First Amendment protections and workplace political speech restrictions

Media Law

A Post reporter found on a dirt road in Iraq some maps and documents created by the U.S. military relating to military action in the war. Because the Post is a responsible newspaper, it calls and asks a high-ranking military commander to explain the materials and put them in context. The next day, the Government goes to court to keep the Post from publishing documents.

What is the legal name for what the Government is seeking?

What is the standard the judge will use to determine if the Government will succeed?

Where does the standard come from?

The government is seeking an injunctive equity remedy since preventing the Post from publishing the documents is the action that is needed and requested. The court could issue a temporary restraining order in this instance, without written or oral notice to the adverse party dependent on facts in a verified complaint that show immediate and irreparable injury, loss or damage will result before the adverse party can be heard in opposition. The standard comes from Rule 65 of the Federal Rules of Civil Procedure.

Injunctions. Legal Information Institute. Cornell University Law School. Retrieved from http://www.law.cornell.edu/wex/injunction

2. The Daily Snooze is working on an article about the effect of the recession on young professionals. The Snooze's reporter interviews a young architect Iva Builtit, who is willing to talk about another architect and his downsized firm, John Harvard, and who says that in contrast with Harvard's application form, Harvard never attended the Yale School of Design. The reporter puts Builtit's direct quote in the Snooze, naming Builtit and quoting his statement accurately. The article says that Harvard, when asked to respond, had no comment.

Assuming Harvard did attend Yale, could the Snooze be trouble for his reporting? Why or why not?

Republication of a defamatory statement made by someone else can be considered defamatory. Immunity is not automatic when quoting another person, regardless of whether the statement has been properly attributed. A claim of defamation needs to show that the claim was a false statement of fact (libel in this instance, as the claim was in written form). Defamation is governed by state law, an important consideration particularly with regard to claims of actual damage. However, some states will allow for per se damages in which, for instance, a defamatory statement has impugned the professional character or standing of an individual.

Retrieved from http://www.dmlp.org/book/export/html/1813

3. Microsoft has a rule that no employee can wear a political button or pin, and that violation of this rule can lead to severe discipline. Last month, an employee, Bud Button, was suspended without pay for wearing a "Palin in '16" button. Bud Button sues. How strong if the First Amendment argument which Button makes? Why?

Employers have wide discretion when it comes to free speech in the work place as the law is generally applies only to government censorship of free speech. States vary on regulations regarding political expression in the workplace, but generally an employer can discipline or discharge an employee for legitimate business-related reasons in response to conduct that is basically political expression at work -- particularly if treatment of employees is the same for everyone at a company or business.

Snyder, J.A. & Lewis, J. (2013, June 1). Top ten questions regarding political dialogue in the workplace. Legal Resources. Association of Corporate Counsel. Retrieved http://www.acc.com/legalresources/publications/topten/TopTenQuestionsRegardingPoliticalDialogueintheWorkplace.cfm

4. A state statute says it is a crime to distribute or publish the name of a juvenile defendant. A 17-year-old student, I.M. Hip, has been accused of a murder at a high school and is about to go to trial. A state prosecutor leaks to a Post reporter I.M. Hip's name and the reporter promptly publishes a Post article on the case mentioning his name.

I.M. Hip sues the Post for publishing his name in violation of the statute. What is the likely result? What is the test the court will use (and the names or types of cases it will use as a precedent)? What jeopardy exists for the Post reporter?

The media must not publish information obtained from sources that violate the confidentiality protections for juveniles who are involved in juvenile proceedings. However, the U.S. Supreme Court hold that reporters' First Amendment and Fourteenth Amendment rights outweigh states' interests regarding the rehabilitation of juveniles. A reporter may publish the names of juvenile offenders if they have lawfully obtaining the names. A reporter was permitted to publish he name of a juvenile who was charged with murder since the name of the juvenile was acquired by when the reporter monitored police radio frequencies and interviewed witnesses (Smith v Daily Mail, 443 U.S.9y7 (1999)). Newpapers may publish the names of juveniles who are not involved in juvenile proceedings, within the legal bounds applied to publishing adult names, such as invasion of privacy and defamation (Pierog v. The Morning Call, 1995 WL 813'63 (Pa. Com. Pl. 1995).

