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Lidsky Uf Law First Day Assignments

UF Law Fall 2017 Course List

UF Law Spring 2017 Course List

LawSecCourseInstructor
57930118App. Advocacy § QAdkins
69514391Moot CourtAdkins
693018F7Federal Indian LawAmdur-Clark
647103F5Environmental LawAngelo
69301F04Spring Break Field Course: Marine and Coastal LawAnkersen
646514A0Conservation ClinicAnkersen
693003F3Conservation ClinicAnkersen
680208A3Business Transactions & Document DraftingAronson
693018ECBusiness Immigration and PracticeBeshara
53011294Civil ProcedureBornstein
693618F2Employment Discrimination (Seminar)Bornstein
7683184BTransfer Pricing (LLM)Bowen
672105F6Health Care Finance & DeliveryBoyarshinov
660012AHIncome TaxationBurke
7617183CPartnership Taxation (LLM)Burke
662121B6Income Taxation of Estates & TrustsCalfee
76251828Income Taxation of Trusts & Estates (LLM)Calfee
63301230Evidence § ACohen
69360368Jewish Law (Seminar)Cohen
68071673Legal Drafting § BCupples
679805H0Advanced Legal ResearchDalton
60564937Advanced Problems in BankruptcyDavis, J.
601012CHSalesDavis, J.
638303D9MediationDavis, R
693003F6Advanced Mediation ClinicDavis, R.
69402247Mediation ClinicDavis, R.
500002E3Contracts § ADawson
693618E1Animal Rights & the Law (Seminar)DeCoux
7632181CDeferred Compensation (LLM)Dilley
693003B9Real Estate TransactionsDollinger
694103G6Advanced Civil Clinic – IPVACDrake
694003G2Intimate Partner Violence Assist. ClinicDrake
500017G8Contracts § BFenster
69504388Law ReviewFenster
693018H6Spring Break Field Course: Entrepreneurship Principles for Startup BusinessesFenwick
68071674Legal Drafting § C

Friday, December 22, 2017

#AALS2018 Panel Alert: Fake News, Alternative Facts, and the Future of Journalism

If you're in San Diego for AALS, I hope you'll come to the fake news panel organized by the Defamation & Privacy and Mass Communication Law sections. The program will take place on Jan. 3, 2018, at 1:30 pm. Here's our description of the panel: 

A discourse with no anchor in truth ceases to have value as discourse. The President’s accusations that the media are perpetuating “fake news” have raised numerous legal and ethical questions for lawyers, journalists, government officials, and citizens. This panel, comprised of experts in journalism and media law, will consider the phenomenon and politics of fake news; the law’s role, if any, in regulating truth in public discourse; the media’s role in ensuring public discourse is anchored in truth and their contribution to the fake news phenomenon; the role of independent fact-checking websites such as Snopes.com and Politifact.com in helping debunk fake news; and the potential impact of the fake news debate on First Amendment press freedoms.

 

LaVonda Reed (of Syracuse University College of Law) and I (now of the U. of Missouri Law School!) will be moderating. Speakers include Amy Gajda of Tulane Law School, Lili Levi of Miami Law School, Scott Lewis from the Voice of San Diego, Richard Marosi of the LA Times, David Mikkelson of Snopes.com, Rebecca Nee of San Diego State University, and Jestin Coler of DisInfoMedia. 

Posted by Lyrissa Lidsky on December 22, 2017 at 02:32 PM in First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (1)

Sunday, August 06, 2017

Commercial Photography in Public Parks--Is Police Presence Required?

Is a municipal ordinance requiring all businesses, including commercial photographers, to get a permit to use a public park a prior restraint subject to strict scrutiny? No, said the Eighth Circuit in Josephine Havlak Photographer, Inc. v. Village of Twin Oaks, 2017 WL 3159678 (8th Cir. 2017). There, the court upheld the ordinance as a content-neutral time, place, and manner regulation subject only to intermediate scrutiny. In doing so, it applied the “narrowly tailored” prong of that constitutional standard very leniently, based on a Missouri municipality’s assessment that police presence should attend all commercial activity in public parks. This conclusion strikes me as dubious, and it also strikes me that the court's application of intermediate scrutiny looks a lot more like rational basis scrutiny than it ought. Here's a summary so you can judge for yourself.

The case involved a commercial photographer who brought facial and as applied challenges against a municipal ordinance requiring those wishing to engage in any commercial activity in a public park to seek a permit before doing so. The waiting period for a permit was two days for small-group events and fourteen days for larger-group events. The photographer asked for injunctive and declaratory relief, contending that the permit scheme created by the ordinance was a prior restraint subject to strict scrutiny. Both a federal district court and the Eighth Circuit court of appeals disagreed.

The Eighth Circuit first rejected the argument that a facial challenge was appropriate, because the challenger had failed to show how it would “significantly compromise recognized First Amendment protections of parties not before the [c]ourt.” The challenger’s arguments  centered only on “her own commercial photography” and failed to show how the ordinance would affect any other speech or speakers protected by the First Amendment. Presumably, her arguments would apply to all other commercial photographers wishing to use the park, but the court did not find this argument sufficient to create standing for a facial challenge. Therefore, the court instead addressed only whether the ordinance was unconstitutional as applied to her.

The first step in this analysis was determining whether the ordinance was content-based or content-neutral. The court determined it was the latter based on its text and purpose. The text of the ordinance did “not reference any specific commercial enterprise or any specific message,” and it applied equally “to commercial photographers and to hot dog vendors.” Nor was there any evidence that the ordinance had a “content-based purpose,” since the ban on commercial activity had a long history and was for the purpose of reducing park congestion and maintaining visitor safety. Finally, even though the ordinance discriminated between commercial and non-commercial photographers, there was no evidence that commercial photographers were disfavored speakers; the court therefore concluded that any burden on the speech of the challenger as a commercial photographer was purely incidental to regulation of commercial activity within the park.

Because the ordinance was content-neutral, the court treated the permit scheme it created as a time, place, and manner restriction on speech; therefore, the proper standard for judging the ordinance’s constitutionality was whether it was “narrowly tailored to serve a significant governmental interest” and “[left] open ample alternatives for communication.” The photographer challenging the ordinance conceded that reducing park congestion and maintaining safety were significant governmental interests, but made four separate arguments that it was not narrowly tailored. First, the challenger contended that the ordinance was not narrowly tailored because the Village had not created a permit exception for commercial photography of small groups. The court held that the lack of a small-group exception did not invalidate the ordinance given the record evidence of “high demand, [a] history of congestion, and the limited facilities of the park.” The court also rejected the challenger's second argument that the ordinance should have focused only on known “congestion points” frequented by commercial photographers. This argument, according to the court, ignored that other commercial vendors might cause congestion at other points, making it rational for the Village to “globally promote maximum use of park resources and protect against damage to all park facilities.”

The third argument rejected by the court was that the ordinance’s “two-day application period (for events of fewer than ten people) and the 14-day period (for larger groups) [we]re not narrowly tailored because they serve[d] to chill artistic expression.” The court noted that commercial photography is typically planned in advance, giving photographers plenty of time to obtain the required permits, and the permit period were chosen to give the Village the time needed to process and, if necessary, review permit applications.  Finally, the court rejected the argument that the ordinance was not narrowly tailored because the $100 administrative fee charged by the Village was too high. According to the court, the Village hired police officer to watch over commercial activities in the park, and the court therefore found a “direct correlation” between the fee and the costs incurred by the Village. The court assumed, without further analysis, that the Village had made a rational decision to provide police to watch over hot dog vendors and commercial photographers and concluded that the $100 fee, which very well might be cost prohibitive for some commercial photographers, to be narrowly tailored to making the park secure. The court emphasized that because only intermediate scrutiny applied, narrow tailoring did not require that the Village choose the least restrictive means but instead required only that “the means chosen are not substantially broader than necessary to achieve the government's interest.” This standard was met.

