Publication of Hacked Climate Emails Raises Legal, Policy Questions

The release of hacked emails written by well-known climate scientists has been widely reported around the world, as those emails have raised questions about whether the science behind global warming has been overstated.

This New York Times blog post by the paper's science reporter caused a mini-furor of its own in the blogosphere.  In the post, Andrew Revkin writes of the hacked emails:

The documents appear to have been acquired illegally and contain all manner of private information and statements that were never intended for the public eye, so they won’t be posted here.

While Revkin's statement was rather unclear, some critics wondered whether this constituted a new Times policy, one that was not in effect, for example, when the Pentagon Papers were published or when various leaked documents from the Bush Administration were published.  In a follow up to his post, Revkin points out that, from the beginning of the story, the Times has quoted the emails and provided links to other sites that have them posted.

Leaving aside the merits of the blogstorm in this case, the controversy does raise -- once again -- the question of how a media outlet should handle the receipt of documents that it has reason to believe were obtained illegally.

The answer, as a legal matter, is fairly simple.  Since the United States Supreme Court case of Bartnicki v. Vopper, the law is clear that when a media outlet lawfully obtains information from a third party -- even if the third party obtained it illegally -- publication of that material is protected by the First Amendment. In Bartnicki, which involved the broadcast of the contents of a cell phone call that had been illegally taped, the Court recognized the important government interest in protecting the privacy interests of the public at large, but held that, "[i]n this case, privacy concerns give way when balanced against the interest in publishing matters of public importance."

Of course, the answer would be different had the radio station that broadcast the tapes actually recorded the conversations itself.  The First Amendment does not immunize a reporter from his or her own illegal activity.  The answer might also be different if the disclosure did not concern a matter of public importance, or if the party releasing the material had some independent legal duty not to disclose it (as was the case in Boehner v. McDermott).

The policy question for media outlets is far more complicated.  Should the fact that the climate science emails contained "private" information give a media outlet legitimate pause before deciding to publish them?  Perhaps, though Andrew Revkin can probably tell you that deciding when to publish and when not to publish "private" information opens you up to charges of hypocrisy.

And yet, a blanket rule favoring publication may be problematic in some cases.  For example, to the degree any of these emails containing "private" information came from a government source, the Federal Privacy Act may be implicated.  Thus, if the government or a private individual pursues a Privacy Act action against whoever leaked the documents, the media outlet that received those documents may find itself being forced to reveal its sources (or facing the consequences for refusing to do so).

Check back later this week for a story from New Hampshire that implicates both Bartnicki and the developing case law on anonymous internet commentary.

Update to Rhode Island Gag Order

In an update to the curious case we highlighted Tuesday, Judge Forte has entered an order dismissing the “gag order” placed on Michelle Langlois after Tracey Martin, the petitioner who sought the gag order, voluntarily dismissed her petition. Judge Forte removed the ban in advance of a hearing scheduled Wednesday on the ACLU's motion to dismiss.

Rhode Island Court Bars Woman From Publishing Details About Open Court Proceeding

As we recently discussed, prior restraints on speech and the press have been deemed “the most serious and the least tolerable infringement on First Amendment rights” by the United States Supreme Court and bear a “heavy presumption” against their constitutionality. A recent Rhode Island state court order, however, raises questions as to the true understanding of prior restraint jurisprudence among lower courts.

A Rhode Island Family Court has barred a woman from posting any information on the internet about a pending child custody case, although the woman is not a party to the proceeding. Kent County Family Court Judge Michael Forte issued the order in late June, restraining Michelle Langlois, whose brother is involved in a custody dispute with his ex-wife, from “posting details about the children and the pending Family Court proceedings on the internet.” The order stemmed from a “domestic abuse” petition filed by Tracey Martin, Langois’ brother’s ex-wife, against Langlois after Langlois posted information and opinions about the case on her Facebook page. The petition alleged that the postings constituted “harassment” and a “mental assault” on Martin and her children, and that “[a]ny further contact with [Langlois] could further psychologically damage the children” involved in the case.

The ACLU has intervened on behalf of Langlois by filing a motion to dismiss the order, asserting that the order imposes an unconstitutional prior restraint on Langlois’ right of free speech. The motion also seeks dismissal of the order based on jurisdictional defects. In defense of her Facebook postings, Langlois stated: “I do not believe the truth was coming out in Family Court. I was simply using the internet to publicize my brother’s plight.”

The motion will be heard on Wednesday, July 29 in Kent County Family Court before Judge Forte. If Judge Forte denies the motion, Langlois and the ACLU may have a viable appeal due to the general presumption of unconstitutionality of prior restraints in American jurisprudence, as mentioned above. We will keep you apprised of the outcome in this matter.

Prior Restraints in the Fourth Circuit and North Carolina

We have previously reported on prior restraints on media coverage and the interplay between the First Amendment rights of free speech and press and other Constitutional rights.  Prior restraints occur in different forms: “gag orders” imposed by courts, typically through the form of temporary restraining orders or injunctions; licensing requirements and cease and desist orders imposed by regulatory agencies; and “gag statutes” imposed by legislatures.  Additionally, different forms of prior restraints can affect the press equally; a gag order preventing persons from contacting the press can have the same chilling effect on publication as a prior restraint imposed on the press.

