A Salute to Anthony Lewis

We would be remiss if we failed to note the recent passing of Anthony Lewis, long-time columnist and Supreme Court reporter for the New York Times.  Lewis died on March 25 at the age of 85.

Lewis won two Pulitzer Prizes and is the author of two of the most widely read books on Supreme Court history – “Gideon’s Trumpet,” which detailed the Court’s 1963 decision in Gideon v. Wainwright guaranteeing legal representation to criminal defendants charged with serious crimes and “Make No Law,” which described the Court’s seminal 1964 decision in New York Times v. Sullivan.  Of course, the latter case is near and dear to the heart of any journalist or media lawyer.

Our colleague, Mark J. Prak, who served as an adjunct professor at Duke University’s Law School and Sanford School of Public Policy, notes that he required his students to read “Make No Law” for some 20 years.  His comments on the book are an appropriate elegy for Lewis:

“Make No Law” is the best book about the First Amendment ever written.  Period.

If you care about the First Amendment and have not read the book, you have some homework to do.  But it will be enjoyable homework.  Several generations of lawyers and students of the First Amendment have benefitted from Lewis’ fulsome description of the people, institutions, and societal forces at play in the story that gave rise to the great case.  Lewis’ detailed account of the Court’s work in Times v. Sullivan and his description of the metamorphosis of the First Amendment throughout the history of the Court is unparalleled and, above all, a great read.

Second Circuit Rules against Internet Streaming Service

Today, the U.S. Court of Appeals for the Second Circuit ruled in favor of broadcasters and content owners against the streaming service ivi, which previously captured and retransmitted broadcast programming over the Internet. The Second Circuit held that ivi is not a cable system and therefore is not entitled to the cable statutory copyright license under Section 111 of the Copyright Act.

Broadcasters initiated the lawsuit alleging that ivi violated the Copyright Act by streaming broadcast programming live over the Internet without consent. ivi argued that it was an online cable operator that pays royalties in exchange for the legal right to retransmit broadcast programming under a statutory copyright license. In its decision released today, the Second Circuit agreed with the Copyright Office’s interpretation that Internet retransmission services such as ivi do not constitute cable systems entitled to the statutory copyright license. This decision affirms the district court’s grant of a preliminary injunction, which shut down ivi’s streaming service last year.

North Carolina Federal Court Enjoins Military Regulation Prohibiting Anti-Islamic Car Decals on Base

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.

Supreme Court to Consider Law Criminalizing Animal Cruelty Videos

As has been widely reported, the U.S. Supreme Court will review a case this session involving a federal statute that criminalizes the sale of depictions of animal cruelty.  Last year, in United States v. Stevens, the Third Circuit declared the statute unconstitutional and vacated the conviction of Robert Stevens, who was prosecuted for selling videos of illegal dog fighting.  (Law.com covered the Third Circuit decision when it was released last year.)

The basic question for the court is whether or not the statute on its face runs afoul of the First Amendment.  As the Third Circuit framed it, the question for the Supreme Court is, more specifically, whether or not depictions of animal cruelty constitute a new category of speech that receives no First Amendment protection.  If it is a new category of unprotected speech, then depictions of animal cruelty will join the likes of obscenity, child pornography, false and misleading advertising, “fighting words,” and similar kinds of speech that may lawfully be criminalized or banned by the government.  However, as the Third Circuit pointed out in its 2008 opinion, the Supreme Court has not recognized a new category of unprotected speech in about 25 years—which may suggest that the Court will be reluctant to do so in this case. 

Of course, at least theoretically, the Supreme Court could decide more narrowly that depictions of animal cruelty may be limited under certain circumstances, or that the speech at issue is commercial in nature and may be regulated consistent with existing commercial speech principles.

A case like Stevens puts First Amendment principles to the test.  On the one hand, as this article discusses, advocates for freedom of expression are concerned that adding another category of speech to the list that the government may lawfully prohibit chips away at the First Amendment and leaves it vulnerable to further attack. On the other hand, other people argue that depictions of animal cruelty are inhumane and, like obscenity, have little or no social value that render them worthy of First Amendment protection.  It’s too soon to tell which side of the debate a majority of the Supreme Court will favor.

Oral arguments in the case are scheduled for October 6, 2009.  We will continue to follow the story and keep you updated.

Fourth Circuit Dips Toe in Anonymous Speech Waters

As reported by our colleague Mack Sperling in his North Carolina Business Litigation Report, the Fourth Circuit recently affirmed a trial court order to disclose the identity of an anonymous speaker who had sent a letter, through a law firm, to Jos. A. Banks Clothiers accusing the company of accounting fraud.

Read Mack's post for all the details, though it is worth noting that sitting by designation on the panel was retired Supreme Court Justice Sandra Day O'Connor.

