CASE SUMMARIES

Please click on case name to link to case summary.

ACLU v. Dep't of Defense, 389 F. Supp. 2d 547 (D.N.Y. 2005): media access to photographic and written reports are subject to disclosure unless they are exempt under certain statutory provisions

Beard v. Banks, No. 04-1739, 2006 U.S. LEXIS 5176 (U. S. June 28, 2006), rev'd, 399 F.3d 134 (3rd Cir. 2005): the Constitution permits greater restrictions on constitutional rights in a prison than it would elsewhere, and restrictive prison regulations are permissible only if reasonably related to legitimate penological interests

Federal Election Commission v. Wisconsin Right to Life, No. 06-969, 2007 LEXIS 8515 (U.S. June 25, 2007), aff’d 466 F. Supp.2d 195 (D.D.C. 2006): the federal statutory prohibition on a corporation’s use of general treasury funds to finance “electioneering communications” is unconstitutional as applied to advertisements that were genuine issue ads (not express advocacy or its functional equivalent), and no compelling interest justified the government's regulation of such ads.

Fox Television Stations, Inc. v. Federal Communications Commission, No. 06-1760, 2007 U.S. App. LEXIS 12868 (2d Cir. June 4, 2007): FCC’s standard sanctioning “fleeting expletives” is arbitrary and capricious under the Administrative Procedure Act because the FCC failed to articulate a reasoned basis for the change in policy [FCC indecency regime]

Garcetti v. Ceballos, No. 04-473, 2006 U.S. LEXIS 4341 (U.S. May 20, 2006): public employees' statements made pursuant to their official duties, are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline

Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005) (en banc), cert. denied, No. 05-377, 2006 U.S. LEXIS 1141 (U.S. Feb 21, 2006): Supreme Court denied cert to an appeal from federal court opinion holding that the Supreme Court's 1988 Hazelwood School District v. Kuhlmeier decision limiting high school student free expression rights could extend to college and university campuses

In re Associated Press, No. 06-1301, 2006 U.S. App. LEXIS 7371 (4th Cir. Mar. 22, 2006): media is afforded access to documentary exhibits admitted into evidence once the documents are published to the jury

Morse et al. v. Frederick, No. 06-278, 2007 LEXIS 8514 (U.S. June 25, 2007), rev’d, 439 F.3d 1114 (9th Cir. Mar. 10, 2006): school officials do not violate a student’s First Amendment rights when they enforce anti-drug policies by preventing a student from displaying a pro-drug message at a school-sponsored event because school officials may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use

O'Grady v. Superior Court of Santa Clara County, No. H028579, 2006 Cal. App. LEXIS 802 (Cal. Ct. App. 2006): online and offline reporters enjoy equal rights to protect the confidentiality of their sources

Sole v. Wyner, No. 06-531, 2007 U.S. LEXIS 6962 (U.S. June 4, 2007): party who wins a preliminary injunction but loses at summary judgment cannot be a “prevailing party” and awarded attorney’s fees under 42 U.S.C. §1988

Warshak v. U.S., No. 06-4092, 2007 U.S. App. LEXIS 14297, aff’d in part and modified, 2006 U.S. Dist. LEXIS 50076 (S.D. Ohio July 21, 2006): Individuals maintain a reasonable expectation of privacy in the content of their emails, and do not waive their privacy rights. In the absence of prior notice to the individual, the Fourth Amendment's probable cause standard controlled the e-mail seizure unless the government can show, based on specific facts, that an e-mail account holder waived his expectation of privacy vis-a-vis the ISP, compelled disclosure of e-mails through notice to the ISP alone is appropriate.

---

ACLU v. Dep't of Defense, 389 F. Supp. 2d 547 (D.N.Y. 2005).

Plaintiffs, the American Civil Liberties Union (ACLU) and others, filed an action against defendants, the United States Department of Defense (DOD), the Central Intelligence Agency (CIA), and others, under the Freedom of Information Act (FOIA), 5 U.S.C.S. § 552. Both parties sought summary judgment.

In 2004, the ACLU and others requested photographic images of detainees in United States custody under the Freedom of Information Act. After receiving no response, the ACLU sued the government for access to the requested documents relating to detainees from Abu Ghraib. The court partially granted the motions filed, and determined that most of the photographic and written reports from the International Committee of the Red Cross were not subject to disclosure because they were exempt under 5 USCS 552 ( 5 U.S.C.S. § 552(b)(3)) due to 10 USCS 130(10 U.S.C.S. § 130c).