 The court also found that the photographer had ample alternatives because “the natural attributes of the part exist[ed] in multiple locations across the Saint Louis area.” The photographer was not entitled to her “ideal venue” but merely to “ample alternative channels for communicating her message.” Apparently, any natural setting in the Saint Louis area would do.

Finally, the Court addressed the criteria imposed by the ordinance for issuing a permit (or license). Although the challenger argued that the ordinance’s vague criteria gave the Village unbridled discretion to deny permits, the Court held that the scheme imposed “objective factors” and “articulated standards,” such as “the nature of the activity, potential conflicts with other scheduled events, the number of participants, and other factors relevant to resource allocation.” None of the criteria for issuing a permit were content-based, and the ordinance’s plain language essentially guaranteed approval for small-group events and conditioned approval for larger events only on content-neutral factors related to “park use and safety.” Therefore, the Court held that the ordinance met “constitutional scrutiny as-applied [stet]” to the commercial photographer.

 

Posted by Lyrissa Lidsky on August 6, 2017 at 03:31 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink | Comments (2)

Tuesday, April 04, 2017

Dean Lidsky

Thanks to Howard for letting me back. I'm hoping to blog this month about the institutional place of law reviews within law schools; I might also say something about a new book I have coming out later this year. But before then, I want to congratulate Lyrissa Lidsky, my friend and long-time colleague as well as member (somewhat in hiding) of this blog, for her soon-posting as Dean at U. Missouri. She taught me more about Torts (as I was teaching it!) than my first-year Torts teacher did. Our great loss is Missouri's great gain. But to be clear, since she's now joined an SEC rival, Abe Simpson spoke for the Gator Nation regarding the Show-Me State.

 

 

Posted by Mark Fenster on April 4, 2017 at 10:06 PM in Lyrissa Lidsky | Permalink | Comments (0)

Monday, January 02, 2017

Why We Need to Talk about Trump & Press Freedom

On Wednesday, January 5, AALS2017 kicks off with a panel on Trump & Freedom of the Press in the Plaza Room Lobby Level of the Hilton Union Square at 8:30 am.

RonNell Andersen Jones (Utah), Amy Gajda (Tulane), Sonja West (Georgia), Erwin Chemerinsky (UCI), John Diaz of the San Francisco Chronicle, and I will be discussing what the Trump presidency might bode for press freedom. In preparation for the panel, I thought I'd share with you the research I've done suggesting why this discussion is necessary and timely. In short, here are the reasons that the media (and those of us who value the role they play in our democracy) have legitimate causes for concern that press freedom might be curtailed during the Trump Administration. 

First, Donald Trump has shown himself to be remarkably thin-skinned about unflattering press coverage. Throughout his campaign and after, he has publicly berated  Saturday Night Live, the New York Times,  and many, many other news organizations and individual journalists (too many to enumerate here, as is evident from this list compiled by MediaMatters.org) for criticizing him or simply for covering him.  Shortly after the election, he called television news anchors and executives to Trump Tower  to browbeat them for their "dishonest" and "short sighted" and "outrageous" election coverage. He singled outCNN and NBC as the "worst," calling CNN "liars." All of this seems a bit churlish from a candidate who got at least $2 billion worth of free air time from these same media actors and did not hold a press conference from July 2016 until the end of December.  Nonetheless, it suggests that the relationship between this President and the press will not be a smooth one. 

However, more alarming than Trump's propensity to take offense at even the most innocuous press criticisms was his propensity to incite supporters against the press during his campain. Certainly other elected officials have villified and will doubtlessly continue to villify the press to score political points (think VP Spiro Agnew's "nattering nabobs of negativism").  However, Trump turned up the heat beyond anything previously seen. As Margaret Sullivan wrote in The Washington Post, "Donald Trump made hatred of the media the centerpiece of his campaign. Journalists were just cogs in a corporate machine, part of the rigged system." During his campaign events, he restricted press to a "pen" and then inflamed his supporters by calling them dishonest and accusing them of rigging the election and inventing stories to discredit him. His supporters often responded with boos, ugly gestures, and chants of "liars", "assholes,""CNN sucks!," and worse, causing some reporters to fear for their safety.

Trump further displayed a lack of appreciation (or perhaps contempt?) for pool reporters by denying them traditional avenues of access. Unlike previous candidates, Trump never allowed the press on his plane. He also revoked credentials  or denied credentials of those who garnered his special ire.  Although Trump has promised to have a "normal" press pool as president, he's shown a willingness since being elected to deny pool coverage of important meetings and to ditch his press pool at will. He's also stated he may change the format of press briefings, in an as yet unspecified way.  On a somewhat more positive note, he has  granted interviews to several outlets since his election, including The Today Show, 60 Minutes, The New York Times, The Wall Street Journal, and Time Magazine, though his anti-media rhetoric and disrespect for traditional channels of access cast doubt on whether this trend will continue once he's in office.

Other causes for concern about Trump's respect for press freedom abound. During the campaign, he promised, if elected, to "open up libel laws" to make it easier for public figures to sue the press, a threat that betrays a fundamental misunderstanding of libel law and constitutional constraints on the President. More alarmingly, Trump has shown a propensity to threaten lawsuits against journalists or actually sue over both innocuous criticisms and normal news coverage. As an ABA report revealed, "Trump and his companies have been involved in a mind-boggling 4,000 lawsuits over the last 30 years and sent countless threatening cease-and-desist letters to journalists and critics. But the GOP presidential nominee and his companies have never won a single speech-related case filed in a public court." Defending libel suits is expensive, even if one ultimately wins; thus, the mere prospect of being sued for libel can have a chilling effect on reporting. In fact, there's evidence that Trump's reputation as a "libel bully' has already chilled some speakers and is likely to chill others.  

Beyond that, Trump has praised ruthless dictators who have trampled press freedoms and targeted journalists for assassination. In fact, when asked if his praise of Vladimir Putin was tempered by Russia's killing of journalists, Trump said no:  “He’s running his country, and at least he’s a leader, unlike what we have in this country.” Such rhetoric would be chilling, even in isolation, but of course it is not in isolation.

Meanwhile, Trump comes into office on the heels of a President who has already eroded the press's ability to perform its watchdog role by aggressively pursuing leaks investigation against government employees, subpoenaing reporters to reveal confidential sources, and monitoring telephone and email records of journalists in service of leaks investigation. As Dana Priest of the Washington Post stated: “Obama’s attorney general repeatedly allowed the F.B.I. to use intrusive measures against reporters more often than any time in recent memory. The moral obstacles have been cleared for Trump’s attorney general to go even further, to forget that it’s a free press that has distinguished us from other countries, and to try to silence dissent by silencing an institution whose job is to give voice to dissent.” President-Elect Trump has not signaled whether he will continue such practices, but the fact that his former campaign manager  said that the executive editor of the New York Times should be in jail for publishing Trump's tax returns doesn't exactly inspire confidence. Trump also has not signaled how executive agencies within his administration will be directed to handle Freedom of Information Act requests, and although an RNC spokesman has praised the transparency of the Trump transition, Trump's previous treatment of the press, together with his refusal to release his tax returns, certainly gives reason for doubt on this score as well.