Judge Sotomayor's First Amendment Jurisprudence

As a judge for the Second Circuit Court of Appeals since 1998 and for the Southern District of New York for the preceding six years, United States Supreme Court nominee Sonia Sotomayor has approached First Amendment issues narrowly and contextually, demonstrating traditionally liberal views in some cases and more conservative views in others. If confirmed, it seems most likely that Sotomayor will side with the Court’s liberal wing on many First Amendment issues. However, her seeming unpredictability in cases involving free speech could make her an important swing vote in some cases.

Sotomayor’s First Amendment record during her 17 years on the federal bench is not extensive, but it does give some insight into her views on the First Amendment generally and media law specifically. Among Sotomayor’s more notable free speech decisions, Sotomayor dissented in a Second Circuit case in which the majority affirmed the district court’s decision to uphold the New York Police Department’s decision to terminate a Police Officer after an investigation discovered he made anonymous racist comments via mail. Sotomayor also authored an opinion striking down a gag order on the news media that prevented the press from revealing the name of any juror during the retrial of a former bank executive.

These views are contrasted with other decisions favoring withholding records under the Freedom of Information Act and upholding a public high school’s right to bar a student from running for class office after she posted offensive comments about school administrators in her off-campus blog. These decisions are discussed below.

Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), involved a First Amendment claim by a New York City Police Officer who was terminated after an internal New York Police Department investigation found that he anonymously disseminated racist and anti-semitic materials via the U.S. Postal Service. The majority affirmed the district court’s dismissal of the action upon a motion for summary judgment by the defendants, concluding that the NYPD’s “reasonable perception of serious likely impairment of its performance of its mission outweighed Pappas’s interest in free speech.”

Sotomayor dissented, stating that the potential harm to the NYPD’s performance of its mission did not outweigh Pappas’s First Amendment rights. Sotomayor stated that the potential harm to the NYPD was low because (1) Pappas did not occupy a high-level supervisory, confidential, or policymaking role in the NYPD, (2) Pappas did not have law enforcement contact with the public through his position as a computer operator in the NYPD, and (3) Pappas “engaged in the speech anonymously, on his own time, and through mailings sent from his home.” Acknowledging the particular nature of the speech involved in the case, Sotomayor explained:

To be sure, I find the speech in this case patently offensive, hateful, and insulting. The Court should not, however, gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like and because a government employer fears a potential public response that it alone precipitated.

Sotomayor’s views in Pappas are contrasted by her views in Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), in which she joined in a ruling holding that a public high school student’s First Amendment rights were not violated when the school disqualified her from running for Senior Class Secretary based on inflammatory comments written off-campus in her personal blog. Pre-existing jurisprudence concerning free speech in public schools allowed schools to regulate some student speech occurring on school grounds or at school-related events while acknowledging that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Doninger extended the scope of a school’s authority to regulate expression that occurs beyond the confines of campus or campus activities.

In reaching its decision to extend the school’s authority, the court wrote that “Avery's posting—in which she called school administrators ‘douchebags’ and encouraged others to contact [a school administrator] ‘to piss her off more’—contained the sort of language that properly may be prohibited in schools.” However, the court emphasized that the particular nature of the discipline in the case influenced its decision to side with school administrators, stating that “given the posture of this case, we have no occasion to consider whether a different, more serious consequence than disqualification from student office would raise constitutional concerns.”

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Welcome to Brooks Pierce's Newsroom Law Blog

We are pleased to launch Brooks Pierce’s Newsroom Law Blog, a blog focused on legal issues facing broadcast and print newsrooms. We look forward to providing regular content as a resource to journalists and editors working in newsrooms, as well as to legal professionals who advise media clients and academics who teach and study media issues.  The content we provide will range across the wide spectrum of legal issues that arise in the newsroom, from subpoenas to search warrants, from libel to invasion of privacy to trespass, from courtroom access to access to public records, from Internet issues to political advertising.

We will post to this blog a steady diet of primers and how-to pieces covering these topics.  We will make timely posts on hot topics, as legal opinions touching upon newsroom issues are released or as legislative decisions are made.  The breadth of topics we cover will be nationwide in scope, and we will also closely follow developments in North Carolina law and the law of neighboring states.  We hope you will find our blog not only a source for the most up-to-date information on newsroom law, but also plumb our archives for information on whatever topic is of interest to you. Please use the comments feature of this blog to share with us your thoughts and ideas for how to better serve our audience.

The contributors to this blog comprise Brooks Pierce’s newsroom practice, which includes Mark Prak, Charles Coble, Charles Marshall, Elizabeth Spainhour and Eric David.  You can learn more about our firm's practice at our firm’s website.