The district court found that the responses given were entitled to deference; however, some were insufficient because intelligence sources or methods were not implicated. With regard to documents relating to the detention of a suspect without identifying him, the court found that there was no portion of the documents subject to production because they were not capable of being segregated under 5 U.S.C.S. § 552(b). As to photographs of detainees, the court determined that they were taken for law enforcement purposes within the meaning of § 552(b)(7)(C). Publication of the redacted photographs would not have constituted an unwarranted invasion of personal privacy for purposes of § 552(b)(6), (7)(C). Finally, the core values of § 552(b)(7)(F) were not implicated by the production of the photographs.

Judge Alvin K. Hellerstein commented that disclosure of the images was important in ensuring government accountability and transparency, and are the "very purposes that FOIA is intended to advance."

5 U.S.C.S. § 552(b)(3)
Freedom of Information Act, 5 U.S.C.S. § 552, disclosure requirements do not apply to matters that are specifically exempted from disclosure by statute (other than 5 U.S.C.S. § 552b), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld. To access 5 U.S.C.S. §552, please follow the link to GPOAccess.

10 U.S.C.S. § 130c
10 U.S.C.S. § 130c authorizes the withholding of "sensitive information" to the extent such withholding is requested by a foreign government or international organization. Section 130c provides that if the information was provided by, otherwise made available by, or produced in cooperation with the foreign government or international organization, and certain other criteria are satisfied, the information may be exempted from release by the United States government. To access 10 U.S.C.S. §130, please follow the link to GPOAccess.

---

Beard v. Banks, No. 04-1739, 2006 U.S. LEXIS 5176 (U. S. June 28, 2006), rev'd, 399 F.3d 134 (3rd Cir. 2005).

Plaintiff-respondent, Banks, was housed in a Pennsylvania Long Term Segregation Unit which houses Pennsylvania’s 40 most dangerous and recalcitrant inmates. Inmates begin at level 2, which has the most severe restrictions, but may graduate to the less restrictive level 1. Plaintiff-respondent Banks, a level 2 inmate, filed federal-court action against defendant-petitioner, the Secretary of the Department of Corrections (DOC), alleging that the level 2 policy (Policy) forbidding inmates any access to newspapers, magazines, and photographs violates the First Amendment. During discovery, Banks deposed Deputy Prison Superintendent Dickson and defendants introduced prison policy manuals and related documents into the record. The Defendant-DOC then filed a summary judgment motion, along with a statement of undisputed facts and the deposition. Rather than filing an opposition to the motion, Banks filed a cross-motion for summary judgment, relying on the undisputed facts, including those in the deposition. Based on this record, the District Court granted the DOC’s motion and denied Banks’. Reversing the DOC’s summary judgment award, the Third Circuit held that the prison regulation could not be supported as a matter of law.  

Justice Breyer wrote the plurality opinion in which the Chief Justice, Justice Kennedy, and Justice Souter joined. Analyzing the record as it arose on a motion for summary judgment, Justice Bryer held that prison officials had adequately set forth legal support for the Policy and that Banks had failed to set forth facts that could warrant a determination in his favor. The Court relied upon Turner  v. Safley, 482 U.S. 78 (1987) and Overton v. Bazzetta, 539  U.S. 126 (2003), to provide the legal framework for the case. Noting that while imprisonment does not deprive a prisoner of important constitutional protections such as the First Amendment, the Constitution does permit greater restrictions on such rights in a prison than it would elsewhere, and that restrictive prison regulations are permissible if reasonably related to legitimate penological interests.

To bring the case into Turner’s legal framework, the Court determined whether the Defendant-Secretary’s summary judgment material shows not just a logical relation but a reasonable relation. Overton held that courts must show deference to prison officials’ professional judgment. (Overton) The Court compared the deprivations involving family visits (Overton) to the deprivations affecting Banks (access to newspapers, magazines, and photographs), and concluded that both have an important constitutional dimension; prison officials have imposed the deprivation only upon those with serious prison-behavior problems; and those officials, relying on their professional judgment, reached an experience-based conclusion that the policies help to further legitimate prison objectives. The Court held that the DOC’s evidence brought the Policy within Turner’s scope.

