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

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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Federal reporter’s shield legislation has met with opposition in the Senate Judiciary Committee.  The committee addressed S. 448, the Free Flow of Information Act of 2009, in a hearing on September 17 but, ultimately, failed to report the bill out of committee and onto the Senate floor.   The inability to move the bill to the floor for a vote by the full Senate is a disappointment to the media and surely to Sen. Patrick Leahy (D-VT), the chairman of the committee and co-sponsor of the bill.

S. 448, as amended, generally protects journalists from having to disclose source information in a federal proceeding unless a federal court has determined that:

(1) the party seeking to compel disclosure has exhausted all reasonable alternative sources,

(2) (A) in a criminal investigation or prosecution, (i) there are reasonable grounds to believe a crime has occurred, (ii) the information sought is “essential” to the investigation, prosecution or defense, and (iii) in an investigation of disclosure of classified information, the disclosure has caused or will cause “significant and articulable harm” to national security, or

(2)(B) in matters other than criminal investigations or prosecutions, the information sought is “essential to the resolution of the matter,” and

(3) nondisclosure would be contrary to the public interest, considering both the public interest in compelling disclosure and maintaining the free flow of information.

Before last week’s hearing, an amendment was offered in an effort to strengthen national security protections, and much of Thursday's debate focused on the proposed national security carve-out.   The protections from nondisclosure described above would not apply to information that would “materially assist in preventing or mitigating, or identifying the perpetrator of (1) an act of terrorism or (2) other significant and articulable harm to national security that would outweigh the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information.” In other words, the federal shield would not apply, and disclosure could be compelled, in such circumstances.

But, even with the added protections for national security, Sen. Diane Feinstein (D-CA) and others expressed reservations about how the bill would affect leaks of sensitive intelligence documents and other classified national security information. 

Rather than voting on the bill in committee, Sen. Jeff Sessions (R-AL), the ranking member, suggested “slowing down” and focusing on the “problems” with the bill.  Indeed, the hearing concluded without an up or down vote on the bill, which means that it remains in committee for now.

The federal shield legislation’s fate at this point is unclear.  But judging by the remarks of the Senate Judiciary Committee members, particularly Chairman Leahy and Sen. Charles Schumer (D-NY), the committee members will continue working to resolve their differences and working with the Justice Department to craft a compromise.  We’ll continue to update you on this important legislation.

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A Texas court has ruled that the Abilene Reporter-News does not have to reveal the identities of anonymous posters who submitted online commentary concerning a murder defendant to an Abilene newspaper’s website. According to the Reporter-News, the anonymous posters’ identities had been sought by the defendant’s attorney to ensure that none of the posters were selected to sit on the jury for the murder trial, which began on June 23. 

The Taylor County District Court’s decision to protect the posters’ identities, which was issued on July 19, is one of the early applications of the newly enacted Texas shield law. (We previously reported on the Texas shield law in civil and criminal proceedings.) At least in this case and one other reported on by the Reporter's Committee for Freedom of the Press, it appears that the Texas trial courts are ably applying the statutory privilege, which just took effect in May 2009.

According to the Reporter-News’s coverage, the defendant’s attorney argued that his client’s interest in a fair trial outweighed the newspaper’s interest in protecting the identities of the posters. However, in addition to arguing that the shield law protected the commenters’ identities from disclosure, the Reporter-News also argued that the defendant’s right to a fair trial could be adequately protected by questioning prospective jurors during jury selection. 

The Texas court joins a growing number of jurisdictions that have declined to require website publishers from disclosing the identities of anonymous posters. We have covered a number of those outcomes over the past several months, including cases from Maryland and Pennsylvania. 

Although the case law in favor of protecting anonymous posters' identities from disclosure is growing, the cases are not uniformly in that direction, as pbs.org's Mediashift has recently discussed.

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