The United States Supreme Court has viewed a free press as “essential to the nature of a free state,” holding in Near v. Minnesota, 283 U.S. 697 (1931), that the chief purpose of the First Amendment’s guarantee to freedom of the press is to prevent prior restraints on publication.  This purpose stems directly from the press’s struggle in England to publish free of government censorship.  Correspondingly, the Supreme Court has examined prior restraints on the press with a “heavy presumption” against their constitutionality, holding in Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), that prior restraints are “the most serious and the least tolerable infringement on First Amendment rights.”

The right to free press is not absolute, however.  While the Supreme Court has never upheld a prior restraint upon the press, it has recognized limited situations where a prior restraint might be justified, such as where pervasive publicity might interfere with a criminal defendant’s constitutional right to a fair trial.  Moreover, the Supreme Court has viewed punishment for statements in the press after publication as a more tolerable form of First Amendment infringement than preventing publication from happening in the first place.  Specifically, the Court has permitted criminal punishment and civil damages for the publication of defamatory statements, invasion of privacy, and obstruction of justice, among others.  As noted by the Supreme Court in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975):

[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.  It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.

Although different forms of prior restraints can have the same chilling effect on the press, courts in the Fourth Circuit have been more permissive of prior restraints on members of the general public than prior restraints on the press.  In United States v. King, 192 F.R.D. 527 (E.D.Va. 2000), the U.S. District Court for the Eastern District of Virginia granted a motion to restrain government witnesses in a high-profile drug conspiracy trial from forecasting their probable testimony for an upcoming trial in interviews with the press, although the court refused to prevent the media from airing a television interview that had already occurred.  The court in King recognized the Fourth Circuit’s interpretation of Nebraska Press to mean that, in the context of ensuring a defendant’s right to a fair trial, “the proponent of a prior restraint order must show a ‘clear and present danger’ that the pretrial publicity sought to be restrained will adversely affect the ability of the defendant to receive a fair trial.”

King further stated that to determine the necessity of a prior restraint to protect the fair trial rights of a defendant, Nebraska Press requires that courts must:

[D]etermine (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of the unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger.  The precise terms of the restraining order are also important.

In answering the first prong of the Nebraska Press analysis, the court in King found that, although the airing of the interview could have “some adverse impact” on the views of potential jurors, it could not be said that the interview would “so distort the views of potential jurors that 12 could not be found who would . . . fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court.”  Additionally, the court found that extensive voir dire examination and appropriate trial instructions would alleviate any possible juror prejudice arising out of the airing of the interview, satisfying the second prong of Nebraska Press.  Although the court found that a prior restraint on the publication of the interview would effectively protect the defendant’s right to a fair trial, the court found that its analysis of the first two prongs compelled the court to decline imposition of a prior restraint on the interview.

The King court analyzed the right of government witnesses to forecast their probable testimony more strictly, however.  While the court recognized that witnesses in judicial proceedings have the right of free speech, it noted that previous Fourth Circuit decisions have prohibited witnesses from discussing their probable trial testimony with the media.  Similar to the test in Nebraska Press for prior restraints on the press, the court found that the test to determine whether to restrain public statements by witnesses was “whether there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial.”  After finding no feasible alternative, the court in King found that the record established “that unrestrained discussion by the Government’s witnesses with the media, be it print or electronic, presents a reasonable likelihood that there will be prejudicial news coverage before trial that would prevent a fair trial.”  Correspondingly, the court imposed a gag order preventing government witnesses from discussing the case in interviews with the press.

Likewise, the Fourth Circuit in In re Russell, 726 F.2d 1007 (4th Cir. 1984), upheld a gag order from the Middle District of North Carolina preventing potential witnesses in a high-profile criminal trial from discussing their probable testimony with the media.  The court grounded its decision on the extensive publicity surrounding the trial, the “potentially inflammatory and highly prejudicial” statements that the witnesses would likely make, and the relative ineffectiveness of any feasible alternative to protect the defendants’ right to a fair trial.  Finding that judges must, by necessity, speculate as to what information may be prejudicial to potential jurors, the court in Russell concluded that the district judge acted “well within constitutional limits . . . in light of the difficult task of drafting an order that sufficiently protected the sixth amendment rights of defendants and at the same time did not unjustifiably trammel petitioners’ protected speech activities.”

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Tennessee Court Rejects Effort to Limit Anonymous Internet Speech Relating to Criminal Proceeding

The Criminal Court for Knox County, Tennessee recently denied motions to prohibit or limit anonymous internet commentary about a capital murder proceeding. T he court’s order denying the motion to restrict media coverage is linked here.

We have previously reported on the conflict between the First Amendment rights of the media to obtain access to or to cover criminal proceedings and the right of criminal defendants to receive a fair trial.  We have also reported on the First Amendment right to engage in anonymous speech and on prior restraints on media coverage.  This case represents an interesting confluence of these three areas.