The Turner framework sets forth four factors. The first Turner factor is whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it”. The Court held that the DOC’s primary justification of the need to motivate better behavior on the part of particularly difficult prisoners rendered the DOC policy reasonable. The Court then analyzed and quickly disposed of the remaining three Turner factors: whether there are “alternative means of exercising the right that remain open to prison inmates”; what “impact” that “accommodating the asserted constitutional rights [will] have on guards, other inmates and on the allocation of prison resources”; and whether there are “ready alternatives” for furthering the governmental interest. The Court determined that although there is no alternative for a Level 2 prisoner, it is not conclusive as to the reasonableness of the policy. Rather, accommodation of the constitutional right would have a negative impact on the inmate, and that there are no alternative methods to accommodate the prisoner’s rights at “de minimis cost to valid penological interests.” The Court held that the Third Circuit Court of Appeals had placed too high a burden upon the Secretary of the DOC and offered too little deference to the judgment and experience of prison officials, the plurality concluded by emphasizing that the DOC had demonstrated more than just a logical relation between the policy and the DOC’s penological interests; rather, it had shown a reasonable one that brought it within Turner’s legitimate scope. Reversed and remanded.

---

Back to Top

Federal Election Commission v. Wisconsin Right to Life, No. 06-969, 2007 LEXIS 8515 (U.S. June 25, 2007), aff’d 466 F. Supp.2d 195 (D.D.C. 2006).

This case was consolidated with McCain, et. al. v. Wisconsin Right to Life (06-970). The new brief was filed in the consolidated cases of FEC v. Wisconsin Right to Life (06-969) and McCain, et al., v. Wisconsin Right to Life (06-970). The Supreme Court affirmed the U.S. District Court for the District of Columbia’s ruling that the ads were unconstitutionally barred.

The facts of the case indicate that Wisconsin Right to Life (hereinafter “WRTL”), a political advocacy organization, wanted to use its corporate funds to purchase advertisements criticizing Senators Russ Feingold and Herb Kohl, both Democrats for filibustering to delay and block Bush’s judicial nominees. The ads urged viewers to contact Senators Feingold or Kohl. Feingold was in a campaign for reelection at the time which triggered the Bipartisan Campaign Reform Act (BCRA §203) which imposes restrictions (disclosures of contributors and caps on the amount of contributions) when corporations pay for so-called issue ads shortly before an election - if such ads advocate for or against a candidate. The messages are subject to an “electioneering communications” ban—this ban operates to ban such ads within 60 days of a general election or 30 days of a primary — if those messages are financed directly by corporations or unions. The law allows such ads if they are paid for by corporate or union political-action committees, which are governed by greater regulation and disclosure rules. The “electioneering communications” ban was upheld in a 2003 decision in McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

WRTL filed suit against the FEC seeking declaratory and injunctive relief alleging that the McCain Feingold Act’s prohibition was unconstitutional against the ads in question and any materially similar ads WRTL might run in the future. WRTL asked the court to reconsider the McConnell decision which upheld the electioneering-ad ban on its face— in other words, in the absence of any dispute over a real advertisement. A special three-judge federal district court denied the preliminary injunction, interpreting that the McConnell ruling precluded “as applied” challenges to §203 of the McCain Feingold Act. WRTL appealed to the Supreme Court who vacated the judgment holding that McConnell "did not purport to resolve future as-applied challenges" to § 203. Wisconsin Right to Life, Inc. v. Federal Election Comm'n, 546 U.S. 410 (2006). On remand, the District Court granted WRTL summary judgment, holding § 203 unconstitutional as applied to the three ads. The court first found that adjudication was not barred by mootness because the controversy was capable of repetition, yet evading review. On the merits, it concluded that the ads were genuine issue ads, not express advocacy or its "functional equivalent" under McConnell, and held that no compelling interest justified the BCRA’s regulation of such ads. The Supreme Court affirmed the judgment of the lower district court ruling holding that the federal statutory prohibition on a corporation's use of general treasury funds to finance "electioneering communications" is unconstitutional as applied to advertisements that were genuine issues ads (not express advocacy or its functional equivalent), and no compelling interest justified the government's regulation of such ads.

---

Back to Top

Fox Television Stations, Inc. v. Federal Communications Commission, No. 06-1760, 2007 U.S. App. LEXIS 12868 (2d Cir. June 4, 2007).

Fox Television, along with intervenors, brought suit against the Federal Communications Commission (“FCC”) challenging a November 2006 FCC order issuing notices of apparent liability for two Fox broadcasts for violating the FCC’s indecency regime.

The Court opened the opinion by reviewing the FCC’s policy of “indecent” speech. The FCC’s policy stems from 18 U.S.C. §1464, which provides that “whoever utters any obscene, indecent, or profane language by means of radio communications shall be fined under this title or imprisoned not more than two years, or both.” The FCC’s authority to regulate the broadcast medium is expressly limited by 47 U.S.C. §326, “The Federal Communication Act”, which prohibits the FCC from engaging in censorship.

