media law

Yesterday was the 50th anniversary of the New York Times v. Sullivan ruling, which led to greater protections for the media from being sued for defamation by public officials and public figures like celebrities, the Associated Press says. The "case applies equally to new media such as Twitter, Facebook and blogs," AP further reports. First Amendment lawyer Bruce W. Sanford told AP that there may be fewer libel cases because the Sullivan rule is widely accepted and because there's a greater opportunity to respond to untruths in the digital world.

The Dallas Morning News reports that prosecutors have moved to drop most of the charges against journalist and activist Barrett Brown related to posting stolen data online. They want to drop all but one of 12 charges "accusing him of trafficking in data, including credit card numbers, that was stolen from private intelligence firm Stratfor" by hackers, the Morning News says. "He had faced charges of aggravated identity theft and device fraud in a case that has received national attention for its free speech implications," the Morning News also says.

Courthouse News reported on a Media Law Resource Center study led by Staff Attorney Michael Norwick and on which I assisted:  "Libel and privacy cases against the media continue to drop, and cases against print outlets that lead to verdict-ending trials are also declining steadily, a nonprofit dedicated to press rights reported.

The Media Law Resource Center's 2014 Report on Trials and Damages says that 12 new cases against media defendants went to trial during the last study period - seven in 2012 and five in 2013.

This is a 37 percent drop from the 19 cases reported during 2010-11, and a reduction by more than half in the average of number of cases per year from 2000 to 2010.

'This continues a long-term trend of reduced numbers of trials over the decades,' [according to ]the report.

Interestingly, half of the 12 recent cases originated in Virginia. Although this may be an anomaly, the report sees a possible explanation in the fact that the availability of summary judgment in Virginia state courts is very limited. Summary judgment can be granted only on the basis of the pleadings there, as no affidavits are permitted to support such a motion.

It is particularly difficult to win summary judgment in defamation cases in Virginia because the commonwealth's Supreme Court has said that 'only if a plaintiff unequivocally has admitted the truth of an allegedly defamatory statement, including the fair inferences, implications, and insinuations that can be drawn from that statement, may the trial judge award summary judgment to the defendant on the basis that the statement is true.'"

After Politico reported that Washington Post reporter Barton Gellman says he's been told his telephone records were obtained by a national security letter, Julian Sanchez posted on Just Security that there at least two ways in which a national security letter would appear to strain the limits of the authority from the only NSL statute allowing for access to telecommunications records.

"First, §2709 may only be used in connection with an 'authorized investigation to protect against international terrorism or clandestine intelligence activities,'" Sanchez writes. "Assuming Bart is not suspected of plotting to blow up any airplanes, it seems probable that we’re dealing here with an investigation of leaks of classified information to press. Yet such leaks—even when they clearly involve a violation of the law—do not obviously satisfy the traditional definition of 'clandestine intelligence activities.'"

Second, Sanchez writes, "a clause added to the NSL provisions by the USA Patriot Act—to compensate for the elimination of the requirement that NSLs target suspected agents of a foreign power—provides that they may be used for an authorized investigation 'provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States.' The sole basis for seeking Gellman’s records would, of course, be his First Amendment–protected newsgathering and reporting activities."

Brennan Center for Justice's Andrew Cohen wrote in an opinion piece that "not a single national news organization has filed a single motion recently seeking to dissolve or at least diminish the great cloud of secrecy that has sprung up over the past few months over lethal injections in America." But several media organizations went to court to exercise their First Amendment rights to access the police videos of the arrest of Justin Bieber, he wrote.

There should be media efforts to gain information about lethal injections, especially as states are passing laws to restrict information about their death-penalty procedures, Cohen says: "In Georgia, for example, lawmakers last summer passed a secrecy law so broad that it precludes even the state’s own judiciary from having access to information about lethal injection drugs. It was immediately challenged by a death row inmate named Warren Lee Hill—who promptly got a trial judge to enjoin its enforcement—but no media organization that was asked to get involved in the litigation (and some were) chose to do so."

Cohen concludes that First Amendment rights are never more vital "than when the goverment seeks to execute someone in the name of the state--and seeks to do so in darkness."

Journalist Pedro Rivera has filed a lawsuit alleging the Hartford police violated his First Amendment rights by questioning his use of a drone to record images of a car wreck, the Associated Press reports. Rivera claims that he was told to leave the area and that his TV-station employer was told he had interfered with a police investigation. At the time, Rivera was not working for WFSB-TV but is on call for them. Rivera also alleges violations of his Fourth Amendment rights. The complaint can be accessed here.

PA Sen. Larry Farnese, D-Philadelphia, has sponsored legislation to expand Pennsylvania's anti-SLAPP (strategic lawsuits against public participation) law to cover defamation, invasion of privacy and other causes of action, The Legal Intelligencer's P.J. D'Annunzio reports. Right now, Pennsylvania's anti-SLAPP is limited to citizens communicating to the goverment about the enforcement of environmental law. Joseph T. Moran, who handles First Amendment and media law at Duane Morris' Pittsburgh office, told The Legal: '''A SLAPP suit by definition is not meritorious litigation. If there is a way to encourage public speech and action that dismisses frivolous suits at an early state, it's hard to say that's a bad thing.'"

Development groups have called upon the United Nations to make media freedom and access to information central to the global body's sustainable development agenda, according to The Guardian. Some advocates prefer a "distinct global development plan on good governance, with access to information at its heart." The argument, Thomas Hughes opines in The Guardian, is that "quality, current and accessible information is crucial to establishing the scope and nature of development challenges. It empowers people to hold their leaders to account and participate in the decisions that affect their lives. It also forms the basis of a free and independent media, which, as media development NGOs such as Internews have emphasised, plays a vital role in safeguarding development. A free media informs, facilitates public participation through open debate and helps to hold those in power to account."

The Federal Aviation Administration has opened an investigation into a TV station's use of a drone to investigate a car crash, the Associated Press reports. "The case of the Hartford crash, in which the victim's body was left hanging out of a mangled car, highlights some of the safety, privacy and ethical issues that journalists will wrestle with as interest grows in using drones for newsgathering," the AP notes.

For now, the FAA has not authorized the use of drones for commercial purposes, including journalism, the AP further notes. The FAA isn't expected to propose regulations on the commercial use of drones weighing less than 55 pounds until November.