In addition to these causes for concern, the media have their own issues that may hamper their ability to perform their watchdog role during the Trump presidency. Trump is a genius at newsjacking. He is able to set the agenda of the media with his tweets and drown out negative coverage. Trump's "Hamilton" tweet, for example, garnered more eyeballs than the $25 million settlement of a fraud suit against Trump University. Meanwhile, the struggle to maintain press freedoms comes at a time when the public's viewstoward the media are increasingly hostile, many segments of the media face revenue challenges, and fake news undermines the role of legitimate journalism in furthering democratic self-governance. [Not to mention that "post-truth" was the OED's 2016 word of the year.] These issues, and many more, will give the Trump & Press Freedom panel ample fodder for discussion. I hope you can join us. 

Posted by Lyrissa Lidsky on January 2, 2017 at 07:37 PM in Constitutional thoughts, Current Affairs, First Amendment, Lyrissa Lidsky, Torts, Web/Tech | Permalink | Comments (3)

Wednesday, June 24, 2015

Policing False Speech in Political Campaigns

I'm working on the update memo for my Mass Media Law casebook while simultaneously working on a new edition, which means I'm coming across some interesting cases I missed when they came out. One of these is Eighth Circuit's decision in  281 Care Committee et. al. v. Arneson, No. 13-1229 (Feb. 13, 2014), which strikes down a Minnesota law attempting to assign administrative law judges and county attorneys the job of policing the truth of statements partisans make for or against ballot initiatives. Arneson involved a challenge by advocacy organizations to the constitutionality of a Minnesota law making it a gross misdemeanor for a person to prepare or publish a political advertisement or campaign materials supporting or criticizing “a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.” Minn.Stat. sec.211B.06, subd. 1. Under the statute, any person can trigger an investigation by an administrative law judge to determine whether probable cause supports the complaint. Upon such a finding, the ALJ may refer the case to a panel of three ALJs for further determination or may refer the matter to a county attorney to prosecute.

A district court held that the statute served a compelling interest in preserving fair elections and preventing frauds on the electorate. The U.S. Court of Appeals for the Eighth Circuit reversed. The Eighth Circuit held that the advocacy organizations had standing to challenge the statute and that the statute was a content-based regulation of political speech that violated the First Amendment. The district court, citing the plurality and concurrences in  United States v. Alvarez (striking down the Stolen Valor Act), determined that the appropriate constitutional standard was intermediate scrutiny, but the Eighth Circuit distinguished Alvarez because it did not involve core political speech; moreover, the court noted that the false assertion criminalized by the Stolen Valor Act--that one received a military honor one did not receive--is verifiable objectively. In contrast, the Minnesota law targeted "false" political speech that was likely to include opinion or other unverifiable political speech. The court therefore concluded that strict scrutiny was the appropriate standard to judge the Minnesota law. 

Applying strict scrutiny the court determined that, regardless of whether Minnesota’s interests in passing the statute were compelling, the statute was neither necessary nor narrowly tailored but instead was  “simultaneously overbroad and underinclusive, and [was] not the least restrictive means of achieving any stated goal.” The court bolstered this conclusion by observing that the State had failed to show “an actual, serious threat of individuals disseminating knowingly false statements concerning ballot initiatives.” Furthermore, and more central to the court’s analysis, was its determination that the statute “tends to perpetuate the very fraud it is allegedly designed to prohibit.” As the court cannily deduced, the Minnesota statute lends itself to use by political adversaries seeking to undermine the message of their opponents. Filing a complaint against one’s opponent can be used as a political tool to undermine the opponent’s message and force the opponent to “’to devote time, resources, and energy defending themselves.’” All of these strategic political goals can be accomplished  by a complainant whether or not his or her complaint is meritorious. The filing of the complaint itself becomes a news item and casts doubt on the credibility of the speaker, and the investigation takes up time and money even if the investigation ultimately terminates in one’s favor.

In light of this political reality, the court concluded that the mens rea requirement in the statute was not enough to render it constitutional. Most of the statute's chilling effect on political speech occurred because any person can file a complaint under the statute at any time: “[M]ost cynically, many might legitimately fear that no matter what they say, an opponent will utilize [the statute] to simply tie them up in litigation and smear their name or position on a particular matter, even if the speaker never had the intent required to render him liable.”

 The court further explained that the statute’s exemption for news media made its unconstitutionality all the more apparent. Exempting the media from liability for false statements while targeting advocacy groups did not advance the state’s interests in policing election fraud. The underinclusiveness of the statute undermined the state’s claims that its speech restrictions were necessary to achieve its stated aims.

Ultimately, the court’s decision to strike down the statute stemmed from both its understanding of the political process and its embrace of the First Amendment ideal of the marketplace of ideas. Counterspeech, not criminalization, is the remedy that the US Supreme Court’s decisions interpreting the First Amendment precribe for false speech during political campaigns. Counterspeech is clearly a less restrictive alternative than criminalization, and “[t]he citizenry, not the government, should be the monitor of falseness in the political arena.” 

The court's opinion thus relied on two central tenets (some would call them myths) of First Amendment jurisprudence. As I've previously described these tenets in an article called Nobody's Fools: The Rational Audience as First Amendment Ideal: "[t]he first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less." The problem, of course, is that these tenets, or assumptions, may be demonstrably wrong. False speech in political campaigns may bamboozle the electorate, if they're even paying attention. Nonetheless, the court in Arneson reached the right decision based on both Supreme Court precedent and democratic theory. An audience that is incapable of critically analyzing campaign speech is also incapable of participating in political discourse or engaging in democratic self-governance, and to abandon the ideal of the rational audience for political speech is to abandon the ideal of democracy. This is not (yet) something we're prepared to do.

 

 

Posted by Lyrissa Lidsky on June 24, 2015 at 02:53 PM in Constitutional thoughts, Criminal Law, First Amendment, Law and Politics, Lyrissa Lidsky | Permalink | Comments (2)

Thursday, June 18, 2015

SCOTUS Decides the Confederate Plates Case (5-4)

The US Supreme Court today held that the Texas Department of Motor Vehicles did not violate the First Amendment when it rejected a proposed license plate featuring the confederate battle flag. The majority opinion, authored by Justice Breyer and  joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan, reached this conclusion by deploying the relatively newly minted government speech doctrine to allow Texas to pick and choose what messages its drivers can display on their specialty license plates based on whether others might find those messages offensive. Justices Roberts, Scalia, Alito, and Kennedy dissented. 

Like many other states, Texas has a specialty license plate program through which it raises funds by allowing a variety of groups to create specialty plates. Justice Breyer's majority opinion notes, for example, that Texas has approved plates "featuring the words 'The Gator Nation,' together with the Florida Gators logo." [As a UF professor, I appreciate the SCOTUS shout-out!] Justice Breyer also notes that Texas has approved plates with slogans offered by private companies, such as "Get it Sold with RE/MAX." Writing for the majority, Justice Breyer nonetheless concludes that these messages are government speech, branded with the "imprimatur" of Texas.