To reach its decision, the Court looked back to the FCC’s first exercise of its statutory authority to sanction indecent speech, its decision in the broadcast of George Carlin’s “Filthy Words” monologue where the FCC found his monologue “indecent and subject to forfeiture” and articulated a standard for indecency. See 56 F.C.C.2d 94 (1975) (hereinafter “Complaint Against Pacifica”). The Court noted Justice Powell’s concurrence in FCC v. Pacifica Found., 438 U.S. 726 (1978), the case that upheld the FCC’s decision in Complaint Against Pacifica, citing that Justice Powell distinguished between the “verbal shock treatment administered by [George Carlin]” and the “isolated use of a potentially offensive word in the course of a radio broadcast.” The Court also noted that the FCC has applied the FCC v. Pacifica Found. ruling in subsequent cases in which isolated use of language did not amount to a “verbal shock treatment”.

The FCC abandoned the narrow view that a finding of indecency required the use of one of the seven “dirty words” used in Carlin’s monologue in the Infinity Order (see 2 F.C.C.R. 2698 (1987); 2 F.C.C.R. 2703 (1987); 2 F.C.C.R. 2705 (1987)). The FCC adopted a new indecency standard, a generic definition of indecency previously articulated in the FCC’s prior ruling in Complaint Against Pacifica. The FCC explained the applicability of this standard in its Infinity Order, “indecent speech is language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs. Such indecent speech is actionable when broadcast at times of the day when there is a reasonable risk that children may be in the audience.” Regents of the Univ. of Cal., 2 F.C.C.R. 2703 at ¶3. The FCC reaffirmed the view that the use of a fleeting expletive would not be actionable, by closing with the statement that, “Speech that is indecent must involve more than an isolated use of an offensive word.” Pacifica Found., Inc, 2 F.C.C.R. 2698, at ¶13.

The Court pointed out that the FCC maintained a consistent restrained enforcement policy until the 2003 live broadcast of the Golden Globes where Bono used the F-word in his acceptance speech. FCC’s Enforcement Bureau denied complaints that the material was obscene and indecent under FCC regulations, but the full FCC Commission later reversed the Bureau’s decision. The full Commission ruled that, “any use of any variant of the F-word inherently has sexual connotation and therefore falls within the scope of the indecency definition.” Golden Globes, 19 F.C.C.C.R. 4975 (2004) at ¶8. The Commission found the fleeting and isolated use of the word irrelevant and overruled all prior decisions in which fleeting use of an expletive was held not indecent. The Court noted that the FCC has applied the policy announced in Golden Globes in subsequent cases.

After exploring the history of the FCC’s indecency regime, the Court turned to the facts of the case. On November 6, 2006, the FCC issued an order finding that Fox’s broadcast of the 2002 and 2003 Billboard Music Awards were indecent and profane. See Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, FCC 06-166 (Nov. 6, 2006) (“hereinafter “Remand Order”). The Remand Order vacated Section III.B of a previous order issued in February 2006.

The factual situations at issue in the Remand Order are that at the 2002 Billboard Music Awards, Cher, in her acceptance speech stated that, “People have been telling me I’m on the way out every year, right? So f—‘em.” The second situation, at the 2003 Billboard Music Awards, Nicole Richie as a presented stated, “Have you ever tried to get cow sh*t out of a Prada purse? It’s not so f----ing simple.” The FCC ruled that the 2003 Billboard Music Awards would have been actionably indecent even prior to the decision in the Golden Globes because the potentially offensive material was “repeated” since Nicole Richie used “two extremely graphic and offensive words” and was “deliberately uttered” because of “Ms. Richie’s confident and fluid delivery of the lines.” Remand Order at ¶22. With regard to the 2002 Billboard Music Awards, the FCC “acknowledged that it was not apparent that Fox could be penalized for Cher’s comment at the time it was broadcast.” Remand Order at ¶60. The FCC rejected Fox’s argument that fleeting expletives were not actionable, characterizing prior decisions as “staff letters and dicta”. Remand Order at ¶20. The FCC declined to impose forfeiture for either broadcasts.

Fox, CBS, and NBC collectively raised a variety of arguments against the validity of the Remand Order. The Court agreed with the first of seven arguments, specifically that, the Remand Order is arbitrary and capricious because the FCC’s regulation of fleeting expletives represents a dramatic change in policy without adequate explanation. The Court noted that prior to the Golden Globes decision, the FCC had consistently taken the view that isolated, non-literal, fleeting expletives did not run afoul of its indecency regime.

