Digital Media and Data Privacy Law Blog

In a question-begging 5-4 decision, a badly-fractured United States Supreme Court issued a ruling this morning in the Fox indecency case stemming from the isolated use of expletives (the “F-Word” and the “S-Word”) by Cher and Nicole Ritchie on live awards shows broadcast in prime time during 2002 and 2003.  A half dozen opinions were filed by the nine Justices on the High Court.

The FCC had determined that the broadcasts at issue were indecent, and the Second Circuit Court of Appeals had reversed the FCC on the grounds that the FCC’s decision was “arbitrary and capricious” ... Read More 

The Criminal Court for Knox County, Tennessee recently denied motions to prohibit or limit anonymous internet commentary about a capital murder proceeding. The 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 ... Read More 

The First Circuit recently affirmed summary judgment in favor of Fox News Network and Fox personalities Steve Doocy and Brian Kilmeade over a three-hour cable program during which the hosts discussed a report of an alleged “hate crime” at a public school in Lewiston, Maine, where the plaintiff was the superintendent of schools.  During the program, Doocy and Kilmeade repeatedly quoted an article about the incident that contained false quotations and false citation to the Associated Press but also contained substantially true information.

The facts underlying Levesque v ... Read More 

A former Louisiana State University student recently filed a libel complaint against the student newspaper, the Daily Reveille, its management staff, and several officials associated with the university for alleged defamatory comments about the plaintiff that were anonymously posted on the newspaper’s website.  The Student Press Law Center provides a link to the amended complaint in a story about the lawsuit and also reports that the lawsuit has been dismissed in this follow up article.

The amended complaint alleged that the editor-in-chief and managing editor of the ... Read More 

In a recent post, we reported that President Obama issued a Freedom of Information Act memorandum directing executive departments and agencies to administer FOIA with a presumption in favor of openness and a memorandum calling for transparency in government. President Obama recently took an additional step that appears to provide evidence of the administration’s continued commitment to open government: On February 26, 2009, President Obama submitted a budget for fiscal year 2010 that includes $1 million for the new Office of Government Information Services that would serve ... Read More 

On March 18, 2009, the First Circuit denied a petition for rehearing en banc of a case in which a panel of the First Circuit recognized that, under Massachusetts law, truth is not an absolute defense to a libel claim.  The defendant raised a constitutional attack against the state statute that served as the basis of the panel's decision, but the First Circuit determined that the constitutional argument was not properly before the court.  The outcome—in which common-law malice may defeat the truth defense—cannot easily be squared with the federal constitutional requirements for ... Read More 

On April 2, the Fourth Circuit ruled that a former Baltimore Police Department officer’s Section 1983 civil rights claim based on violations of his First Amendment rights may proceed.  The Fourth Circuit reversed and remanded the district court’s order dismissing the freedom of speech claim.  Specifically, the Fourth Circuit held that the plaintiff alleged facts sufficient to pursue his claim that the defendants, including the current and former police commissioners, violated the plaintiff's First Amendment rights by retaliating against him for releasing an internal ... Read More 

As we discussed earlier, courts across the country are now dealing with the question of how state shield laws apply to anonymous commentary on newspaper web sites.  Mirroring these cases is a series of cases approaching the issue from the perspective of the people doing the commenting.  More specifically, courts are addressing the question of whether anonymous commenters on web sites have a First Amendment right to remain anonymous and, if so, whether the web site hosts have standing to raise those First Amendment rights in countering efforts to compel the hosts to disclose the ... Read More 

The Arkansas Supreme Court held last week in a unanimous decision that the fair report privilege protected reporters from The Courier newspaper who had reported allegations about a rape investigation based on the contents of a police report.

The decision arose out of a defamation claim against the paper made by Kevin Whiteside, who was named in the police report of a rape investigation in December 2006.  The report said that a witness at a party hosted by Whiteside saw Whiteside with the alleged rape victim.  In January 2007, The Courier published a story about the allegations based on the ... Read More 

A reporter’s or newsroom's best bet to quash an otherwise valid subpoena to appear in a state proceeding is a state shield statute (such as North Carolina).  If, however, the subpoena was issued at the federal law, such as from a United States Attorney or a fed era grand jury, or if you are in a state that lacks a shield statute (such as Texas), then your only choice is to rely on the muddled outcome of a thirty-six-year-old United Supreme Court precedent.  Despite its age, the value of this case to reporters remains uncertain.

In Branzburg v. Hayes, the Court held 5-4 that reporters ... Read More