The case began in 2009, when the Sons of Confederate Veterans (SCV) first submitted to Texas a plate with their name, their organizational logo, and the Confederate battle flag. After public comment and an open meeting to consider the plate, the Texas Department of Motor Vehicles Board rejected the plate on the grounds that "many members of the general public find the design offensive." The Board further deemed such comments by  the public to be "reasonable." (emphasis mine) [Cf. Snyder v. Phelps!] The SCV sought an injunction to force the Board to approve the plate on the ground that the denial violated the First Amendment. A federal district court entered judgment for the Board, but a panel of the US Court of Appeals for the Fifth Circuit reversed, holding that the Board's viewpoint discrimination against the SCV plate was unconstitutional. 

Today, the Supreme Court held that Texas is the speaker when it chooses the contents of specialty license plates. In other words, the contents of the specialty plates are government speech, and Texas is therefore free to engage in viewpoint discrimination in choosing which plates to approve, subject to the constraints of the "democratic electoral process." The majority posited that the "government would not work" were it not free to convey its messages in the way it sees fit: "as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out duties on their behalf." 

A reasonable observer could be forgiven for assuming that a Texas plate that favors The Gator Nation represents the views of the driver of the automobile rather than the views of the State of Texas. But the Court concluded that the plate messages are government speech based on the following. First, license plates historically have been used to convey state messages. "Second, Texas license plate designs 'are often closely identified in the public mind with the [State]." [The majority's process of discerning the "public mind' is a little unclear.] Third, Texas controls messages on its license plates by requiring Board approval of every plate design, a process which grants "final approval authority [that] allows Texas to choose how to present itself and its constituency." 

The Court further concluded that license plates do not constitute forums for the speech of private individuals (such as the drivers who choose the plates).  The Court emphasized that license plates, unlike public parks, are not traditional public forums [but then again neither are teacher mailboxes, as in Perry Education Ass'n]. More controversially, the Court asserted that the license plates are not designated public forums because the policies and practices of the state of Texas manifest its intent to maintain control of them. The opinion placed great weight on the fact that Texas has "final authority" to approve content, and it also emphasized the traditional role of license plates as "primarily . . . a form of government ID [that] bear[s] the State's name." In doing so, the opinion seems to ignore the conversion of the "traditional" license plate system into a revenue-raising scheme for the state. 

Finally, the majority rejected the notion that the plates are a non-public forum that can be used by private speakers, reasoning that the plates are predominantly used by Texas for its own "expressive conduct." As the opinion states, "we reach this conclusion based on the historical context, observers' reasonable interpretation of the messages conveyed by Texas specialty plates, and the effective control that the State exerts over the design selection process." 

 This 5-4 decision highlights a flaw in First Amendment doctrine that I've previously discussed in an article on public forum doctrine and government speech in social media. That flaw is that current doctrine "does not contemplate the possibility that [a forum for speech] might involve both government speech and a public forum." Supreme Court precedent left the majority with a Boolean choice: either the plates were a public forum or they were government speech. If the plates were a public forum, Texas's rejection of  any imaginable  plates on the grounds of offensiveness would constitute content-based and viewpoint-based discrimination in violation of the First Amendment. The result would be that Texas, and perhaps most states, would eliminate specialty license plate programs even if it meant giving up the extra revenues they bring. [Not that this result would be so terrible.] On the other hand, if the plates were deemed government speech, Texas could maintain the program while blocking the most objectionable types of plates. Reality, however, is more complicated than current free speech doctrine. The reality is that Texas specialty plates contain both government speech and private speech on one small square of metal. This case just points out the absurdity of having to choose inflexible doctrinal categories to get to a desired outcome. 

Justice Alito's dissent rightly observed that the case sets a dangerous precedent, allowing the government to regulate any offensive speech on government property simply by retaining final approval authority over that speech. Justice Alito refocused the historical analysis of licenses plates on the point AFTER the development of specialty plate programs, concluding that "history here does not suggest that the messages at issue are government speech." He also examined how the Texas license plate approval process actually worked: Texas accepts all private messages submitted "except those, like the SCV plate, that would offend some who viewed them." The mere fact that Texas has given its "blessing" to the private speech on most plates does not make those plates government speech. Instead, "Texas, in effect, sells [license plate] space to those who wish to use it to express a personal message," and by doing so, creates a limited public forum. Texas' decision to reject the SCV plate, or indeed  to reject any plate on grounds of offensiveness, was therefore unconstitutional viewpoint discrimination. 

 

 

 

Posted by Lyrissa Lidsky on June 18, 2015 at 04:51 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink | Comments (0)

Thursday, November 20, 2014

"Active Shooter"

My prayers and best wishes go out to the victims of the shooting at FSU for a speedy and complete recovery.

Tragically such shootings have become common enough that universities and schools must prepare and plan for them. A couple of years ago I attended an "active shooter" training lecture whose purpose was to prepare faculty and staff at my law school to respond to a situation involving an active shooter. According to that lecture, the active shooter is "considered the greatest terrorist threat on campuses." The shooter's "desire is to kill and seriously injury without concern for [the shooter's] safety or threat of capture." Although the shooter may have intended victims, he will accept "targets of opportunity" and will keep moving "until stopped by law enforcement, suicide, or other intervention." Here is a summary of the advice for faculty and staff in dealing with an active shooter situation: "Secure the immediate area. . . . Lock the door. Block the door . . . . If the shooter enters your room and leaves, lock the door behind them. If safe, allow others to seek refuge with you. . . . Stay quiet and out of sight. Put something between you and the shooter." The most chilling bit of advice, however, was the following: "We can no longer predict the origin of the next threat." No. No, we can't.

Posted by Lyrissa Lidsky on November 20, 2014 at 05:38 PM in Life of Law Schools, Lyrissa Lidsky | Permalink | Comments (1)

Tuesday, August 19, 2014

JOTWELL: Understanding Prophylactic Supreme Court Decisions

William Baude at JOTWELL has a review of my colleague John Stinneford's article, The Illusory Eight Amendment. Baude writes, "It is a rare achievement to write about a case in the constitutional law canon and tell us something we did not know. This is the achievement of John Stinneford's recent article . . . . " Professor Stinneford's article critiques Miranda v. Arizona, and contends, contrary to popular wisdom, that it did not truly create a prophylactic rule to prevent compelled confessions. Indeed, Professor Stinneford notes that "the Supreme Court in Miranda did not particularly care what the term 'compelled' means," and because of the Court's failure to address this issue directly, "many of the practices disliked by the Miranda court are still used today. As long as the police give the requisite warnings and obtain the requisite waiver, they can still keep the defendant alone in a room and question him for hours, using psychological pressure and trickery to induce a confession." Both Stinneford's perceptive article and Baude's review explore the implications of this analysis. 

Posted by Lyrissa Lidsky on August 19, 2014 at 11:53 AM in Article Spotlight, Constitutional thoughts, Criminal Law, Lyrissa Lidsky | Permalink | Comments (0)

Monday, August 11, 2014

Tips for New Law Teachers

If you are teaching law for the first time, you may be interested in this list of tips for new law professors. Best of luck!

Posted by Lyrissa Lidsky on August 11, 2014 at 11:52 AM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (0)

Fair Use and News Reporting

The US Court of Appeals for the Ninth Circuit has stated that "[w]aving the news reporting flag is not a get out of jail free card in the copyright arena." In Swatch Group Mgmt. Services v. Bloomberg L.P., __ F.3d __, 2014 WL 2219162 (2014), however, the Second Circuit took a charitable view of such flag waving and interpreted fair use broadly to protect a news organization's dissemination of a highly newsworthy recording. The Second Circuit's broad interpretation of fair use to accommodate news reporting is especially noteworthy in an era in which news organizations are often faced with difficult questions about whether they may legally reproduce "user-generated content."

