing duty to investigate the accuracy of the Boston Globe article, i.e., whether [the former CEO] was still accusing the plaintiffs of inappropriate actions.” Ultimately, the court held that “there is no such duty.” Accordingly, the court dismissed the defamation claim based on the Boston Globe article.

Interestingly, the plaintiffs apparently tried to use the fair report privilege as formulated in the Restatement (Second) of Torts, Section 611 to argue that the defendant had a duty to publish a “follow-up” to the Boston Globe story about the CEO’s lawsuit. In so arguing, Jenzabar relied on Comment f of Section 611, which states, “‘when a newspaper publishes from day to day the report of a judicial proceeding, it may not, after reporting derogatory parts, fail to publish the further proceedings that tend to vindicate the person defamed.” However, the Superior Court stated in a footnote that this example from Comment f “is intended to apply to ongoing coverage of proceedings such as trials, and does not impose a duty on Long Bow (or the Boston Globe) to publish the fact that [the former CEO] dropped the suit.” (Long Bow raised the fair report privilege in support of its motion to dismiss).

With respect to articles other than the Boston Globe story, the plaintiffs claimed the articles were defamatory because the defendant “has provided this material [on its website] in a manner that purports to be balanced and fair but, in reality, is biased and deceptive.” However, and notably for the court, the plaintiffs did not allege these other articles were false. Rather, the plaintiffs relied on Mass. Gen. Laws ch. 231, § 92, which provides, “[t]he defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libelous; and the truth shall be a justification unless actual malice is proved.” Citing the Massachusetts Supreme Judicial Court, the Superior Court stated that “application of that statute to a truthful statement concerning a matter of public concern violates the First Amendment.  Allegations of improper business practices are a matter of public concern. To survive this motion to dismiss, the plaintiffs must allege falsity, which they have not.”

Earlier, we wrote about this troubling Massachusetts statute as applied in Noonan v. Staples.  In that case, a panel of the First Circuit held that a defamation claim could move forward, based on Mass. Gen. Laws ch. 231, § 92, even though the allegedly defamatory statements were true or substantially true. The First Circuit found proffered evidence that the sender of the allegedly defamatory e-mail harbored ill will toward the plaintiff raised a triable issue of fact regarding whether the sender acted with common-law malice toward the plaintiff. Later, as reported here, a federal jury returned a verdict of no liability in favor of the defendant on this defamation claim.

Although the Superior Court dismissed the defamation claims in Jenzabar, it allowed other trademark and unfair business practice claims to move forward. According to Long Bow’s website, the legal dispute over those claims remains ongoing.

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The U.S. Court of Appeals for the Second Circuit has scheduled to hold oral argument in the Fox v. FCC indecency case on January 13, 2010, at 3:00 pm. 

The Fox case involves review of the FCC's determination that Cher's use of the F-word during the 2002 Billboard Music Awards show and Nicole Richie's use of the F-word and S-word during the 2003 Billboard Music Awards show (both broadcast by the Fox Network and its affiliates) were actionably indecent.  We previously reported about the Supreme Court's decision in the Fox case here. 

Although the Second Circuit previously ruled that the FCC had not provided a "reasoned basis" for changing its prior indecency enforcement policy and imposing liability for a single, "fleeting" expletive, the Supreme Court reversed the Second Circuit and upheld the FCC's decision on procedural grounds.  The Supreme Court found that the FCC had provided a "reasoned basis" for its decision.  The case was then remanded to the Second Circuit with instructions to that court to determine whether the FCC can regulate “fleeting expletives” without violating the First Amendment. 

On remand, the First Amendment question is now directly in front of the Second Circuit.  Therefore, the oral argument scheduled for January 13 is expected to address whether the FCC's "fleeting expletive" indecency policy can survive First Amendment scrutiny.

We will continue to follow this important case and provide updates.

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FCC Chairman Julius Genachowski  recently announced what the Commission is billing as an “agency-wide initiative to assess the state of media in these challenging economic times and make recommendations designed to ensure a vibrant media landscape.” The Chairman has appointed Steven Waldman to lead the effort. Waldman most recently served as President and Editor-in-Chief of Beliefnet.com, a faith-oriented website, and was a regular columnist for the online edition of the Wall Street Journal. According to an FCC News Release, Waldman will work with FCC bureaus to “lead an open, fact-finding process to craft recommendations to meet the traditional goals of serving the public interest and making sure that all Americans receive the information, educational content, and news they seek.”

In launching this initiative, the Commission is apparently responding to requests for FCC action by the Knight Commission on the Information Needs of Communities in a Democracy and a report on the “dire circumstances” of newspapers prepared by the Pew Project for Excellence in Journalism. Chairman Genachowski declared this a “pivotal moment in the history of media and communications” because of the development of new technologies and the financial downturn. According to the Chairman, “it is important to ensure that our [policies] promote a vibrant media landscape that furthers long-standing goals of serving the information needs of communities.” However, Genachowski acknowledged that the agency must be “scrupulous” about adhering to First Amendment principles that prohibit the government from dictating content.