The Court found that the FCC’s new policy regarding “fleeting expletives” represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry, and that the FCC failed to provide a reasoned analysis for departing from prior precedent. The Court relied on Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) to explain that, “agency action is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” The Court also noted that the evaluation of the agency’s action is confined to the reasons supplied by the agency itself. State Farm, 463 U.S. 29 (1983). The reason supplied by the FCC for the departure in policy for fleeting expletives was the “first-blow” theory described in the Supreme Court’s Pacifica decision. (See FCC v. Pacifica Found., 438 U.S. 726 at 748(1978). The Court rejected the theory as “bearing no rational connection to the FCC’s actual policy regarding fleeting expletives” because “the FCC does not take the position that any occurrence of an expletive is indecent or profane under its rules.” The Court followed with examples of exceptions to fleeting expletives under FCC rules (excuse of expletive if occurs during a “bona fide news interview” Remand Order at ¶71; not indecent or profane if expletive is “integral” to the work 20 F.C.C.R. 4507 at ¶14 (2005)). The Court further reasoned that the FCC’s change in policy fails to establish what harm this new policy addresses that is not already addressed by the FCC’s existing indecency standard. See United States v. Playboy Enter. Group, Inc., 529 U.S. 803 (2000).

The Court determined it unnecessary to address constitutional challenges raised by Fox and intervenors since the FFC’s policy change violated the Administrative Procedures Act. Relying on Lyng v. N.W. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988), that “a fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Thus, the court refrained from deciding the various constitutional challenges to the Remand Order raised by Fox.

The Second U.S. Circuit Court of Appeals ruled that the FCC’s standard sanctioning “fleeting expletives” is arbitrary and capricious under the Administrative Procedure Act” because the FCC “failed to articulate a reasoned basis for the change in policy [FCC indecency regime].” The petition for review was granted, the order of the FCC vacated, and the matter was remanded to the FCC for further proceedings consistent with the Second Circuit’s opinion.

---

Back to Top

Garcetti v. Ceballos, No. 04-473, 2006 U.S. LEXIS 4341 (U.S. May 20, 2006).

An employee sued his supervisor under 42 U.S.C.S. §1983 alleging retaliation in violation of the First Amendment. The district court granted the supervisor’s summary judgment. The United States Court of Appeals for the Ninth Circuit reversed, finding that the employee's allegations of wrongdoing in a memorandum constituted protected speech under the First Amendment. Certiorari was granted.

The facts indicate that Mr. Ceballos worked as a deputy district attorney for the Los Angeles county district attorney's office. Mr. Ceballos wrote a disposition memorandum explaining his concerns regarding alleged inaccuracies in an affidavit used to obtain a search warrant in a pending criminal case. Despite his recommendation to dismiss the charges based upon his findings of inaccuracies, his supervising prosecuting attorneys, Petitioners, proceeded with the prosecution. Mr. Ceballos was called at the trial by the defense to recount his observations about the affidavit, but the trial court rejected the challenge to the warrant.

Ceballos alleged that his supervisors retaliated against him based on his memo. The actions included reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion. Ceballos initiated an employment grievance, but the grievance was denied based on afinding that he had not suffered any retaliation. Ceballos did not dispute that he prepared the memo pursuant to his duties as a prosecutor.

The Supreme Court determined that the appellate court’s finding that Ceballos’ speech was protected failed to consider whether the speech was made in his capacity as a citizen. The Court determined that Ceballos’ allegation of unconstitutional retaliation failed because he was not speaking as a citizen for First Amendment purposes since he made the statements pursuant to his official duties. Mr. Ceballods did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. The First Amendment did not prohibit managerial discipline based on the employee's expressions made pursuant to official responsibilities.

The Court ruled that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. The Court reversed the judgment of the appellate court and remanded the case for further proceedings.

42 USCS § 1983. Civil Action for Deprivation of Rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

---

Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005) (en banc), cert. denied, No. 05-377, 2006 U.S. LEXIS 1141 (U.S. Feb 21, 2006).

Student journalists of the university newspaper, the Innovator, sued the Governors State University. The student journalists, Margaret Hosty, Jeni Porche and Steven Barba brought suit after Dean Patricia Carter halted printing of the student newspaper until a school official approved the student newspaper's contents. The Innovator, had published news stories and editorials critical of the administration. Dean Carter's directive was issued despite a university policy that said the student newspaper staff "will determine content and format of their respective publications without censorship or advance approval." The student editors at Governors State University in Illinois filed suit against school administrators and the Illinois Attorney General's office, arguing that their First Amendment rights were no greater than those of teenagers in high school.

