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

In a case we first flagged back in October of 2009, the Supreme Court last week handed down its decision in Doe v. Reed, a case involving a First Amendment challenge to Washington state's public records act.  The case presented an interesting collision of interests for the media, but the Court held 8-1 that the First Amendment did not prevent the disclosure, pursuant to the PRA, of the identities of those citizens who signed a petition seeking to place a referendum on the ballot.

When the Court granted cert in January, we described the case as follows:

The dispute in Doe v. Reed involves the question of whether the signed petitions that ultimately allowed Referendum 71 [a ballot initiative seeking to overturn a law that granted legal rights to domestic partners equivalent to those enjoyed by married couples] to appear on the ballot constitute public records that are subject to disclosure under Washington law as public records. Nearly 138,000 names appear on these petitions. The plaintiffs brought suit in federal court, contending that those who had requested the petitions had indicated they would publish the list of names on the Internet. Making the list available under public records laws, according to the plaintiffs, threatened to chill the First Amendment activity of supporters of Referendum 71. The plaintiffs assert that those who petitioned to include Referendum 71 on the November ballot would face harassment from opponents of the ballot measure if their names were made publicly available.

As we wrote back then, upholding the PRA would constitute an important victory for government reporters, for whom public records laws are a core part of their newsgathering activities.  And yet, the opposite ruling might help boost claims of First Amendment support for anonymous speech, which more and more news outlets find themselves asserting these days.

In a welter of concurring opinions (and one dissent), the Court explored all angles of the case, finally holding that the petitioners' facial challenge to the PRA failed because the state had a sufficient interest in enacting laws designed to preserve electoral integrity.  The PRA, the Court held, was not a prohibition on speech, but rather was a disclosure requirement in the voting context, meaning that it was reviewed under a less exacting standard than "strict scrutiny."  Chief Justice Roberts, for the Court, wrote that giving the public access to petition records provided a crucial check on the government's efforts to count and validate those signatures, and that such a check was sufficiently related to the state's interest in electoral integrity.

Justice Alito concurred insofar as the case was a facial challenge, but made it clear that he would rule differently on an as-applied challenge if the petitioners can show a "reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals" from the government or the public.

Justice Scalia, also concurring, said that the petitioners had no First Amendment right to non-disclosure.  Justice Scalia pointed out that those who signed the petition had not done so anonymously -- indeed had they done so their "signatures" would not have counted.  Because they were only now seeking to have that action be anonymous, Scalia called this " a sort of partial anonymity" not worthy of First Amendment protection.

Justice Thomas took the opposite view in his dissent, writing that the First Amendment interest in anonymous speech trumped the state's purported concerns about electoral integrity.  In Justice Thomas' view, the proper standard was strict scrutiny, and, under that standard, the PRA could not constitutionally force the disclosure of petition information because "there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process."

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A panel of the Court of Appeals for the Fifth Appellate District in Ohio has affirmed a lower court’s grant of summary judgment in favor of an Ohio radio station in a defamation and false light invasion of privacy case involving a former candidate for judicial election. The Fifth District’s opinion in Christiansen v. WCLT et al. is linked here. 

Shortly before the November 2008 general election, radio station WCLT (Newark, Ohio) aired and posted to its website a political editorial in which the station’s general manager expressed his opinion that two of three candidates were inappropriate for the position of Domestic Relations Court Judge. One of the two candidates quickly sought an ex parte temporary restraining order to enjoin the editorial from further distribution (which was later denied) and filed a defamation complaint. Later, because certain of the statements the plaintiff contended were defamatory were by her own admission literally true, the plaintiff amended her complaint to also allege a claim for false light invasion of privacy. 

The statements in the editorial that the plaintiff challenged were these:

In July of 2007 a police report alleging assault was filed with the Newark Police Department against [the plaintiff]. In the report she is accused of striking a person in a courthouse elevator. She has also had several complaints concerning her behavior filed with the Ohio Supreme Court’s disciplinary counsel. 

The plaintiff admitted the statements were literally true, but claimed that the statements improperly created the inference that she had been charged with assault and disciplined by the Ohio Supreme Court’s disciplinary counsel – neither of which had happened. (The Fifth District’s opinion includes the full text of the editorial.)

On cross motions for summary judgment, the trial court denied the plaintiff’s motion and granted the radio station’s motion for summary judgment, finding that (1) the allegedly defamatory statements were not made with actual malice because the defendant believed them to be true (indeed, the plaintiff admitted they were literally true), (2) the statements were protected opinion, and (3) the statements could be construed as non-defamatory.

On appeal, the Fifth District, in a 2-1 decision, denied each of the plaintiff’s five assignments of error by the trial court. The court held that:

• The lower court had not committed error by finding the allegedly defamatory statements to be literally true. 
• The lower court properly applied the “innocent construction” rule to the statements. This rule requires that when an allegedly defamatory statement is subject to two interpretations, one defamatory and one not, the court must apply the non-defamatory meaning. 
• The trial court did not err by finding that the factual statements made in the editorial were true and the rest of the editorial was protected opinion. 
• The trial court properly held that the statements were not made with actual malice – knowledge of falsity or reckless disregard for the truth – because the statements were literally true. Actual malice could not be inferred from the plaintiff’s evidence of common-law malice or personal animosity.
• The trial court properly distinguished the plaintiff’s defamation claim from her false light claim, as both causes of action require the plaintiff to prove actual malice. Since the court affirmed the finding that the statements were literally true, the plaintiff could not prove actual malice.

The appellate decision represents an important victory affirming the right of news organizations and others to engage in political speech during election campaigns.

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In a decision with important implications for bloggers and other so-called "new media" journalists seeking to invoke the protections of their state's reporter's privilege, a New Jersey appeals court recently held that New Jersey's shield statute did not protect a woman who operated a web site dedicated to revealing "criminal activity" within the pornography industry.

The appellate court's decision in Too Much Media, LLC v. Shellee Hale affirmed a trial court decision requiring Hale to reveal her sources for a series of web postings that the plaintiffs asserted were, among other things, defamatory.  Hale had sought a protective order, citing New Jersey's shield statute.

In a lengthy analysis, the court focused almost entirely on whether Hale could be considered a journalist under the statute.  The statute covers, in relevant part, any

person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public.

"News media" is defined as "newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public."

As an initial matter, the court held that under the statute, Hale bore the burden of proving she was a journalist.  In making this holding, the court cited to a portion of the New Jersey shield statute relating to efforts by criminal defendants to obtain a reporter's sources.  The court decided, without analysis, that the same burden of proof should apply in civil cases.  It is open to question, however, whether the public interest that exists in the civil context is weighty enough to require someone to prove he or she is a "journalist."

With that burden established, the court held that Hale had failed to prove that she was "engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public."  The court said:

Defendant has produced no credentials or proof of affiliation with any recognized news agency, nor has she demonstrated adherence to any standard of professional responsibility regulating institutional journalism, such as editing, fact-checking or disclosure of conflicts of interest.

The standard of proof outlined by the court is troubling.  After all, nothing in the text of the statute appears to require that someone adhere "to any standard of professional responsibility," and yet the New Jersey court made it a de facto requirement for being a "journalist" under the shield statute.

According to media reports, Hale will ask the New Jersey Supreme Court to review the decision.

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