In Swatch Group Management Services v. Bloomberg, Swatch Group sued for copyright infringement because Bloomberg disseminated a sound recording of a conference call between Swatch and investment analysts to discuss the company's earnings report. Swatch did not admit the press to the conference call, but Bloomberg nonetheless obtained and disseminated a recording of the call to its paid subscribers. A district court granted summary judgment for Bloomberg on fair use grounds, and the Second Circuit affirmed.

First, the court found that “whether one describes Bloomberg’s activities as ‘news reporting,’ ‘data delivery,’ or any other turn of phrase, there can be no doubt that Bloomberg’s purpose in obtaining and disseminating the recording at issue was to make important financial information about Swatch Group available to investors and analysts.” That Bloomberg profited from the dissemination of the recording did not alter the court’s analysis, because almost all news services obtain profits by publishing factual information. The court further observed that the nature of Bloomberg’s use of the recording supported a finding of fair use even though Bloomberg reproduced the original verbatim: “[T]he need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work without alteration.” (emphasis added) This use even could be considered “transformative” because Bloomberg was publishing “factual information to an audience from which Swatch Group’s purpose was to withhold it.” [!]

 Analyzing the second fair use factor (i.e., the nature of the copyrighted work), the court found that Bloomberg’s use of the recording did not threaten Swatch’s copyright interests because the information disseminated was entirely factual, and Swatch had already “publicly disseminated the spoken performance embodied in the recording.” Third, the court assessed “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” Although Bloomberg used the entire work, the use “was reasonable in light of its purpose of disseminating important financial information to investors and analysts.” Fourth, Bloomberg’s use of the sound recording had no market effect on the value of Swatch’s unpublished recording, and Swatch created the recording for other advantages unrelated to “the possibility of receiving royalties.” Finally, the “balance of factors” favored Bloomberg’s dissemination being treated as a fair use, particularly given the importance of the public interest in financial information.

From a media law scholar's perspective, this decision  is praiseworthy because the court clearly recognizes that the public interest should play an important role in fair use analysis. (Compare the Ninth Circuit's decision in Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1183 (2012), in which it said "fair use has bounds even in news reporting, and no per se public interest exception exists.").  Instead of getting hung up on technical application of the fair use factors, the court implicitly looked to the broader goals of copyright law and found that the newsworthiness of (and lack of originality in) the recording trumped the fact that Bloomberg had used the whole thing without alteration. 

Whether other courts will interpret the fair use factors as broadly when a defendant uses an entire copyrighted work remains to be seen. But in an era when copyright law is being (mis)used in an attempt to force takedowns of photos taken by monkeys, the Second Circuit's decision provides a neeeded dose of common sense.

 

Posted by Lyrissa Lidsky on August 11, 2014 at 10:59 AM in Intellectual Property, Lyrissa Lidsky | Permalink | Comments (0)

Thursday, May 01, 2014

UF Law's (and My) New MOOC: The Global Student's Introduction to US Law

I am now officially part of a MOOC, which went online today. It has been a learning experience (!!), with the biggest lesson being that it is nowhere as easy as you might think to put one of these courses together. I plan to blog about the experience at length when I get a chance. For now, though, you might be interested in viewing the University of Florida Law School's foray into the great MOOC experiment: The Global Student's Introduction to US Law. 

The course description is as follows: 

In this course, students will learn basic concepts and terminology about the U.S. legal system and about selected topics in the fields of constitutional law, criminal law, and contract law. A team of outstanding teachers and scholars from the University of Florida faculty introduces these subjects in an accessible and engaging format that incorporates examples from legal systems around the world, highlighting similarities to and differences from the U.S. system.  Students seeking an advanced certificate study additional topics and complete assignments involving legal research that are optional for basic level students. The course may be of interest both to U.S. students contemplating law school and to global students considering further study of the U.S. legal system.

My Senior Associate Dean Alyson Flournoy spearheaded the project, and we had excellent technical assistance, which was crucial, by Billly Wildberger. My colleagues Pedro Malavet, Jeff Harrison, Claire Germain, Loren Turner, Jennifer Wondracek, and Sharon Rush all provided lectures, and our research assistant Christy Lopez is providing support with the discussion forums. 

Posted by Lyrissa Lidsky on May 1, 2014 at 09:49 AM in Culture, Information and Technology, International Law, Life of Law Schools, Lyrissa Lidsky, Teaching Law, Web/Tech | Permalink | Comments (1)

Wednesday, April 30, 2014

Of (Courtney) Love and Malice

Today Seattle Police released a note found on Kurt Cobain at his death excoriating wife Courtney Love. Based on her subsequent behavior, Love cannot have been an easy person to be married to. I've been researching Love lately for an article on social media libel that I'm writing with RonNell Andersen Jones.  Love is not only the first person in the US to be sued for Twitter libel; she's also Twibel's only repeat player thus far. According to news reports, Love has been sued for Twitter libel twice , and recently she was sued for Pinterest libel as well. 

Love's Twitter libel trial raises interesting issues, one of which is how courts and juries should determine the existence of  "actual malice" in libel cases involving tweets or Facebook posts by "non-media" defendants. As you probably recall, the US Supreme Court has held that the First Amendment requires public figures and public officials to prove actual malice--i.e., knowledge or reckless disregard of falsity--before they can recover for defamation. And even private figure defamation plaintiffs involved in matters of public concern must prove actual malice if they wish to receive presumed or punitive damages.  However, US Supreme Court jurisprudence elucidating the concept of actual malice predominantly involves “media defendants”—members of the institutional press—and the Court’s examples of actual malice reflect the investigative practices of the institutional press. Thus, the Court has stated that in order for a plaintiff to establish actual malice, “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." [St. Amant v. Thompson] Actual malice, for example, exists if a defendant invents a story, bases it on ‘an unverified anonymous telephone call,” publishes statements “so inherently improbable that only a reckless man would have put them in circulation,” or publishes despite “obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports." Id.

These examples have little resonance for “publishers” in a social media context, many of whom, like Love, post information spontaneously with little verification other than perhaps a perusal of other social media sources. The typical social media libel defendant is less likely than her traditional media counterpart to rely on informants strategically placed within government or corporate hierarchies or to carefully analyze primary sources before publishing. Moreover, the typical social media defendants has no fact-checker, editor, or legal counsel and is less likely than institutional media publishers to have special training in gauging the credibility of sources or to profess to follow a code of ethics that prizes accuracy over speed. 

The issue Courtney Love's libel trial appears to have raised is whether it constitutes reckless disregard of falsity if a defendant irrationally believes her defamatory accusation to be true. I say "appears," because one can only glean the issue from media accounts of Love's libel trial--the first full jury trial for Twitter libel in the US. The jury found that Love lacked actual malice when she tweeted in 2010 that her former attorney had been "bought off." Specifically, Love tweeted: “I was f—— devestated when Rhonda J. Holmes esq. of san diego was bought off @FairNewsSpears perhaps you can get a quote[sic].” Holmes sued Love in California state court for $8 million, arguing that the tweet accused Holmes of bribery. Love contended that her tweet was merely hyperbole. News accounts of the jury verdict in Love’s favor, however, indicate that the jury found that Love did not post her tweet with “actual malice." The jury deliberated for three hours at the end of the seven-day trial before concluding that the plaintiff had not proved by clear and convincing evidence that Love knew her statements were false or doubted their truth.

