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

The New York Times ran an interesting report on how the bad economy has impacted newspapers' decisions on whether to litigate public record and access issues.  The bottom line, according to the Times -- while smaller, regional news organizations are scaling back their legal efforts, large national outlets "have been quietly ramping up."

The Times cited in particular Hearst and the Associated Press as two organizations that have been as aggressive as ever in pushing state and federal officials on public record and access issues.  According to the story, both are dealing with tighter budgets by bringing more of their legal work in-house, rather than using outside counsel.

Eve Burton, vice president and general counsel at Hearst, told the Times that Hearst was at an all-time high in the number of access cases it was pursuing.  Hearst's most high-profile fight is in Texas, where it has sued the governor's office for records relating to the 2004 execution of Cameron Todd Willingham, a man many death penalty opponents believe may have been innocent.

The A.P. and Bloomberg News have also been in high-profile legal fights with Treasury Department officials over Freedom of Information Act requests they have filed, the Times reported.

Unfortunately, the Times found, smaller news organizations are choosing to forgo possibly expensive legal fights because their budgets simply will not allow them.

This reluctance only highlights the importance of attorneys' fees provisions in public records statutes, as they are often the only way to truly hold government officials accountable when they improperly withhold public records.

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The Associated Press reported this week of efforts underway in several states to limit access to 911 calls under state sunshine laws.  According to the report, legislatures in Alabama, Ohio, and Wisconsin are considering bills that would pull back from the traditional availability of 911 recordings.  Missouri, Pennsylvania, Rhode Island, and Wyoming currently exempt 911 calls from the operation of public records statutes.

In Alabama, HB 159 passed the Alabama House earlier this month.  The bill, if enacted, would prevent the disclosure of 911 calls to the public without a prior order from a judge, who would consider "whether right of the public to the release of the recording outweighs the privacy interests of the individual who made the 911 call or any persons involved in the facts or circumstances relating to the 911 call."

Under SB 105, a bill introduced this session in the Ohio General Assembly, 911 calls would remain public records but members of the broadcast media would be barred from "play[ing] a recording of a 9-1-1 call that has been made available as a public record over a broadcast medium such as radio, television, or the internet."  Transcripts of 911 calls could be read over the air.  Violation of the provision would subject the broadcaster to a $10,000 fine.

In Wisconsin, AB 612 as originally introduced would prevent disclosure of 911 audio recordings, with transcripts remaining available for copying.  The bill was subsequently amended in committee to permit inspection but not copying of 911 recordings.

These bills appear to be driven by the reaction of some to isolated editorial choices made by television stations.  As the AP article recounts, the sponsors of these bills cite anecdotal accounts of a person who suffered a traumatic loss later hearing a 911 recording made in connection with the loss.  The problem with these moves to curtail access to 911 calls is that they allow the tail of a few questionable decisions by news editors to wag the dog of access to government records generally.  Police incident reports, arrest reports, and 911 recordings provide important sources of information for reporters to cover local law enforcement agencies, and 911 recordings in particular provide a way of monitoring the responsiveness of 911 call centers.  

The principle that government records should be freely available, no less so than the First Amendment's protections to free speech, comes with consequences.  Sometimes people say things that hurt; sometimes reporters broadcast stories their viewers don't like.  However, these consequences should not cause legislatures to lose sight of the greater societal value of government transparency.

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Earlier this month, the North Carolina Court of Appeals affirmed the Rule 12(b)(6) dismissal of a defamation action, holding that the filing of the complaint was sanctionable under Rule 11.  In Ward v. Jett Properties, LLC, the plaintiff filed an action pro se, contending that his landlord defamed him in a letter sent to a representative of the homeowners association of the development where the plaintiff lived.

The matter started with a letter the plaintiff sent to the defendant, complaining about various actions by neighboring tenants.  In response, the defendant wrote back, threatening to evict the plaintiff, to direct the homeowners association to take over his parking spot, and to report him to local law enforcement for failing to obtain North Carolina tags on his vehicle.  The plaintiff contended that the letter was delivered to the homeowners association as well.

The plaintiff filed a lawsuit, alleging that the letter was libelous per se and per quod, in that it accused the plaintiff of, among other things, engaging in "continued harassment" and "pestering behavior," "stalking" others in the neighborhood, being a "nuisance," lodging "irritating and unwarranted complaints," and causing "trouble" and "problems."

In considering whether these allegations stated a claim for libel per se, the Court of Appeals first set out the four categories of libel per se:

a publication which, when considered alone without explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person's trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace.

The plaintiff contended that the letter at issue satisfied the fourth category.

The Court of Appeals disagreed, holding that the statements in the letter, understood "as ordinary people would understand them," were not libelous per se because they amounted to rhetorical hyperbole.  In particular, the court held that accusations of dishonesty, harassing behavior, and unfavorable or disreputable personal habits cannot support a per se claim for defamation.  The court concluded that the trial court therefore properly dismissed the plaintiff's claim at the Rule 12(b)(6) stage:

In this case, defendant's letter was sent in response to a demand letter by plaintiff, accusing defendant of misconduct.  In this context and after reading the entire document, defendant's characterization of plaintiff's conduct as harassment, pestering, threatening, irritating, and nonsense amounts to statements of opinion or rhetorical hyperbole that are not actionable as libel per se.

The plaintiff's per quod claim likewise failed to state a claim because the plaintiff failed to allege any pecuniary loss from the letter at issue.