At this stage, it is too soon to tell the level of resources the FCC will devote to this endeavor and whether any formal action will result. It is also unclear if this effort to assess the “state of media” has any relationship to a “state of journalism” document that Commissioner Copps was reportedly circulating in July. We reported on that document here. (According to news reports, Commissioner Copps’s item “examines the decline of broadcast journalism . . . and tries to explain why traditional forms of journalism have declined while other, newer forms have been on the rise.” No action has been taken on that item.)

We will update you as this initiative continues to develop.

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We have closely followed the twists and turns in Detroit Free Press reporter David Ashenfelter's efforts to avoid being forced to reveal his sources in the civil action against the Department of Justice brought by former federal prosecutor Richard Convertino.  This spring, a federal judge in Michigan allowed Ashenfelter to invoke his rights under the 5th Amendment in order to avoid testifying under oath about his sources.

Last week, the collateral damage from Convertino's legal crusade continued to spread.  This time, Convertino was seeking some 736 DOJ documents that he claimed would provide him information as to the identity of the DOJ employee who presumably leaked to Ashenfelter information about the investigation into Convertino.

In a loss for Convertino that, ironically, also constitutes a loss for media interests, D.C. federal district court judge Royce Lamberth ruled last week that all 736 documents were protected from disclosure by a variety of privileges, including the deliberative process privilege.  In addition, in the same opinion, Judge Lamberth held that private emails sent by federal prosecutor Jonathan Tukel from his DOJ account were covered by the attorney-client privilege and need not be produced.

As to the first part of the opinion, the deliberative process privilege is, all too often, the exception to the Freedom of Information Act that swallows the rule.  It covers “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”  The privilege is easily used as a shield by government agencies to protect from disclosure all variety of internal documents that might otherwise be subject to public disclosure.  While Judge Lamberth's opinion did not appear to break any new ground here, it certainly confirmed the many ways that government employees can make disclosure of records more complicated.

The second part of the opinion was more interesting, as it discussed an area of some interest to open government advocates across the country -- the status of private emails sent from a government account.  In this case, Convertino argued that Tukel should not be able to invoke the attorney-client privilege for these 36 emails -- which were sent to or from his personal attorney -- because, by being sent through the government's server, they were, per se, revealed to a third party.  Convertino asserted that because DOJ email policy explicitly gave the Department the right to read any DOJ email, Tuker had no reasonable expectation of privacy in these emails.

Judge Lamberth disagreed, holding that "[o]n the facts of this case, Mr. Tukel’s expectation of privacy was reasonable. The DOJ maintains a policy that does not ban personal use of the company e-mail. Although the DOJ does have access to personal e-mails sent through this account, Mr. Tukel was unaware that they would be regularly accessing and saving e-mails sent from his account."

The ruling clearly rolls back the widely held view that what is done on government computers is presumptively the property of the government, and therefore the people.  Journalists in states with public records acts may now find themselves fighting in court for what was once assumed to be clearly public -- emails sent from government accounts by government employees.

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After weeks of debate, the Senate Judiciary Committee today amended and passed the proposed federal shield law on to the full Senate for consideration.  Even with this important step, it is unclear when the full Senate will vote on the measure or how quickly the Senate version can be reconciled with the House version.

In an important victory for the media, the Senate Judiciary bill reportedly adopts a broad definition of "journalist" -- one that, at this stage, includes bloggers and other journalists with non-traditional media organizations.  This aspect of the bill was the focus of much debate, with politicians from all sides pushing for a narrower definition.  During the Committee's debate, one of the key opponents of the broader formulation was California Democrat Dianne Feinstein.  For a webcast of the Committee's markup session, click here.

The final text of the bill that passed is not yet available, but as we reported in November, it is expected that the bill will provide for different burdens of proof in criminal and civil cases, with the journalist having to show by clear and convincing evidence that disclosure would harm the public interest in criminal cases, and the party seeking disclosure having to show that disclosure would be in the public interest in civil cases.  The bill also reportedly retains a national security exception that would require disclosure if the sought-after information "would materially assist the Government in preventing, mitigating, or identifying the perpetrator of an act of terrorism or other significant and articulable harm to national security."

We will post full details of the actual Senate Judiciary bill once it becomes available.  In the meantime, the Media Law Resource Center has a good collection of the various bills.

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In light of our recent discussion of Bartnicki v. Vopper and the legality of publishing information that was illegally obtained by a third party, this recent case from New Hampshire drew our attention.