News Reporting Concerning Juveniles (42 P.S. §6301 et. seq., 18 P.S. § 9104-9105). Pennyslvania Newspaper Handbook. Pennsylvania News Media Association. Retrieved from http://panewsmedia.org/legal/publications/newspaperhandbook/juvenile-news-reporting

5. The Assistant Secretary of Defense (an appointed, not elected, post) has been defamed in a Post article. The false statement in the article, which hurt the reputation of the Assistant Secretary, was completely caused by a Post reporter carelessly misreading a document. (In addition, many years ago the Assistant Secretary and the reporter had been in college together, and the Assistant Secretary had stolen the reporter's girlfriend).

Focusing on the issue of fault, what is the likely outcome of the libel case? Why?

It is unlikely that the Assistant Secretary of Defense will be able to prove actual malice, which is what would be required since he is a public figure and an official of the government. The actual malice standard is based on the actual state of mind of the defendant at the time of the publication. The time that passed between the stolen girlfriend and the publication of the false statement makes the actual state of mind connect doubtful. Moreover, the plaintiff would have to produce clear, convincing evidence that the defendant knew the information was false or seriously doubted that the statement he published was true. This means that efforts to edit, fact check, and research the statement would be considered. That said, it would not be sufficient for the plaintiff to say show that the defendant didn't like him, didn't contact him for comment before publication, relied on a single potentially biased source, or neglected to correct the false statement after publication.

Retrieved from http://panewsmedia.org/legal/publications/newspaperhandbook/juvenile-news-reporting

6. CRASH, the Center for Retired Adult Senile and Handicapped, California's 2nd largest private assisted-living agency for mentally challenged old people, has long been rumored to give inadequate care and to abuse and injure patients. To better check this out, KSLZ-TV in Los Angeles has its producers place hidden cameras in patient's rooms in two of its homes. They show patients being mercilessly beaten, screamed at, and generally abused by the homes staff. After KSLV-TV broadcasts the story, CRASH'S business crashes. Two of the patients shown on the tapes sue KSLV-TV. What claims will they bring and what will be the results?

The television station published private information about the residents of the assisted-living facility without obtaining permission to do so. Regardless of the fact that the portrayal of the residents was accurate, the personal attributes of the residents -- particularly their vulnerability -- was used in an exploitive manner, greatly increasing the appeal of the broadcast to the television audience. The exposure of private lives and identities was doubtless hurtful and disruptive to their families as well, as the general public would expect them to practice better due diligence when placing vulnerable family members in care facilities. The family members can sue for unauthorized publication of private facts on behalf of their compromised elders.

Publishing Personal or Private Information. Digital Media Law Project. Retreived from http://www.dmlp.org/legal-guide/publishing-personal-and-private-information

7. Donald Trump has been described in a Post article as routinely not paying general contractors who worked for him and then when they complain, firing them. The article (a) includes Trump's denial of this charge and (b) a few days later the Post runs a retraction admitting the facts were wrong. (c) Trump does not allege that he lost any money as a result of the false statement (in fact, the ratings for his TV Show "Celebrity Apprentice" went up in the days after the article).

Assuming that the charges are false and that actual malice could be proven, and discussing the above considerations, is the Post in trouble in a possible libel lawsuit?

A person who brings a defamation lawsuit must generally prove the following: 1) The defendant actually published the statement; 2) the statement is about the plaintiff; 3) the statement harmed the reputation of the plaintiff; 4) the statement was published with some level of fault (actual malice or negligence); 5) the statement was published without any applicable privilege. An aspect of Donald Trump's public persona is that he is a hard-nosed, irascible, arrogant, self-serving businessman. That this is part of his attraction to the public was demonstrated by the increased television ratings for this TV show, Celebrity Apprentice, in which he shows off just those attributes that he has been said to have by the Post. He has not experienced injury in business or trade, nor has his esteem by peers been diminished in any way that he does not deliberately accomplish completely on his own.