The Court of Appeals also affirmed the trial court's finding that the filing of the complaint was sanctionable under Rule 11.  The trial court rested its sanction on a finding that the plaintiff had filed at least four previous complaints against the defendant, all of which had been dismissed, and had filed a number of other actions against others.  The Court of Appeals held that these findings were sufficient to satisfy the standard under Rule 11 for imposing a sanction.  However, the court remanded the matter for further findings of fact with respect to the $2,000 sanction imposed.

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In yet another data point on the status of anonymous Internet speech, a New  York judge this week quashed a subpoena seeking the identity of a person who had posted comments on a newspaper website.

We have covered this topic in a number of prior posts, for example here, here, and here, as courts have grappled in the past year with the question of when to enforce subpoenas to media organizations that would compel the identification of an anonymous Internet speaker.  Such subpoenas have been examined both from a First Amendment perspective, in terms of the constitutional right to speak anonymously, and from a shield law perspective, as many of these subpoenas are problematic under state laws giving media organizations a qualified right to resist subpoenas.  Surveying these cases reveal that context matters -- is the party seeking disclosure a would-be defamation plaintiff seeking the identity of a defamer or a routine civil litigant; is the party a law enforcement agency or grand jury seeking information in connection with a criminal investigation.

In the recent New York case, an Orange County, New York grand jury issued a subpoena to the Chronicle, a weekly serving Chester and Goshen, New York.  The grand jury was apparently investigating comments that appeared on the Chronicle's website concerning the former superintendent of the Chester school system.  Because grand jury proceedings are secret, other aspects of its investigation are not publicly available.

At the hearing on whether to enforce the grand jury's subpoena, the presiding judge took the comments at issue into chambers and reviewed them with the district attorney.  According to local reports, after reviewing the comments, the judge indicated he did not believe they were criminal in nature.  Accordingly, he quashed the subpoena, concluding that the identity of the person or persons who posted the comments at issue was not critical to the matter being investigated by the grand jury.  Although the case was apparently argued from a First Amendment anonymous speech perspective, the court's approach is also consistent with the standard found in many shield statutes, which often require the party serving the subpoena upon a reporter to establish that the information sought is essential to a claim or defense in the pending matter.

The court appropriately recognized that in order to overcome the First Amendment right to anonymous speech, the party serving the subpoena must articulate a compelling justification.  If the party cannot establish that the sought-after information -- here the identity of the speaker -- is critical to a pending proceeding or investigation, then by definition no compelling justification exists.

We will continue to monitor court decisions in this area.

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The presiding judge closed a hearing Friday on whether to hold Andrew Young and his wife in contempt for failing to turn over a sex tape purportedly showing Rielle Hunter and disgraced former presidential candidate John Edwards consummating their much-publicized affair.  The hearing was held in Chatham County, North Carolina, and it was set in a lawsuit brought by Hunter to recover possession of the tape from Young.  Young, a former aide to Edwards, was apparently part of Edwards's misbegotten scheme to cover up his fathering of a child with Hunter, as Young originally claimed the child was his.  In a book he recently published, Young says he found the tape in the home where Hunter lived with Young's family for a period of time.

The tawdry story has blanketed tabloids and dailies, but on Friday it gave occasion to consider an important newsroom law issue.  At the hearing on whether to hold Young in contempt for not turning over the tape in response to a prior order, the judge without prior notice announced that he would hear argument in chambers, outside the presence of reporters and members of the public.  As was reported in the Raleigh News & Observer, the judge heard argument for approximately one hour before emerging and issuing his ruling that Young and his wife were in contempt and would be jailed if the tape is not turned over by 2:00 pm on Wednesday.

Although the trial court administrator contended that closing the hearing was within the judge's "discretion," summarily closing the hearing without notice, without affording the press an opportunity to object, and without entering factual findings supporting closure and reflecting the consideration of alternatives violated North Carolina law.  

The North Carolina Constitution specifically provides that "all courts shall be open."  This provision entitles members of the press and public to a qualified right to attend civil proceedings, such as the matter between Hunter and Young.  Based on the media reports of the hearing, there is no evidence that the judge considered alternatives to conducting the hearing in private or articulated any interests in secrecy that would overcome the presumption of access.

Unfortunately, it appears that none of the phalanx of media representatives who were present invoked a special North Carolina statute that provides a mechanism for gaining access to closed proceedings and sealed documents.  In particular, N.C. Gen. Stat. 1-72.1 provides:

Any person asserting a right of access to a civil judicial proceeding or to a judicial record in that proceeding may file a motion in the proceeding for the limited purpose of determining the person's right of access.

Once a motion is made under the statute, the court must convene a hearing "before conducting any further proceedings" relating to the matter in question.  Following the hearing, the court must

rule on the motion after consideration of such facts, legal authority, and argument as the movant and any other party to the action desire to present. The court shall issue a written ruling on the motion that shall contain a statement of reasons for the ruling sufficiently specific to permit appellate review. The order may also specify any conditions or limitations on the movant's right of access that the court determines to be warranted under the facts and applicable law.

The ruling is subject to immediate appellate review.  It is unfortunate that in this case the court's decision to close the proceeding was not put to the test under G.S. 1-72.1.  Nevertheless, the episode provides an important opportunity for reporters and editors to learn of this special procedural right they enjoy in North Carolina to challenge the closing of a courtroom or the sealing of a court record.

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