The Love case doesn't set any precedents, but it raises interesting issues for future cases. According to court documents and news accounts, Love consulted a psychiatrist for an “addiction” to social media. Certainly Love’s actions in the series of defamation cases she has generated do not seem entirely rational, but there is no “insanity defense” to a libel claim. Yet the determination of whether a defendant had “actual malice” is a subjective one, meaning that it is relevant whether the defendant suffered from a mental illness that caused her to have irrational, or even delusional, beliefs about the truth of a statement she posted on social media. It seems problematic, however, for the law to give no recourse to the victims of mentally disordered defamers pursuing social media vendettas based on fantasies they have concocted. As a practical matter, this problem is likely to be solved by the skepticism of juries, who will rarely accept a defendant’s argument that she truly believed her delusional and defamatory statements. Or at least I hope so. 

And in case you wondered . . . Love's first social media libel case involved her postings on Twitter, MySpace and Etsy calling  a fashion designer known as the "Boudoir Queen" a "nasty lying hosebag thief" and alleging that the Queen dealt cocaine, lost custody of her child, and committed assault and burglary. Love apparently settled that case for $430,000. Love's third social media libel case involves further statements about the Queen that Love made on the Howard Stern show and posted on Pinterest. Some people, it seems, are slow learners.

Posted by Lyrissa Lidsky on April 30, 2014 at 06:30 PM in Blogging, Constitutional thoughts, Culture, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech, Weblogs | Permalink | Comments (0)

Sunday, November 03, 2013

NYT v. Sullivan Anniversary Symposium at U. of Georgia

 The University of Georgia Law Review is hosting an impressive and impressively well organized symposium honoring the fiftieth anniversary of the Supreme Court's decision in New York Times v. Sullivan. Justice John Paul Stevens is the keynote speaker,  and David Savage of the LA Times will be giving a lunchtime talk.  The panels of speakers discussing press issues old and new include Justice Steven's former clerk Sonja West, RonNell Andersen Jones, William Lee, Amy Gajda, Amy Kristin Sanders, Lili Levi, Paul Horwitz, and Rodney Smolla, and Hillel Levin will be moderating at least one of the panels.

I will be participating on the "new media" panel, discussing my paper-in-progress, "The Press and Constitutional Self-Help, Then and Now," a synopsis of which is below.

Once upon a time, the U.S. Supreme Court routinely decided press cases, but that period of time came to an end about twenty years ago. The Court’s disinclination to decide press cases kicked in just as the Internet began eroding the press’ traditional role as gatekeeper and translator of news and information and threatening the financial viability of traditional media. As we near the fiftieth anniversary of New York Times v. Sullivan, it is striking how few landmark press cases have been decided since the Internet, and now social media, have entered the scene.

The Supreme Court decided the vast majority of its landmark press cases between 1964 and 1984, in what we media lawyers might now look back on as the “Golden Age” of press cases.  These cases contain some of the Court’s loftiest rhetoric about the special role the press plays in our democracy. Yet these same cases recognize only negative press freedoms; they protect only freedom from government intrusions such as prior restraints or compelled publication but refuse to interpret the First Amendment to provide the press with “special” access to governmental information or institutions not available to other citizens or special exemptions from generally applicable laws that interfere with newsgathering.  The Court’s refusal to recognize affirmative press rights during this period arguably suggests that the Court was merely paying lip service to the notion that the press plays a special role in democracy, for it seems intuitive that a “special role” should come with “special rights.”

I contend, however, that the Supreme Court that decided the press cases of the Golden Age was committed to a special constitutional role for the press but envisioned the press (or, more aptly, the media) as a true Fourth Estate—an unofficial branch of government capable of checking the other three by using its own powerful resources to safeguard its ability to play its special role. The Court assumed  that, in most instances, the media could use its own political and economic power to gain access to government information, protect confidential source relationships, and fight overreaching by the executive or legislative branches. In other words, the Court assumed that the media could engage in “constitutional self-help” to play their role. But this theory of constitutional self-help depends on a number of assumptions about the media that were largely true in the 1970s but may not be today. Media that are economically and politically powerful, popular with the public, and united in pursuit of common goals may indeed be able to fight off threats to their ability to play a special role in our democracy, especially when government officials depend on the media to carry government messages to the public. In light of recent developments, however, it is fair to question the ability of new media to use constitutional self-help to access government information or protect confidential sources, for reasons I will explore further in my talk (and my paper). Fundamental shifts in the balance of power between today’s Fourth Estate and the three official branches may signal a need to reexamine the assumptions underlying the press cases of the Golden Age.

Posted by Lyrissa Lidsky on November 3, 2013 at 03:37 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (0) | TrackBack

Monday, July 29, 2013

Ten (No, Make that Nineteen) Tips for New Law Professors

I recently received an email from a professor who said he'd found this list of tips helpful. I've added a couple of his tips that were not on the original list.

1.  Begin a little more strictly than you mean to go on.  If you start out strict and stern, you have room to lighten up. If you start out lax, you will pay a real price if you need to impose order later on.

2.  If you put a policy in the syllabus, stick to it even if you think you might have been wrong.  I learned this the hard way.  The first time I taught Professional Responsibility, I stated in the syllabus and in class that the exam would be a two-hour exam.  After I wrote it, I decided it was a bit too hard and I would be "nice" and give them an extra hour to complete it.  I had a young woman in my office 30 minute before the exam so angry I thought she would spit on me. I told her she was welcome to finish in two hours instead of three, but that didn't placate her. I finally told her she'd have to take it up with the associate dean, and I'll be damned if she didn't march down there and do just that.  Thankfully, he backed me up, but I never again made a major policy shift midstream.  She wasn't the only disgruntled student that day, either.

3. Put everything you can think of in the syllabus, even things that should go without saying.  For example, if you are teaching a seminar, you should consider a policy stating that plagiarism is a ground for failing the course, and you should have an extended explanation in the syllabus explaining what plagiarism is.  You might think that everyone accepted to law school already knows what plagiarism is, but you would be wrong.  More importantly, by explaining what plagiarism is in the syllabus, you deprive the student of the ARGUMENT that s/he didn't know s/he was committing plagiarism.  Another example of something you might want to put in the syllabus is a statement that it is rude and disruptive to come late to class, to come and go during class, or to leave class early without notifying the professor beforehand.  Frankly, I'm not sure I realized how distracting these habits are before I started teaching, and many of your students won't, either.

4. "Don't be moody." 

This is a piece of advice I received early on from a relatively new law teacher, and it has always stuck in my head. The person who gave me the advice was male, and he evidently had gotten burned  by violating it.  What the advice boils down to, I think, is that students desparately need you to be predictable. It is comforting to them when they know roughly what to expect each day.

5. Students decide very, very quickly whether you're on their side or not. If they decide you are, they will forgive a multitude of mistakes. If they decide you're not, nothing you do will be right.  I've been teaching for 19 years, and I only had one class that hated me.  They decided early on that I was mean, and everything I did provided confirmation.  They even hated how I started the class and what I wore. (I'd given birth the month before the class started, and my wardrobe was limited). Frankly, I grew to dislike most of them, too.  However, in telling this story, I'm violating the next tip in my list.

6. Be careful about generalizing how "the class" feels.  A communications researcher would probably insist that, in fact, there is no such thing as a "class." (See Ien Ang).  Instead, a "class" is a collection of individuals with disparate needs and interests and judgments about the classroom experience.  That said, it is easy to assume that outspoken students represent the feelings of the entire group.  It so happens that what I think of as "the class that hated me" (discussed above) included two especially delightful students, who took one of the most fun Media Law classes I ever taught. I still keep in touch with them even though they graduated more than a decade ago.

