News & Developments

California Supreme Court Holds State Constitution is Broader Than U.S. Constitution and Protects Right to Free Speech in Privately-Owned Shopping Mall

In Fashion Valley Mall, LLC v. N.L.R.B., 42 Cal. 4th 850 (2007), the California Supreme Court held that a shopping mall's rule prohibiting individuals from urging a boycott of certain mall merchants violated the free speech provisions of the state Constitution. In a sharply divided 4-3 opinion, the Court reaffirmed its landmark ruling in Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (1979), affirmed sub nomine Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). In Pruneyard, the California Supreme Court had held that the free speech protections of the state Constitution extended to speech occurring in private shopping malls, despite the fact the U.S. Supreme Court had previously concluded that the protections afforded by the federal Constitution did not. The Pruneyard decision generated considerable controversy in the intervening decades, as courts, scholars and practitioners debated the merits of Pruneyard as well as its doctrinal foundations.

Justice Moreno's majority opinion in Fashion Valley held that a shopping mall, while privately owned, was a "public forum" because it was open to the public, and because large shopping malls have effectively taken the place of the streets and sidewalks of central business districts that historically were centers of free speech, assembly, and discussion of public questions. While recognizing that federal constitutional jurisprudence had rejected treating private shopping malls as public forums, the majority opinion cited key differences between the free speech protections of the federal and California Constitutions. The Court went on to hold that the Fashion Valley mall's rule prohibiting speech urging a boycott violated the California Constitution because that prohibition was content-based and went beyond merely regulating the time, place and manner of the challenged speech.

Justice Chin filed a dissenting opinion in which two other Justices joined. The dissenting opinion urged that Pruneyard be overruled and that the concept of a public forum not be extended to private shopping malls. In support, the dissenters noted that the majority of other states to consider similar situations had declined to follow Pruneyard and had instead held that free speech protections did not reach private shopping malls. The dissenting opinion also argued that Pruneyard was distinguishable from the present case because the boycott was "inimical" to the very purpose of the shopping mall's existence, and urged that shopping centers should be able to impose restrictions reasonably necessary to protect their business interests.

WIKILEAKS: Website for Anonymous Whistleblower Raises Prior Restrain Concerns and Questions About Restricting Dissemination of Information on Internet

A lawsuit involving a formerly obscure website, Wikileaks.org, became the focus of considerable controversy when a federal District Court Judge issued—and later lifted—a rare prior restraint shutting down the website. Wikileaks.org allows individuals to anonymously leak government and corporate documents with the stated goal of discouraging corruption and other wrongdoing. The website was created in part to provide a forum, safe from retribution, for political dissidents and journalists in countries with repressive governments. The lawsuit before the District Court, however, was brought by a Swiss bank doing business in the Cayman Islands that claimed a disgruntled former employee had posted stolen, confidential bank documents on Wikileaks.

On February 15, 2008, Judge Jeffrey S. White of the United States District Court for the Northern District of California granted an injunction disabling Wikileaks.org. This resulted in an outcry from First Amendment lawyers and scholars, who argued that the injunction constituted an unconstitutional prior restraint in violation of the First Amendment, an argument the New York Times advanced successfully decades earlier in the famous Pentagon Papers case. In response to that outcry and to a number of amicus curiae briefs, Judge White subsequently dissolved the injunction on February 29, 2008, citing "serious questions of prior restraint and possible violations of the First Amendment." Judge White's February 29, 2008 Order also noted the lack of efficacy of injunctive relief against Wikileaks.org. Indeed, the over 1 million documents formerly available at Wikileaks.org had remained available online at various "mirror" sites on th Internet with different domain names (such as wikileaks.be).The Wikileaks controversy thus highlights the general difficulty of restricting the dissemination of content on the Internet

» View the Court Order | PDF

"BONG HiTS 4 JESUS": Supreme Court Rules that Schools May Regulate Student Speech Advocating Drug Use.

In Morse v. Frederick, 127 S. Ct. 2618 (2007), the United States Supreme Court held that a high school principal had not violated a student's First Amendment rights by forcing him to take down a banner reading "BONG HiTS 4 JESUS" at a school-sanctioned trip to watch the Olympic torch pass through the streets of Juneau, Alaska. The majority opinion, authored by Chief Justice Roberts, characterized the banner as advocating marijuana use, and held that school officials may restrict student speech at school-sanctioned events when such speech may reasonably be viewed as advocating illegal drug use.

