New Hampshire Supreme Court Hears Anonymous Source Dispute

In light of our recent discussion of Bartnicki v. Vopper and the legality of publishing information that was illegally obtained by a third party, this recent case from New Hampshire drew our attention.

In early November, the New Hampshire Supreme Court heard arguments in a case involving a website's refusal to identify the author of a post that criticized mortgage lender The Mortgage Specialists Inc.  The site, Mortgage Lender Implode-O-Meter, had posted a story concerning a state investigation into MSI for, among other things, allegedly forging signatures and destroying documents.  The site also posted a copy of a document MSI had prepared for the state Banking Department.   The document, which was provided by an anonymous source, is supposed to be confidential under state law.

In addition, someone calling themself “Brianbattersby” posted a comment on the site accusing MSI President Michael Gill of fraud.

MSI demanded that the website, owned by Implode-Explode Heavy Industries, remove the document and the anonymous comment, identify the identify of the person who leaked the document, and agree not to republish the document in the future.  The website agreed to the first request, but refused the second and third.

MSI then sued in state court for both the identity of "Brianbattersby" and the person who leaked the confidential document.  This spring, a county judge ordered the website to disclose the information MSI sought and enjoined the site from further publication of the confidential chart.

The trial court decision is troubling for several reasons.  First, the court acknowledges, but then does not address in any substantive way, the website's argument that the statute relied on by MSI and the court only covers state authorities' conduct and does not make it illegal for a third party to publish the document at issue.  Rather, the court seems to assume publication is illegal and makes much of the fact that no penalties are being assessed or sought against the website.

The United States Supreme Court in Florida Star v. BJF held that a newspaper could not be punished for publication of truthful material lawfully obtained "absent a need to further a state interest of the highest order."  In the New Hampshire case, there is no allegation that the website obtained the document illegally, only that its publication was illegal.  Furthermore, the fact that the website in this case is not subject to penalties seems legally irrelevant, as it is being restrained from publishing truthful, lawfully obtained, information.

Second, in forcing the website to disclose the identity of "Brianbattersby," the court engaged in no analysis of the speaker's right to post anonymously.  As we have discussed previously, the clear trend nationally is to require a plaintiff seeking the identity of an anonymous speaker accused of defamation to meet some elevated pleading standard.  There is no indication that anything of the sort was required here.

Finally, it is worth noting that New Hampshire is one of the few states without any kind of shield law, meaning that the website has far less legal recourse when asked to reveal the identity of its source for the document.

For links to other pleadings in this case, click here.  We are awaiting a decision from the New Hampshire Supreme Court and will report on it once it's handed down.

Fourth Circuit Reverses $5 Million Funeral Protest Verdict

In late September, the United States Court of Appeals for the Fourth Circuit reversed on First Amendment grounds a $5 million jury verdict against infamous Kansas preacher Fred Phelps and other members of his Westboro Baptist Church.

The claim against Phelps and his church members arose from their protest activities at the March 2006 funeral of Lance Corporal Matthew Snyder, a U.S. Marine who was killed in Iraq. At Snyder's funeral in Westminster, Maryland, Phelps and other protesters held up a variety of offensive signs decrying gays, Catholics, and Americans generally.  Members of the church also posted an essay on the church's Web site called "The Burden of Marine Lance Cpl. Matthew A. Snyder."  The essay contained numerous statements indicating that Snyder was a sinner and was going to hell.

Snyder's father did not actually see the protests or essay until after the funeral was over, but said that when he did, he was traumatized.  He filed suit in June 2006 in federal court claiming defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy.  While the district court granted summary judgment to the defendants on the defamation and publicity given to private life claims, after trial on the other three claims, the jury awarded Snyder $2.9 in compensatory damages and $8 million in punitive damages.  The district court lowered the punitive damages award to $2.1 million, but the defendants appealed the entire award as violative of the First Amendment.

The Fourth Circuit, with Judge King writing for the court, not only reversed the award of damages, but elected not to remand the case to the district court at all, holding instead that "[n]otwithstanding the distasteful and repugnant nature of the words being challenged in these proceedings, we are constrained to conclude that the Defendants’ signs and [Web postings] are constitutionally protected."

