News & Developments

Lights Out on False Light in Florida

The Florida Supreme Court has rejected the false light tort in Florida because it is duplicative of defamation and likely to impede constitutionally protected free speech. Jews for Jesus, Inc. v. Rapp, SC06-2491 (Fla. Oct. 23, 2008); Anderson v. Gannett Co., Inc., SC06-2174 (Fla. Oct. 23, 2008). Five justices unanimously agreed to reject the tort. Two justices, new to the court since oral argument in the cases, did not participate in the decisions.

Prompted by the Fourth District Court of Appeal’s certified question in Jews for Jesus, which asked the court whether Florida recognizes the false light tort, the court surveyed false light law in Florida and other jurisdictions and stated that its research had not revealed a single case in which a false light claim standing alone had been upheld. The reason, explained the court, is that false light duplicates defamation. Both torts can be premised upon literally truthful statements that give rise to a false implication, and both torts allow for recovery of reputational and emotional distress injuries in Florida.

Freedom of Information Act update

Last week, two non-profit groups dedicated to improving government transparency and accountability won victories in their ongoing legal disputes seeking access to White House visitor logs. In response to lawsuits brought by Judicial Watch and Citizens for Responsibility and Ethics in Washington (“CREW”) under the Freedom of Information Act, the Secret Service was ordered to search its computer system for records related to visits to the White House of former lobbyist Jack Abramoff. Mr. Abramoff is currently serving a four year prison sentence for political corruption. Notably, the Secret Service was also ordered to search so-called “sensitive security records” of White House visitors whose background check had raised a red flag.

Hannah Bergman of the Reporters Committee for Freedom of the Press (“RCFP”) has written more extensively about these cases on the RCFP website.

California Court of Appeals: Prima Facie Showing of Defamation Required Before Subpoena Will Issue to ISP to Identity Anonymous Posters

In Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 72 Cal. Rptr. 3d 231 (Cal. Ct. App. 2008), a California court of appeals held that a plaintiff seeking to subpoena an Internet service provider to learn the identify of anonymous posters had to first make aprima facie showing of defamation before the subpoena would issue. In Krinsky, a corporate president filed suit for damages and injunctive relief against 10 fictitiously named individuals who had posted allegedly defamatory statements on an Internet site. A subpoena was served on the custodian of records of the Internet service provider to try and learn the identity of the anonymous posters. One defendant moved to quash the subpoena, and the motion was denied by the Superior Court. The defendant appealed, and the court of appeals reversed and held that: the plaintiff had to make aprima facie showing of defamation in order for a subpoena to be issued; the plaintiff had failed to make aprima facie showing of defamation; and the president also had failed to make aprima facie showing of intentional interference with a business relationship.

Indiana Court of Appeals: Statement Imputing Mental Illness to Plaintiff Not Defamatory Per Se

In Baker v. Tremco, Inc., 2008 WL 2746511 (Ind. Ct. App. July 16, 2008), an Indiana court of appeals held that statements that someone has a mental illness are not defamatoryper se. In Baker, a former employee filed suit against his former employer, listing numerous claims, including a defamation claim against his former supervisor who told a third party that the former employee suffered from a mental illness. The charge was dismissed on summary judgment, and the plaintiff appealed. The appellate court held that a claim that someone has a mental illness without more is slander per quod. Because a slander per quod claim requires a plaintiff to plead special damages, and because the plaintiff had not provided evidence of any special damages, the court of appeal affirmed the trial court's grant of summary judgment.

3rd Circuit Rejects FCC's "Fleeting Images" Policy, Reverses Super Bowl Fine

On July 21, 2008, the United States Court of Appeals for the 3rd Circuit unanimously rejected the $550,000 forfeiture penalty and finding of indecency violation levied against CBS for the 2004 Super Bowl halftime show featuring Janet Jackson and Justin Timberlake. The appeal involved the live broadcast of the show, which culminated in an unscripted nine-sixteenth-second exposure of Janet Jackson's breast.

The court held that the FCC arbitrarily and capriciously departed from its prior policy of excepting fleeting broadcast material from the scope of actionable indecency. It also determined the FCC could not impose strict liability on CBS, or hold it liable for the conduct of Jackson and Timberlake because they were independent contractors and not CBS employees.

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

"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.

Contributed by Jeroen van Kwawegen, Latham & Watkins, LLP