7. Watch out for group dynamics.  Let's say you have a student who is engaging in disruptive behavior. You may be tempted to call the student out for his or her behavior in front of the whole class, but this is usually a bad idea.  Even if other students started out being annoyed at the disruptive student, they may turn on you if you come down too harshly on the student or make him lose face. What should you do instead? I use what I call "class regulation by raised eyebrow."  For example, if a student is late, I may visibly lose my train of thought and stare at him with a completely blank expression on my face for a few seconds--just long enough to be socially awkward.  That does the trick 99 percent of the time.  If you try informal means of "discipline" and they don't work, however, the next step is to call the student into your office. The student won't lose face, and you won't run the risk of having the entire class turn against you for being "mean."

8. Try not to project insecurity. In other words, fake it until you make it.  Although you may be tempted to reveal to the class that you are brand new or are learning the material for the first time, you certainly don't have to and some would argue you shouldn't.  Remember that the students are lucky to have a teacher who is energetic and curious and enthusiastic and can reach them at their level.  Also remember that as little as you think you know, you still can read a case far better than even your brightest student.  So project confidence, but . . . [see next rule.]

9. When you make mistakes, fix them.  When I first taught Torts, I slept with the Prosser & Keeton hornbook by my bedside.  I would wake up in the middle of the night thinking "what if they ask me X?" I would then flip through Prosser & Keeton, read it, perhaps even take notes, and then go back to sleep.  I realize now that every first-time teacher makes mistakes; it is just a question of how you handle them.  Sometimes you will just have to say, "I don't know. Let me research that and get back to you tomorrow." [But make sure you have the answer when you promised it.]   One classic dodge is to say:  "Hold that question. We'll get to that later in the class (or tomorrow or next week)." [Make sure you research the answer and come back to it when you said you would.]  If you realize you didn't explain something well or your explanation was misleading, one way to handle it is to say at the start of next class:  "I'd like to begin by clarifying X that we were discussing yesterday." [Then give your 5-10 minute summary/totally correct explanation.]  Occasionally, you will realize that you said something completely wrong and you will just have to apologize and fix it. As consolation, remember that you are modelling for them how to handle mistakes, and it may be one of the most valuable lessons you can teach future lawyers.  Law is a complicated business, and we all make mistakes from time to time no matter how hard we try or how smart we are.

10.  Trade-offs are inevitable.  More depth or more coverage? Encourage participation and intellectual curiosity, or hew to an organizational scheme?  Stick to your syllabus, or spend more time on the things the class seems interested in or doesn't understand readily? There are lots of other trade-offs of this sort that you'll have to make and then re-make when you realize you've tilted the balance too far toward one value at the expense of another.

11. Make ideas "sticky." Try to come up with ways to make the material you teach memorable.  Silly is sticky.  Graphics (pictures, drawings on the board) are sticky. Funny is sticky. Music is sticky. My Trusts and Estates professor even danced on the table to reinforce a principle, and I remember it (the dancing) twenty years later.  The principle had something to do with whether separate property acquired after the marriage becomes community property or not.  Okay, so the idea wasn't that sticky, but my point still holds.

12. Use the board more than you think you need to. It helps keep the class structured, and it helps the visual learners in the class.   Conversely, use Power Point less than you think you need to.   Power Point is good for pictures and videos, and it can be used to examine closely the text of a rule or to convey highly detailed and technical material through lecture.  Do NOT put giant blocks of text on Power Point and then simply read to the class from the slides. EVER.  

13. It's not about you; it's about the students. Try to keep their needs foremost, instead of your own desire for ego gratification or anything else. 

14. Keep a degree of formal distance between you and your students.  You can treat them like future colleagues, but you cannot be friends with students until they have left your class.  Your role requires you to sit in judgment of your students when you grade them, and that role can be compromised if you don't maintain formal distance.

15. Never use the same exam twice!!  Violate this rule at your extreme peril.

16. Ask colleagues for advice, but remember you don't have to take all the advice you receive.

17. You will teach a class best the third time you teach it.

18. If you are teaching a large class and don't feel that voice projection is one of your gifts, consider wearing a microphone. This tip was shared by my anonymous source. I've never had this problem, but I've heard plenty of complaints from students about being unable to hear some of my colleagues. It is impossible to be an effective teacher if the students cannot hear you.

19. Consider wearing a suit. Even if you don't plan to wear it forever, it may help as a crutch for faking it until you make it and can help you maintain some formal distance from the students. This tip also came from my anonymous source, but I fully concur. I don't wear a suit every single day now, but I believe in signalling I take the endeavor seriously by dressing professionally.

Posted by Lyrissa Lidsky on July 29, 2013 at 09:48 AM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (11) | TrackBack

Friday, July 19, 2013

Bad Day for Reporter's Privilege in Leaks Invesitgations: 4th Circuit in US v. Sterling

As is by now well know, the Obama administration has initiated six Espionage Act prosecutions against government officials accused of leaking national security information, more than all previous administrations combined. One case was against Jeffrey Sterling, a former member of the CIA's Iran Task Force.  The government suspected Sterling of being the source of an account in James Risen’s book “State of War” of a botched CIA attempt to sabotage Iranian nuclear research.  The government subpoenaed Risen, contending his testimony was essential to prove the case against Sterling. The district judge quashed the government’s subpoena insofar as it required Risen to identify his source, U.S. v. Sterling, 818 F.Supp.2d 945 (E.D.Va. 2011), but the government appealed to the Fourth Circuit, claiming that without Risen’s testimony it would be impossible to continue the prosecution. The Fourth Circuit today reversed the district court’s holding that a First Amendment reporter’s privilege prevented Risen from being compelled to reveal his source. The majority opinion on this issue analyzed both Supreme Court precedent (Branzburg v. Hayes) and Fourth Circuit precedent and concluded:

 There is no First Amendment testimonial privilege, absolute or
qualified, that protects a reporter from being compelled to testify by the
prosecution or the defense in criminal proceedings about criminal conduct that
the reporter personally witnessed or participated in, absent a showing of bad
faith, harassment, or other such non-legitimate motive, even though the
reporter promised confidentiality to his source.

Read the whole case here.

The court's conclusion was shaped by the fact that Risen's testimony was sought in a criminal case in which he had "direct information" about the "commission of a serious crime."  The opinion stated: "Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury--the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead." The majority emphasized that the public interest in "enforcing subpoenas issued to reporters in criminal proceedings" is compellling, given the public interest in "effective criminal investigation and prosecution," and the majority explicitly contrasted the lower public interest in enforcement of subpoenas to compel the testimony of reporters in civil cases. 

The court also ruled out the existence of a federal common law privilege that would shield Rosen from having to testify. The court felt bound by precedent not to recognize the privilege, but stated it would not even if it were at liberty to do. Even if a privilege were available, "the common law would not extend so far as to protect illegal communications that took place between Risen and his source or sources in violation of the Espionage Act."

Finally, the court (dotting its i's and crossing its t's) showed that even if a qualified privilege were recognized, the privilege would be overcome in this case based on the strong need for Risen's information.  Moreover, it suggested that Risen might have already waived the privilege by revealing the name of his source to a third-party.  

