First Amendment

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.'"

The Washington Post's Robert Barnes reports on a challenge to the law that keeps protesters away from the U.S. Supreme Court except for the sidewalks surrounding the highest court in the country. The D.C. U.S. Attorney argued that there is a legitimate governmental interest to keep demonstrations away from courthouses because courts don't make decisions by reference to public opinion, but one judge ruled that it was inconsistent with the First Amendment for the government to prohibit virtually all expression in front of the court.

Delaware Business Court Insider's Jeff Mordock reported this week on Leo E. Strine Jr.'s confirmation as the chief justice of the Delaware Supreme Court. While Delaware is a preferred forum for America's corporations, one thing that struck me about Jeff's coverage is that Strine said he plans to focus on family court, which is an often overlooked area of law: "'One of the things I never forget is how important Family Court is. The Justice of the Peace Court comes into contact with more Delaware residents than any other court. The challenge of delivering the high-quality justice our court has done with limited resources is a daunting one and I'm committed to giving my all to do that. My background has positioned me well to understand the challenges of my colleagues in the other courts."'

Strine also defended the Court of Chancery's confidential arbitration program against the argument that it violates the First Amendment. Delaware is appealing to the U.S. Supreme Court in a last-ditch attempt to reinstate the program after the Third Circuit struck it down.

The first "Twibel" verdict in the United States (or the first defamation verdict involving a tweet) resulted in a defense verdict for Courtney Love. An On the Media segment said the case "could become the social media equivalent of New York Times v. Sullivan," and Gigaom notes "the Love decision is significant because it comes in contrast to legal developments in the U.K., which threaten to chill the use of Twitter in that country. In October, for instance, a U.K. man agreed to pay $25,000 for retweeting a false statement, saying 'From my own experience, I am able to warn others of the dangers of retweeting.'" But Gigaom also noted that the decision leaves unsettled whether tweets should get more protection than other forms of online expression and if it should be accepted that tweets are inherently opinion.

Love tweeted: "@noozjunkie I was fucking devestated [sic] when Rhonda J. Holmes esq. of san diego was bought off @FairNewsSpears perhaps you can get a quote." The legal standards were high in the case because Rhonda Holmes was a limited-purpose public figure. Holmes had to prove by clear and convincing evidence that Love knew the message was false or doubted the truth of her tweet.

The Washington Post's Robert Barnes writes that "compulsory union fees conflict with the First Amendment’s protection against forced association and speech," but Supreme Court precedent allows for public employees who opt out of union membership to still be forced to "pay 'fair share' fees to support the organization’s collective-bargaining work." The issue is coming up in a case pending before the U.S. Supreme Court on whether Illinois in-home assistants to peoples with disabilities and other people who otherwise could be institutionalized (paid through Medicaid-waiver programs) have to pay union fees. The justices are being asked to overrule their precedent.

The Texas Supreme Court took up two cases this week on whether injunctions in defamation cases are constitutional: "Treading the gray area between freedom of speech and permissible government censorship, the Texas Supreme Court heard arguments in two cases Thursday that could determine whether state judges may permanently ban people from repeating information found to be false and defamatory," the Austin American-Statesman reports.

I reviewed the oral arguments, and one issue that came up is whether there is a constitutional right to defamatory speech under the Texas Constitution. One of the proponents for the constitutionality of post-judgment injunctions banning someone from repeating false and defamatory statements said that defamatory speech has no constitutional protection. But his opponent argued the Texas Constitution provides more protection than the U.S. Constitution for freedom of speech and that defamatory speech does have constitutional protection in Texas. If there is constitutional protection under state constitutional law , then a post-judgment injunction would be illegal and damages would be the only remedy for the parties who were defamed.

A best practice developed by the Innocence Project to ensure accurate eyewitness identification could be running afoul of the First Amendment. The Daytona Beach News-Journal reports on local law enforcement's use of witness identifiation affidavits that direct witnesses to crime not to talk to the media; these affidavits were recommended to try to avoid wrongful convictions. Seth Miller, of the Innocence Project of Florida, told the newspaper that cases that receive a lot of media coverage can taint witnesses' opinions and potentially lead to wrongful convictions. But an attorney who practices in the area of media law said having law enforcement tell witnesses not to talk to the press violates their First Amendment rights.

Pierre Omidyar, founder of eBay and writing in The Huffington Post, asked whether distributed denial of service attacks are a legitimate form of protest --- such as when Anonymous hackers targeted Paypal for refusing to send donations to Wikileaks. Fourteen criminal defendants facing federal charges for the Paypal DDOS attacks are due in court this week.

On one hand, "a denial of service attack is damaging and costly. Many of PayPal's customers rely on PayPal for their livelihood," Omidyar says. On the other hand, Omidyar writes "I can understand that the protesters were upset by PayPal's actions and felt that they were simply participating in an online demonstration of their frustration. That is their right, and I support freedom of expression, even when it's my own company that is the target."

However, Omidyar concludes such attacks are not the same as other forms of free expression because one protestor's computer is turned over to a central controller and has a magnified impact of making "hundreds of web page requests per second."

Last week, ProPublica founder and executive chairman Paul Steiger received the Burton Benjamin Memorial award from the Committee to Protect Journalists. In his remarks, Steiger said that President Barack Obama's administration has been the most dangerous president for the First Amendment since President Richard Nixon: "For the starkest comparison, I urge any of you who haven’t already done so to read last month’s report, commissioned by CPJ and written by Len Downie, former editor of the Washington Post. It lays out in chilling detail how an administration that took office promising to be the most transparent in history instead has carried out the most intrusive surveillance of reporters ever attempted. It also has made the most concerted effort at least since the plumbers and the enemies lists of the Nixon Administration to intimidate officials in Washington from ever talking to a reporter."

most concerted effort at least since the plumbers and the enemies lists of the Nixon Administration to intimidate officials in Washington from ever talking to a reporter.