The federal district court handed down a decision on April 10, 2003, that offered strong support for college press freedom. The state's chief lawyer, Illinois Attorney General Madigan, argued that Dean Carter’s action was qualified, citing Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1998). The court rejected Dean Carter’s argument holding that Hazelwood was not the appropriate standard for censorship of college student media and pointing to the more than three decades of law providing strong First Amendment protection to the college student press.

Illinois Attorney General Madigan filed a petition on behalf of Patricia Carter for a rehearing en banc before the federal appeals court. On June 25, 2003, a seven-majority of an 11-judge panel granted that petition and vacated the three-judge panel's decision and handed down a judgment in support of the university.

In weighing the rights of collegiate press, the Seventh Circuit wrote, "Hazelwood provides our starting point." The seven-judge majority stated that, "there is no sharp difference between high school and college newspapers." Reasoning that the same considerations that justify editorial control over high school publications might extend to colleges, the Seventh Circuit suggested that "Hazelwood's framework applies to subsidized student newspapers at college as well as elementary and secondary schools."

In reaching its opinion, the court said that a court confronted with an act of student newspaper censorship by a college official must first determine if the publication was a "designated public forum" where students had been given the authority to make the content decisions. The majority said that the fact a publication might be extracurricular was not determinative of its public forum status. Second, the court held that even assuming that the Innovator was a public forum, the dean who censored the publication was entitled to qualified immunity from damages for infringing the students' rights because she could not have reasonably known that the limitations of the Hazelwood decision did not apply to college and university student publications.

The student journalists filed a petition asking the U.S. Supreme Court to hear the case to consider whether the Supreme Court's 1988 Hazelwood decision limiting high school student free expression rights could extend to college and university campuses. Both sides and several amicus groups filed briefs in the case. On Feb. 21, 2006, the U.S. Supreme Court refused to grant an appeal in the case.

---

In re Associated Press, No. 06-1301, 2006 U.S. App. LEXIS 7371 (4th Cir. Mar. 22, 2006).

Several media companies and a non-profit organization filed a petition for a writ of mandamus seeking contemporaneous access to documentary exhibits admitted into evidence in the course of the sentencing phase trial of suspected terrorist, Zacarias Moussaoui. The second part of the petition requested access to transcripts of bench conferences conducted during the trial. The U.S. District Court for the Eastern District of Virginia denied petitioners' requests. Petitioners' appealed to United States Fourth Court of Appeals.

The Fourth Court of Appeals ruled that that the district court abused its discretion in denying access to documentary exhibits that were admitted into evidence and fully published to the jury. However, the court held that the district court did not abuse its discretion in refusing to provide access to items that were admitted into evidence but were either partially published or not published to the jury.

According to the appellate court, the prosecution's arguments pertaining to juror taint and administrative burdens did not overcome the public's First Amendment and constitional rights to evidence that has been admitted and completely published to the jury. The court determined that the incrimental rise in administrative burdens caused by providing accress did not justify the denial of access. Further, the court decided that juror taint was also an insufficient argument against granting access to the evidence since it is unlikely that jurors who simply see evidence, that has already been admitted and published, again through a media publication will endanger Moussaoui's right to a fair trial. The appellate court ordered the district court to provide access after the completion of the trial to all documentary exhibits that were admitted as evidence and fully published to the jury. Further, the appellate court ordered the district court to adopt a mechanism that would provide the media with one copy of each documentary exhibit that was admitted and published to the jury.

The appelate court ruled that the district court did not abuse its discretion regarding the denial of access to evidence that had not been provided to the jury, or only given in part to the jury, because the administrative burdens involved in providing piecemeal access to partially admitted exhibits was considerable and sufficient to deny access. In addition, the appelate court found the district court's decision to withold access to transcripts of bench conferences before the trial was not an abuse of discretion because bench conferences are typically not public. Assuming that there was a constitutional or common law interest in eventual release of transcripts of bench conferences, this right was amply satisfied by prompt post-trial release of transcripts.

The court granted the petition in part and denied it in part. The petition for a wirt of mandamus was granted with respect to documentary exhibits that were admitted into evidence and fully published to the jury. In all other respects, the petition was denied.

---

Back to Top

O’Grady v. Superior Court of Santa Clara County, No. H028579, 2006 Cal. App. LEXIS 802 (Cal. Ct. App. 2006).

Apple Computer, Inc. (Apple), a manufacturer of computer hardware and software, brought action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple's secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. Thetrial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret.

