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Media Law Update Morro Bay 2013

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1 Media Law Update Morro Bay 2013
Genelle Belmas, Ph.D. Cal State Fullerton

2 Current SCOTUS lineup Breyer Alito Sotomayor Kagan Scalia Kennedy
Thomas CJ Roberts Ginsberg

3 Calif. supreme court lineup
California Supreme Court (left to right): The Honorable Carol A. Corrigan, The Honorable Kathryn M. Werdegar, The Honorable Joyce L. Kennard, Chief Justice Tani Gorre Cantil-Sakauye, The Honorable Marvin R. Baxter, The Honorable Ming W. Chin, The Honorable Goodwin Liu.

4 Trending: Libel in negative reviews
Perez v. Dietz Development LLC (Va. 2012): Virginia Supreme Court vacated preliminary injunction against a homeowner who had posted harsh reviews of a contractor on and Contractor Christopher Dietz sued homeowner Jane Perez for $750,000 in libel damages; she had posted scathing online reviews accusing Dietz of damaging her residence, stealing jewelry, and employing deceitful billing practices Judge issued preliminary injunction requiring her to delete some critical comments, except those specifically about Dietz’s work on her residence On Dec. 28, 2012, the VA Supreme Court issued a brief order vacating the injunction, stating simply that the injunction “was not justified”

5 More online libel issues – in Calif.
Rahbar v. Batoon (Cal 2013): California Supreme Court declined to revive a dentist’s lawsuit against a patient who had posted a negative online review on Jennifer Batoon wrote in 2008: “DON’T GO HERE. MOST PAINFUL DENTIST EVER.” and complaining about the treatment, billing, and communication skills; the dentist, Gelareh Rahbar, sued for defamation and invasion of privacy Batoon moved to strike under state anti-SLAPP statute (“a cause of action against a person arising from any act of that person in the furtherance of the person’s right of petition or free speech…in connection with a public issue shall be subject to a special motion to strike”) Batoon won $43k in attorney’s fees, and Rahbar filed a second suit and lost both trial and appeal; CA Supreme Court declined to review the dentist’s challenge

6 Employer demands for social media user names and passwords
Six states have laws already, including California A.B. 1844: September 27, 2012; Signed by Governor. Chapter 618 Prohibits employer from requiring or requesting an employee or applicant for employment to disclose user name or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media. Prohibits employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against employee or applicant for not complying with a request or demand by a violating employer

7 New proposal in California for public employers
A.B. 25: Status: Dec. 3, 2012; Introduced This bill would apply the provisions described above to public employers. The bill would state that its provisions address a matter of statewide interest and apply to public employers generally, including charter cities and counties. Pending legislation in at least 17 states Other states with laws: Delaware, Illinois, Maryland, Michigan and New Jersey

8 Bloggers get shield law protections?
Not in Oregon: Obsidian Finance Group, LLC v. Cox (2012) Crystal Cox criticized Obsidian Financial Group and its founder on her blog. Judge found for OFG, saying the Oregon shield law did not cover bloggers, as Cox was not “affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system” defined by the law. Moreover, no First Amendment implications applied because Cox was not a media professional, the issues were not of public interest, and OFG and its founder were not public figures But yes in Illinois: John-Byrnes Co. v. TechnoBuffalo (2012) Printing company sued because someone from its company leaked images of a soon-to-be released cell phone to a tech blog; the blog claimed privilege. Judge agreed: “Under the ordinary meaning of ‘news,’ the article at issue presented a report on recent events…It also supplied previously unknown information… [W]ithin the present definitions under the act, this Court must find TechnoBuffalo is a news medium, its employees are reporters … and TechnoBuffalo is protected by the Illinois reporter’s privilege”

9 Recording police in public
Glik v. Cunniffe (1CA 2011): First Circuit said Simon Glik was exercising his First Amendment rights to record officers in public: “[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment” ACLU v. Alvarez (7CA 2012): ACLU challenged Illinois wiretapping law that would make public recording of an officer a class 1 felony (video recording was OK, but not audio recording): Seventh Circuit said, “The ACLU wants to openly audio record police officers performing their duties in public places and speaking at a volume audible to bystanders. Communications of this sort lack any ‘reasonable expectation of privacy’ for purposes of the Fourth Amendment”