Retrieved from http://www.dmlp.org/book/export/html/1813

8. Your blog investigating local pizzerias in the Village. A worker at Pepsi's Pizza, who seems fully reliable and unbiased, tells you on a first-hand and true basis that the owner uses old and rotten tomatoes to make his pizzas and on occasion makes the workers steal cheese from local groceries. He tells you this on a confidential basis (which you agree to) because he wants to publicize the unsafe and illegal practices of this boss, but, of course, is afraid to be named because he would be fired.

You publish the story. If the owner sues you for libel, are you in trouble?

Truth is an absolute defense against defamation (New York Times, Co. v. Sullivan, 376 U.S. 254 (1964) and (Time Inc. v. Hill, 385 U.S. 411 (1967). It is necessary for a plaintiff to produce convincing evidence of the falsity of a statement in order to prove defamation. Moreover, the law does not require that a statement be perfectly accurate, as the courts have held a standard known as the doctrine of substantial truth. The key is that the gist of the statement must be accurate. Moreover, the author of the blog could conceivable expressed the statement about the restaurant owners practices as a matter of opinion.

Substantial Truth. Digital Media Law Project. Retreived from http://www.dmlp.org/legal-guide/substantial-truth

9. The Daily Post published an article in print and on its website about a new large manufacturing plant in town, praising its new chairman. In response, Mr. Olds has written a letter rather negative to the editor to the newspaper which is published. It said that the article mischaracterized the plant, and that he has had personal dealings with the chairman, and that he was "a very aggressive manager who was very hard to work with."

Another response came from Mr. Nu, in a post which ran on the Daily Post's website community forum. The post also disagreed with the article, saying that Nu was an eyewitness to an incident where the chairman caressed his secretary, and that Nu was personally aware of an incident in which the chairman had accepted a contract with a contractor who also agreed to build his country house for free.

The chairman sued the Daily Post for libel. What are likely the legal outcomes and why?

The statements provided by the individuals who profess to have knowledge about the behavior of the CEO can be associated with per se defamation as they could be construed to impugn the professional character or standing of the CEO (presumed sexual harassment of the secretary), and to imply that the person has committed a crime of moral turpitude (presumed conflict of interest regarding the contractor). Moreover, letters to the editor are considered to be personal opinion and are published as so. Any issues regarding defamation and libel would be directed at the writers of the letters to the editor.

Substantial Truth. Digital Media Law Project. Retreived from http://www.dmlp.org/legal-guide/substantial-truth

10. Ted Teacher, a high school professor at a local private school, is being threatened with termination. In an article about him and is problems the "Everyone's Education Eye" blog runs a story which includes a paragraph stating that 20 years ago as a youth he was found guilty of stealing $15,000 from his uncle. Because of a careless error by a clerk, which was wrong; he only stole $5,000. The article also says that another teacher at the school, Lynn Lecturer, said she clearly saw Ted accept as gifts to Broadway shows from school parents hoping for higher grades for their children, in clear violation of school rules. "If Ted sues the blog, is the blog in trouble?"

The matter about the facts related to the amount of money that was stolen by the teacher would fall under the substantial truth doctrine in which minor inaccuracies of fact are ignored if they do not change the impact and thrust of what is being communicated. The problem is that crime was committed when the teacher was a youth -- ostensibly a juvenile offender -- and the protections around disclosure of juvenile offenses are geared toward fostering rehabilitation, which apparently has happened. The matter of the Broadway show tickets is a conflict of interest that should be addressed differently through the conflict of interest and disclosure policies of the school. Moreover, the teacher is not a public figure, and his duties are a matter for the private school to address. The Broadway ticket matter could be hearsay, and it has not been expressed in a tone that would indicate it is a private opinion. The blog could be held libel for damages to the teacher's professional reputation and loss of job.

Substantial Truth. Digital Media Law Project. Retreived from http://www.dmlp.org/legal-guide/substantial-truth

*Part II*

Answer the below questions (in numbered paragraph form) the legal issues you see arising from this scenario. Don't discuss relevance/irrelevance; some of this is hypothetical is somewhat attenuated. What actions will you take? What are the arguments on each side? What are the likely consequences and results?

