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

A bill that would generally allow electronic media coverage of U.S. Supreme Court proceedings passed the Senate Judiciary Committee on April 29. 

The bill, S. 446, provides:

The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

The text of the brief bill is linked on GPO’s website here.

The bill as currently drafted would presumptively allow electronic media coverage of Supreme Court proceedings unless five justices decide that permitting the coverage would violate one or the other party’s Fifth Amendment due process rights. The Supreme Court has never allowed electronic media coverage of its proceedings, so enactment of the bill (if it happens) would be a major step forward for cameras-in-the-courtroom advocates. 

Although many state courts do allow cameras in the courtroom, the federal judiciary has been more reluctant to do so. Under current federal law, cameras are generally prohibited in federal district court proceedings. In fact, some federal district courts, by local rule, forbid the public and courtroom participants (lawyers and parties) from bringing smart phones with camera capabilities inside the federal courthouse. And, although the U.S. Courts of Appeals are allowed to permit electronic media coverage of their proceedings, they generally do not. For an excellent summary of the history of cameras in federal courts as of 2006, see the CRS Report to Congress on this topic.

S. 446 was introduced by Sen. Arlen Specter and has seven additional co-sponsors. With Thursday’s vote, the bill was reported favorably out of the Senate Judiciary Committee and now moves to the full Senate floor.

Companion legislation, H.R. 429, was introduced in the House in January 2009 and was referred to the House Judiciary Committee, where it is still pending. 

In related action on April 29, the Senate Judiciary Committee took the somewhat unusual step of adopting a Senate Resolution, S. Res. 339, voicing support for the cameras in the Supreme Court bill. The resolution states:

It is the sense of the Senate that the Supreme Court should permit live television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

We'll continue to follow Congressional action on cameras in the U.S. Supreme Court and report on important developments.

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The United States Supreme Court's recent decision  in U.S. v. Stevens, which invalidated on First Amendment grounds a federal statute criminalizing the commercial creation, sale, or possession of a "depiction of animal cruelty," has been widely discussed in the media and blogosphere.  In Stevens, the Court held 8-1 that the so-called "dog-fighting" statute was, on its face, unconstitutionally overbroad.  In so holding, the Court declined the government's invitation to create a new category of speech that did not enjoy First Amendment protection.

Our purpose here, however, is not to rehash the details of that case (for a terrific rundown of the facts and holding, read this post from Lyle Denniston at Scotusblog).  Rather, our interest is in explaining why members of the media should care about a dog-fighting decision.

Stevens matters -- or should matter -- to journalists for two reasons.

First, it invalidated a law that, read broadly, could have created criminal liability for a television news show discussing dog fighting that included footage of an actual dog fight.  While the statute had a savings clause that exempted "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value," the Court held that the First Amendment does not countenance government prosecutors passing judgment on what has "serious journalistic value."

Chief Justice Roberts, writing for the Court, did not buy assurances from the government that the statute would be interpreted narrowly.  He wrote that the government "offer[ed] no principled explanation why" certain depictions of Spanish bullfighting would be "inherently valuable" while certain depictions of dog fighting would not.

More broadly, Stevens matters to journalists because the Court -- almost unanimously -- denied in extremely strong language the government's attempt to create a whole new category of speech (depictions of animal cruelty) that could be criminalized based on a "balancing of the value of the speech against its societal costs."

The Court held:

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).

To understand the importance of that holding, imagine a scenario where every category of speech could be proscribed if the government or a court did not think its value outweighed its potential harm.  Would broadcasters be forced to defend the societal value of their latest "reality TV" offering?  Could newspapers be barred by law from publishing any article whose societal value was not deemed sufficient?  The reach of such an outcome would have been breath-taking.

As the Court pointed out -- and as journalists are all too aware -- much (if not most) speech has little or no true "societal value."  Nonetheless, such speech has always enjoyed First Amendment protection unless it fell into one of a very small number of historically recognized exceptions (obscenity, defamation, fraud, incitement, or speech integral to criminal conduct).

By drawing a firm line in the sand, the Court affirmed that journalists will continue to retain broad discretion under the First Amendment to publish what they think has value -- whether or not the government or a court might disagree.

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Pursuant to the terms of a recent settlement between the American Civil Liberties Union of North Carolina Legal Foundation (ACLU-NCLF) and the N.C. Department of Correction (DOC), prison inmates in North Carolina may now write novels and other manuscripts and send them to publishers, even if those written materials portray criminal activity.  The ACLU-NCLF reported the settlement in a press release.