Though the defamation claim was not at issue, the case law cited by the court was borrowed largely from the Supreme Court's defamation pantheon, most notably Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).  Citing Milkovich, Judge King wrote: "First, the First Amendment serves to protect statements on matters of public concern that fail to contain a 'provably false factual connotation.'"

Second, Judge King wrote, again citing Milkovich, "rhetorical statements employing 'loose, figurative, or hyperbolic language' are entitled to First Amendment protection to ensure that 'public debate will not suffer for lack of imaginative expression or the rhetorical hyperbole which has traditionally added much to the discourse of our Nation.'"

With these principles in mind, the Fourth Circuit held that the district court had "failed to assess whether the pertinent statements could reasonably be interpreted as asserting 'actual facts' about an individual, or whether they instead merely contained rhetorical hyperbole."  The court then examined each of the specific signs and the statements at issue from the Web site, and held that they were fully protected by the First Amendment either because they could not reasonably be read to state actual facts or because they were plainly hyperbolic and figurative.

In response to Westboro Baptist's odious activities, a number of states have passed laws sharply limiting, or banning altogether, protesting at funerals. 

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.”

Sotomayor demonstrated her contextual approach to Freedom of Information Act issues as a District Judge in Dow Jones v. Department of Justice, 880 F.Supp. 145 (S.D.N.Y. 1995), deciding that the DOJ could redact portions of reports by the U.S. Park Police and the FBI upon a request for information concerning former Deputy White House Counsel Vincent Foster’s suicide, but that the copy of Foster’s suicide note needed to be released. Sotomayor found that the circumstances of the case warranted a FOIA 7(A) exemption, agreeing with the DOJ that release of the entire reports by the U.S. Park Police and the FBI could affect witness testimony and could “severely hamper the Independent Counsel’s ability to elicit untainted testimony”

In response to the Justice Department’s argument that publicly circulating the note would unjustifiably invade the Foster family’s privacy, Sotomayor held that the family’s interest was outweighed by the public’s substantial interest in viewing a photocopy of the actual note. Sotomayor explained that the note “touched on several events of public interest, including the controversy involving the White House travel office, and implicated government agencies and employees in misconduct.” In her analysis, Sotomayor gave particular weight to the “physical look of the note” as being an “integral part” of the public’s interest.

Sotomayor has indicated a more doctrinal approach to prior restraints on speech. In U.S. v. Quattrone, 402 F.3d 304 (2d Cir. 2005), Sotomayor authored an opinion for a unanimous panel striking down a gag order on the news media that prevented the press from revealing the name of any prospective or selected juror during the retrial of former Credit Suisse First Boston executive Frank Quattrone. The district court judge had placed the gag order on the press due to the recent mistrial at the state court level in the high-profile prosecution of Dennis Kozlowski, a former executive of Tyco Corporation, where the disclosure of the identity of a juror led to the juror’s harassment and pressure from outside sources. Sotomayor determined that nothing in the case justified the district court’s infringement of two basic First Amendment protections: “the right against prior restraints on speech and the right to report freely on events that transpire in an open courtroom.”

After establishing that the district court appeared to have based the prior restraint entirely on the incidents of the Kozlowski trial, Sotomayor stated:

While it is not improper for a district judge to take into account his or her "common human experience" or to make reasonable "speculations" in assessing the likely impact of news coverage, a judge may not impose a prior restraint based solely on incidents that occurred in a completely separate and unrelated, albeit temporally proximate, trial.

Sotomayor also found that the district court had not sufficiently considered measures other than a prior restraint that could have mitigated the effects of the perceived harm to the jurors, and that the efficacy of the prior restraint was “dubious at best” as the names of the jurors were announced in open court and filed as a public record. Sotomayor summed up her views on prior restraints by stating that “it has long been established that such restraints constitute ‘the most serious and least tolerable infringement’ on our freedoms of speech and press.”

In addition to her decision in Quattrone, Sotomayor joined the decision in Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008), invalidating as an unacceptable prior restraint a portion of the Patriot Act that placed a gag order on companies that received “national security letters” compelling them to produce customer records.