Washington has been abuzz over rumors that threaten to choke the Presidency. Specifically, several newspapers have reported allegations that President Al Grass has been smoking and distributing marijuana in the Oval Office. In violation of federal law, it is alleged that he has been providing pot to various congressman in return for promises of support of his planned legislation, and to various corporate executives with an understanding that they would more than return the favor in the way of campaign donations.

1. A federal grand jury has been convened to look into these charges. One day you receive in the mail a transcript of secret grand jury testimony of one of the corporate executives which is very damaging to the President. It is authentic. It comes with a short note from a prospector you have used as a source before, Dave Throat. The note says, "I thought you would be interested in publishing this, but I can't have anything to do with it."

This is treading on very thin (attenuated) ice. Regardless of the authenticity, the secret grand jury testimony should remain "secret." Publishing this letter would obstruct the trial by jury process and make a mockery of the justice system. Newspapers are neither courtrooms or juries. For that reason, I would inform the judge in charge of the federal grand jury of the transcript that I received, and ask fro direction. I would keep a copy. Although it would be fascinating to publish excerpts from the transcript and scoop the story, taking the higher road is more likely to result in a just outcome. There is no First Amendment right of public access to grand jury transcripts, and disclosing any of the proceedings is forbidden, even after the court has made its decision. The reasons for this are multiple. Without the secrecy factor: 1) many witnesses would not testify; 2) witnesses would be unlikely to testify fully because of the possibility of retribution; 3) people who are likely to be indicted might flee or try to influence jurors in their favor; and, 4) people who are accused but not indicted are protected from the media and slander (Douglas Oil v. Petrol Stops Northwest). Retrieved http://www.rcfp.org/secret-justice-grand-juries/access-grand-jury-information-and-material#sthash.zzrugosF.dpuf

2. Before long the Secretary of Agriculture, Jim Farmer, is indicted for being the person to actually grow the pot for the President. At the outset of the criminal case against him, the federal judge issues a broad gag order: because of the flood of publicity about the case to date, it prohibits the media, as well as the lawyers and parties in the case, from disseminating or publishing any information about the case until a jury is selected and sequestered. One result is that you are getting very little information about what is going on in this criminal case; you can't even find out when the upcoming hearings or court dates are.

Too bad there is insufficient sharing [sic]. The whole point of the gag order is to ensure that a fair trial occurs and that the jury is not prejudiced through exposure to information that is not part of the evidence and proof that emerges during the trial. The dates of the hearings and the court dates will be published soon enough. However, if I am obsessively compelled, I can file a motion for access with the presiding judge -- before an indictment is issued. After an indictment, I could still move to intervene or become a party to the case. My interest in doing this would be to press for disclosure of grand jury materials on the basis that I am asserting the public's interest. The court can rule that I have no standing and not dismiss my request to intervene. Retreived http://www.rcfp.org/secret-justice-grand-juries/access-grand-jury-information-and-material#sthash.zzrugosF.dpuf

3. You do learn that a hearing has been scheduled to determine whether some marijuana leafs, which the prosecution wants to offer in evidence at the trial, will be admissible. The defense is arguing that the prosecution did such a sloppy job in maintaining the leafs that it cannot be proved that those marijuana leafs actually came from Mr. Farmer's plot. The defense moves that this pretrial suppression hearing be closed to the public and the press. Even though the marijuana leafs would be spectacular evidence (they are said to contain Mr. Farmer's fingerprints) for the prosecution, the prosecutors join in the motion for closure.