10 Fair use without discovery?
Brownmark Films, LLC v. Comedy Partners (7CA 2012): Yes, if it’s a clear parody! Samwell, creator of the Internet viral video “What What (In The Butt),” took on South Park’s character Butters’ parody; court found for Comedy Partners “When a defendant raises a fair use defense claiming his or her work is a parody, a court can often decide the merits of the claim without discovery or a trial. When the two works in this case are viewed side-by-side, the South Park episode is clearly a parody of the original WWITB video, providing commentary on the ridiculousness of the original video and the viral nature of certain YouTube videos”

11 What What (In the Butt)

12 Additional goodie in Prop 30
“The Schools and Local Public Safety Protection Act of 2012” contained a little-publicized provision that removed a loophole for local governments that balked at spending their own money to comply with the Brown Act if the state government was not paying for it “Any requirement that a local agency comply with Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code, with respect to performing its Public Safety Services responsibilities, or any other matter, shall not be a reimbursable mandate under Section 6 of Article XIII B” Any expense incurred by local governments’ compliance with the Brown Act is not a reimbursable expense – governments must simply absorbs those costs

13 FTC updates COPPA Amendments will:
modify the list of “personal information” that cannot be collected without parental notice and consent, clarifying that this category includes geolocation information, photographs, and videos; offer companies a streamlined, voluntary and transparent approval process for new ways of getting parental consent; close a loophole that allowed kid-directed apps and websites to permit third parties to collect personal information from children through plug-ins without parental notice and consent;

14 FTC updates COPPA Amendments will:
extend the COPPA Rule to cover persistent identifiers that recognize users over time and across different websites or online services, such as IP addresses and mobile device IDs; strengthen data security protections by requiring covered website operators and online service providers to take reasonable steps to release children’s personal information only to companies capable of keeping it secure and confidential; require that website operators adopt reasonable procedures for data retention and deletion; and strengthen the FTC’s oversight of self-regulatory safe harbor programs

15 Graphic graphics on cigarettes?
R.J. Reynolds v. FDA (2012): No – rather than the government’s stated goal of educating consumers, the court said, “[t]he Government’s reliance on the graphic images—which were chosen based on their ability to provoke emotion…—coupled with the toll free number, further supports the conclusion that the Government’s actual purpose is to convince consumers that they should ‘QUIT NOW’” Moreover, plaintiffs had shown the government could achieve its goals without burdening tobacco companies’ speech rights; the government lost on appeal

16 Decided: FCC v. Fox Television
Supreme Court dodged First Amendment questions about indecency Instead, it relied on Fifth Amendment due process grounds to find the FCC’s policies regarding fleeting expletives to be unconstitutionally vague Kennedy, writing for the majority, said, “The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside” Ginsburg, concurring in the judgment, urged the reconsideration of Pacifica, agreeing with Thomas in the 2009 Fox case

17 Decided: United States v. Alvarez
Does the First Amendment protect knowingly false speech? Court overturned the Stolen Valor Act, 6-3 Calling Xavier Alvarez’s lies “a pathetic attempt to gain respect that eluded him,” Kennedy wrote that there is no “general exception to the First Amendment for false statements” Dissenters said the majority ignored “a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest”

18 Decided: Rehburg v. Paulk
Is a witness in a grand jury proceeding entitled to the same absolute immunity from suit under Section 1983 as a witness who testifies at trial? Yes, unanimously: grand jury witnesses, like trial witnesses, are entitled to absolute immunity from any liability under 1983 arising from their testimony Section 1983: a federal cause of action against any person who, acting under color of state law, deprives another of federal rights – a means of enforcing civil rights

19 Decided: FAA v. Cooper Can a plaintiff who alleges only mental and emotional injuries establish “actual damages” within the meaning of the civil remedies provision of the Privacy Act? No: Alito said that “actual damages” is limited to pecuniary loss only and does not include claims involving mental and emotional distress Sotomayor dissented, saying that the majority’s approach “cripples the act’s core purpose of redressing and deterring violations of privacy interests”

20 Decided: United States v. Reynolds
Billy Joe Reynolds did not register as required by the Sex Offender Registration and Notification Act (SORNA), saying it was an ex post facto law as applied to him, and 3CA upheld SORNA’s retroactive application Court disagreed: SORNA does not require pre-Act offenders to register before the Attorney General validly specifies that the Act’s registration provisions apply to them So Reynolds won, but the case was remanded and the lower courts will have to decide if the original law is acceptable

21 Decided: Knox v. SEIU (Service Employees Int'l Union)
The First Amendment does not permit a public-sector union to impose a special assessment without the affirmative consent of a member upon whom it is imposed Three holdings: (1) When a public-sector union imposes a special assessment or dues increase, the union must provide fresh notice (7-2); (2) the union cannot require nonmembers to pay the increased amount unless they opt in by affirmatively consenting (5-4); and (3) the case was not rendered moot by the union’s post-certiorari offer of a full refund (unanimous)