As reported by the Knoxville News Sentinel, four defendants have been charged in the deaths of two people.  Defendants’ counsel sought to prohibit or restrict anonymous online comments about the criminal proceeding that are posted on websites published by local newspapers and broadcast outlets.  The Knoxville News Sentinel and WBIR-TV, Knoxville, Tennessee, both moved to intervene in the case and oppose the defendants’ motions.

To resolve the conflict, the Knox County Criminal Court balanced the well established First Amendment interests in anonymous speech against the right of the criminally accused to receive a fair trial.  (See pages 6-7 of the order and Doe v. Inc., 140 F. Supp. 2d 1088, 1092-93 (W.D. Wash. 2001), for more detailed discussion of the importance of anonymous speech in establishing our government.)  The court noted that prior restraints on speech have repeatedly been struck down, even in cases involving the right to receive a fair trial.

The Knox County Criminal Court used the familiar three-part test from Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), to determine whether, in this case, a prior restraint on protected speech would be justified.  When balancing the First Amendment rights of the media and the Sixth Amendment rights of the accused, the court must determine (1) the nature and extent of pretrial publicity, (2) whether alternative measures would be likely to mitigate the effects of unrestrained pretrial publicity, and (3) how effectively a restraining order would operate to prevent the threatened danger.  The court found that the balance weighed against entry of a prior restraint:

In this case, the publicity has been extensive, detailed, and arguably misleading at times from a legal perspective. The relief sought currently is not the complete bar of media coverage of the proceedings, but rather a bar to the sharing of ideas between citizens who read or listen to the local media reports concerning this case, who wish to make anonymous public comment on the same in the media internet forums. This Court has already granted alternative measures to mitigate the effects of unrestrained pretrial publicity by granting a change of venire to those defendants who have made the request; therefore, the juries who will hear and decide the charges will not be from the local media coverage area. The relief sought also would not necessarily effectively operate to prevent the threatened danger. Counsel asserts that the restraint is necessary to ensure the effective representation of the defendants. Only two media outlets intervened in these proceedings. The internet is not restricted to use by the media alone. Private citizens have access to and utilize the internet everyday to freely discuss and exchange ideas whether on the internet forums of the two media outlets or otherwise.

Considering all the factors, this Court cannot find that disabling the internet forums of the media internet sites would be an appropriate restraint.

The court held that as long as anonymous commenters are not engaging in unlawful conduct (for example, posting defamatory content), “they should be free to anonymously participate in online forums.”

Interestingly, one of the defendants in the Tennessee case raised the right of the accused to receive effective assistance of counsel as a basis for the limitation of First Amendment rights.  The attorney of this defendant evidently felt the online commentary posed a threat to the attorney’s safety and asked to withdraw from the case if the court did not limit the online commentary.  Ultimately, the court determined that the speech “did not rise to a level which would require allowing counsel to withdraw at this time.”

Ohio Court Denies Application for TRO Against Radio and Website Editorial

The 2008 general election has been hard-fought on the federal and state levels.  We previously reported about the institution of legal actions in two hotly contested U.S. Senate races, and we provided an update on those matters.  In addition to federal races, claims have also been filed in state races, as well. 

For example, on October 20, 2008, fifteen days before the general election, a candidate for a local judicial office in Ohio filed a complaint for defamation against a radio broadcaster related to an editorial broadcast over the air and posted on the Internet in which the broadcaster endorsed one of the two other candidates for the position.  In addition to the defamation claim, the plaintiff in Christiansen v. Pricer et al. also sought an ex parte temporary restraining order (“TRO”) seeking to have the broadcaster ordered not to engage in any negative communications about the judicial candidate.

Instead of approving the TRO without first hearing arguments from the broadcaster, a special judge assigned to the matter held a hearing related to the TRO just eight days after the complaint and TRO application were filed (and one week before Election Day).  During the hearing, the plaintiff had an opportunity to demonstrate that a TRO was justified.  Likewise, the defendants were allowed to show why a TRO should not be issued.  The judge allowed the plaintiff to question the defendant broadcaster about the editorial but upheld objections, based on Ohio’s Shield Law, to questions concerning the broadcaster’s confidential sources in writing the editorial.  The plaintiff was also permitted to bring on several witnesses who testified about their reactions to the editorial.  After examination and cross examination of the plaintiff’s witnesses, the judge then allowed the parties to argue why the editorial should or should not be enjoined. 

After hearing from each side, the judge ruled from the bench, denying the plaintiff’s application for a TRO because the plaintiff had not demonstrated she would be likely to obtain an injunction.  Essentially, the judge determined that enjoining the defendants from editorializing about the plaintiff amount to a "prior restraint" on speech.  The U.S. Supreme Court, in the famous Pentagon Papers case, held that prior restraints on speech presumptively violate the First Amendment to the U.S. Constitution and are justified only in order to avert very great public harm.  Because the judge denied the TRO application, the broadcaster was not enjoined from further broadcasting or publishing the editorial in question—that is, the broadcaster was allowed to continue airing the editorial and posting it on the station’s website.  The judge’s order following the hearing is linked here.

Importantly, the judge did not make any ruling on the merits of the plaintiff’s defamation claim.  As of this writing, the lawsuit is still pending.

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