I hope you'll read this opinion, which is an important word, but perhaps not the last, on whether the First Amendment allows reporters to protect confidential sources whose identities might be relevant to leaks investigations. As the number of leaks investigations continues to grow, and the government uses more creative tactics to deter leaks and uncover leakers, the effect of the Fourth Circuit's holding on the ability of journalists to uncover government wrongdoing may grow. The opinion also seems to suggest at points, though subtly, that Risen's own behavior was criminal, which again raises the issue whether the government might choose to prosecute reporters who knowingly receive illegally leaked classifed information.

This post is intended to be a brief summary of this important case, about which I hope to write more later. There's much more to this 118-page opinion, including additonal legal issues not addressed here.

   

Posted by Lyrissa Lidsky on July 19, 2013 at 04:03 PM in Constitutional thoughts, Criminal Law, First Amendment, Lyrissa Lidsky | Permalink | Comments (1) | TrackBack

Anxiety on the Tenure Track: What YOU Can Do

Drexel Law Professor Lisa McElroy has an important piece on Slate.com (here) dealing with her struggles with anxiety while on the tenure track. Anxiety while untenured is common, indeed almost unavoidable, but Lisa's essay is about the hidden toll her severe anxiety disorder imposed on her during the already stressful tenure process. She tells her story to help others in her situation have the courage to get the help they need and to start the process of breaking down the stigma attached to mental illness. Another benefit, she notes, is allowing herself to finally be known by those around her, to be who she truly is. Her essay reminds us all that our friends and acquaintances and, yes, colleagues--even those who are tremendously accomplished by all objective measures--are often carrying heavy burdens that we know nothing about. We should do what we can to alleviate their suffering and not let fear prevent us from getting help to alleviate our own. 

Posted by Lyrissa Lidsky on July 19, 2013 at 01:44 PM in Life of Law Schools, Lyrissa Lidsky | Permalink | Comments (3) | TrackBack

Wednesday, July 10, 2013

A Missed Opportunity: Cert. Grant in Air Wisconsin v. Hoeper

In June the Roberts Court granted certiorari in its first libel case, Air Wisconsin Airlines
Corp. v. Hoeper, __P.3d__, 2012 WL 907764 (Colo. 2012), cert. granted __U.S__
(June 17, 2013). For a media lawyer, this development should be exciting. Unfortunately the Supreme Court granted certiorari limited to a narrow question of relatively little relevance to the media. Here's the story. 

In Hoeper an employee of Air Wisconsin Airlines informed the Transportation Safety Administration that an Air Wisconsin pilot was a possible threat and might be unstable. Earlier in the day, the pilot had failed a flight simulation test and had lost his temper, shouting and cursing at Air Wisconsin employees conducting the test. Air Wisconsin previously had stated it would fire the pilot if he failed the test. After the pilot’s outburst, employees of Air Wisconsin discussed his behavior and the fact that a TSA program allowed him to carry a weapon on an aircraft. An employee then reported the pilot to TSA as mentally unstable, potentially armed, and disgruntled over having been fired that day. The pilot sued for defamation.

Air Wisconsin moved for summary judgment based on the ATSA immunity provisions, but the trial judge denied the motion on the grounds that “the jury was entitled to resolve disputed issues of fact that controlled the determination of immunity.” After rejecting the airline’s claim of immunity, the jury found its statements to TSA were defamatory and made with actual malice. The trial judge entered the jury’s verdict of $1.4 million, and the airline appealed. A Colorado court of appeals affirmed, holding that the jury’s finding of actual malice was supported by clear and convincing evidence, and that statements at issue were neither opinion nor substantially true.

The Supreme Court of Colorado affirmed. Although the trial court erred in “submitting the immunity question to the jury” rather than determining the question as a matter of law before trial, the Colorado Supreme Court held that the error was harmless because Air Wisconsin’s statements were not entitled to immunity. Under the ATSA, an air carrier is not entitled to immunity for reporting a security threat to TSA if the report is made with knowledge or reckless disregard of its falsity. The Colorado Supreme Court determined “based on the record evidence” that Air Wisconsin’s defamatory statements were made with reckless disregard as to their falsity. Indeed, the court found that clear and convincing evidence supported the jury’s finding of actual malice. The court also determined that the statement that the pilot was “mentally unstable” and thus a threat to airline security was not a protected opinion but instead implied a false assertion of fact. The court found “substantial and sufficient” evidence to support the jury’s determination that the statements were false.

Three justices, dissenting in part, contended that the court’s opinion “threatens to undermine the federal system for reporting flight risks.” The dissent contended that the air carrier’s statements about the pilot were substantially true, because the pilot had indeed had an angry outburst during a training session and was facing termination at the time Air Wisconsin employees reported him to TSA. According to the dissent, Air Wisconsin thus was entitled to immunity as a matter of law.

Obviously the scope of air carrier immunity under the ATSA is an important question, and a narrow interpretation of that immunity might deter air carriers from reporting employees who pose threats to air safety to the TSA. From a media lawyer's perspective, the case raises another important question, and one with which lower courts have struggled: Must courts engage in independent appellate review of jury determinations of falsity in defamation cases involving matters of public concern?  The Supreme Court long ago held that courts must engage in independent appellate review of the jury's actual malice determinations, and actual malice must be established with "convincing clarity." See Bose; Sullivan. "Actual malice," of course, is a term of art meaning knowledge or reckless disregard of falsity. Because the actual malice determination is so closely linked with the falsity issue, some but obviously not all lower courts have assumed that they must independently review jury determinations for "clear and convincing evidence" of falsity. Indeed, the Reporter's Committee for Freedom of the Press filed an amicus brief in support of Air Wisconsin's petition for certiorari, urging the Court to take the case to resolve the uncertainty among lower courts regarding whether independent appellate review of falsity determinations is required.

Alas, the Supreme Court granted cert limited to the question whether a court may deny an air carrier statutory immunity under ATSA for reporting an employee as a threat, without first determining that the air carrier's report was materially false. As documented here, the Roberts Court has shown little interest in addressing the concerns of the Fourth Estate, and its limited grant in Hoeper arguably continues that trend.

 

Posted by Lyrissa Lidsky on July 10, 2013 at 11:22 AM in Constitutional thoughts, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (0) | TrackBack

Tuesday, June 18, 2013

Libel Law, Linking, and "Scam"

Although I'm a little late to the party in writing about Redmond v. Gawker Media, I thought I'd highlight it here because, though lamentably unpublished , the decision has interesting implications for online libel cases, even though the court that decided it seems to have misunderstood the Supreme Court's decision in Milkovich v. Lorain Journal.

Redmond involved claims against "new media" company Gawker Media based on an article on its tech blog Gizmodo titled Smoke and Mirrors: The Greatest Scam in Tech. The article criticized a new tech "startup," calling it " just the latest in a string of seemingly failed tech startups that spans back about two decades, all conceived, helmed and seemingly driven into the ground by one man: Scott Redmond." The article further suggested that Redmond, the CEO of the new company, used “technobabble” to promote products that were not “technologically feasible”  and that his “ventures rarely—if ever—work.”  In other words, the article implied, and the title of the blog post stated explicitly, that Redmond’s business model was a “scam.” Redmond complained to Gizmodo in a lengthy and detailed email, and Gizmodo posted Redmond's email on the site. Regardless, Redmond sued Gawker and the authors of the post for libel and false light. Defendants filed a motion to strike under Califonia’s anti-SLAPP statute. The trial court granted the motion, and the California appellate court affirmed.