In early November, the New Hampshire Supreme Court heard arguments in a case involving a website's refusal to identify the author of a post that criticized mortgage lender The Mortgage Specialists Inc.  The site, Mortgage Lender Implode-O-Meter, had posted a story concerning a state investigation into MSI for, among other things, allegedly forging signatures and destroying documents.  The site also posted a copy of a document MSI had prepared for the state Banking Department.   The document, which was provided by an anonymous source, is supposed to be confidential under state law.

In addition, someone calling themself “Brianbattersby” posted a comment on the site accusing MSI President Michael Gill of fraud.

MSI demanded that the website, owned by Implode-Explode Heavy Industries, remove the document and the anonymous comment, identify the identify of the person who leaked the document, and agree not to republish the document in the future.  The website agreed to the first request, but refused the second and third.

MSI then sued in state court for both the identity of "Brianbattersby" and the person who leaked the confidential document.  This spring, a county judge ordered the website to disclose the information MSI sought and enjoined the site from further publication of the confidential chart.

The trial court decision is troubling for several reasons.  First, the court acknowledges, but then does not address in any substantive way, the website's argument that the statute relied on by MSI and the court only covers state authorities' conduct and does not make it illegal for a third party to publish the document at issue.  Rather, the court seems to assume publication is illegal and makes much of the fact that no penalties are being assessed or sought against the website.

The United States Supreme Court in Florida Star v. BJF held that a newspaper could not be punished for publication of truthful material lawfully obtained "absent a need to further a state interest of the highest order."  In the New Hampshire case, there is no allegation that the website obtained the document illegally, only that its publication was illegal.  Furthermore, the fact that the website in this case is not subject to penalties seems legally irrelevant, as it is being restrained from publishing truthful, lawfully obtained, information.

Second, in forcing the website to disclose the identity of "Brianbattersby," the court engaged in no analysis of the speaker's right to post anonymously.  As we have discussed previously, the clear trend nationally is to require a plaintiff seeking the identity of an anonymous speaker accused of defamation to meet some elevated pleading standard.  There is no indication that anything of the sort was required here.

Finally, it is worth noting that New Hampshire is one of the few states without any kind of shield law, meaning that the website has far less legal recourse when asked to reveal the identity of its source for the document.

For links to other pleadings in this case, click here.  We are awaiting a decision from the New Hampshire Supreme Court and will report on it once it's handed down.

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The release of hacked emails written by well-known climate scientists has been widely reported around the world, as those emails have raised questions about whether the science behind global warming has been overstated.

This New York Times blog post by the paper's science reporter caused a mini-furor of its own in the blogosphere.  In the post, Andrew Revkin writes of the hacked emails:

The documents appear to have been acquired illegally and contain all manner of private information and statements that were never intended for the public eye, so they won’t be posted here.

While Revkin's statement was rather unclear, some critics wondered whether this constituted a new Times policy, one that was not in effect, for example, when the Pentagon Papers were published or when various leaked documents from the Bush Administration were published.  In a follow up to his post, Revkin points out that, from the beginning of the story, the Times has quoted the emails and provided links to other sites that have them posted.

Leaving aside the merits of the blogstorm in this case, the controversy does raise -- once again -- the question of how a media outlet should handle the receipt of documents that it has reason to believe were obtained illegally.

The answer, as a legal matter, is fairly simple.  Since the United States Supreme Court case of Bartnicki v. Vopper, the law is clear that when a media outlet lawfully obtains information from a third party -- even if the third party obtained it illegally -- publication of that material is protected by the First Amendment. In Bartnicki, which involved the broadcast of the contents of a cell phone call that had been illegally taped, the Court recognized the important government interest in protecting the privacy interests of the public at large, but held that, "[i]n this case, privacy concerns give way when balanced against the interest in publishing matters of public importance."

Of course, the answer would be different had the radio station that broadcast the tapes actually recorded the conversations itself.  The First Amendment does not immunize a reporter from his or her own illegal activity.  The answer might also be different if the disclosure did not concern a matter of public importance, or if the party releasing the material had some independent legal duty not to disclose it (as was the case in Boehner v. McDermott).

The policy question for media outlets is far more complicated.  Should the fact that the climate science emails contained "private" information give a media outlet legitimate pause before deciding to publish them?  Perhaps, though Andrew Revkin can probably tell you that deciding when to publish and when not to publish "private" information opens you up to charges of hypocrisy.

And yet, a blanket rule favoring publication may be problematic in some cases.  For example, to the degree any of these emails containing "private" information came from a government source, the Federal Privacy Act may be implicated.  Thus, if the government or a private individual pursues a Privacy Act action against whoever leaked the documents, the media outlet that received those documents may find itself being forced to reveal its sources (or facing the consequences for refusing to do so).

Check back later this week for a story from New Hampshire that implicates both Bartnicki and the developing case law on anonymous internet commentary.

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