The majority reiterated the principle, set forth in Tinker v. Des Moines Independent Community School Dist., 89 S.Ct. 733 (1969), that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. But the Court explained that student free speech rights were not coextensive with those of adults in other settings, and held that restrictions on speech advocating drug use were justified because part of a school's job is to educate children on the dangers of illegal drugs and deterring student drug use is an important and perhaps compelling interest.

Justices Kennedy filed a concurring opinion, joined by Justice Alito, stating that the Court’s decision was limited to speech advocating illegal drug use and should not be viewed as endorsing restrictions on speech concerning political or social issues, including the wisdom of the war on drugs. Justice Thomas also wrote a concurring opinion expressing his belief that Tinker should be overruled and that the First Amendment’s freedom of speech guarantee did not encompass a student’s right to speak in public school. Justice Breyer concurred in the judgment but would have avoided the First Amendment issues altogether on the grounds that qualified immunity barred the student’s suit against his principal. Finally, Justice Stevens filed a dissent, joined by Justices Souter and Ginsberg. The dissent took issue with the majority’s conclusion that the banner advocated drug use, and instead characterized the banner as ambiguous and nonsensical. The dissent also expressed concern that the majority was impinging on students’ ability to debate the wisdom of the war on drugs, and had failed to require the principal to show that the banner disrupted the school’s educational function.

Massachusetts Legislature Hears Testimony On Proposed Shield Law

On June 12, 2007, the Joint Judiciary Committee of the Massachusetts House of Representatives and the Massachusetts Senate held a public hearing regarding the adoption of a shield law. The proposed law is sponsored by Representative Alice Hanlon Peisch and would protect journalistic sources, notes, photographs, film and other materials from compelled disclosure. An exception is made for disclosure that is “necessary to prevent imminent and actual harm to public security from acts of terrorism” provided that this harm “clearly outweighs the public interest in the free flow of information.”

A number of prominent journalist testified in support of the draft legislation, including Paul A. La Camera of WBUR (the Boston affiliate of National Public Radio), Susan Wornick, WCVB-TV anchor and member of its investigative unit, and Alfred Larkin, executive vice president at the Boston Globe. The Joint Committee also heard supportive testimony from Mary-Rose Papandrea, law professor at Boston College, Alex Jones, director of the Joan Shorenstein Center on the Press, Politics and Public Policy at Harvard, and Lucy Dalglish executive Director of the Reporters Committee for the Freedom of the Press.

» View the Draft Legislation | PDF

Contributed by Jeroen van Kwawegen, Latham & Watkins, LLP

First Amendment & Media Litigation Committee Opposes Resolution proposed by the Commission on Effective Criminal Sanctions

In February 2007, the Commission on Effective Criminal Sanctions proposed a resolution that, in part, included a recommendation to urge “federal, state, territorial and local governments to develop policies governing access to and use of criminal records for non-law enforcement purposes that would balance the public’s right to information against the government’s interest in encouraging successful offender reentry and reintegration.” One of the Commission’s original recommendations was that action be taken to “ensure that only law enforcement agencies have access to records of closed criminal cases that do not result in a conviction.” In response to the First Amendment Committee of the Litigation Section’s strong opposition to that the recommendation, the Commission deleted that provision. The ABA House subsequently approved the remaining recommendations of the Commission. On April 30-May 1, 2007 the Commission will host a national conference to discuss these issues, including access to and use of criminal history information.

Free Flow of Information Act of 2005

The ABA is interested in a piece of legislation known as the Free Flow of Information Act of 2005. Representative Pence made a short but excellent statement in July of 2005 introducing this Act. It was introduced in the Senate by Senator Richard Lugar the same month. There are currently 11 cosponsors in the Senate and 66 co-sponsors in the House. On November 17th, 2005, introductory remarks on the measure were given by Senator Lugar. The Act is of great importance, and very relevant with the recent events in the news surrounding Judith Miller of the The New York Times. The essence of the Free Flow of Information Act is to protect journalists, and enable them to do their job effectively. Journalists need to be able to have confidential sources without fear of imprisonment if they do not reveal their sources.

Senator Lugar’s and Representative Pence’s offices have been contacted to find out more about the status of the Act and to find out they could provide any updated information. As of now, since they are not in session there is not much movement. Once they resume, movement in anticipated. The most current information is from http://thomas.loc.gov/.

Contributed by Christopher P. Hamm
University of Tulsa
ABA Law Student Division

Federal Shield Law Legislation

First Amendment & Media Litigation Committee Proposes Resolution Supporting Federal Shield Law Legislation

See the August 9, 2005 News Release American Bar Association Supports Federal Reporters’ Shield Statute, as well as the following documents:

» General Information Form |
» Recommendation |
» Executive Summary |
» Section of Litigation Report to House of Delegates |