Unfortunately, Sotomayor’s views on free speech are not further elucidated by her extra-judicial background. Sotomayor’s 1997 Senate Judiciary Questionnaire shows Sotomayor to have been a member of various legal and judicial-related committees concerning public service, civil rights, and causes related to Hispanic heritage. Prior to her judicial appointment, Sotomayor was a general civil litigator with Pavia & Harcourt, LLP, focusing on general commercial work, with a “significant focus” in intellectual property law. She has not been involved with any organizations or committees related to the First Amendment, nor has she written any publications or speeches focusing on free speech.

Sotomayor addressed her narrow and contextual approach in her response to a question about judicial activism in the federal judiciary at the end of her 1997 Questionnaire. Sotomayor stated that her service as a judge has only served to reinforce her views that a judge’s decision should not “start from or look to” the possible effects of a decision on broad classes of individuals or the government “as an end result.” Sotomayor stated similar views in her 1992 Questionnaire, writing that “judges should seek only to resolve the specific grievance, ripe for resolution, of the parties before the court and within the law as written and interpreted in precedents.” Sotomayor also reaffirmed her view that “intrusion by a judge upon the functions of the other branches of government should only be done as a last resort and limitedly.” Sotomayor concluded by stating that judges must be “extraordinarily sensitive to the impact of their decisions and function within, and respectful of, the constraints of the Constitution.”

It remains to be seen whether Sotomayor’s views on free speech issues will change on the Supreme Court, if confirmed. However, Sotomayor has demonstrated that her fact-specific approach could likely make her an influential swing vote on a Court that has been marked for some time by its polarization on many issues.

The Fairness Doctrine is Dead, Long Live the Fairness Doctrine

With the arrival of a new presidential administration, and with the explosive growth of alternative ways for people to get their daily news and opinion, a legal issue once thought settled is again in the headlines.

The “Fairness Doctrine,” first imposed by the Federal Communications Commission in 1949, required television and radio broadcast stations to give reasonable opportunity for the discussion of conflicting views on issues of public importance.

In 1987, the FCC ruled that the doctrine violated the First Amendment and did not serve the public interest because it: (1) discouraged broadcasters from covering controversial issues of public importance, (2) lessened the flow of diverse viewpoints to the public, and (3) was unnecessary due to technological developments, including the growth in the number of radio and television stations and the expansion of cable television.

With the rise of conservative talk radio in the 1990s, a small group on the political left began to clamor for a re-examination of that decision. The clamoring increased considerably during the 2008 presidential election, especially as Democrats gained control of Congress and the White House.

In response, politicians of all stripes and free speech advocates have made clear that they view the Fairness Doctrine as profoundly unfair to the First Amendment.

Finally, in late February, the Senate overwhelmingly passed an amendment that would prohibit the FCC from reinstating the doctrine. This after President Obama made clear that he did not support any move by the FCC to re-open the issue.

Nonetheless, people like FCC Commissioner Robert McDowell are concerned that the Fairness Doctrine may return in another form and with another name (e.g., “localism,” or net neutrality). You can read his speech to the Media Institute here.

Finally, click here for a speech on the Fairness Doctrine by one of our colleagues, Mark Prak.  He was invited to speak at the John Locke Foundation, and he provided a brief history of the doctrine's rise and fall, along with his views of the current debate.


Illinois Governor Charged with Shaking Down Tribune

U.S. Attorney Patrick Fitzgerald released a sealed indictment and supporting affidavit against Illinois Governor Rod Blagojevich Tuesday after Blagojevich was arrested on a wide range of corruption and "pay-to-play" charges.  Public attention has focused thus far on the first count, which accuses Blagojevich of attempting to leverage his power to appoint President-Elect Barack Obama's successor to the U.S Senate into cash and campaign funds, a choice appointment of his own, or a substantial salary for himself or his wife on a foundation or corporate board.