[Note: As any journalist worth her salt can attest, the plural of leaf is leaves -- not leafs.] I fail to see how the press is in a position to second guess the way evidence is produced in the courtroom, particularly when it has not been party to the proceedings. Justice does not proceed on hearsay and conjecture. That said, I could request the transcripts if they have been released to the defense during discovery. The perspective of the federal grand jury is that its proceedings must remain confidential "to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury," according to Rule 6(e)(6) of the Federal Rules of Criminal Procedure. The court is permitted to determine when records will be released. Retrieved http://www.rcfp.org/secret-justice-grand-juries/access-grand-jury-information-and-material#sthash.zzrugosF.dpuf

4. At the same time a sexual harassment case has been brought against one of the President Grass's aides, Stud Romeo, by a woman intern with whom he apparently smoked in the Oval Office when the President was traveling. In that case there are allegations that Mr. Romeo many years ago, as a college student, had similarly harassed some teen-age girls. A hearing is about to take place about whether these alleged incidents can be included in this case. In recognition of these girls' concerns about their privacy, and a state statute barring the publication of the name of a rape or sexual harassment victim, but balancing these with interests in openness, the judge has ruled that the hearing will be open, but that the reporters, in return for being allowed to attend, must agree not to publish the names of these harassment victims.

I cannot fathom what would be gained by publishing the names of the girls (now grown women) who were harassed. On the other hand, I can imagine all sorts of undesirable scenarios that would result from unauthorized publication of their identities. I would not be interested in publishing the names of the harassment victims as it is old news, and trying to dredge it up now would just be old news converted to bad news. While the courts generally agree that information available to the public can be reported by the media, access to information on crime and crime victims is also conditioned by local law enforcement agencies and how they interpret their duties. Each local law enforcement agency can make its own independent decisions about what information to keep secret and what information to share during an ongoing investigation. Retreived from http://www.mediacrimevictimguide.com/right.html

5. You are having difficulty finding a photograph of Stud Romeo whose looks are stunning. Finally, on an internet website of a local newspaper in the town where Romeo went to college four states away, you find an old photo of Romeo taken by its photographer, with the young girl he allegedly harassed identifiable in the background. You take the photos and put it in your paper.

It is highly unlikely that Getty Images would not have a recent photograph of a stunning government aide -- particularly one who is seemingly likely to enjoy having his picture taken (we are talking about a politician, here) and published (albeit, under more desirable circumstances). Permission to print the photograph of the young girl would certainly be recommended -- there are privacy issues -- given that her history with the aide was known to the reporter. I would either request permission from the woman, if it was possible to contact her, or I would obscure her image in the photo. Indeed, for still images and for videos of people who are in locations where they are not expected to have privacy, the images can generally be freely used (with the exception of schools, which are given special privileges by the courts). It is reasonable for people to expect that their faces or other identifiers will be obscured in file footage or stock photos in which they are likely to be viewed in an unflattering light. Retrieved from http://www.mediacrimevictimguide.com/right.html

6. You also take webgraph, from a 5-minute Fox video on a Fox -- TV website, of the best part of that video: it shows, albeit taken from a helicopter, Mr. Farmer tending to his marijuana plants on his land. Your editor is so intrigued by this that rents a helicopter and flies over Farmer's farm from only 500 feet high. Your photographer sees the pot plants, and also sees Mrs. Farmer lying topless at her swimming pool. Unfortunately, the photographer's camera malfunctions and none of the shots can be used.

Well, it's the Fox network. That about says it. The photographer can consider it his lucky day that he has been saved from his reckless impulses. A photographer is not an investigator, and there appears to be little need for Deep Throat level espionage. It ought to occur to the photographer that this scenario is so unbelievably unfettered that the FBI is doubtless flying around in their own helicopter, taking the photos that he missed. Good they did not crash. That said, I would remind our photographer that the court frowns on the use of telephoto lenses to create visual intrusion into private spaces. The matter of an expectation of privacy in one's own home is at issue here, so taking photos of people sunbathing in their own backyards is considered a violation of personal privacy, even if the photographer or videographer is not physically intruding where they are located. Retrieved from http://www.mediacrimevictimguide.com/right.html

7. Mr. Farmer's brother, to whom he speaks every day, owns a deli in New York City. It has been rumored that a lot of illegal sports gambling takes place in the store, and that the money earned from the operation helps finance Mr. Farmer's drug habit. The rumors have never been confirmed, and Mr. Farmer's brother has always denied them. You decide the only way to get to the bottom of this is to take a hidden camera into the store and film the activities there. You pretend to be hungry and order a bunch of heroes; you don't tell the sandwich man that you are a journalist.