The ACLU-NCLF had filed a federal lawsuit on behalf of Victor L. Martin, a habitual felon with several theft-related convictions and whose “urban fiction” authored while in prison features gangsters, hustlers, drugs, and raw language.  The terms of the settlement require the DOC to adopt a policy that allows inmates to prepare a manuscript for publication, for outside typing, and for copyrighting.  The policy protects fiction, nonfiction, poetry, music, and drawings.  An inmate may not receive direct compensation for publication of the manuscript but may receive compensation indirectly by authorizing a family member to handle all correspondence related to the business aspect of publishing for compensation.

The issues raised by this lawsuit are similar to those surrounding “Son of Sam” laws. Son of Sam laws are designed to prevent criminals from profiting from their crimes through contracts relating to a depiction of their crimes in a movie, book, or other publication or production.  The New York Legislature passed the very first Son of Sam law in 1977 in response to reports that a killer who called himself Son of Sam – later identified as David R. Berkowitz, the man whose murder spree terrorized New York City in 1977 – was being offered large sums from publishers and film producers for the rights to his story.

Frequently these “Son of Sam” laws give to victims and their families any money that the criminal earns from expressive works about his/her crimes. Supporters say the laws help crime victims and prevent criminals from profiting from their misdeeds.  Opponents raise First Amendment concerns.

New York's original "Son of Sam" law was struck down on First Amendment grounds in an 8-0 decision by the U.S. Supreme Court, which held that it was unconstitutionally overinclusive in the case of Simon & Schuster v. Crime Victims Board.  The case involved a book that was written with the assistance of former mobster Henry Hill, who was portrayed in the movie Goodfellas.  The Supreme Court noted that New York's law as written would have escrowed payments for works such as the Autobiography of Malcolm X, Henry Thoreau's Civil Disobedience, and the Confessions of Saint Augustine.

There are no North Carolina statutes or reported decisions relating to “Son of Sam” laws.  However, pursuant to the terms of the settlement between the ACLU-NCLF and the DOC, prison inmates in North Carolina have more rights than before to write and publish work authored in prison, even work that deals with criminal activity.

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The U.S. District Court for the Eastern District of North Carolina recently handed a victory to a former marine, now a civilian worker at Camp Lejuene, who had several anti-Islamic decals pasted to the vehicle he drove and parked on base. Senior Judge Malcolm Howard ruled that the U.S. Marine Corps base’s commanding officer and traffic court officer enforced an otherwise viewpoint-neutral regulation in an unconstitutional, viewpoint discriminatory manner when, in response to complaints from others on base, the officers forced the plaintiff to remove the decals from his car and later banned his car from Camp Lejuene and “any other federal installation” until the decals were removed. The decision, Nieto v. Flatau, is available here.

The court ruled on the defendants' pending motion to dismiss and the parties’ cross-motions for summary judgment at one time. After first denying the defendants’ motion to dismiss, the court undertook a forum analysis to determine the standard of scrutiny to apply to the regulation. Applying the standards set forth in Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983), the court held that Camp Lejuene is a “non-public forum”—the base is “public property that has not traditionally been open for public debate or assembly and has not been designated as such.” Because the base is a non-public forum, the government may restrict speech on the base “as long as the restrictions are reasonable and ‘not an effort to suppress expression merely because public officials oppose the speaker’s view.’” This standard is, of course, less exacting than the strict scrutiny standard that requires a speech regulation to serve a compelling government interest and to be narrowly tailored to achieve that interest.

One of the most interesting aspects of the Nieto case is that, even with the more lenient standard applied to speech regulations in a non-public forum and the deference the court recognized the military is granted with regard to speech regulations, the court still found the application of the regulation in this case did not pass constitutional muster. 

The regulation at issue prohibited “the display of ‘extremist, indecent, sexist or racist messages on . . . motor vehicles in any format (bumper stickers, window decals, art or other adornments)’ on the Base.” The court determined that the regulation was viewpoint neutral on its face but was not applied to the plaintiff in a viewpoint neutral manner. The court wrote:

Plaintiff has been prohibited from displaying anti-Islamic messages, such as “Islam = Terrorism.” Yet, testimony by defendants establishes that decals espousing pro-Islamic messages, such as “Islam is Love” or “Islam is Peace” would be permitted upon the Base. As applied, the regulation allows “one message while prohibiting the messages of those who can reasonably be expected to respond.” Such viewpoint discrimination is the most egregious form of content discrimination and is impermissible regardless of the nature of the forum.

Although the regulation was apparently adopted to prevent speech intended to “inflame the passions of those within the base,” the court rejected this justification, finding that decals with the words “Islam is Love” could be just as inflammatory to some people as “Islam = Terrorism” is to others. Moreover, the court applied to the military regulation the well settled principle that the offensiveness of the speaker’s message is not a proper basis for banning expression.

In the end, the court granted the plaintiff’s request for a permanent injunction barring the base officials from enforcing the regulation in a viewpoint discriminatory manner.

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