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

On July 27, 2010, N.C. Superior Court Judge Calvin E. Murphy ruled from the bench that North Carolina’s shield law, N.C. Gen. Stat. § 8-53.11, protects a newspaper from the compelled disclosure during judicial proceedings of the identities of anonymous commenters to the newspaper’s website. Judge Murphy signed the written order in the case on August 16, and it is available here. To our knowledge, this is the first case in which a North Carolina court has ruled that the state's shield law applies to the identities of anonymous website commenters, although other states have been grappling with the issue with respect to their own state shield laws.

The case stems from the criminal proceedings in Gaston County, N.C., against Michael Mead, who has been charged with murder. Mead’s attorney issued a subpoena to the publisher of the Gaston Gazette, at first requesting identifying information related to a particular website poster (“justicen2010”), but then later also requesting a copy of the Gaston Gazette’s contract with the provider of its website comment forum. (More information on the case is available from the Gazette’s website).

The Gazette challenged the subpoena and raised the state shield law as a protection against compelled disclosure. Judge Murphy agreed with the Gazette’s position, holding that the information sought by the defendant—both the website commenters’ identities and the business contract with the comment forum provider—were confidential information related to the newspaper’s and publisher’s newsgathering and news publishing activities and were obtained while the publisher was acting as a “journalist,” as defined in N.C. Gen. Stat. § 8-53.11(a)(1). (Note: The information at issue in this case was confidential, but North Carolina’s shield law protects both confidential and non-confidential information.) Thus, the judge held that the shield law applied to the facts at hand.

Further applying the statute, Judge Murphy held that the defendant failed to overcome the qualified privilege set forth in N.C. Gen. Stat. § 8-53.11 by demonstrating clearly and specifically that the information and documents sought (1) were relevant and material to the proper administration of the legal proceeding at issue, (2) could not be obtained from alternative sources, and (3) were essential to the maintenance of a claim or defense. In the absence of this showing by the defendant, Judge Murphy quashed the subpoena.

With this ruling, the North Carolina Superior Court now joins other state courts that have held their respective state shield laws protect anonymous website commentary from compelled disclosure in judicial proceedings.

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The U.S. District Court for District of Hawaii issued an order on May 7, 2010, denying a federal candidate’s request to be included in a televised debate among the candidates for a seat in the U.S. House of Representatives. The order is available here.

Fourteen candidates are in the race to fill a vacant seat in the House. Television station KITV, Honolulu, Hawaii, in partnership with the League of Women Voters, chose three candidates to participate in the televised debate on May 7. One of the candidates who was not selected to participate filed a lawsuit against the station and sought a temporary restraining order (TRO) from the court to stop the debate from happening. The candidate generally argued in his TRO motion that the station had deprived him of his right to freedom of speech under the First and Fourteenth Amendments.

Candidate debates on TV or radio are generally governed by the Communications Act of 1934, as amended, and FCC regulations that implement that statute. The district court denied the Hawaii candidate’s request to stop the debate, first, because the governing statute, Section 315 of the Communications Act, does not recognize a private right of action to bring a lawsuit against a broadcaster related to a debate. The law instead requires a candidate to file a complaint with the FCC, which has jurisdiction over broadcast debates. 

The court also denied the request because it found there was no “state action” in the case – that is, no deprivation of a constitutional right by a government body or actor – because KITV is a privately owned company.  

The court compared the case to Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998), in which the Supreme Court ruled that a televised candidate debate was a “nonpublic forum” from which a broadcaster was entitled to exclude a candidate on a reasonable, viewpoint neutral basis in the exercise of its journalistic discretion. (The Hawaii case is otherwise distinguishable because, in the AETC case, the television station was government-owned.) 

The court found that the Hawaii TV station selected participants in the debate on a candidate-by-candidate basis and based its decision in part on each candidate’s degree of public support. The station did not take the candidates’ viewpoints into account in making its selections. According to the court, “the current record supports the finding that Plaintiff was excluded not because of his viewpoint, but because he had not generated appreciable public interest.” With that finding, the court held the candidate was not likely to succeed on the merits of the case, so the issuance of a TRO to stop the debate was not justified.

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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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