Fitzgerald called the charges against Blagojevich "a truly new low" and "conduct [that] would make Lincoln roll over in his grave."  In a press release issued on Tuesday, Fitzgerald described the allegations against Blagojevich as follows:

The breadth of corruption laid out in these charges is staggering.  They allege that Blagojevich put a "for sale" sign on the naming of a United States Senator; involved himself personally in pay-to-play schemes with the urgency of a salesman meeting his annual sales target; and corruptly used his office in an effort to trample editorial voices of criticism.  The citizens of Illinois deserve public officials who act solely in the public's interest, without putting a price tag on government appointment, contracts and decisions.

Peddling a U.S. Senate seat as if it were detritus at a Saturday morning yard sale is clearly a serious, serious charge.  However, the second count against Blagojevich should be particularly troubling to editors and reporters -- it accuses Blagojevich and his chief of staff John Harris of threatening to withhold public financing for Wrigley Field if the Tribune Company did not fire certain members of the Chicago Tribune editorial board who were particularly critical of Blagojevich and his administration.

The allegations against Blagojevich -- many of which stem from conversations overheard as part of a court-approved wiretap -- are detailed in a 76-page affidavit that accompanied the indictment.  The Tribune Company had apparently explored in recent months the possibility of securing assitance from the Illinois Finance Agency in connection with the company's efforts to sell the Chicago Cubs and with the financing or sale of Wrigley Field, where the Cubs play. 

Harris apparently explained to Blagojevich that an IFA deal would save the Tribune Company approximately $100 million.  In a phone call intercepted on November 4, Blagojevich allegedly told Harris that he should tell upper manangement within Tribune that "our recommendation is fire all those [expletive] people, get 'em the [expletive] out of there and get us some editorial support."  On November 6, in another intercepted call, Harris told Blagojevich that the previous day he had informed a person described as "Tribune Financial Advisor" that things "look like they could move ahead fine but, you know, there is a risk that all of this is going to get derailed by your own editorial page."  In an intercepted call on November 11, Harris told Blagojevich that Tribune Financial Advisor had talked to a person described as "Tribune Owner" and that Tribune Owner "got the message and is very sensitive to the issue."  Harris said further that, according to Tribune Financial Advisor, "certain corporate reorganizations and budget cuts [would be] coming and, reading between the lines, he's going after that section."  Blagojevich's alleged response was "Oh.  That's fantastic" and "Wow.  Okay, keep our fingers crossed.  You're the man."  Thereafter, Blagojevich is alleged to have held a series of conversations with Cubs representatives concerning IFA financing for Wrigley Field.

These allegations are particularly troublesome for media organizations because, if true, they provide a stark example of government retailation on the basis of protected First Amendment speech.  Such retaliation itself violates the First Amendment.  For example, the Second Circuit has held:

A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir. 2003).  Another federal appeals court has held that a plaintiff must prove the following elements in order to make out a First Amendment retaliation claim:

[1] his speech or act was constitutionally protected; [2] the defendant’s retaliatory conduct adversely affected the protected speech; and [3] a causal connection [existed] between the retaliatory actions and the adverse effect on speech.

Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005).  A "causal connection," in turn, exists when:

the defendant’s allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights.

Bennett, 423 F.3d at 1254.

First Amendment retaliation claims have most commonly arisen when a local government body terminates a public contract with a publisher (such as a contract to provide legal advertising on behalf of the local body) because of unfavorable editorial coverage.  See North Mississippi Communications, Inc. v. Jones, 951 F.2d 652 (5th Cir. 1992); El Dia, Inc. v. Rossello, 165 F.3d 106 (1st Cir. 1999); Review Publ’n, Inc. v. Navarro, 19 Media L. Rep. 1337 (S.D. Fla. 1991).  Nevertheless, a strong argument can be made that the facts set out in the Blagojevich indictment and supporting affidavit -- the threat to withhold $100 million in financing to the financially strapped owner of a prominent newspaper -- would likely chill speech, even if the threat were never formally carried out.

The charges against Blagojevich therefore serve as an important reminder that you should always be vigilent about efforts by government officials to shape your reporting or editorializing through threats of any sort.  Those efforts may give rise to a legal claim against the official.  It also underscores that the broader a publisher's financial exposoure, the more pressure points the publisher may have for politicians to try to exploit.