The court held that the trial court’s denial of the motion was in error for three reasons. First, the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712). Second, any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter's shield (Cal. Const., art. I, § 2, subd (b); Evid. Code §1070). Third, discovery of petitioners' sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (See Mitchell v. Superior Court (1984) 37 Cal. 3d 268, 208 Cal. Rptr. 152). The court issued a writ of mandate directing the trial court to grant the motion for a protective order.

The judges’ decision contains the following statement, "We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace."

This case is important because the court held that the online journalists have the same right to protect the confidentiality of their sources as offline reporters. "In addition to being a free speech victory for every citizen reporter who uses the Internet to distribute news, today's decision is a profound electronic privacy victory for everyone who uses email," said EFF Staff Attorney Kevin Bankston. "The court correctly found that under federal law, civil litigants can't subpoena your stored email from your service provider."

---

Back to Top

Sole v. Wyner, No. 06-531, 2007 U.S. LEXIS 6962 (U.S. June 4, 2007).

T.A. Wyner organized a demonstration in which participants were to form a peace symbol with their nude bodies at the state beach. The Florida Department of Environmental Protection (DEP) that the demonstration would only be allowed if it complied with the “Bathing Suit Rule” which requires patrons of state parks to wear, at a minimum, a thong and, if female, a bikini top. (see Fla. Admin. Code Ann. §62D-2.014(7)(b))(2005). To protect her demonstration and future expressive activities against state interference, Wyner and George Simon, a videographer for expressive activities, sued the State in the United States District Court for the Southern District of Florida invoking the First and Fourteenth Amendments against state officials, seeking preliminary and permanent injunctions prohibiting state park officials from interfering with the event or future events.

Wyner’s complaint for preliminary injunction to the District Court included a 1995 settlement with the DEP, permitting Wyner to stage a play with nude performers at the state beach provided the area was screened off to shield beachgoers who did not wish to see the play. The preliminary injunction hearing was necessarily hasty and abbreviated being held one day after the complaint was filed and one day before the event. The emergency procedure allowed no time for discovery, or for adequate review of documents or preparation and presentation of witnesses. The District Court granted preliminary injunction, suggesting that a curtain or screen could satisfy the interests of both the State and Wyner. The demonstration took place without state interference (without enforcement of the “Bathing Suit Rule”). 

The facts indicated that the demonstration dishonored the settlement as the performance took place in front of the screen provided by state park officials. Following the demonstration, Wyner petitioned the Court for permanent injunction, noting that she intended to put on another nude production at the state beach. After discovery, both sides moved for summary judgment. The District Court granted summary judgment to the State ruling that the deliberate failure of Wyner and the performers to stay behind the screen at the 2003 demonstration made evident that the “Bathing Suit Rule” prohibition of nudity was the least restrictive means to achieve the State’s important interests (protecting the beach-going public). The Court denied Wyner’s motion for permanent injunction, and held that even though Wyner ultimately failed to prevail on the merits, she did obtain a preliminary injunction, and therefore, qualified as a “prevailing party” to that extent. The Court awarded attorney fees to Wyner based on preliminary injunction. Florida officials appealed, challenging both the preliminary injunction and the award of attorney fees.  

The United States Court of Appeals for the Eleventh Circuit affirmed the District Court. The Eleventh Circuit held that the State’s challenges to the preliminary injunction were moot, and affirmed the attorneys fee award. The State appealed to the Supreme Court. Certiorari was granted.

The issue presented to the Supreme Court was whether a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, qualifies as a “prevailing party” within the compass of §1988(b). The Supreme Court held that 42 U.S.C. §1988 “prevailing party” status does not attend achievement of preliminary injunction that is reversed, dissolved, or otherwise undone by final decision in same case, and that Wyner did not attain “prevailing party” status by obtaining preliminary injunction, given the district court’s subsequent decision on the merits denying permanent injunction.

The Court determined that “prevailing party” status is only conferred when there is a “material alteration of the legal relationship of the parties” Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782 (1989). The Court determined that the state law Wyner challenged, Florida’s Bathing Suit Rule, remained valid and enforceable and that Wyner “gained no enduring change in the legal relationship between herself and the State.” The Court rejected Wyner’s argument that the initial preliminary injunction constituted a victory on the merits. The Court noted the abbreviated and hasty nature of the preliminary injunction, and informed that at the preliminary injunction stage, the court is called upon to assess the probability of the plaintiff’s ultimate success on the merits. The Court emphasized that the District Court did not rule on the merits at the preliminary injunction phase. The Court also rejected Wyner’s contention that the preliminary injunction was not undermined by final summary judgment for the State. The Court held that the district court specification, for purposes of its initial order, of the content neutrality of the state officials’ conduct is controlling. The final decision on the merits, that upheld the validity and enforceability of the Bathing Suit Rule, rejected the exact same claim Wyner advanced in her motion for preliminary injunction. The Court ruled that the final summary judgment superseded the preliminary ruling.