22 Decided: Reichle v. Howards
Steven Howards and his son were at a Colorado mall where then-VP Cheney was appearing; Secret Service agents arrested Howards after he laid a hand on the VP and after they’d heard him talk smack about the VP Court supported the Secret Service Thomas wrote that the question was not one of First Amendment retaliation, but rather the “right to be free from a retaliatory arrest that is otherwise supported by probable cause”—and there is no such right Ginsburg, concurring, added that the agents “were duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security”

23 Before the Court: Kirtsaeng v. John Wiley & Sons, Inc.
2CA said that Supap Kirtsaeng, a Thailand native, violated copyright law by importing foreign-made editions of U.S. textbooks into the U.S. to sell on eBay The first-sale doctrine does not apply to goods manufactured in a foreign country Question before the Court: How do Section 602(a)(1) of the Copyright Act, which prohibits the importation of a work without the authority of the copyright’s owner, and Section 109(a) of the Copyright Act, which allows the owner of a copy “lawfully made under this title” to sell or otherwise dispose of the copy without the copyright owner’s permission, apply to a copy that was made and legally acquired abroad and then imported into the United States?

24 Before the Court: Agency for Int’l Dev. v
Before the Court: Agency for Int’l Dev. v. Alliance for Open Society Int’l Question before the Court: Whether the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. § 7631(f), which requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violates the First Amendment 2CA said the law “does not merely require recipients of Leadership Act funds to refrain from certain conduct, but goes substantially further and compels recipients to espouse the government’s viewpoint”

25 Before the Court: U.S. v. Windsor and Hollingsworth v. Perry
(1) Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and (3) whether the Bipartisan Legal Advisory Group of the House of Representatives has Article III standing in this case (1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case

26 California developments
Chaptered: A.B (Fuentes): Requires live video transmissions of meetings of the Board of Governors of the CA Community Colleges, the Trustees of the CA State University and the CA Postsecondary Education Commission In effect January 1; requires the post-secondary boards to archive and post the video and audio transmissions on the entities’ Internet Web sites for at least 12 months and within 48 hours following initial transmission S.B (Yee): Requires campaign committees to pay a $50 annual registration fee on and increases by $25 the amount lobbyists must pay when they register with the state, to pay for improvements to a website, run by the Secretary of State, tracking lobbying and campaign finance activity Expected to generate $600k

27 California developments
Chaptered: A.B. 744 (Pérez): Establishes the Office of Intellectual Property to identify, track and provide policy guidance for state agency management of intellectual property (IP) developed by state employees or with state funds; would authorize IP records and information to be shared among state agencies and departments but prohibits them from divulging information that is not expressly allowed or public Exempts IP agreements administered by the UC and CSU and agreements governed by the California Stem Cell Research and Cures Bond Act

28 California developments
Vetoed: A.B (Ammiano): Would restore the ability of journalists to conduct prearranged interviews and exchange confidential correspondence with particular state prison inmates, and to do so using pens, pencils, paper, cameras and other recording devices when conducting these interviews Gov. Brown: bill goes too far; “giving criminals celebrity status through repeated appearances on television will glorify their crimes and hurt victims and their families”

29 California developments
Vetoed: S.B (Yee): Would authorize a state or local agency, when requested by a person, to provide an electronic record in a format in which the text in the electronic record is searchable by commonly used software, and require the requester to pay for converting the record into a searchable format Gov. Brown: “This bill would require the State Chief Information Officer to provide a report to the Legislature on the feasibility of providing public records in a specific electronic format. The role of the State Chief Information Officer is to make sure that state government uses information technology efficiently and effectively – including providing public records electronically when possible. Another legislative report on electronic public records isn't necessary.”

30 Facebook likes? Protected?
In Bland v. Roberts (E.D. Va. 2012), Judge Raymond Jackson said that the click of a “Like” was not really speech. Comparing earlier cases in which Facebook posts (with words) had been protected by the First Amendment, he drew a distinction – it’s not speech if you just click… “These illustrative cases differ markedly from the case at hand in one crucial way: Both [cases] involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of [plaintiff’s] posts from one click of a button on Adams’ Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe [plaintiffs] have alleged sufficient speech to garner First Amendment protection.”

31 Questions? (657) 278-3116
thanks for your attention! Questions? (657)

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