---

Back to Top

Warshak v. U.S., No. 06-4092, 2007 U.S. App. LEXIS 14297, aff’d in part and modified, 2006 U.S. Dist. LEXIS 50076 (S.D. Ohio July 21, 2006).

Steve Warshak, Chief Executive Officer of Berkley Pharmaceuticals, and his companies, marketers selling dietary supplements, were the subject of a federal investigation involving allegations of mail and wire fraud, money laundering, and other federal offenses. The legal issue that stems from this case is whether evidence seized by the government to build its criminal case against Berkley and Warshak is admissible. In working to build its case, the government issued subpoenas under a subsection of the Stored Communications Act (SCA), 18 U.S.C. § 2703(d), to seize the contents of emails that were older than 180 days. Under the SCA, a seizure requires a court order reviewed and issued by a judge based on probable cause. However, the standard of proof required for subpoenas is lower. The prosecutor only needs to possess “specific and articulable facts showing that there are reasonable grounds to believe that the contents” of the email account to be seized “are relevant and material to an ongoing criminal investigation.” 18 U.S.C.A. §2703(d).

The order was obtained without notice to Warshak and prohibited the Internet service provider (ISP) from disclosing the existence of the Application, or the existence of the investigation, to Warshak or to any person unless and until authorized to do so by the court. The magistrate judge further ordered that notification to Warshak be delayed for 90 days. In fact, the government did not notify the individual until more than a year had passed. After the magistrate unsealed the order and the government notified Warshak of the order and its requirements, Warshak filed this action. Warshak sought a preliminary injunction to enjoin the government from issuing subpoenas to ISP’s to seize stored emails, arguing that the use of bare subpoenas issued on less than probable cause violated their rights under the Fourth Amendment.

The district court agreed, holding that this standard “falls somewhere short of probable cause.” Relying on the legal framework in U.S. v. Jacobsen, 466 U.S. 109, 114 (1982) that, “closed packages and containers may not be searched without a warrant” issued upon a showing of probable cause, the Court determined that emails stored in personal accounts on the servers of commercial ISPs to the contents are like “[l]etters and other sealed packages” shipped by public or private carriers, a class of effects for which warrantless searches are “presumptively unreasonable.” U.S. v. Jacobsen. The court in Jacobsen held that, while “government agents may lawfully seize” such effects “to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that [government agents] obtain a warrant before examining the contents” of letters or packages. U.S. v. Jacobsen.

The preliminary injunction was granted in part. The district court did not hold that the entire statute was facially unconstitutional, but held that the statute's authorization of this seizure based only on the government's ex parte representations, combined with a standard of proof less than probable cause, indicated that the individual's constitutional claim, based on the Fourth Amendment, was meritorious. Therefore, the district court preliminarily enjoined additional warrantless seizures of e-mails from an ISP account of any resident of the Southern District of Ohio without notice to the account holder and an opportunity for a hearing. The government appealed the District Court’s ruling to the Sixth Circuit Court of Appeals.

The Court of Appeals affirmed the district court's decision, requiring only that the preliminary injunction be slightly modified on remand. The Court focused the merits of the case to whether an e-mail user maintained a reasonable expectation of privacy in his e-mails, vis-a-vis a party who was subject to compelled disclosure, such as an ISP. The Court determined that the government failed to show that e-mail content was regularly accessed by ISPs, or that users were aware of such access of content. The Court ruled that e-mail users maintain a reasonable expectation of privacy in the content of their e-mails, and the government is precluded from seizing the contents of a personal e-mail account maintained by an ISP pursuant to a court order issued under 18 U.S.C. § 2703(d), without either (1) providing the relevant account holder or subscriber prior notice and an opportunity to be heard, or (2) making a fact-specific showing that the account holder maintained no expectation of privacy with respect to the ISP, in which case only the ISP need be provided prior notice and an opportunity to be heard. The court ordered that the injunction be modified accordingly.

 

---

For additional information, contact Gregory Ivy / Associate Director / Underwood Law Library / Dedman School of Law / Southern Methodist University / PO Box 750354 / Dallas, Texas  75275-0354 / USA
(214) 768-1829